Monitoring of criminal proceedings of Manger V.N., Levin A.A. (hearing 01.11.2021)

On January 11, 2021, the Dneprovsky District Court of the city of Kiev considered the case No. 757/31502/20 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 Alexey Alekseevich Levin, of committing crimes under Part 3 of Art. 27, Part 2 of Art. 28, Part 2 of Art. 121 of the Criminal Code of Ukraine, namely in the organization of the infliction of intentional grievous bodily harm by a group of people 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 General Prosecutor’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 International Society for Human Rights has been monitoring this case since July 2020.

At the beginning of the trial, the judge found out from the accused A.A. Levin his state of health and well-being, to which the accused replied that he was not feeling well but asked to continue the hearing. A.A. Levin’s lawyers more than once referred to the poor health of their client (heart disease) when considering a measure of restraint, and also previously had confirmation of infection with Covid-19. It is necessary to pay attention to the fact that when the accused A.A. Levin during the hearing announced the need to take medication, the court provided him with such an opportunity.

It is also worth noting that the defendants, as at previous hearings, were seated next to their defenders during the hearing.

At the moment, the case is at the stage of examining the evidence, but before proceeding further, the court considered a number of motions. In particular, the petition of the media representatives (TV channel UA: FIRST. News.), who asked for permission to be present at this court session and to video the trial but did not appear at the session itself. Despite the absence of representatives of this TV channel, the court decided to refuse to satisfy this request in because of the quarantine. However, in order to ensure the publicity and openness of the court proceedings and taking into account the public interest in this case, the court organized a video conference with another courtroom, where there were representatives of the media and the public who had the opportunity to observe the course of the trial.

Paragraph 1 of Article 6 of the ECHR reads: “Everyone … upon any criminal charge against him has the right to … a public hearing … of the case … by the court … The judgment is announced publicly, but the press and the public may not be allowed to court hearings during the whole process or part of it for reasons of morality, public order or national security in a democratic society, and also when the interests of minors so require or to protect the privacy of the parties, or – to the extent that it is, in the opinion of the court, strictly necessary – in special circumstances when publicity would violate the interests of justice”.

The purpose of this rule is to protect parties to civil proceedings and defendants in criminal proceedings from secret administration of justice and to ensure greater visibility of justice, to maintain public confidence in the judiciary. With this provision, the media can fulfill their public observer function, which is also guaranteed by Article 10 of the Convention. By making the proceeding of administration of justice transparent, publicity contributes to the achievement of the objective of Paragraph 1 of Article 6, that is, the implementation of a fair trial, the guarantee of which is one of the fundamental principles of a democratic society (“Sutter v. Switzerland”, para. 26; “Ripan v. Austria”, para. 27; “Krestovsky v. Russia”, para. 24).

Article 6 of the ECHR, however, is a special rule in relation to the restriction of the presence of the media at court hearings. This is a clearly limited situation, since the wording of Paragraph 1 of Article 6 defines the exceptions; however, the presumption must always be in favor of a public review, and exceptions must be strictly subject to the circumstances of the case – a test of strict necessity (“Campbell and Fell v. the United Kingdom”, paras. 86-92).

In addition, the court received a petition from the defender D.O. Ilchenko on the issue of a copy of court decisions and other documents in the case, which the court satisfied.

When examining the evidence, the defense also appealed the protocols of the investigative experiment (in particular, the protocol of presentation for identification), pointing out the absence of the result of the investigative action certified in the protocols, which, in accordance with Part 6 of Article 240 of the Criminal Procedure Code of Ukraine, is a mandatory requirement when conducting such an experiment, therefore, in the opinion of the defenders, this evidence should be considered inadmissible.

Turning to the practice of the ECtHR, it should be stated that only in some exceptional cases the Court, contrary to the position of the national court, was ready to conclude that a certain piece of evidence was absolutely unreliable due to the suspicious circumstances in which it was obtained (“Lisitsa v. Croatia”, paras. 47- 62). For example, in “Laska and Lika v. Albania”, paras. 63-72, the applicant was convicted on the basis of the results of an identification, during which the applicant was wearing a white and blue balaclava (identical to those used by the alleged criminals), and the other participants in the identification were wearing black masks. In such circumstances, it was natural that the victims recognized the applicant as the culprit. The court concluded that the identification, organized in this way, could not have value as evidence, and therefore the verdict was generally unreliable. However, such cases remain extremely rare, and, apart from investigating the circumstances of the provocation of crimes, no other category of cases generally guarantees, in accordance with Article 6, a reconsideration by the ECtHR of the facts established by the domestic courts.

Also, the question arose again about the location of the medical card of K.V. Gandzyuk , which is important evidence in the case. Recall that at the hearing on October 15, 2020, the court granted the motion of the lawyer D.O. Ilchenko. about access to documents, namely to the medical history and medical card of K.V. Gandzyuk. But as it turned out, the record of the medical history was never returned to the hospital after a forensic medical examination, regarding this situation the hospital administration sent a letter. In the opinion of the defense, it is the prosecution who must find these documents, since it was the prosecution who did not return this documentation to the hospital, thereby not fulfilling the court’s verdict.

The prosecution stated that this document was in the possession of the SBU, but has already been returned, as expected, to arrive to the hospital.

Moreover, the defense appealed against the results of the forensic medical examination about the cause of death of the victim also on the basis of their allegedly obvious inadmissibility. In particular, the lawyers drew attention to the fact that this forensic medical examination was carried out by the Kiev City Clinical Bureau of Forensic Medical Examination, and this very fact, according to the defense, already indicates the existence of violations in the conduct of this procedure. Since the Kiev City Clinical Bureau of Forensic Medical Examination is a budgetary non-profit organization based on the communal property of the territorial community of the city of Kiev, and the Law of Ukraine “On Forensic Expertise”, Article 7, notes that forensic activities are carried out exclusively by state specialized institutions, associated with the conduct of forensic and forensic psychiatric examinations. In this regard, the results of the examination may be called into question and subsequently recognized as inadmissible evidence.

The prosecutor continued to insist that the examination fully complies with the norms of the current Criminal Procedure Code of Ukraine, in particular, Article 242. A similar position was expressed by the court, therefore, judges decided to refuse to satisfy the petition of the defenders.

The next court session is scheduled for 01/14/2021. Experts of the International Society for Human Rights will continue to monitor and clarify the details of this trial.