Monitoring the case of Kulish Natalya (11/13/2019)

On November 13, 2019 in the Zheleznodorozhny District Court of the city of Lvov with the participation of the panel of judges A. Kiriluk, N. Rumilov, A. Liusha a session was held in criminal proceedings No. 12019140000000394 in relation to Kulish N., accused of committing a crime under Part 3 of Article 149 of the Criminal Code of Ukraine – “Human Trafficking”. The International Society for Human Rights continues to monitor this case.

The preparatory hearing in this case was scheduled for 3:00 pm. However, it began at 4:10 pm in connection with the stay of Judge A. Kirilyuk in the deliberation room on another matter. In addition, the accused Kulish N. was delivered late from the pre-trial detention center.

Prosecutor Krishtanovich S. filed a request for an extension of the measure of restraint in the form of detention with the possibility of making a bail in the amount of UAH 192,000 for a period of 60 days, arguing that the risks provided for in Article 177 of the Code of Criminal Procedure of Ukraine, which were the basis for applying an exceptional measure of restraint in the form of detention, did not decrease and the prosecution does not see any reason to mitigate the measure of restraint.

The accused Kulish N. and her defender Savaida M. objected to the petition of the prosecution and stated that there were no grounds for holding her in custody. In addition, the lawyer Savaida M. drew the court’s attention to the fact that the bail of 192 000 UAH is amounts to 40 minimum wages and neither the accused nor her relatives have the opportunity to make a bail in this amount.

The court did not take into account the arguments of the accused and her counsel and granted the prosecutor’s request, extending the detention of Kulish N. for 60 days – until January 11, 2019, with the possibility of making a bail of UAH 192,000.

When deciding on 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 Article 177 of the Code of Criminal Procedure of Ukraine and fully satisfied the prosecutor’s request.

However, the European Court of Human Rights requires, in the case of a bail, to take into account the property status of the accused (suspect) and to justify the size of the bail. Otherwise it could lead to a violation of the European Convention (Clause 3, Article 5). Thus, in the case of “Gafa v. Malta” (paragraph 70), the ECtHR indicates that “the size of the bail should be established taking into account the identity of the defendant, his property, his relations with guarantors. In other words, given the belief that the prospect of losing a bail or measures against his guarantors in case he fails to appear in court will be sufficient to keep him from escaping. ”

According to the decision of the ECtHR in the case of “Toshev v. Bulgaria” (paragraph 68), the Court recalls that the guarantees referred to in Article 5 paragraph 3 of the Convention are aimed at ensuring the presence of the accused at the hearing. Therefore, the amount of the bail should be assessed, first of all, taking into account his personality and his financial situation, that is, it should depend on the degree of confidence that the possibility of losing funds if he is absent from the hearing will become the factor that will prevent him from escaping “.

The next session is scheduled for 12:00 pm on December 16, 2019. Experts from the ISHR will continue to monitor this lawsuit.