Monitoring the case of Kulish Natalya (session 02.17.2020)

02/17/2020, in the Zaliznychny District Court of the city of Lvov, the case was examined in criminal proceedings No. 12019140000000394 on charges of Natalya Kulish in attempting 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 but began with a delay of 45 minutes.

In connection with the petition of the accused stated at the last court hearing, Kulish N.I. (to replace the lawyer and provide her with another lawyer), the lawyer from the Center for Free Legal Assistance Sidoruk Elena arrived at the hearing.

As the term of detention of the accused expires on 02.24.2020, the prosecutor S. Krishtanovich filed a motion to extend the measure of restraint in the form of detention for 60 days with the possibility to make a bail in the amount of UAH 192,000. He stated that the risks provided for by Art. 177 of the Code of Criminal Procedure of Ukraine (which were the basis during the application of the measure of restraint) did not decrease, but the grounds for application with respect to the accused Kulish N.I. a milder measure of restraint, other than detention, has not been established.

The lawyer of the accused objected to the application, citing the lack of substantial evidence of the risks under Art. 177 Code of Criminal Procedure of Ukraine. The defense stressed that the accused has extenuating circumstances such as strong social ties, namely the presence of three children, two of whom are minors, requested the court not to apply to the accused measure of restraint related to restriction of freedom. According to the lawyer, the prosecutor, when applying for an extension of the measure of restraint, refers only to one reason – the gravity of the charge.

This corresponds to paragraph 3 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), according to which, after a certain period of time, it is just the existence of reasonable suspicion that does not justify deprivation of liberty and the courts should give other reasons for the extension of detention (decision in the cases of “Borisenko v. Ukraine “,” Yablonsky v. Poland “). Moreover, these grounds must be clearly indicated by the national courts (“Eloev v. Ukraine”, paragraph 60, “Kharchenko v. Ukraine”). However, the court granted the prosecutor’s request, extending the detention for 60 days with the possibility of making a bail, which was originally established.

Even though the ECtHR considers it unacceptable that the domestic courts consider it possible to authorize detention without giving any reason for such decisions, this was not taken into account. The Court also notes that, having examined the relevant specific facts and motivated certain decisions solely by the gravity of the charges, the domestic courts have repeatedly extended their detention on grounds that cannot be considered “sufficient”. Furthermore, in one of its decisions the city court did not invoke these or other specific circumstances in order to explain the impossibility of choosing alternative measures instead of detention, as required by Article 5 § 3 of the Convention. When extending the period of detention, the court should not rely solely on the gravity of the charge. It must also justify the impossibility of applying other measures (“Osipenko v. Ukraine”).

The next hearing is scheduled for 03/06/2020 at 11:00 am. Experts from the International Society for Human Rights will continue to monitor this lawsuit.