Monitoring of the trial of R. Ishenko, A. Chibirdin and others (court session from 01.14.2021)

On January 14, in the Suvorov court of the city of Odessa, a hearing was held on the case of A. Chibirdin, R. Ishenko, A. Malyuta, S. Litvinenko, S. Kobalchinsky, who are charged with Part 1 of Art. 14, Part 2 of Art. 187, Part 4 of Art. 187, Part 4 of Art. 190, Art. 257 (robbery committed by prior conspiracy by a group of persons aimed at seizing property on a large or especially large scale; fraud) Of the Criminal Code of Ukraine.

A year ago, ISHR experts attended several hearings on this case. Then the experts noted such violations as: violation of the principle of reasonableness of the terms of consideration of criminal proceedings, violation of the principle of independence of the court, violation of the presumption of innocence, violation of Article 3 of the ECHR, namely torture and inhuman treatment, violation of the right to defense, as well as a number of violations of national procedural legislation.

Since then, no significant changes in the case have occurred. The case is being considered by the same panel, the chairman of which violated the presumption of innocence. The presiding judge V. Poznyak, when passing an interview at the High Qualification Commission of Judges, spoke in an affirmative form about the guilt of those accused of the crimes incriminated to them. In other words, the judge, before examining all the evidence in the case and before sentencing, already considers the accused as guilty. This fact casts doubt on his impartiality, and, accordingly, all decisions that were taken by the collegium in relation to the accused are questioned by an objective observer. One of the important guarantees of a fair trial is the impartiality of the judge. In the case of “Piersac v. Belgium”, para. 30, the ECtHR held that domestic courts must be credible to the public and, in particular, to defendants in criminal proceedings, and that a judge who has a legitimate fear of lack of impartiality should withdraw from the composition of the court considering the case. Otherwise, the trust that the courts should enjoy in a democratic society is undermined. There is no doubt that judges must demonstrate and promote high standards of conduct and personally, abide by those standards in order to maintain the integrity of the judiciary. Any violation of such standards diminishes the public confidence, which, in a democratic society, the courts must generate in population. It should be noted that the defense of the accused filed a complaint against Judge V. Poznyak to the High Council of Justice (HCJ), to which she received the following response: “the judge’s statements in the premises of the High Qualification Commission were free in nature, aimed at superficial, short explanations …; the statements did not relate to the legal position regarding criminal proceedings”. The ISHR experts do not agree with the HCJ’s answer, since V. Poznyak’s statements in the future cannot but touch on his legal position, as they show a subjective negative attitude towards the accused. The ECtHR, in its judgment in “Micallef v. Malta”, para. 93, noted that the existence of impartiality must be determined on the basis of the following:

• a subjective test, where attention should be paid to the personal beliefs and behavior of a particular judge, that is, whether the judge had any personal prejudices or bias in this case;
• and also, according to an objective test, that is, to establish whether the court itself, as well as its composition, provided sufficient guarantees to exclude any reasonable doubt about their impartiality.

“Justice must not only take place, it must also be seen that it does.” The courts in a democratic society must instill confidence in the community. Therefore, any judge against whom there are legitimate grounds for doubting impartiality must withdraw from the proceedings (“Micallef v. Malta”, para. 98).

In addition, it is important to note the fact that the case has been pending for over 4 years. During this time, according to the accused and their lawyers, the court sessions were held mainly to extend the sanction, and the consideration of the case was essentially postponed for one reason or another. So, for example, at this hearing, the prosecutor read out the evidence of the prosecution to the court, but the court found that there was not enough time for this and asked to postpone the examination of the evidence, and instead file a petition for an extension of the measure of restraint.

Such an organization of the trial raises doubts about the possibility of considering criminal proceedings within a reasonable time. The requirement of national legislation and international conventions regarding the reasonableness of time frames is one of the most important, in particular, in criminal cases, since it is unacceptable that a person who has been charged can remain in a state of uncertainty about his fate for too long a period. According to the case law of the ECtHR, the period that is subject to consideration for the reasonableness of the time period lasts from the moment the notification of suspicion is served and until the person ceases to feel the impact of the charges brought against him, as well as until the uncertainty of his legal status is eliminated (“Nakhmanovich v. Russia Federation”, para. 89; “Stogmüller v. Austria”). The length of the trial is aggravated by the fact that the strictest measure of restraint in the form of detention has been applied to one of the accused during all these years. The ISHR experts believe that the court does not pay due attention to the requests of the prosecutor’s office to extend the measure of restraint in the form of detention for R. Ishenko. So, every two months the prosecution submits applications that are identical in content, with identical risks and evidence of these risks. Moreover, only in the third year of the trial did the prosecution change the procedural status of the accused in their petitions, and the prosecutor’s office considered them suspects. Note that the court did not react in any way to this gross error. As far as risks are concerned, prosecutors provide a standard list of risks that the ISHR experts face in most of the proceedings that involve detention.

1. The risk of escaping from the pre-trial investigation authorities and the court. The prosecution argues for this risk by the fact that the accused had experience in forging documents. Although, we note that today the accused does not have a verdict under the article forgery of documents, which means that this argument should be considered as unfounded. The ECtHR in its case-law indicates that the behavior of an accomplice in a crime cannot be a decisive factor in assessing the risk of a prisoner absconding. Such an assessment should be based on the personal characteristics of the prisoner (“Fedorenko v. Russia”, para. 70). It is worth noting that R. Ishenko’s health significantly deteriorated during his stay in the pre-trial detention center, and, accordingly, the risk of escaping and hiding from the court decreased (“Miminoshvili v. Russian Federation”, para. 89).
2. The risk that the accused will destroy, hide or spoil evidence that is relevant to establishing the circumstances of the criminal offense. The prosecution motivates this risk by the fact that some things are at a known address for the accused. The ECtHR noted in one of its decisions that at the initial stages of the investigation, the possibility of obstruction of justice by the accused justifies the detention of such an accused. However, after the collection of evidence, this justification becomes less convincing (“Sokurenko v. Russia”, para. 88).
3. The risk of unlawful influence on witnesses, the victim and other accused. As an argument for the existence of a risk, the prosecutors pointed to the fact that the victim received threatening calls, probably from the remand prison. The word “probably” should be emphasized and underlined. The ECtHR recognizes that in cases involving multiple accused, the risk that a prisoner, if released, may put pressure on witnesses or otherwise obstruct the proceedings is often quite high. All of these factors may justify a relatively long period of detention. However, they do not give the authorities unlimited powers to extend this measure of restraint. The fact that a person is accused of a criminal conspiracy is not in itself sufficient to justify long periods of detention; his personal circumstances and behavior must always be taken into account (“Sizov v. Russia”, para. 53).
4. The same risk was indicated as an obstacle to the consideration of criminal proceedings in other ways. Note that the ECtHR has repeatedly expressed the following position on this issue: the Court concluded that the likelihood of absconding decreases in proportion to the time served in the remand prison due to the fact that the period of detention can be deducted from (or taken into account) the period of imprisonment that the person in question may expect if found guilty, which makes fear of the awaiting future less frightening and reduces the intention to flee from justice “Sokurenko v. Russian Federation”, para. 87).

It should be noted that the accused R. Ishenko has been in the pre-trial detention center for 4 years, in addition, the so-called “Savchenko Law” applies to him, which means that the total period of his detention is already 8 years.

Based on the foregoing, as well as being guided by the practice of the ECtHR, it is possible to question the validity of such requests for the extension of a measure of restraint in the form of keeping one of the accused in custody, which the court, in turn, may, due to its bias, satisfy.

The experts of the ISHR are extremely concerned about the current situation, since during the years spent in the pre-trial detention center, R. Ishenko’s health has significantly deteriorated, and he is not provided with any medical assistance. The accused has stomach problems. The ISHR observer personally heard how, after the hearing, the accused asked the convoy to take him to the pre-trial detention center as soon as possible, since he began to have terrible pains, and all the medicines remained there. It is unacceptable to keep the accused in a pre-trial detention center for so many years. In addition, the neglect of his health and the failure to provide him with qualified medical assistance aggravates his situation and also indicates a violation of Art. 3 of ECHR. The provision of this article states that no one should be subjected to either torture or inhuman or degrading treatment. Unlike other norms of the Convention, which provide for “flexibility” in application, this norm enshrines one of the fundamental values ​​of democratic states and is binding on application without exception. The conclusions of the ISHR experts are also confirmed by the practice of the ECtHR. Thus, in the case of “Kashuba v. Ukraine”, para. 63, the Court emphasized that the lack of medical assistance during detention may amount to treatment that is contrary to Article 3 of the European Convention.

Thus, at this hearing, the prosecution filed a petition to extend the measure of restraint in the form of detention of R. Ishenko. The court granted the request.

ISHR experts express their concern about the fairness of this judicial review, as well as about the independence and impartiality of the panel.

The International Society for Human Rights will continue to monitor this trial to clarify all the details.