Monitoring the case of Kulish Natalya (session 03/26/2020)

On March 26, 2020, in the Zaliznychny District Court of the city of Lviv, the case was examined in criminal proceedings No. 12019140000000394 on charges of Natalya Kulish in an attempt to sell her minor daughter to the Czech Republic for sexual slavery (under part 3 of article 149 of the Criminal Code of Ukraine). Criminal proceedings on charges of Kulish N.I. considered collectively, composed of three judges: Kirilyuk A.I., Rumilova N.M., Liush A.I. The trial in this case was scheduled for 11:00 am, and began 50 minutes late. The International Society for Human Rights continues to monitor this case.

The course of the hearing.

Lawyer Sidoruk E.O. filed a petition for the possibility of her client taking a seat on a bench near a lawyer due to the fact that the glass box in which the accused is located interferes with the implementation of appropriate defense. The accused N. Kulish supported the lawyer’s request, and stated that she was hard of hearing both the court and the participants in the trial.

One of the panel judges, Judge N. M. Rumilova, made a remark to the lawyer, asking why such a request was not submitted by the accused herself, since she is an adult capable person and is able to independently make such a request. In response, the lawyer emphasized that she is the defender of the accused Kulish N.I. and uses the rights provided for in Part 4 of Art. 46 Code of Criminal Procedure of Ukraine.

The prosecutor did not object to the satisfaction of the request made by the defense counsel. The court asked the head of the escort service whether it is possible to ensure that the accused is on a bench near a lawyer. The convoy, referring to the “Instructions on the organization of the escort and detention in the courts of the accused (defendants) convicted at the request of the courts”, stated that such an action is not provided. As a result, the court refused to satisfy the lawyer’s request. The International Society for Human Rights has repeatedly pointed out that the placement of the defendant in a separate box may affect the quality of the defense provided (case of a Berkut, A. Melnik and others, etc.). In addition, in paragraph 149 of the case “Yaroslav Belousov v. Russia”, the ECtHR noted that restrictive measures in the courtroom could affect the fairness of the hearing guaranteed by Article 6 of the Convention.

Attorney Sidoruk E.O. filed a motion to change the measure of restraint to a milder one, in the form of round-the-clock house arrest. According to the lawyer, the risks referred to by the prosecution when choosing a measure of restraint were no longer relevant. She also emphasized that there are circumstances that, in her opinion, were not taken into account by the court, namely: the strength of the accused’s social ties, detention for 9 months, the presence of a young daughter and minor son.  In addition, one of the risks identified in the petition of the prosecutor for the extension of the measure of restraint in the form of detention is the risk of absconding from the court, today is not relevant due to the introduction of an emergency in the country during which there is no interregional and international transport connection to in accordance with the Resolution of the Cabinet of Ministers of Ukraine “On the extension of quarantine” of March 25, 2020.

A similar situation was analyzed by the ECtHR in a complaint No. 38717/04 dated October 14, 2010 in the case of “Khairedinov v. Ukraine”. In paragraph 29 of the decision, the Court stated that the fact that “… at the time of the applicant’s detention he was about twenty years old, he had no criminal record and had a permanent place of residence, where, as confirmed by the local authorities, he had good established social ties ”was not taken into account by the domestic courts when they decided to detain the applicant. Furthermore, in assessing the identity of the applicant, the domestic courts decided to refer exclusively to negative characteristics and did not take into account the positive ones. In the present case, the Court found the applicant’s complaint well-founded and decided in his favor.

In addition to the petition of the lawyer regarding the presence of his client nearby, the court examined the petitions of the parties regarding the measure of restraint. According to the lawyer, court hearings are appointed only with the aim of extending the measure of restraint in the form of detention, since the criminal case itself is essentially not considered.

Natalya Kulish’s lawyer asked the court to change the measure of restraint to round-the-clock house arrest, appealing to the decisions of the European Court, which indicated that after some time the mere existence of a reasonable suspicion ceases to be the basis for detention (for example, the case of “Yablonsky v. Poland”). The accused herself supported the request of her lawyer. And she said that she needed to have a surgery on her leg, which is impossible to do in the detention center; they cannot provide appropriate medical assistance, they do not provide medicine. While in custody, the defendant’s health condition, she said, had deteriorated significantly. In the medical unit of the pre-trial detention center, the diagnosis was established: chronic gastritis, theodral gastric reflex.

Judge Liush A.I. from the panel of judges asked the accused: is she pregnant? Kulish N.I. answered that she was pregnant at the time of the election of a measure of restraint. During her stay in the pre-trial detention center, she lost a child. In addition, the accused Kulish claims that there have been no complaints about her behavior during her stay in the remand prison.

The prosecutor objected to the request of the defense and requested the court to extend the detention for 60 days, referring to the risk provided for in paragraph 3 of part 1 of Art. 177 Code of Criminal Procedure of Ukraine: it is illegal to influence a victim, witness, other suspect, accused, expert, specialist in the same criminal proceedings. It should be noted that the victim in this case is the minor daughter of the accused, whose mother is accused of trying to sell her into sexual slavery in another country. The prosecution also noted the increased public danger of the alleged crime, which is also confirmed by the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the Council of Europe Convention on Action against Trafficking in Human Beings, ratified by Ukraine.

According to the prosecutor, at this stage of the criminal proceedings it is impossible to change the measure of restraint due to the fact that during the investigation of evidence the measure of restraint in the form of detention should be applied, which makes it impossible to influence witnesses.

Nevertheless, the International Society for Human Rights, realizing that in each case the issue of detention should be studied individually, recalls the importance of justifying the need to extend an exceptional measure of restraint.

The court, having conferred, decided to satisfy the prosecutor’s application by extending the detention for 60 days with the possibility of making a bail which was originally established.

The next session is scheduled for 04/30/2020 at 11:00 am. Experts from the International Society for Human Rights continue to monitor this lawsuit.