Monitoring of criminal proceedings V.N. Manger, A.A. Levin (hearing 10/15/2020)

10/15/2020, 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 Alexei Alekseevich Levin in 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 and committing, by prior conspiracy, by a group of persons intentionally grievous bodily harm in a manner that has the nature 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 regarding the murder of an activist. In particular, on October 30, 2019, the General Prosecutor’s Office transferred to the Ukrainian Security Service (SBU) the criminal proceedings on the negligence of the police officers, who initially investigated this case.

As a reminder, the observer of the International Society for Human Rights has already monitored this case on 08.28.2020.

The course of the court session: the representative of the victim, lawyer E.A. Zakrevskaya and the victims themselves did not appear at the court session (as well as at the hearing on 08/28/2020), having previously submitted a petition to consider the case without their participation; in addition, the lawyers S.V. Kozakevich and I.S. Mokin also did not appear. The participants in the court proceedings did not object to the consideration of the case without victims, lawyers and one prosecutor. Thus, the court decided to continue the consideration of the case.

The hearing began with the submission by the defense of a petition to attach to the case file two sheets of paper with correspondence between the accused A.A. Levin and witness Igor Pavlovsky, which, according to the lawyers, is important for this court proceeding.

The prosecutor asked to refuse to grant the request, noting that it is not known when and under what circumstances this correspondence was carried out. Moreover, at the previous court session (September 18, 2020), where the witness was questioned, the defense had the opportunity to ask the necessary questions to the witness to substantiate their position in court. The prosecutor also noted that personal correspondence is confidential information and the witness during interrogation did not give his permission to disclose it in court.

The representative of the victim supported the position of the prosecutor. The court, referring to Art. 162 of the Criminal Procedure Code of Ukraine, refused to satisfy the request.

In addition, the lawyer A.S. Shadrin filed two applications to clarify the court decisions of September 18, 2020 and September 25, 2020, namely, whether these decisions are subject to appeal. The prosecutor objected, saying that there were no well-reasoned grounds for considering this petition as such. The court rejected these requests.

Also, the defender D.O. Ilchenko filed two petitions to provide lawyers with temporary access to documents, namely, to the medical history and medical card of K.V. Gandzyuk (asked to carry out the seizure provided for in Article 165 of the Criminal Procedure Code of Ukraine). The court granted the request.

The prosecutor also petitioned for an extension of the term of detention of the accused. The lawyers of the accused V.N. Manger filed a motion to change the measure of restraint, and lawyer A.S. Shadrin asked the court to change the measure of restraint in the form of detention into house arrest, and lawyer D.O. Ilchenko asked to apply a bail in the amount of UAH 1152600. No such request was filed by attorney A.A. Levin.

The prosecutor substantiated the necessity of using detention on the following circumstances:

  • ensuring that the suspect performs the procedural duties assigned to him;
  • prevention of illegal influence on witnesses and the second suspect in the same criminal case;
  • preventing attempts to hide from the bodies of the preliminary investigation and the court.

In particular, according to the prosecutor, the defense, as well as the accused V.N. Munger tried to put pressure on the witness Igor Pavlovsky in the matter of granting his consent to disclose information about personal correspondence, information about which the lawyers sought to attach to the case file at this hearing. The prosecution also stressed that the accused, while under investigation, had repeatedly left the country. This, according to the prosecutor, confirms the real existence of these risks. Therefore, the prosecutor asked the court to extend the accused’s detention period by 60 days without determining the amount of bail.

The defendant’s lawyer, denying the words of the prosecutor, pointed out that all the risks named by the prosecution are not relevant. To the prosecutor’s remark about the defendant’s departure abroad, the lawyer replied, quoting: “he always returned.” Also, according to the lawyer, the accused V.N. Manger conscientiously observed the measure of restraint in the form of detention, he did not exert pressure on any witnesses. In addition, the witnesses were questioned at the last court hearing.

The European Court of Human Rights points out that at the initial stages of the investigation, the possibility of obstruction of justice by the accused justifies the detention of such an accused. However, once evidence is collected, this rationale becomes less convincing. In particular, as regards the possibility of putting pressure on witnesses, the Court reiterates that the domestic courts must show that during the relevant period of the applicant’s detention there was and continued to be a substantial risk of intimidation of witnesses; it is not enough to rely only on some abstract possibility, not supported by any evidence. The court must also analyze pertinent factors, such as progress in the investigation or proceedings, the applicant’s personality, his behavior before and after arrest, and any other specific factors to justify the risks that he might abuse the returned freedom by acting in for the purpose of falsifying or destroying evidence, or putting pressure on victims (§88 “Sokurenko v. Russian Federation”).

The Court recognizes that, in cases involving multiple accused, the risk that a prisoner, if released, may put pressure on witnesses or otherwise obstruct the proceedings is often quite high. All of these factors may justify a relatively long period of detention. However, they do not give the authorities unlimited powers to extend this measure of restraint. The fact that a person is accused of a criminal conspiracy is not in itself sufficient to justify long periods of detention, his personal circumstances and behavior must always be taken into account (§ 53 “Sizov v. Russia”).

Moreover, the lawyer drew attention to the fact that in the previous decision on the selection of a measure of restraint two months ago, the court did not analyze other circumstances that need to be investigated when choosing such a measure of restraint and which are indicated in Art. 178 of the Criminal Procedure Code of Ukraine. As the lawyer indicated, when on February 11, 2019, the accused V.N. Munger was charged with Part 2 of Article 115 of the Criminal Code of Ukraine and the court was considering a bail. But despite this, in the current situation, when the accused is charged with Part 3 of Article 27, Part 2 of Article 28, Part 2 of Article 121 of the Criminal Code, the court determined a measure of restraint in the form of detention.

The ECtHR has repeatedly pointed out that, although the severity of a possible sentence is an important component in assessing the risk of escape or committing new offenses on the part of the accused, the need to extend the period of application of a measure of restraint in the form of detention cannot be assessed only from an abstract point of view, taking into account only the severity of the charges (§ 51 “Kolunov v. the Russian Federation”).

It should also be noted that the defense side, as at the last court session on 08.28.2020, drew the court’s attention to the fact that the accused V.N. Manger wants to participate in local elections, and his detention may deprive him of this right.

The court, after consulting, made a decision to reject two petitions of the defense to change the measure of restraint in respect of the accused V.N. Manger and grant the prosecutor’s request for an extension of the detention of both accused.

The next court session is scheduled for 10/22/2020. Experts from the International Society for Human Rights will continue to monitor this trial.