Monitoring of the criminal case of Kulish Natalya (session 10.04.19)
The monitoring group continues to monitor the case of the defendant Kulish N.
10/04/2019 in the Zheleznodorozhny District Court of the city of Lvov with the participation of Judge A. Kirilyuk session was held in criminal proceedings No. 12019140000000394 of 04.17.2019 in which the period of detention for the accused of N. Kulish was extended until December 2, 2019 and a trial of the case on the merits was scheduled on October 21, 2019 at 11am.
The prosecutor, stating a petition for extending the period of detention at the hearing, noted that the risks involved are provided for in Article 177 of the Code of Criminal Procedure of Ukraine, which served as the basis for the selection of a measure of restraint, but the grounds for applying a milder than detention restraint to the accused, are not provided.
The defendant and the defense counsel believed that there were no grounds for holding Kulish in custody; defense referred to chronic diseases, and asked to choose a milder type of the measure of restraint.
The court found that there was a reasonable suspicion of the commission of a criminal offense under Part 3 of Article 149 of the Criminal Code of Ukraine by Kulish, which is the basis for the application of a measure of restraint.
When deciding the request for the extension of the measure of restraint in the form of detention, the court concluded that the evidence and the circumstances referred to by the prosecutor provide sufficient grounds for concluding that there are risks stipulated by Part 1 of the Criminal Procedure Code of Ukraine.
The prosecutor, in our opinion, committed a violation of Clause 1, Article 5 of the Convention for the Protection of Rights and Fundamental Freedoms, because the prosecution did not provide sufficient and compelling reasons and evidence to continue the detention of the accused.
In the case of clause 28 “Roman Miroshnichenko v. Ukraine”, the ECtHR provided its own conclusion that the person had been detained without reason for a rather long time. It is stated that the primary sanction was based on a strong suspicion of a person committing a crime, however, after a certain time, the prosecution was obliged to provide other compelling reasons for further detention, which was not done.
According to the decision of the ECtHR in the case “Solovey and Zozulya v. Ukraine”, “The practice of keeping the accused in custody without specific legal grounds or in the absence of clear rules governing their situation, the application of which could result in imprisonment of a person without permission from the court for an unlimited time, is incompatible with the principles of legal certainty and protection against arbitrariness, which combine the Convention and the rule of law ”.
On October 21, 2019, a hearing of this case was scheduled for a panel of judges A. Kirilyuk, N. Rumilova, A. Liush. As we were able to establish, at the request of the defendant Kulish N. her lawyer was replaced. Since the judge Rumilova N. was on a business trip the hearing was adjourned to November 13, 2019 at 3pm.
The monitoring group continues to monitor the case of Kulish.