Monitoring the case of Sergei Goncharuk (08/08/2019 session)

On August 8, in the Shevchenkovsky District Court of Lviv, a regular court session was held in the case of a member of the human rights organization “Guardians of the Law” S. Goncharuk, who is accused of assaulting law enforcement officers in the building of the Lviv Court of Appeal (Part 2 of Art. 342 and part 2 of Art. 345 of the Criminal Code).

The International Society for Human Rights has begun monitoring this case.

The criminal proceedings against S. Goncharuk were field to the unified register of pre-trial investigations on 02.14.2019 and since that time (6 months) the accused S. Goncharuk has been in custody.

This case was referred to a different judge (to judge O. Fedorova) since the judge D. Glynska, who examined this case, is on sick leave, and according to a previous court ruling on the application of the measure of restraint, the term of the accused’s detention expires. In this regard, the prosecutor requested the need to consider extending the measure of restraint.

During the transfer of the case from one judge to another, the accused’s requests to change the measure of restraint were not transferred to and attached to the case file, and therefore were not taken into account by the court, which is a gross violation.

Also, contrary to Part 2 of Art. 184 of the Code of Criminal Procedure (CPC), prosecutor A. Misyong filed a request for an extension of the period of detention without acquainting the accused with its contents. Having examined this issue, the court demanded that a copy of the petition be submitted to the defender and announced a three-hour break to comply with the right to defense according to the provisions of Part 2 of Art. 184 Code of Criminal Procedure of Ukraine.

In turn, lawyer O. Biletskaya filed a petition to change the measure of restraint from detention to house arrest, arguing that the prosecutor could not justify any of the risks of the defendant not fulfilling his procedural obligations. And, therefore, according to Art. 177 of the CPC, an exceptional measure of restraint in the form of detention cannot be applied. Also, the prosecutor’s petition did not substantiate the impossibility of avoiding these risks with the help of milder measure of restraint, which is also a prerequisite for the selection of custody (Art. 176-178, 183 of the Code of Criminal Procedure).

Prosecutors A. Misyong, Y. Melnyk, victims D. Yakovenko, T. Gorodechny, O. Melnyk and the representative of the victims, lawyer I. Gordon opposed the change in the measure of restraint and supported the request to extend the detention for 60 days.

Not taking into account the defense’s arguments about the proportionality of the measure of restraint, applied in the form of detention (which lasts 6 months) to the offense with which the accused is charged, the court rejected the defense’s request, satisfying the prosecutor’s request. The measure of restraint in the form of detention was extended for another 60 days.

Such an extension of detention casts doubts on the impartiality and objectivity of the court. The satisfaction of the petition of the prosecutor, which does not technically meet the requirements of the criminal procedure (and for the maximum period provided for by the Code of Criminal Procedure) may be a consequence of the court’s biased attitude and the court accepting the prosecutor’s side. The European Court of Human Rights has repeatedly stated that after some time, the mere existence of reasonable suspicion ceases to be the basis for detention (“Jablonski v. Poland”).

The ECtHR also noted that it was a violation of the domestic court’s reference to the seriousness of the charges against the defendant and the risk of his escape or interference with the investigation, which were mentioned in the original order to detain him and did not change over time (“Deyneko v. Ukraine”). In addition, the European Court of Human Rights has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, for extended periods of detention, the domestic courts relied on the same justifications (if any) for the whole period of detention (“Kharchenko v. Ukraine”).

Experts from the International Society for Human Rights will continue to monitor this trial.