Monitoring the case on charges of Andrei Lesik (01/30/2020)

01/30/2020 in the Dzerzhinsky district court of the city of Kharkov, a hearing was held in the case of Andrei Lesik, who is accused of resisting a law enforcement officer in the performance of his official duties, as well as intentionally causing bodily harm to him in connection with the officer’s official duties (part 2 of article 342, Part 2 of Art. 345 of the CC of Ukraine).

The judge announced the next stage of the trial, the study of video materials from CD discs that were added to the case file.

A short audio recording of a telephone conversation of the accused when exiting the building of the Ukrainian Security Service (SBU) was studied. In this audio recording, you can hear the accused trying to leave the building to meet his lawyer, and the SBU officers somehow prevent this. On the record you can hear A. Lesik shouting more than once that he goes to the lawyer, asks that he be released and not touched. As the accused himself said, he arrived at the SBU on the recommendation of a lawyer to familiarize himself with the prosecution, after which the SBU officers “insistently” asked him to sign some documents and did not allow him to go to the lawyer, which contradicts Part 3 of Art. 6 of the Convention. After A. Lesik on the recommendation of a lawyer, refused to sign anything, a fight began and he was taken by ambulance to the hospital.

The European Court of Human Rights notes the importance of the investigative stage in preparing for the trial of a criminal case, since the evidence obtained at this stage determines the framework within which the charge will be considered in a court case (“Kahn v. Austria”). At this stage of the proceedings, the accused is often in a particularly vulnerable position, the effect of which is enhanced by the fact that criminal law, especially the provisions governing the collection and use of evidence, is becoming more complicated. In most cases, such a special vulnerability can be properly compensated only by the help of a lawyer, whose task is, in particular, to ensure that the rights of the accused are respected. In fact, this right implies that the party to the criminal case, when trying to prove its version against the accused, cannot use the evidence obtained using methods of coercion or harassment contrary to the will of the accused (“Jaloh v. Germany”, “Kola v. Turkey”).

Ensuring speedy access to a lawyer is one of the procedural guarantees to which the Court pays particular attention when examining the issue of whether the very essence of the applicant’s right not to incriminate himself was undermined during the proceedings (“Jaloh v. Germany” (paragraph 101)).

The prosecutor stated that this record has no evidentiary properties, since it is impossible to establish on the record whether the voice on the audio belongs exactly to the accused. The prosecutor also indicated that the time when the record was made is unknown.

Then another video from the hospital itself was watched, namely at the entrance to the room of A. Lesik. This video recorded how SBU officers tried to get into the accused’s room, which Lesik’s acquaintances prevented. His wife and father were recorded on the video and the stampede is seen, screams are heard that the victim does not have a lawyer, requests for identification, etc. During the stampede, the situation escalates, SBU officers begin to raise their voices in response to some actions of the “defenders”, after which they break through a crowd of people into the room, where the victim was provided with medical care. The prosecutor, commenting on this video file, said that there were no facts recorded on the video that would confirm or refute the actions allegedly incriminated to Lesik. The prosecution argues that the actions of law enforcement were absolutely legal, as the officers came to deliver the summons to Andrei Lesik and behaved correctly.

Further, the lawyer made an assumption that the SBU officers could have received damages that were established by the examination during the stampede itself and stated that such a possibility, in principle, was not checked by the investigation. In accordance with the case law of the European Court, if the violation of the right to life or physical integrity was not caused deliberately, the positive obligation to create an “effective judicial system” does not necessarily require criminal proceedings in each case and can be respected by civil, administrative or even disciplinary remedies.

However, the minimum requirement for such a system is that the persons responsible for the investigation should be independent of those involved in the events that are being investigated. This refers to hierarchical or institutional independence, as well as practical independence (“Sergey Shevchenko v. Ukraine”).

Accordingly, the system that is required by Art. 2 of the Convention should provide for an independent and impartial investigation that meets certain minimum standards of effectiveness. Thus, the competent authorities must act with due persistence and, on their own initiative, initiate proceedings that can, firstly, establish the circumstances in which the event occurred and the shortcomings of the system; secondly, to establish which of the representatives of state bodies were involved in the incident (“Sergey Shevchenko v. Ukraine”).

The International Society for Human Rights will continue to monitor and clarify the details of the case of Andrei Lesik. The next hearing is scheduled for 03/30/2020.