Monitoring of the criminal proceedings of Roman Anatolyevich Dubinevich 05/12/2020

On May 12, 2020, the Lutsky City Court of the Volynsky Region heard a case on charges of Roman Dubinevich of committing a crime under Part 1 of Article 115 of the Criminal Code of Ukraine – intentional murder. The International Society for Human Rights has decided to monitor this proceeding via videoconference due to the difficulty of having a direct presence of observers at court hearings during a state of emergency (related to quarantine).

The course of the hearing. The accused stated that the prosecutor systematically indicates in the procedural documents that he [the accused] refuses to get acquainted with them. However, this is not true. In this regard, the court drew the attention of the parties to the prosecution and made a remark to the prosecutor, obliging them to continue to take action to ensure the reality of such an acquaintance.

At the hearing, the prosecutor’s request for an extension of the terms of detention was examined. As a result of its consideration, the application of the prosecutor was granted, since Dubinevich R.A. accused of committing a particularly serious crime, as well as to prevent the possibility of hiding from the court, the commission of other criminal offenses, illegal influence on victims and witnesses. According to the court, the extension of the measure of restraint in the form of the detention of the accused is justified, since this is demanded by the real interest of society, which, despite the presumption of innocence, prevails over the interest of ensuring the right to freedom.

It should be noted that the indictment entered the court on December 12, 2019, that is, 5 months ago. From that moment, the case was not actually considered. But the terms of detention are systematically extended.

According to paragraph 3 of Article 5 of the Convention after a certain period of time, it is just the existence of a reasonable suspicion that does not justify the deprivation of liberty, and the courts should give other reasons for the extension of detention (“Borisenko v. Ukraine”, para. 50). Moreover, these grounds must be clearly indicated by the national courts (“Eloev v. Ukraine”, para. 60, “Kharchenko v. Ukraine”, para. 80).

The European Court of Human Rights (hereinafter – the Court) often found a violation of paragraph 3 of Article 5 of the Convention in cases where the national courts continued to be detained, 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”, paras 80-81; “Tretyakov v. Ukraine”, para. 59).

The existence of a reasonable suspicion of a crime committed by a detained person is an indispensable condition for the legality of continued detention, but after the lapse of time such a suspicion will not be sufficient to justify prolonged detention. The court 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 that the other grounds given by the courts continue to justify the person’s deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).

The Court also recalls the immutability of the grounds for suspicion. That an 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 ascertain whether the competent national authorities found “special good faith” in the conduct of the proceedings (“Labita v. Italy”, para. 153).

The ISHR draws attention to the lack of adequate reasoning for extending detention. This is a common problem of the entire judicial system of Ukraine. If the risks do continue to exist, the measure of restraint should be extended, however, both the accused and the public (whose interests the court outlined in determination) have the right not only to clearly understand what specific risks are involved, but also the validity of these risks. The issue of extending the measure of restraint should be considered on the basis of the individual data of each case, and they should be reflected in the court decision. However, we see only general statements, passing from case to case, from one court decision to another court decision. Representatives of the ISHR are concerned about the attitude of prosecutors towards extending detention. As a rule, in the petitions there are no references to the facts of the case itself, the argument is reduced to general statements. This state of affairs violates the principle of legal certainty, since it is difficult for the defense to bring counter-arguments to non-existent arguments of the prosecution. And this, in turn, puts the burden of proof (on the groundlessness of the measure of restraint) on the accused and his lawyers.