Monitoring of the case of Marina Kovtun (08/15/2019 session)

On August 15, 2019, a trial was held in the Kharkiv Court of Appeal on charges of Marina Anatolyevna Kovtun in committing a criminal offense on the grounds of part 1 of article 110 of the Criminal Code of Ukraine – an attack on the territorial integrity of Ukraine, Part 2 of Article 28 of the Criminal Code of Ukraine – commission of a crime by a group of persons, Art.113 of the Criminal Code of Ukraine – sabotage, part 5 of Art.27 of the Criminal Code of Ukraine – complicity in a crime, part 2 of Art.258 of the Criminal Code of Ukraine – terrorist act, Part 1 of Article 263 of the Criminal Code of Ukraine – illegal handling of weapons, 258-3 of the Criminal Code of Ukraine – the creation of a terrorist group or terrorist organization, namely, Kovtun M.A. is accused of organizing an explosion in the rock pub “Stena” in the city of Kharkov on November 9, 2014.

The hearing was attended by the prosecution, defense, the defendant herself. There were also independent observers – representatives of the OSCE and the UN. The panel of judges was in full force.

At this hearing, the question of canceling the decision of the court of the first instance, which decided to extend the measure of restraint in the form of detention, was considered.

The court of first instance decided to extend this measure of restraint until 08.16.2019, on the basis that there are risks stipulated by items 1, 5 of part 1 of article 177 of the Code of Criminal Procedure of Ukraine, namely: the ability to hide the accused from the court, to commit another criminal offense, and based on the totality of circumstances provided for by Article 178 of the Code of Criminal Procedure of Ukraine, namely: the severity of the punishment facing the accused if she is found guilty of committing criminal offenses, of which she is charged; lack of strong social ties, and permanent job.

The panel of judges of the appellate court when considering this complaint Kovtun, referring to the fact that the procedural deadlines are ending (the hearing was on August 15, 2019, and the measure of restraint was continued until August 16, 2019), decided to refuse satisfaction of the complaint of the accused.

The court case has been in process since 2014, the criminal proceedings were entered in the register on October 21, 2014. For a period of 4 years and 9 months (which is also confirmed by information from the Unified Register of Judicial Decisions), hearings were mainly considered only regarding the measure of restraint of the accused. Moreover, the accused repeatedly filed complaints against court rulings about changing the measure of restraint, which she was refused. As it turned out, the prosecution filed applications for an extension of the measure of restraint even before considering a complaint against a previous court decision on this issue.

Experts of the International Society for Human Rights (ISHR) are confident that the extension of the measure of restraint, before the accused’s complaint about the previous extension of such measures and that other measures of restraint were not considered, could indicate a violation of part 3 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (case “Buryaga v. Ukraine”). In the decisions of the ECtHR, it is noted that according to part 2, paragraph 3 of Art. 5 of the Convention, a person accused of an offense must be released for trial unless the state proves the existence of “relevant and sufficient” grounds for his / her further detention (ECtHR judgment of June 8, 1995 in the case of “Jagchi and Sargin v. Turkey”).

Representatives of the ISHR also note several other negative trends and violations, which are inherently negative and run counter to the fundamental human rights and freedoms protected by the European Convention.

  1. Violation of the right to a fair trial, namely a violation of the reasonable time for consideration of the case. In this case, the person is deprived of the right under Art. 6 of the European Convention, which recognizes the right of every person prosecuted in a criminal case to receive a final decision within a reasonable time on the validity of the charge against him, or rather, to ensure that the accused do not remain for a long time under the weight of the charge and that decision on the validity of the charge be passed (“Vemkhov v. Germany”, “Julia Manzoni v. Italy”, “Brogan and Others v. United Kingdom”).
  2. The effectiveness of legal protection. At the hearing, the accused was provided with a “public defender” from the free legal aid system, who was able to communicate with the accused for only five minutes, i.e. there was not enough opportunity and time to build defense tactics. Also, having no experience in protecting defendants in criminal proceedings, to the judge’s question – What is the point of satisfying your complaint if the deadline for extending the measure of restraint ends tomorrow, the lawyer said he is not ready to answer. Thus, it should be noted that the introduction of state defender without quality support only to ensure formal compliance with the standards cannot be considered as one that ensures the realization of the right to defense.
  3. The prohibition of torture. No one shall be subjected to torture, inhuman or degrading treatment or punishment. The defendant and her counsel at the hearing asked to pay attention to the fact that Kovtun during the period of detention (4 years 9 months) has several chronic diseases, deterioration of her health, which makes it unacceptable to further choose such a measure of restraint as detention. In its decisions, the ECtHR on such issues notes that Art. 3 of the Convention protects one of the fundamental values ​​of a democratic society, according to which any torture or inhuman or degrading treatment is prohibited, regardless of the circumstances of the case or the behavior of the victim (judgment in the case of “Labita v. Italy”).

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