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PRACTICE IS THE SOLE CRITERION OF TRUTH

There is no one right way to respond to all juridical confrontations, but if Client’s legal rights or freedoms require effective remedies, such juridical methods are applied successfully by Attorney Sergey Negolshov, calling forth achievement of the best possible positive legal results for Clients in each individual case even in Ukrainian courts (well renowned for their «justice», where evidence and legality just weren’t very important considerations: some criminal courts judges would put themselves in the prosecution’s shoes and apriori presupposed guilty of an accused and where the principle of comprehensive researching of available evidence strictly on the Law basis often was «forgotten» by some judges during civil/economic trials).

Stated professional competence and thinking standard had definitively been proved in practice at the tough legal battles, which were handled by Attorney Sergey Negolshov for Clients as shown below at records for some notable distinctive positive outcomes.

 

THE SIGNIFICANT SUCCESS IN A COMMERCIAL TRIAL

A Client (a legal entity – the leaser of the integral property complex, which belonged to the municipal property) had made improvements of the leased commercial realty during the term of the lease agreement that caused the value and composition increasing of the mentioned immovables.

Due to the absence of the lessor’s funds for compensation of the tenant’s costs incurred on the leasehold improvements, the lawsuit was filed by Attorney Sergey Negolshov with claims for recognizing the Client as the co-owner of the integral property complex, with the relevant legal share in the joint property on the integral property complex at a ratio, which is equivalent to the value of expenses incurred by the Client in connection with the lawful improvement of the municipal property.

Attorney Sergey Negolshov lodged the suit for the Client, obtained and produced to the Court the indisputable evidence of executing of the leasehold improvements in the estate that caused creation of the qualitatively new asset on the base of the leased immovables, and proved the legitimacy of the Client’s recognition as the co-owner of the integral property complex.

During the trial, the defendant (an executive body that manages the municipal property) objected to the claim without adducing any proof and did not provide evidence to refute the claim of the Client, however, such procedural conduct of the responder did not prevent the Economic Trial Court from unfairly refusing to satisfy the claim.

In fact, the Trial Court had considered the case without a comprehensive study of the evidence presented by the plaintiff, with violation of the procedural Law, as the court decision was based exclusively on unsubstantiated objections of the defendant, while none of the evidence of Attorney Sergey Negolshov, presented to the Trial Court for Client, had not been refuted or declared inadmissible during the process.

Later the Economic Court of Appeal agreed with Attorney Sergey Negolshov’s appeal for the Client, re-considered the case, overturned the unjustice decision by the Economic Trial and complied with stated demands, having recognized the Client as the co-owner of the integral property complex with the legal share in the joint property equal to 44.58 percent.

The court decision on the recognition of the Client, which was presented by Attorney Sergey Negolshov, as the co-owner of the integral property complex (which had been owned by the municipality in whole before the trial) has entered into force; the full text of the said final judgment can be found here.

 

THE TOTAL ACQUITTAL IN A SERIOUS TAX EVASION & MALFEASANCE CRIMINAL TRIAL

A Client (as an official, the CEO for a business entity) was indicted for committing a large-scale tax evasion and official forgery (that constitute the multiple counts provided by Part 2 of Art.212 and Part 2 of Art.366 of the Criminal Code of Ukraine).

During a biased and accusatory character pretrial investigation, the Client was detained on charges for 10 days and, because of this circumstance, pleaded guilty to the accusation partially. On demand of the investigator, the tax audit of the company’s activity was conducted, allegedly establishing the fact of company’s failure in tax payment on a large amount; a tax authority officer, who conducted the mentioned audit, was questioned as a witness at the pretrial investigation and stated on the presence of the fact of the company’s failure in tax payment on a large amount. On demand of the investigator, the special forensic accounting was conducted, supposedly establishing the fact of company’s failure in tax payment on a large amount; the experts, who conducted the mentioned examination, were questioned as witnesses at the pretrial investigation and stated on the presence of the company’s failure in tax payment on a large amount. Manipulating emotional state of the person and the mentioned proofs of the charges, investigators and prosecutors systematically used to press mentally the accused to admit the guilt completely, promising to make an influence on the court to sentence the defendant to the minimum punishment for the crimes.

Attorney Sergey Negolshov undertook the Client’s defense when the charges had already been brought to the Trial Court for consideration on the merits and later he (on the evidence researching) convinced the Client to retract the confession and to deny all charges at the trial.

At the trial, the Attorney convincingly proved the absence of the corpus delicti at the Client’s activity and inadmissibility of all the evidence of the Prosecution seemingly corroborating the charges: as a result of the Attorney’s trial examination of the prosecution witnesses (a tax authority officer, who had conducted the tax audit, and experts, who had made the forensic accounting) the impropriety of all their pretrial investigation testimonies was proved; in consequence of researching of the tax audit conclusion and the forensic accounting decision (which had been obtained by the Prosecution at the pretrial investigation and allegedly established the fact of company’s failure in tax payment on a large amount) they were confuted as the documentary evidence to the case.

Attorney Sergey Negolshov requested justification for the Client, but, in spite of providing the direct indisputable evidence, that proved the Client’s innocent of the charges, the Trial Court on its own initiative returned the Client’s criminal case to the prosecution for additional investigation due to the incompleteness and narrowness of the pre-trial investigation, which had been conducted earlier by the same Prosecutor. In other words, the Trial Court said that any evidence of the charge against the Client had not been obtained at the pretrial investigation, but the Court would give the Prosecutor the second opportunity to substantiate the accused’ guilty. In fact, the Trial Court withdrew itself from the pursuit of justice and, acting as a co-prosecutor at the criminal process, a priori recognized the Client guilty of the alleged crimes – the Trial Court without having any proofs was sure of Client’s guilty, obviously putting itself in the prosecution’s shoes.

Later, the Court of Appeal agreed with Attorney Sergey Negolshov’s appeal for the Client, overturned the unfair decision by the Trial Court on returning the Client’s criminal case to the Prosecutor for duplicative investigation and returned the charges to the Trial Court for a new retrial.

During the SECOND new retrial on the merits on charges against the Client the Trial Court had been examining again all available cumulative before trial proofs of the charge; on the results of the researching, all of them were confuted again by Attorney Sergey Negolshov.

In accordance with Ukrainian Criminal Procedural Law, the trial had to be held only on cumulative before trial evidence of the charges and the Prosecutor was not empowered to provide any new proofs of guilty to the court, but this rule for unknown reasons was not applied by the judge in the Client’s case — on the Prosecutor’s petition to the Trial Court a repetitive forensic accounting was assigned and the court, actually acting in the interest of the prosecution, took the procedural decision for collection of evidence instead of the dispensation of justice on the charges against the Client.

But exculpatory evidence for the Client, which had been provided to the Trial Court by Attorney Sergey Negolshov, played their role — the expert (who later was interrogated at the trial) made the report, that it hadn’t been possible for him to establish the fact of the company’s failure in tax payment on a large amount relying on the evidence, existing in the Client’s criminal case materials.

This circumstance would be far enough for any impartial court to justify any defendant – but not as for the Client’s case — the Trial Court (even without Prosecutor’s petition while ignoring the objections of the defense) had made its own initiative for collecting further evidence on the company’s commercial activity (which was managed by the Client); the said additional proofs were requested and added to the criminal case materials.

Following, the Criminal Procedural Code of Ukraine was forgotten in the Client’s case again – the Prosecutor had made the next petition to the Trial Court, which, in spite of the Attorney’s objection, was satisfied once more and the supplementary commission forensic accounting was assigned in the case by the Trial Court.

Once again exculpatory evidence for the Client, which had been provided to the Trial Court by Attorney Sergey Negolshov, played their role – the experts (who later were interrogated at the trial) made the report, that it hadn’t been possible for the commission of experts to establish the fact of the company’s failure in tax payment on a large amount relying on the evidence (including additional), existing in the Client’s criminal case materials.

The said report of the commission forensic accounting might be the categorical lawful basis for rehabilitation of any defendant – but not as for the Client’s case, where the Trial Court actually acted as a «subsidiary body» of the prosecution — in spite of providing the direct indisputable evidence that proved the Client’s innocent of the charges, the Trial Court satisfied the successive petition of the Prosecutor and returned (reiterated for the SECOND time in a row) the Client’s criminal case to the prosecution for duplicative investigation due to the incompleteness and narrowness of the pre-trial investigation earlier conducted by the same Prosecutor.

So, the fact is, the Trial Court for the SECOND time in a row withdrew itself from the pursuit of justice and acted in favor of the prosecution – the Trial Court, without having any proofs of the Client’s alleged crimes, while having undisputed exculpatory evidence for the Client, simply refused to acquit the Client.

Later the Court of Appeal agreed with Attorney Sergey Negolshov’s appeal for the Client, overturned the unfair decision by the Trial Court on returning the Client’s criminal case to the prosecution for additional investigation and SECONDLY returned the charges to the Trial Court for a new retrial.

During the THIRD new retrial on the merits on charges against the Client the Trial Court had examined all available cumulative proofs again; in consequence of researching evidence for the prosecution, all of them were refuted again by Attorney Sergey Negolshov.

Attorney Sergey Negolshov requested justification for the Client.

Realizing persistence of the Client and the inevitability of the lawful judgment, the Prosecutor dropped the charges against the Client in committing of tax evasion on large amounts; but subsequently, the Prosecutor dropped his refusal from the charges he had already denied and returned to the initial accusation.

At the end of the FOUR-YEAR trial, the Trial Court agreed with Attorney Sergey Negolshov’s rational arguments and the Client was absolutely exculpated by the Court due to the absence in the Client’s actions of the corpus delicti of large-scale tax evasion as well as the absence of the corpus delicti of official forgery (that constitute the multiple counts according to Part 2 of Art.212 and Part 2 of Art.366 of Ukraine’s Criminal Code).

The acquittal of the Client has entered into force; the full text of the said final judgment can be found here.

 

P.S. According to the statistics provided by Ukrainian state court administration, THE PROBABILITY OF ACQUITTAL FOR THE DEFENDANT IN UKRAINE WAS LESS THEN 0,5 PERCENT.

 

THE TOTAL REHABILITATION IN A GRAVE PROFESSIONAL MISCONDUCT CRIMINAL TRIAL

A Client (as an official, the Head of a structural unit for a business entity) was charged with violation of the labor protection legislation that caused the death of a person (that constitutes a serious crime provided by Part 2 of Art.272 of the Criminal Code of Ukraine).

During a biased and accusatory character pretrial investigation the Client denied the allegations, but the Prosecutor substantiated the charges on prosecution witnesses’ statements, victims’ testimonies, on the decision of a forensic examination and on documental evidence.

Attorney Sergey Negolshov undertook the defense of the Client when the matter had already been brought to the Trial Court for consideration on the merits.

During the trial, the Client also pleaded not guilty.

Attorney Sergey Negolshov convincingly proved the absence of the crime and inadmissibility of all evidence of the Prosecution seemingly corroborating the charge: as a result of the Attorney’s interrogating of the prosecution witnesses at the trial, they all swore to, that there were no any violations of the labor protection legislation in the Client’s official activity, that might have produced the death of the subordinate; in consequence of researching the documental evidence and victims testimonies, some of them were not found relevant to the case and other were confuted by the defense.

Attorney Sergey Negolshov requested justification for the Client, but, in spite of providing the direct indisputable evidence, that proved the Client’s innocent of the charge, the Trial Court on its own initiative returned the Client’s criminal case to the same Prosecutor for additional investigation due to the incompleteness, narrowness and accusatory bias of the pre-trial investigation conducted by the Prosecutor, as well as the absence of evidence of the established causal link between the Client’s acts and negative consequence in the form of his subordinate’s death. In other words, the Trial Court recognized, that all evidence of the Prosecution had been confuted by the Attorney at the trial and the Client had to be acquitted, but the Court would give the Prosecutor the second opportunity to substantiate the accused’ guilty. In fact, the Trial Court withdrew itself from the pursuit of justice and, acting as a co-prosecutor at the criminal process, a priori recognized the Client guilty of the alleged crimes – the Trial Court without having any proofs was sure of Client’s guilty, obviously putting itself in the prosecution’s shoes.

Moreover, later the Court of Appeal acted in the way, which seems to be unique at Ukrainian jurisprudence: upholding the appeal, which was lodged and handled by Attorney Sergey Negolshov for the Client, the Court of Appeal reversed an unfair decision by the Trial Court on the Client’s criminal case returning to the Prosecutor for additional investigation, but at the same court ruling, without examining the evidence in the criminal case, a priori had established the presence of the corpus delicti of the crime the Client was charged with, and almost directly ordered the judge of the first instance to sentence the Client on the charge; the mentioned ruling of the Court of Appeal was final and couldn’t be revised by the upper court in accordance to the Criminal Procedural Law, so the criminal case on the mentioned charge with was returned to the Trial Court for a new retrial in the same composition of the court.

Such flagrant violation of Ukrainian Criminal Procedural Law by the Court of Appeal had a quite surprisingly consequence even in Ukrainian court — the judge of the Trial Court, who had held the previous consideration of the criminal case against the Client, recused himself from the new consideration of the charge against the Client due to the presence in the Court of Appeal’s ruling the direct order to the Trial Court to convict the Client on the indictment; the Client’s case was transferred to another judge for consideration, but the said Court of Appeal’s order of conviction was not forgotten as described below.

During the SECOND new retrial on the merits on charges against the Client the new judge of the Trial Court had examined all the same available cumulative before trial evidence for the prosecution again; in consequence of researching, all of them were confuted again by the Attorney, so there were no any other proofs of guilty against the Client in the case, but it was not an obstacle for the Trial Court, which had the Court of Appeal’s direct order to convict the Client on the indictment.

In accordance with Ukrainian Criminal Procedural Law, the trial had to be held only on cumulative before trial evidence of the charge and the prosecution was not empowered to provide any new proofs of guilty to the court, but it wasn’t actual as for the Client’s case – the Trial Court, in spite of the defense’s objection, assigned a forensic engineering and technical expertise on the Prosecutor’s petition; so, the court actually took the procedural action for collection of evidence against the Client instead of dispensation of justice on the charge.

Later, by a strange concurrence, in spite of exculpatory evidence for the Client, which had been provided to the Trial Court by Attorney Sergey Negolshov, the experts made a report, where all of them (three skilled persons, who had been warned on criminal liability for obviously wrong conclusion) uniquely stated, that the Client had committed the numerous violations of the labor protection legislation in his official activity that caused the death of the subordinate at the works execution.

Thus, the judge, neglecting the procedural order, helped the Prosecutor to provide the Trial Court with absolutely new additional evidence against the Client and the Trial Court accepted it without any objections, obtaining the serious proof of the Client’s guilty in the alleged crime.

The only way to confute the said evidence (the forensic engineering and technical expert report) was the appropriate interrogation of the experts at the trial and Attorney Sergey Negolshov, against the obvious substantial counteraction of the judge (the judge conducted proceedings with a biased and accusatory character approach, repeatedly violated the Client’s and the Attorney’s procedural rights and rejected all reasonable recusals, lodged and handled by Attorney Sergey Negolshov for the Client, the experts numerously neglected the court’s summons without any reaction of the court, the judge repeatedly withdrew the questions of the Defence to the interrogated and often simply stopped the questioning when the experts’ utter confusion because of the Attorney’s question was obvious), had done it — acting for the Client, the Attorney consistently interrogated all the experts, who had made the forensic engineering and technical expertise; by virtue of their sworn testimonies gained by means of numerous interrogations throughout six months, the inconsistency of their expert report was ascertained, that was convincingly proved as the inadmissible evidence to the criminal case even for the said judge — the experts stated, that among other numerous infractions, during conducting the expertise they all simply «had forgotten» to take into consideration the incontrovertible exculpatory evidence for the Client, which previously had been added to the criminal case materials by the defense, and their examination had been conducted entirely on evidence for the prosecution.

Actually, there were no any inculpatory evidence in support of the charge in the criminal case against the Client and this circumstance would be far enough for any impartial court to justify any defendant – but not as for the Client’s case: in spite of providing the direct indisputable evidence that proved the Client’s innocent of the charges, the Trial Court ruled the conviction against the Client, according to which the Client was found completely guilty of committing the violation of the labor protection legislation that produced the death of a person (a serious crime under Part 2 of Art. 271 of the Criminal Code of Ukraine) and sentenced to 4 years of imprisonment with a probation period of 3 years and deprivation of the right of holding decision-making positions in companies for the 2 year period.

That was how Ukrainian justice actually worked – when the Prosecutor unreasonably stated the guilt of the defendant and the Court of Appeal violating proceedings, without examining the evidence in the criminal case, directly ordered the judge of the lower court to convict the accused, the Trial Court notwithstanding any evidence and statements of the defence inevitably convicted the guiltless.

But even in such losing situation, Attorney Sergey Negolshov managed to change the Client’s criminal case, which seemed hopeless, — the Court of Appeal upheld the Attorney’s appeal for the Client and vacated the said unjust accusatory sentence by the Trial Court due to its non-motivation, understudiedness of the objective and subjective aspects of the crime under Part 2 of Art.271 of the Criminal Code of Ukraine by the court, the absence of reasonable conclusion of the court on the Client’s fault at committing the alleged crime; the criminal case on the mentioned charge was returned to the Trial Court for a new consideration in another composition of the court.

During the THIRD new retrial on the merits on charges against the Client the Trial Court had examined all available cumulative before trial and trial evidence for the prosecution again; in consequence of researching, all of them were confuted again by the Defense.

Attorney Sergey Negolshov reiterated the absence of the alleged crime in the Client’s deedsand there were no any inculpatory evidence in support of the charge in the criminal case against the Client — that circumstances would be far enough for any impartial court to justify any defendant – but not as for the Client’s case: the Prosecutor launched the petition on returning the Client’s case for additional investigation and the Trial Court, neglecting all objections of the defence, habitually returned (reiterated for the SECOND time in a row) the Client’s criminal case to the same Prosecutor for duplicative investigation due to the incompleteness and narrowness of the pre-trial investigation conducted by the Prosecutor, that impeded the court to establish the presence of objective and subjective aspects of the alleged crime.

So, it was an ordinary way of criminal case consideration in Ukrainian courts — in spite of presence the direct indisputable evidence that proved the Client’s innocent of the charge, the Trial Court had never justified the defendant when the Prosecutor requested for the duplicative investigation to rectifying the investigation errors in the criminal case.

In fact, the Trial Court had given the Prosecutor the second opportunity to substantiate the accused’ guilty and once again withdrew itself from the the dispensation of justice and, acting as a co-prosecutor at the criminal process, a priori recognized the Client guilty of the alleged crimes – the Trial Court, without having any proofs, was sure of Client’s guilty, obviously putting itself in the prosecution’s shoes.

Later the Court of Appeal agreed with Attorney Sergey Negolshov’s appeal for the Client, overturned the unfair decision by the Trial Court on returning the Client’s criminal case to the Prosecutor for duplicative investigation and for the THIRD time in a row returned the charge to the Trial Court for a new retrial.

The FORTH new retrial on the merits on charges against the Client was the shortest at the whole cycle of the consideration – the Prosecutor at the very first court hearing launched the petition on returning the Client’s case for additional investigation and the Trial Court didn’t even bother itself to examine the evidence for the charge: the judge, neglecting all objections of the defence, habitually satisfied the SECOND successive petition of the Prosecutor and for the THIRD time in a row returned the Client’s criminal case to the same Prosecutor for duplicative investigation due to the incompleteness and narrowness of the pre-trial investigation conducted by the Prosecutor, that impeded the court to establish the presence of objective and subjective aspects of the alleged crime.

Everyone is invited to make own substantive assumption on abovementioned procedural decisions of the judge and the Prosecutor in the Client’s case, but the fact is that later, upholding the appeal, which was lodged and handled by Attorney Sergey Negolshov for the Client, the Court of Appeal overturned the manifestly unfair decision by the Trial Court on the Client’s criminal case returning to the Prosecutor for additional investigation and for the FIFTH time in a row returned the charge to the Trial Court for a new retrial.

During the FIFTH new retrial on the merits on charges against the Client the Trial Court had examined all available cumulative before trial and trial evidence for the prosecution again; in consequence of researching, all of them were confuted again by the Defense.

Attorney Sergey Negolshov requested justification for the Client and, at last, the Client, who emphatically had been stating his guiltless in Ukrainian courts for six years and the inevitability of the lawful judgment, was acquitted by the Trial Court due to the absence of the crime of the violation of the labor protection legislation that produced the death of a person (that constitutes a serious crime provided by Part 2 of Art.212 and Part 2 of Art.366 of the Criminal Code of Ukraine), but the Court’s decision was so poor from the side of its legal motivation (that obviously threatened to legality of the acquittal in higher courts) that it was subsequently vacated by the Court of Appeal on upholding the appeal by the defence.

The Court of Appeal overturned the acquittal by the Trial Court on the Client’s criminal case and for the SIXTH time in a row returned the charge to the Trial Court for a new retrial.

During the SIXTH new retrial on the merits on charges against the Client the Trial Court had examined all available cumulative before trial and trial evidence for the prosecution again; in consequence of researching, all of them were confuted again by Attorney Sergey Negolshov.

In accordance with Ukrainian Criminal Procedural Law, the trial had to be held only on cumulative before trial evidence of the charge and the prosecution was not empowered to provide any new proofs of guilty to the court. Thus, proving the absence of the crime and inadmissibility of all evidence of the Prosecution seemingly corroborating the charge inevitably would be far enough for any impartial court to justify any defendant – but not as for the Client’s case: the Prosecutor launched the petition on the second forensic expertise at the case and the Trial Court, acting in Prosecutor’s course, as usual, assigned the repetitive commission forensic engineering and technical expertise in the criminal case against the Client.

But exculpatory evidence for the Client, which had been provided to the Trial Court by Attorney Sergey Negolshov, played their role — the experts (who later were interrogated at the trial) made a report, according to which it was not possible for the experts to establish the fact of violation of the labor protection legislation in the Client’s official activity, that might have caused the death of the subordinate at execution of the works.

Hereby, taking into consideration the mentioned expert report, the Client, who initially stated his guiltless, actually had been suffering from the unsubstantiated criminal prosecution during seven years and, even more, was sentenced unlawfully by «unbiased» Ukrainian Court to four years of imprisonment for the crime that had not even existed.

At the end of the SEVEN-YEAR trial, realizing persistence of the Client, who was defended by Attorney Sergey Negolshov, and inevitability of the lawful acquittal judgment, the Prosecutor dropped the charges against the Client due to the absence of the corpus delicti of violation of the labor protection legislation that caused the death of a person (that constitutes a serious crime provided by Part 2 of Art.272 of the Criminal Code of Ukraine) in the Client’s actions and the Trial Court, irrevocably rehabilitating the defendant, closed the criminal case against the Client.

The final judgment for the Client has entered into force; the full text of the said final ruling can be found here.

 

THE NOTABLE TRIUMPH IN THE EUROPEAN COURT OF HUMAN RIGHTS  

A Client (as an accused in a criminal case on serious charge) had faced the rude violations of his right to a fair trial (Article 6 of the European Convention on Human Rights) and right to an effective remedy (Article 13 of the European Convention on Human Rights), which had been committing by Ukraine (in the criminal courts of Ukraine) during criminal proceedings against him, but, in view of the continuing trial against the Client when the final decision hadn’t been taken yet and all domestic remedies hadn’t been exhausted, his matter didn’t comply formally with admissibility criteria (Article 35 of the European Convention on Human Rights) and the Client’s individual application might not be officially accepted by the European Court of Human Rights for consideration.

Attorney Sergey Negolshov had undertaken the Client’s issue, collected evidence and properly juridically substantiated the individual application for the Client in such way, that the European Court of Human Rights fully recognized admissibility of the Client’s application and launched the Client’s case examination.

As a result of the THREE-YEAR consideration of the Client’s individual application, Ukraine (as a state) was found guilty of breaching of Article 6 and Article 13 of the European Convention on Human Rights against the Client, who was presented by Attorney Sergey Negolshov, and the Client (as an injured party) was awarded a just money satisfaction in accordance with the ECHR’s final judgment, which text can be found here.