Monitoring of criminal proceedings of V.N. Manger, A.A. Levin (hearing 12.04.2020)

12/04/2020, in the Dniprovsky District Court of the city of Kiev, a hearing of case No. 757/31502/20 was held on charges of the chairman of the Kherson Regional Council Vladislav Nikolaevich Manger and the ex-assistant of the deputy of the Kherson Regional Council Aleksey Alekseevich Levin, of committing crimes under Part 3 of Article 27; Part 2 of Article 28; Part 2 of Article 121 of the Criminal Code of Ukraine, namely, in organizing the infliction of intentional grievous bodily harm by a group of persons by prior conspiracy in a manner that has the character of special torment, which entailed the death of the victim – Kherson activist Ekaterina Gandzyuk.

It should be noted that since 2018, five criminal proceedings have been opened in this case concerning the murder of the activist. In particular, on October 30, 2019, the Prosecutor General’s Office transferred to the Security Service of Ukraine (SBU) the criminal proceedings on the negligence of the police officers, who initially investigated this case.

Recall that the observer of the International Society for Human Rights has already monitored this case on 08/28/2020, 10/15/2020 and 11/03/2020.

The court session began with consideration of the motions of the prosecution and the defense.

The prosecutor filed a motion to extend the detention of both accused. Regarding the existence of risks of non-fulfillment by the accused of their procedural duties, the prosecutor noted that there was a risk on the part of V.N. Manger to hide from law enforcement agencies, since the accused, while still under investigation, repeatedly left the country. In turn, the accused A.A. Levin was previously convicted of an intentional violent crime, in addition, according to the prosecutor, he maintains contact with a group of persons who were also involved in similar crimes. These circumstances, according to the prosecution, may indicate the possibility of a second crime.

The prosecution also stated that there is a threat of influencing the witnesses by the accused in this criminal proceeding. Information about the existence of such a threat and, in particular, the fact that witness Igor Pavlovsky has repeatedly changed his testimony in court, according to the prosecution, is the result of pressure on the witness. The prosecutor has already expressed this position in his petition of 10/15/2020.

Moreover, according to the prosecutor, at the last court session on 12.03.2020, it was established that the accused V.N. Manger paid money in the amount of 4 thousand dollars to the currently convicted S. Torbin for causing bodily harm to Ekaterina Gandzyuk. The defense side noted that the prosecutor has a tendency to independently establish certain facts in the case, which is a direct violation of the current Criminal Procedure Code of Ukraine, which says that the facts in criminal proceedings are established by a court verdict, and before the verdict is pronounced, all information given by the prosecution is considered circumstances, which must be proven and verified by the court.

The European Court of Human Rights in such cases states that the risk of putting pressure on witnesses can be taken into account at the initial stages of the proceedings (“Yarzinski v. Poland”, para. 43). However, over time, the interests of the investigation become insufficient to keep the suspect in custody: in the normal course of events, the perceived risks diminish as the investigation, evidence is taken and checks are carried out (“Cluth v. Belgium”, para. 44).

The prosecutor also referred to the decisions made by the appellate court in favor of the prosecution on the measure of restraint, and the fact that the accused had repeatedly failed to appear at the hearing, although notifications were sent to them in advance and in accordance with the law.

Given the existence of these risks, as well as the severity of the crime in which V.N. Manger and A.A. Levin are accused, the prosecutor asked the court to extend the terms of detention for both accused. Representatives of the victims E.A. Zakrevskaya and A.S. Veretilnik supported the prosecutor’s motion and asked to satisfy it.

On this point, it should be noted that every time it found a violation of Paragraph 3 of Article 5 of the Convention, the ECtHR noted the weakness of the arguments of the courts that authorized the applicant’s detention. From case to case, the Court has pointed out the following main deficiencies in the courts’ reasoning: reliance on the gravity of the charges brought as the primary source in order to justify the risk of the applicant absconding from justice; reference to the applicant’s foreign passport, financial resources and the fact that his alleged accomplices are on the run, as grounds for assuming that the applicant will follow suit; the suspicion, in the absence of an evidentiary basis, that the applicant will try to influence witnesses or use his obstacles in the authorities to administer justice, as well as refusal to scrutinize the possibility of applying another, less strict, measure of restraint, such as bail”(“Dirdizov v. Russia”, para. 108).

In turn, the lawyers of the accused A.A. Levin asked the court to refuse the prosecutor’s petition and change the measure of restraint from detention to a milder one, the lawyers of the accused V.N. Manger – to change the measure to bail. At the same time, the defenders drew the court’s attention to the principle of a reasonable time frame for the consideration of the case and asked for the petitions for each accused to be considered separately.

In the opinion of the defense, all the theses about the existence of risks cited by the prosecutor are distorted in their wording and completely unfounded by proper evidence, and are based only on assumptions and the subjective opinion of the prosecutor. As for traveling abroad, lawyers do not cease to insist that their clients, absolutely legally, temporarily left the territory of Ukraine, without having any criminal intentions.

In addition, the defense parties stated that they had doubts about the objectivity of the testimonies provided by the witnesses, which at one time speak of pressure being exerted on them, and at the same time are at large without taking any measures to ensure their safety. This, in turn, in the opinion of the defenders, raises the question of the real existence for such witnesses of any threat from the accused. Therefore, the defense asked to re-interrogate these witnesses in order to clarify their testimony again.

The court, having consulted on the spot, decided to refuse to satisfy the petition of the lawyer A.S. Shadrin on the re-interrogation of a number of witnesses due to the fact that the grounds named by the lawyer (“wants to hear their testimony without representatives of the SBU”) for the implementation of this procedural action do not comply with Article 352 of the Criminal Procedure Code of Ukraine.

The defense also substantiated its petition to change the measure of restraint by positive characteristics and behavior of the accused during criminal proceedings, their compliance with the proceeding, respect for the court and other factors.

The lawyers of the accused A.A. Levin also asked the court to take into account his state of health (heart disease), the need for observation by a doctor, and the impossibility of the pre-trial detention center to ensure the frequency of such observations due to the closed nature of such an institution. The defense also drew attention to the fact that the defendant was not given the opportunity to test for Covid-19, while he and his defenders suspected he had such a disease. Thus, according to the lawyer, the employees of the pre-trial detention center endangered not only A.A. Levin, but also other accused who are in the same cell with him.

Thus, there is a negative trend in the issue of providing timely and adequate medical assistance to the accused in custody, for example, in the case of Andrey Tatarintsev, who has not been provided with medical assistance for years, despite diabetes mellitus, or in the case of A. Melnik and others, where the accused also need regular inpatient and outpatient treatment (monitoring of these cases has been carried out for a long time by the observers of the International Society for Human Rights).

According to Article 199 of the Criminal Procedure Code of Ukraine, a petition for an extension of the period of detention, in addition to the information specified in Article 184 of this Code, must contain: a statement of the circumstances indicating that the reported risk has not diminished or that new risks have emerged that justify the detention of the person.

According to the observer of the ISHR, at this hearing, both the defense and the prosecution expressed almost identical arguments about changing the measure of restraint of the accused by what they voiced on 10.15.2020. The only, but no less important circumstance was named the state of health of the accused A.A. Levin. However, it should be noted that the defense did not ask for a medical examination for the accused to confirm the seriousness of the disease.

The European Court of Human Rights has frequently found a violation of paragraph 3 of Article 5 of the Convention in cases against Ukraine on the ground that, even with respect to long periods of detention, the domestic courts relied on the same set of grounds (if any) in all cases of relevant detention guarded. A similar violation can be observed in the case of A. Melnik and others.

The court decided to refuse to satisfy the defense’s petition to change the measure of restraint and satisfy the prosecutor’s request to extend the detention for both accused to additional 60 days.

Also, the defense side filed two petitions for attaching the ruling of the Kiev Court of Appeal of 10.15.2020 and the decisions of the ECtHR to the case file, both of which were satisfied.

The next court session is scheduled for 12.17.2020. Experts from the International Society for Human Rights will continue to monitor and clarify the details of this trial.