Monitoring the case of Natalya Kulish

06/13/2019 in the Galicia district court of the city of Lvov with the participation of the presiding judge Strelbitsky V.V. a session was held in criminal proceedings on suspicion of Kulish Natalya in committing a criminal offense under Part 3 of Article 149 of the Criminal Code of Ukraine to which the measure of restraint was applied in the form of detention for 60 days and the amount of bail in 192 thousand hryvnias was determined.

Kulish Natalya is suspected of committing a crime under Part 3 of Art. 149 of the Criminal Code of Ukraine (Human Trafficking).

On June 11, 2019, police officers detained a 38-year-old woman at the Lvov International Airport while receiving $ 2,700. According to the investigation, after receiving the money, the woman planned to transfer her 17-year-old daughter for subsequent sexual exploitation to the Czech Republic.

On June 12, 2019, a woman was given written notice of suspicion of a criminal offense under Part 3 of Art. 149 of the Criminal Code of Ukraine. According to the information of the pre-trial investigation, it was established that she was looking for “clients” to sell her daughter for sexual exploitation. It is worth noting that the detainee has been repeatedly brought to administrative responsibility for non-fulfillment of parental obligations (Article 184 of the Code of Administrative Offenses), committing domestic violence (Article 173-2 of the Code of Administrative Offenses), engaging in prostitution, etc. (Article 181-1 of the Code of Administrative Offenses).

Shikoryak M. M., an investigator of the investigative department of the Main Directorate of the National Police in the Lvov Region, as agreed by the prosecutor of the Lvov region prosecutor’s office, requested the investigating judge to apply a measure of restraint in the form of detention towards Kulish Natalya because she is reasonably suspected of committing an alleged crime, may continue her criminal activity, hide from pre-trial investigation and the court, illegally influence witnesses and victims, destroy or hide documents, commit another criminal offense, impede the establishment of truth in a criminal proceeding in another way, which makes it impossible to apply a softer measure of restraint to the suspect and indicates the need to select the measure of restraint in the form of detention.

The suspect tried to convince the court not to appoint the measure of restraint on her knees. To support the woman her mother and three minor children came to court. However, the presiding judge requested that all minors be removed from the courtroom. Defender of a woman cited arguments in her defense. In particular, she claimed that the suspect does not have the financial ability to pay bail, and two months behind bars for the mother will become a psychological trauma for her small children. The prosecutor objected the version of the woman that she sent her daughter to seasonal agricultural work (picking strawberries). Besides, the defendant was previously held administratively liable for non-fulfillment of parental duties, domestic violence, and prostitution.

In its decision, “Murray v. The United Kingdom” (28 October 1994, § 55), the European Court of Human Rights notes that the purpose of the detention is to continue the investigation and to confirm or refute the suspicions that warranted the detention. The facts that give rise to the suspicion should not be as convincing as those that are necessary to justify a guilty verdict or a pure prosecution, which is carried out at the next stage of the trial. In the case of “Fox, Campbell and Hartley v. The United Kingdom” (30 August 1990 § 32), the court indicates that the existence of reasonable suspicion implies the existence of facts or information, which could convince an objective observer that the person concerned could have committed a crime, however, what can be considered “reasonable” depends on all the circumstances of the case.

At the same time, it should also be taken into account that, in accordance with the requirements of paragraphs 3 and 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Practices of the European Court of Human Rights, the restriction of a person’s right to liberty and security is possible only in cases provided for by law established procedure. The risk of concealment of the accused from justice cannot be assessed solely on the basis of the severity of a possible court decision, this should be done taking into account a number of relevant facts that can confirm the existence of such a risk, or testify to its insignificant degree, which cannot serve as a basis for a measure of restraint in the form of detention. The question of whether detention is reasonable cannot be decided abstractly. It must be decided in each case, taking into account specific circumstances.

On August 7, 2019, the Galicia District Court of Lvov extended the measure of restraint in the form of detention within the pre-trial investigation period by sixty days, that is, until 05.10.2019 with the determination of the amount of bail of 192 thousand hryvnias to Kulish Natalya. The prosecution motivates its petitions with the fact that during the pre-trial investigation it was established that the risks stipulated by Article 177 of the Code of Criminal Procedure of Ukraine did not decrease and did not change, there are reasonable grounds to believe that the suspected person will be hiding from the pre-trial investigation and the court, as she is suspected of committing a particularly serious crime, for which a sentence of imprisonment of 8 to 15 years is determined, without an alternative to applying another punishment, which will stimulate the suspect to hide from the pre-trial investigation, the prosecutor and the court. In addition, it is noted that there remains a reasonable risk of the destruction of documents that are essential for establishing the circumstances of the criminal offense, in particular, correspondence in the Viber, WhatsApp mobile applications with Person 2 regarding the circumstances of the sale of a minor daughter; unlawful influence on the victim and witnesses in criminal proceedings, in particular on Person 2, since Kulish is familiar with him and there are sufficient grounds to believe that he can give evidence that will serve as evidence of the commission of a suspected criminal offense against her. Also, the victim is the daughter of the suspect, and therefore, there are reasonable grounds to believe that Kulish N. will influence her as a daughter to induce her to provide evidence that is favorable to her.

Suspect Kulish Natalya and counsel at the hearing protested the petition and asked to choose the measure of restraint not related to imprisonment. The defense party believes that the risks indicated by the investigator are not justified.

The court, having heard the opinion of the participants in the trial, having examined the materials of the petition, concluded that it was necessary to satisfy the petition.

Since September 27, 1991, Ukraine has been operating the Convention on the Rights of the Child, adopted on November 20, 1989, by the UN General Assembly. Article 16 of the Convention enshrines the right of the child to protection from all forms of unlawful interference in the life of the child, his freedom. “No child may be the object of arbitrary or unlawful interference with the exercise of his/her right to privacy and family life, the inviolability of housing, the confidentiality of correspondence or unlawful encroachment on his/her honor and dignity. The child has the right to protection of the law from such interference or encroachment”. 

Even though according to paragraph 4 of Part 1 of Art. 178 of the Criminal Procedure Code of Ukraine, the presence of minor children is taken into account when choosing a measure of restraint and paragraph 2 of article 66 of the Criminal Code of Ukraine, which states that the list of circumstances that mitigate the punishment is not exhaustive, the nature of the crime committed with direct intent and useful motive of the suspected Kulish Natalya violation of the freedom and dignity of her child, and the presence of risks that have not decreased, the court decided to extend the measure of restraint in the form of detention.

During the monitoring of the court hearings, no violations, including violations of human rights, were found.