12/22/2020 in the Lutsk City District Court of the Volyn region with the participation of a panel of judges Y.D.Artysh, O.A.Kalkova, V.M.Pokidyuk a court hearing was held in case No. 154/3660/19 on charges of R.A. Dubinevich accused of the commission of a criminal offense under Part 1 of Art. 115 of the Criminal Code of Ukraine – “premeditated murder”.
Another prosecutor, who is a member of the group of prosecutors in this case, Polishchuk, arrived at the hearing. The prosecutor indicated that he was partially familiar with the case materials. Also, at this hearing there was a change from the side of the defense. The lawyer, who previously represented the interests of the accused, asked the court to suspend his powers. Instead, the defense will be provided by lawyer E.V. Kovalenko on the basis of an agreement on the provision of legal assistance. The defendant did not object to the replacement of his lawyer.
The prosecution filed a petition for extension of measure of restraint for Dubinevich in the form of detention for a period of 60 days and indicated that the risks under Art. 177 of the Code of Criminal Procedure of Ukraine, which were previously the basis for the application of an exceptional measure of restraint in the form of detention, have not diminished. The prosecutor noted that R.A.Dubinevich can also put pressure on witnesses and the victim.
The accused completely objected to the prosecutor’s request. Lawyer Kovalenko also supported the position of her client. In her opinion, the risk of influencing witnesses is not relevant, since the overwhelming majority of witnesses have already been questioned by the court. The lawyer petitioned to change the measure of restraint to round-the-clock house arrest. Moreover, in her opinion, there is a delay in the case, due to the frequent replacement of the leading prosecutor in the case and the unpreparedness of the prosecution for the trial.
Having evaluated the motions, the court ruled to satisfy the petition of the prosecution in full, extending the period of detention by 60 days. In turn, the court argued its position by the fact that the accused had committed a particularly grave criminal offense; in order to prevent the commission of new crimes, illegal influence on the witnesses in the case and the victim, there is a need to extend the measure of restraint for the defendant. In addition, the court referred to the practice of the ECtHR in the part that the existence of grounds for keeping the accused in custody should be assessed in each case, taking into account its specific features. Continued detention can be a justified measure in a particular case only if there are clear indications that it is required by the real public interest, which, despite the presumption of innocence, outweighs the interests of securing the right to liberty (“Ečius v. Lithuania”, para. 93).
The observer of the ISHR notes the fact that the extension of the terms of detention in the case of R.A. Dubinevich may become automatic over time. For the first time by the Lutsk City District Court of the Volyn Region, the term of detention R.A.Dubinevich was extended on December 16, 2019, which means that the accused has been in custody for more than one year, awaiting a court decision on unchanging risks.
The European Court of Human Rights argues that national courts must first and foremost ensure that, in a particular case, the detention of an accused does not exceed a reasonable time. To do this, they must, taking due account of the principle of the presumption of innocence, examine all the circumstances of the case that may confirm or deny the existence of a public need that justifies deviations from the requirement to respect individual liberty, and indicate this in their decisions to extend the term of detention (“IA v. France”, para. 102).
Having studied all the decisions of the Lutsk City District Court of the Volyn Region on the extension of the term of detention in relation to the defendant, the ISHR draws attention to the fact that the national court did not change the rationale for the need to extend the term of detention from the moment of the first decision. Such actions may contradict the practice of the ECtHR.
According to paragraph 3 of Art. 5 of the ECHR, after a certain period of time, the mere existence of a reasonable suspicion ceases to be a basis for deprivation of liberty and the judicial authorities are obliged to provide other grounds for continued detention. In addition, such grounds must be clearly indicated by the national courts (“Kharchenko v. Ukraine”, para. 80).
In the case of R.A. Dubinevich the decision of the national court was based on the following facts: R.A.Dubinevich is accused of committing an especially grave crime, on his part there may be unlawful influences on witnesses in the case and victims. Such arguments formed the basis of the first decisions of the national court to extend the period of detention and have remained unchanged for one year.
The European Court of Human Rights has often found a violation of paragraph 3 of Art. 5 of the Convention in cases where domestic courts continued detention, relying mainly on the gravity of the charges and using formulaic language, without even considering specific facts or the possibility of applying alternative measures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”, para. 59).
In addition, the ISHR experts draw attention to the frequent replacement of the lead prosecutor in this case. As the lawyer Kovalenko pointed out, the frequent replacement of the leading prosecutor in the case and the lack of preparation for the court session, as an example, of the prosecutor Polishchuk, indicates a delay in the proceeding. This, in turn, testifies to the unprofessional performance of their obligations by the prosecution.
It should be noted that two judges of the collegium, the secretary of the court and the prosecutor did not comply with the rules of quarantine restrictions, namely, they attended the entire session without protective equipment (masks), endangering their health and the health of others.
The next court session was scheduled for February 26, 2020. The monitoring group of the International Society for Human Rights will continue to monitor this case.