On May 28, 2020, in the Lychakovsky district court of the city of Lvov, the case was examined in criminal proceedings No. 12018140000000196 on the charge of:
- Lozinsky Igor Nikolaevich in incitement to commit a crime under Part 5 of Art. 191 of the Criminal Code of Ukraine (the appropriation, embezzlement of property or the seizure of it by abuse of official position were committed in especially large amounts or by an organized group); as well as in official forgery (part 1 of article 366 of the Criminal Code) committed by a group of persons by prior conspiracy;
- Koshevarov Evgeny Vasilievich, Piven Vadim Stepanovich in committing crimes under Part 5 of Art. 191 and part 1 of the article 366 of the Criminal Code of Ukraine.
- Zatvorsky Roman Bogdanovich in committing a crime under Part 1 of Art. 366 of the Criminal Code of Ukraine.
- Piven Vadim Stepanovich in committing crimes under Part 5 of Art. 191 and part 3 of article 28, part 1, article 366 of the Criminal Code of Ukraine.
The criminal proceedings are examined collectively by three judges: Nor N. V., Gritsko G. G., Strepko N. L. The International Society for Human Rights continues to monitor this case.
The course of the hearing. At the hearing the prosecutor Krishtanovich S.S. filed a motion to extend the accused Piven Vadim Stepanovich a measure of restraint in the form of house arrest at night from 00:00 to 06:00 am, with the assignment of duties stipulated by the norms of the criminal proceeding. On the grounds that the accused could try to escape from the court, illegally influence witnesses, commit another criminal offense, or continue to engage in criminal activity, he asked the court to grant his request.
It is important to note that the prosecutor’s request did not indicate any new circumstances for extending the measure of restraint to the accused Piven V. S. The risks to which the prosecutor referred were not justified, but were formulated only as assumptions. In the ECtHR judgment in the case of “Nikolova v. Bulgaria (No.2)”, the applicant complained that the preventive detention and her house arrest were unfounded and their duration was unreasonable. On this occasion, the ECtHR noted that “… the continued existence of a reasonable suspicion that the person arrested has committed an offense is a sine qua non condition for the lawfulness of prolonged detention, but over time it is no longer sufficient.” Moreover, in such cases, the ECtHR insists that the court must establish whether in the future such deprivation of liberty was justified by other grounds given by the judicial authorities. And whether such grounds were “appropriate” and “sufficient” (paras. 152, 153 of “Labitha v. Italy”).
The lawyer of the accused Piven V.S. – Mitsik A.V. objected to the petition of the prosecutor and verbally petitioned to change the measure of restraint from house arrest at night to a personal obligation. According to the lawyer, imprisonment in the form of house arrest violates constitutional human rights. In addition, in his opinion, in the application of the prosecutor for the extension of the measure of restraint to V. Piven in the form of house arrest there were no justifications.
The prosecutor also filed a motion to extend the measure of restraint in the form of a pledge to Yevgeny Vasilievich Koshevarov, with the assignment of the duties stipulated by the criminal proceeding, motivating it with the same risks as in the first motion. The prosecutor’s petition did not indicate any new circumstances for extending the measure of restraint to the accused E. Koshevarov, and it is also important to highlight the fact that the risks referred to by the prosecutor were not supported by evidence or otherwise justified. Thus, the International Society for Human Rights believes that in this case there may be a problem of shifting the burden of proof to lawyers. It is important to note that shifting the burden of proof from the prosecution to the defense is an absolute violation of the presumption of innocence (“Telfner v. Austria”, para. 15).
In respect of I. Lozinsky a similar request was made (in the form of a personal obligation).
It should be noted that in this criminal proceeding the prosecutor submits a request to extend the measure of restraint in respect of the three accused, citing the same risks. However, the prosecution asks the court to apply different measures of restraint to each accused. Although the danger that the accused will interfere with the proper conduct of the trial cannot be assessed abstractly, but must be supported by factual evidence (“Bekchiev v. Moldova”, para. 59), in the present case, the prosecutor did not substantiate any of the motions, thus it was abstractly, by internal conviction or for some other reason not obvious to the observer of the ISHR, that made the distinction between the accused.
The defense objected to the satisfaction of the prosecutor’s requests and requested the court to mitigate the measures of restraint for the accused on a personal obligation, based on the case law of the ECtHR. The defendants Lozinsky I.N., Koshevarov E.V., Piven V.S. also supported the opinion of their defenders.
The court rejected the request of the prosecutor to extend the measure of restraint in the form of house arrest to Piven V.S., having granted the request of the lawyer Mitsik A.V. and replaced the accused Piven V.S. measure of restraint from house arrest to a personal obligation. But, at the same time, court granted the prosecutor’s motion to extend the previously selected measures of restraint against other defendants – Lozinsky I.N. and Koshevarov E.V.
The next hearing is scheduled for 07/20/2020 at 10:00 am. The International Society for Human Rights will continue to monitor this trial.