Monitoring the case of Konstantin Chernyshov (session 11.12.2019)

On November 12, 2019, a hearing was held in the Ordzhonikidze district court of Kharkov on charges of Konstantin Chernyshov for committing criminal offenses under Part 1 of Art. 111, part 1, article 263 of the Criminal Code of Ukraine.

Konstantin Chernyshov is accused of treason. According to the SBU, the inspector of the patrol police response sector, Captain Chernyshev, was recruited in 2014 by the special services of the Russian Federation and transmitted information that is a state secret.

During the trial, the defense submitted a number of petitions:

  • On the recognition as unacceptable evidence obtained as a result of covert investigative actions, namely audio, video surveillance regarding Konstantin Chernyshov, monitoring a person in publicly accessible places, as well as removing information from transport telecommunication networks. In addition, control over the commission of a crime was carried out, for the implementation of which, in the manner of confidential cooperation, a citizen of the Russian Federation was involved, according to the lawyer, and according to the requirements of the law, such a person cannot have access to state secret. While the fact of conducting a secret investigation is a state secret.
  • On re-interrogation of a person involved in confidential cooperation in conducting a covert investigative action.
  • On conducting forensic examinations.

The prosecutor opposed the satisfaction of the petitions of the defense and filed his own motion to extend the detention. In the application, he noted the existence of risks of hiding, influence on witnesses and the commission of new crimes. In addition, he referred to the gravity of the crime committed. At the moment, the total length of Chernyshov’s stay in custody exceeds one and a half years.

It should be noted that according to paragraph 3 of Art. 5 of the European Convention, after a certain period of time, only the existence of a reasonable suspicion does not justify the deprivation of liberty, and the courts must give other reasons for the extension of detention (decision in the case of “Borisenko v. Ukraine”, paragraph 50). Moreover, these grounds must be clearly indicated by the national courts (“Eloev v. Ukraine”, paragraph 60, “Kharchenko v. Ukraine”, paragraph 80).

The ECtHR often found a violation of paragraph 3 of Art. 5 of the Convention in cases where the national courts continued detention, referring mainly to the gravity of the charges and using template language, without even considering specific facts or the possibility of alternative measures (“Kharchenko v. Ukraine”, paragraphs 80-81; “Tretyakov v. Ukraine” paragraph 59).

The existence of a reasonable suspicion of a crime committed by a detained person is an indispensable condition for the legality of his continued detention, but after the lapse of time such a suspicion will not be sufficient to justify prolonged detention. The ECtHR has never tried to translate this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the severity of the crime. Once “smart suspicion” is no longer sufficient, the court must establish other reasons given by the courts that continue to justify the person’s deprivation of liberty (“Maggie and Others v. The United Kingdom”, paragraphs 88-89).

The ECtHR also recalls the immutability of the grounds for suspicion. The fact that the arrested person has committed an offense is a sine qua non condition in order for his continued detention to be considered legal, but after a while this condition is no longer sufficient. Then the Court must establish that the other grounds on which the decisions of the judiciary are based continue to justify the deprivation of liberty. If these grounds turn out to be “relevant” and “sufficient,” then the Court will find out whether the competent national authorities showed “special good faith” in the conduct of the proceedings (“Labita v. Italy”, paragraph 153).

At the same time, the burden of proof in resolving such issues should not be shifted to the detained person in order to prove the existence of reasons justifying his release from custody (judgment in the case of “Iliykov v. Bulgaria”, paragraph 85).

During the session on November 12, the prosecutor did not provide any factual justification for the existence of risks. Despite this, on 11.13.2019, the Ordzhonikidze District Court of Kharkov announced the decision to refuse to satisfy all the requests of the defense, and to satisfy the request of the prosecutor to extend the terms of detention.

This situation is typical and systemic for Ukrainian justice. Court decisions are based more on fear than on objective factual circumstances, the search and proof of which should be assigned to the bodies of pre-trial investigation.