Monitoring of the Maksim Krivosh case (hearing on July 23, 2020)

On July 23, 2020, in the Lutsky City District Court of the Volynsky Region, a case was considered in criminal proceedings number 12020030000000540 on the suspicion of Maxim Stepanovich Krivosh of committing:

• taking and keeping persons as hostages with the threat of exterminating people, incl. in relation to a minor, that is, in the commission of a crime under Article 147, Part 2 of the Criminal Code of Ukraine;
• a terrorist act, that is, the use of weapons and the commission of an explosion, which created a danger to human life and health, with the aim of violating public safety, intimidating the population, influencing the commission of actions by government officials and drawing public attention to his political views, as well as the threat of committing these actions for the same purposes, that is, in the commission of a crime under Article 258, Part 1 of the Criminal Code of Ukraine;
• encroachment on the life of a law enforcement officer in connection with the performance of his official duties, that is, in the commission of a crime under Article 348 of the Criminal Code of Ukraine;
• illegal possession of firearms and explosives, that is, in the commission of a crime under Article 263, part 1 of the Criminal Code of Ukraine.

Criminal proceedings on charges of M.S. Krivosh considered by the investigating judge of the Lutsky city district court of the Volynsky region Sivchuk A.S. The International Society for Human Rights is starting to monitor this case.

The course of the hearing. The senior investigator for the Internal Affairs Directorate of the Ukrainian secret service (SBU) applied to the Lutsky City District Court of the Volynsky Region with a petition (agreed with the prosecutor in criminal proceedings – the Deputy Prosecutor of the Volynsky Region A.Y. Semenuk) on the application of a measure of restraint in the form of detention for a period of 60, arguing that the latter is suspected of committing crimes, which, according to Article 12 of the Criminal Code of Ukraine belong, in particular, to the category of grave and especially grave crimes, does not work, does not have an official source of income, as well as a permanent place of residence. Moreover, investigator I.P. Lyashuk referred to the presence of risks provided for by Article 177 of the Criminal Procedure Code of Ukraine, namely, that being at large, a suspect can hide from the pre-trial investigation authorities and the court, illegally influence victims, witnesses, experts in criminal proceedings, interfere with criminal proceedings in any other way, commit other criminal offenses.

Prosecutors O.S. Kostyuk and V.M. Starchuk fully supported the petition and asked the court to fully satisfy it. The prosecution noted that the crimes of which M.S. Krivosh is suspected were committed with the use of violence and the threat of its use against a significant number of victims, including law enforcement officers, using weapons, ammunition, explosive devices and substances.

The suspect Maksim Krivosh at the court session refused to express his position regarding the stated petition of the investigator. His lawyer, S.A. Timozhinsky asked the court to rule a legal procedural decision and asked to take into account the fact that the risks indicated in the investigator’s petition are subjective. The defense lawyer asked to pay special attention to the strong social ties of the suspect, namely, the presence of a wife and a minor son, who is in his custody.

According to the lawyer, in the petition for the selection of a measure of restraint, the investigator mainly refers to the gravity of the charge.

The International Society for Human Rights draws attention to the fact that the ECtHR in its decisions expressed its disagreement with the fact that the judicial authorities often refer to the likelihood that a severe punishment may be imposed on the applicant, given the gravity of the crimes of which he was accused, thereby turning attention that the severity of the charge alone cannot justify long periods of detention …”(“Moskalenko v. Ukraine” para. 36). Nevertheless, the severity of the charges brought and the risk of evasion from the investigation may be grounds for issuing a decision on the selection of a measure of restraint for the first time (“Buryaga v. Ukraine”). The mere existence of a reasonable suspicion that the detained person has committed a crime is a condition sine qua non for the legality of the detention (“Klyakhin v. Russia”).

The ECtHR reiterates that any deprivation of liberty, other than compliance with one of the exceptions specified in subparagraphs (a) – (f) of paragraph 1 of Article 5 of the Convention, must also be “lawful” if the “lawfulness” of the detention and, in particular, compliance “The order established by law” are in question, the Convention, in fact, refers to national legislation and establishes the obligation to ensure compliance with its substantive and procedural rules (judgment in the cases “Erkalo v. The Netherlands”, para. 52, “Baranovskiy v. Poland”, para. 50).

In assessing the lawfulness of the detention, the Court must also find out whether the domestic law itself is in line with the Convention and, in particular, with the general principles set out in the Convention or arising from it. “The quality of the law” means that when national legislation permits deprivation of liberty, it must be sufficiently accessible, clear and predictable in its application to avoid any risk of arbitrariness. The Convention’s standard of “legality” requires that all legislation be formulated with sufficient clarity to enable a person, if necessary, through the provision of appropriate advice in the appropriate circumstances, to foresee the consequences that a particular action might have. When it comes to deprivation of liberty, it is important that national legislation clearly defines the conditions of detention (“Del Rio Prada v. Spain”, para. 125).

The European Court of Human Rights argues that the requirement of legality cannot be enforced solely by compliance with national law, which itself must comply with the Convention (“Plesho v. Hungary”, para. 57), so that deprivation of liberty can be generally lawful from the point of view of domestic law, but, arbitrary, based on the content of the Convention, thereby violating its provisions.

It follows from this that the court’s decision to take into custody or to extend the period of detention will be justified not only if it is in accordance with national legislation, but also taken into account the provisions of the Convention and the decisions of the European Court.

The court, having consulted, decided to satisfy the investigator’s petition, to apply to the suspect M.S. Krivosh measure of restraint in the form of detention for a period of 60 days, the period of which is calculated from the moment of actual detention from 9:30 pm 07/21/2020 to 09/18/2020 inclusive, without determining the amount of the bail.

Experts from the International Society for Human Rights continue to monitor these criminal proceedings.