Monitoring of the trial of Alena Blokhina and Vitaly Blokhin (hearing dated 09/07/2021)

On September 7, 2021, in the Veselinovsky District Court of the Nikolaev region, a court hearing was held in the case of Alena Blokhina and Vitaly Blokhin, who are charged with the use (by a group of persons by prior conspiracy) of funds obtained from the illegal circulation of narcotic drugs, psychotropic substances, their analogues, precursors, poisonous or potent substances or poisonous or potent medicines in order to continue their illegal circulation (Part 2 of Article 306 of the Criminal Code of Ukraine), as well as illegal production, manufacture, acquisition, storage, transportation or shipment for the purpose of sale, as well as illegal sale of narcotic drugs, psychotropic substances or their analogues by an organized group (Part 3 of Article 307 of the Criminal Code of Ukraine).

There are four accused in the case, the criminal prosecution against them began on 08/09/2017. Based on the statements received from the Unified Register of Court Decisions, the indictment was submitted to the court on February 18, 2019. According to the same statements, court hearings in this proceeding are held every two months in order to extend the measure of restraint for the accused, and not for the purpose of objective consideration of the case.

Regarding the measure of restraint. According to Alena Blokhina, during the pre-trial investigation, a measure of restraint in the form of detention was chosen in relation to her and her husband Vitaly Blokhin. Alena Blokhina was in jail for 10 months, and her husband for 1 month. Note that, according to Vitaly Blokhin, during his stay in the pre-trial detention center, he was attacked more than once by the employees of the pre-trial detention center. On July 2, 2019, by the decision of the Veselinovsky District Court of the Nikolaev Region, the measure of restraint for Alena Blokhina was changed to house arrest. Vitaly Blokhin after a month in the pre-trial detention center was released on bail.

As of today, Alena Blokhina’s right to freedom is limited, for two years she has been continuously under house arrest. The International Society for Human Rights has studied all court decisions regarding the extension of the measure of restraint for the accused. The content of most decisions in terms of risks and their justification is identical: “…. Is suspected of committing a grave crime, for which a punishment is imprisonment for a term of 9 to 12 years with confiscation of property, may unlawfully influence other suspects in criminal proceedings, may commit other criminal offenses …”. The only justification for the risk of committing another criminal offense referred to by the court is the defendant’s lack of employment. The ISHR experts express their concern about the current situation in this criminal proceeding. Article 5 of the ECHR contains a key element in the protection of human rights – personal freedom. Personal freedom is a fundamental condition that everyone should enjoy. Its deprivation has a direct, adverse effect on the enjoyment of many other rights, such as the right to employment. In addition, the use by the court in its decisions of such a category as “the severity of the charge” is unacceptable after two years of judicial review. The ECtHR has developed a well-established case law and formulated the main legal positions regarding the requirements that states (national courts) must comply with in accordance with Paragraph 3 of Article 5 of the ECHR. In particular, the practice of the ECtHR determines that the existence of a reasonable suspicion of a serious crime committed by the accused may initially justify detention, but the gravity of the charge cannot in itself justify long periods of detention (“Echus v. Lithuania”, para. 68). Note that the ECtHR regards house arrest as a form of restriction of freedom. Deprivation of liberty is not limited to the classic cases of detention by arrest or conviction, but can take many other forms (“Guzzardi v. Italy”, para. 95).

Regarding violation of the right to defense. At the stage of the pre-trial investigation, the right of the accused Alena Blokhina to receive legal assistance was violated. Thus, law enforcement agencies conducted a search in the house of the accused, not allowing a lawyer to be present. According to Alena Blokhina, she asked the investigators to give her the opportunity to call a lawyer, because she needs legal assistance, to which the investigator told her: “You no longer need a lawyer, you will be in prison for 10 years, and then you will talk to a lawyer”. Any person facing a criminal charge must be protected in accordance with Article 6, Paragraph 3 (c), at any stage of the proceedings (“Imbrioskia v. Switzerland”, para. 37). Thus, protection may be needed even before the case is sent to court, since the fairness of the proceedings may be violated even before the trial of the case in court begins (“Ocalan v. Turkey”, para. 131; “Imbrioskia v. Switzerland”, para. 36; “Magi v. The United Kingdom”, para. 41).

The ISHR experts insist that legal aid should be available at all stages of the consideration of criminal proceedings, in particular, it is crucial to provide immediate access to legal aid at the early stages of the criminal proceeding for all persons suspected or accused of committing crimes. The investigation stage is especially important for the preparation of the criminal proceeding, since the evidence obtained at this stage determines the framework within which the charges will be considered in court (“Salduz v. Turkey”). The ECtHR also noted “the particular vulnerability of the accused in the early stages of the proceedings when he confronts a stressful situation and increasingly complex criminal legislation (“Nechiporuk and Yonkalo v. Ukraine”, para. 263). For the right to a fair trial to remain sufficiently practical and effective, Paragraph 1 of the Article 6 of the ECHR requires suspects to have access to a lawyer (“Shabelnik v. Ukraine”).

Note that the absence of a lawyer during the search is a gross violation of human rights, which means that the search protocol should be recognized as inadmissible evidence and should not be taken into account by the court when making a decision.

The principle of the reasonableness of the terms of judicial review. Alena Blokhina repeated more than once in the court session “how much longer will it take for the court to pass a decision”. The experts of the ISHR cannot state the fact of violation of the principle of reasonableness of the terms of judicial consideration, since in 2020-2021 quarantine restrictions are in place, which greatly complicates the work of the courts. But nevertheless, as already noted in this report, this criminal proceeding is characterized by a tendency to hold court sessions solely on issues of the measure of restraint, and not on the merits of the case.

At this hearing, the court granted the prosecutor’s petition to extend the measure of restraint in the form of house arrest for 3 accused, including Alena Blokhina. The petitions contained all the same risks as indicated above in this report. The day before the hearing 09/06/2021 Alena Blokhina filed a petition to change the measure of restraint from house arrest to personal obligation. In support of the stated petition, she pointed out that there was no compelling evidence in the case file that she had committed the alleged criminal offenses. In addition, she indicated that she has a permanent place of residence, strong social ties, fulfills the requirements of the court and law enforcement agencies, and therefore believes that the measure of restraint in the form of house arrest should be changed to a softer one – a personal obligation. The court, in its decision to extend the measure of restraint in the form of house arrest, indicated the presence of this request in the case file, but did not consider it in essence and did not give it an assessment. In addition, the court considered Alena’s Blokhina petition to return the temporarily seized property, namely, to return the bracelet of the accused, which was seized during the search. The court did not satisfy the petition, noting that there is still a need to examine the material evidence.

The ISHR experts express extreme concern about the fairness of this trial, since when studying the court decisions, communicating with the accused, and during monitoring of the trial by the observer, we identified a number of gross violations of human rights.

The ISHR experts will continue to monitor this trial to clarify all the details.