Monitoring of the case on charges of Dmitry Gubin

On September 05, 2019 in Kharkov, a trial of case No. 645/1034/19 supposed to be held on charges of journalist Dmitry Gubin for part 1 of article 263 of the Criminal Code of Ukraine (Illegal handling of weapons, ammunition or explosives). By agreement of the parties to the criminal proceedings, the hearing was adjourned until October 16, 2019 (16:00).

According to the accused, criminal proceedings were instituted because of his journalistic activities. It can be assumed that there is a violation of the freedom of expression provided for in Art. 10 of the European Convention.

As stated by the European Court of Human Rights in § 38 of the case “Prager and Oberschlick v. Austria” “… freedom of expression applies not only to “information” or “ideas”, which are positively perceived as harmless or cause indifference, but also to those that insult, shock, or embarrass the state or any part of society. Also, freedom of journalism covers the possible use of some degree of exaggeration or even provocation”.

 One of the evidence underlying the prosecution is the results of a search conducted by the Ukrainian secret service (SBU) officers on March 12, 2018. The accused states that the prohibited items seized from him were deliberately placed in his house by the government officials. The accused disputes the lawfulness of the investigative action, referring to:

– the use of force against him during the search, despite the lack of resistance on his part;

– violation of the requirements of the legislation on the independence and objectivity of witnesses, since two witnesses were brought by the SBU officers themselves, and the third witness was not involved in the investigation from the very beginning.

As stated by the European Court of Human Rights in § 54 of the “Kobiashvili v. Georgia” case “… in assessing the fairness of proceedings, the quality of the evidence should be taken into account, including whether there were circumstances in which it was obtained that cast doubt on their reliability or accuracy”.

Besides, as a result of the search, computers were seized from the accused, which to date has not been returned. Which, potentially, could mean a violation of Clause 2, Article 8 of the European Convention.

In the “Prezharovi v. Bulgaria” case, § 49 the European Court of Human Rights accepts that “… in principle, the retention of computers for the duration of the criminal proceedings pursues the legitimate aim of preserving physical evidence as part of an ongoing criminal investigation, but without any consideration of the relevance of the information seized to the investigation and the applicants’ claims regarding the personal nature of the part of the information stored on computers, judicial control will be formal, and applicants will be deprived of sufficient safeguards against abuse”. 

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