We went to another court session in the case of Anna Babych about the deprivation of her driving license, although it would seem there should not have been any more sessions. And also, we have got the video from the policemen’s body cameras.

Last year, we wrote about the administrative case of Anna Babych, a partner of AEQUO, England and Wales solicitor. The court deprived her of her driving license because she refused to take a breathalyzer test.
The link to this administrative case was sent to us anonymously by several people (or one person with different accounts — we don’t know). Without the anonymous report, we would hardly have known about this case.
The anonyms told us the details of Anna’s stop, it seemed that the person writing to us was either present during it or saw the video. Since we could not verify the information because we did not have a video, we wrote the first material only about the very fact of deprivation of license and the reasons given by the court in their decision.
We also asked Anna to comment on this story before the first publication. Anna did not comment on the text but wrote a separate message, here you may read it.
Later, the appeal decision was published, and it contained much more information about the very moment of the stop and Anna’s communication with the police. The appeal partially confirmed the information we previously received anonymously. But we deliberately did not write a separate article about the appeal because it did not provide much new information.
Later, the appeal decision appeared, which contained much more information about the very moment of the stop and Anna’s communication with the police. The appeal partially confirmed the information we previously received anonymously. But we deliberately did not write a separate article about the appeal because it did not provide much new information.
Anna appealed the court’s decision based on the newly discovered circumstances, and it was an interesting turn since this procedure is not provided for in the Code of Ukraine on Administrative Offenses. So, on February 21, our reporter Oleksiy Chernetsky attended the meeting where the court made its decision.
And the video: we finally got it so that anyone can make up their own mind.

In support of the complaint, the defense referred to the decision of the ECtHR in the case “Shvydka v. Ukraine” (about a defiant pensioner who was given 10 days of arrest under the Code of Ukraine on Administrative Offenses for cutting off a ribbon from Yanukovych’s wreath). In it, as in a number of other cases, the ECtHR classified proceedings in the case of an administrative offense as “criminal” within the meaning of the Convention, based on the essence of the act and the punishment applied. And in criminal proceedings, as we know, it is possible to review cases based on newly discovered circumstances. By the way, the ECtHR also regularly criticizes our Code on Administrative Offenses, which does not find a place for a prosecutor, and the role of the prosecution, in fact, rests with the court.

This time Anna was defended not by lawyer Kolomiychuk, who lost the case in the first instance, but by AEQUO partner Olena Pertsova. Anna did not come to the session, but the judge offered her to join the court session via video link. But the defender could not contact her client, so the hearing was held without Anna.

What circumstance did the defense consider newly discovered?

The defense, with the help of experts, conducted an examination of the recording from the policeman’s video recorder and established that the recording was carried out, how to say, fragmented.

In the case file, there are three recordings from body camera AA-00415: the first from 21:45–21:49, the second from 21:52–21:55 and the third from 22:18–22:26. Here they are, by the way:

It is unclear how it happened that the shooting was done in more than one take. Maybe the patrol officers turned off the camera at certain moments. Perhaps the cameras did not have the necessary amount of charge to keep shooting all the time. It is possible that the patrol officers did not communicate with Anna Babuch in the moments that were not caught on video. As you can see, the defense has a question™. But Anna’s defense is not activists, so they also have an answer: someone deliberately edited the video.

By the way, according to Pertsova, the reason for the stop was that Anna allegedly did not turn on the turn signal (although in her response to our publication last year, Anna wrote that the reason for the stop was the wrong way through the intersection). She told the police: no problem, let’s pay the fine through Diia. After that, they started checking her for intoxication. The moments about the turn signal and Diia were not included in the video.

The court of first instance indicated that Ms. Babych had signs of alcohol intoxication: the smell of alcohol from her mouth, a reddened face. We watched the videos provided by the defense without odor, in black and white tones. So the only thing that is absolutely clear from the video is that:

the police insisted on taking a breathalyzer test, and Ms. Babych insisted on the presence of her lawyer;
communication between the characters of this video can be described as a complete disconnection: everyone insisted on their own and did not really want to hear the other side;
Anna held herself like a steel lady and did not relieve the pressure;
nevertheless, between the phrase “I’m not refusing, but I’m waiting for a lawyer,” Anna told the policeman: “I’m not going to breathe into your piece.”

If there is a cut version of the video in the case file, where is the full version — this question was never answered.

As expected, the court rejected Anna Babich’s application for revision and creative reading of the Code on Administrative Offenses. But, it seems that is not all, and we are waiting for an appeal to the ECtHR.

We asked Anna’s defense attorney to comment on this post, but three weeks have passed, and we have not received a response to our request. However, we will be happy to add a comment after this publication.

And one more important disclaimer (we know you’re tired of disclaimers). With this publication, we do not want to say anything; we do not want to show, punish, teach, or instruct anyone. On the pages of our dead magazine, we talk about what is happening in the legal market of Ukraine and the world; sometimes, we draw conclusions from it, and sometimes, like now, we do not. We could not pass by this story. Because we are an industrial media and within the framework of our legal ecosystem, this is an important event. Those who believe that such texts have no place in our publication will be pleased to know that three out of eleven people on our board were against publication (one person did not vote); we agreed that we would publish and indicate that Svitlana Panaiotidi, Volodya Petrakovskyi, and Dima Foremnyi spoke against it.