Monitoring of the case of V.N. Manger, A.A. Levin (hearing 08.28.2020)

On 08.28.2020, in the Dniprovsky district court of the city of Kiev, a case was considered in criminal proceedings number 1-kp / 755/1325/20 on charges of the chairman of the Kherson regional council Vladislav Nikolaevich Manger and ex-assistant to the deputy of the Kherson regional council Levin Alexey Alekseevich, in the commission of crimes provided for by 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 commission 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, civil society 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 Ukrainian Secret Service (SBU) the criminal proceedings on the negligence of the police officers who initially investigated this case.

The course of the court session: The representative of the victims – lawyer Zakrevskaya, as well as the victims themselves did not appear in the courtroom, but submitted an application to hold the court session without their participation and asked to take into account the support of the claim, and in their further absence, continue the consideration of the case without their participation in compliance reasonable time frame. Defenders Strigin M.A. and Kozakevich S.V. also did not appear at the hearing having previously submitted a petition, and instead of the lawyer Dunaev, the lawyer Murashkina was involved.

Despite the fact that earlier (on August 20, 2020) the court ruled to detain both of the accused, at the request of their lawyers, at the time of the trial they were next to their defenders, and not in a glass box.

The course of the court session: the defenders, referring to exceptional circumstances, made a motion to transfer the case to another court due to the fact that most of the witnesses in the case are in another city. To which the court determined that the decision on determining the jurisdiction in this case had already been made by the decision of the Supreme Court dated 08/04/2020, drawing attention also to the fact that the witnesses are participants in criminal proceedings (and not judicial ones, as the lawyers referred to). This decision of the court is motivated by the fact that the place of committing the crime incriminated to the organizers in this criminal proceeding is an unidentified place where the accused committed actions containing signs of corpus delicti under Part 3 of Article 27 and the corresponding part of Article 121 of the Criminal Code of Ukraine. In addition, from the contents of the indictment, it was established that the pre-trial investigation of this crime was carried out by the investigation department of the Main Directorate of the SBU in Kiev and the Kiev region, the location of which is an administrative building at 3A Askoldov street, Kiev (Pechersky district). Taking into account the provisions of Part 1 of Article 32 of the Criminal Procedure Code of Ukraine, the grounds provided for in paragraph 1 of Part 1 of Article 34 of the Code of Criminal Procedure of Ukraine for transferring criminal proceedings from one court to another within the jurisdiction of various courts of appeal have not been established.

Thus, the court put up for discussion the request of the defense to decide the issue of summoning witnesses before the announcement of the indictment.

The prosecutor opposed the granting of this petition, saying that the law does not oblige to determine a specific list of witnesses in the preliminary trial and added that the interrogation of witnesses should take place at the stage of examining the evidence.

The court refused to satisfy the request, considering it unfounded.

The defense also asked to summon about a hundred witnesses to the court for interrogation in this case, to which the prosecutor objected, arguing that some of them were not directly related to the circumstances of the case, and this, in his opinion, testifies to the deliberate delay in the trial by the defenders.

Note that Article 6 § 3 of the Convention on Human Rights protects the accused from a hasty trial (“Crocher and Moller v. Switzerland”). While it is important to conduct legal proceedings within a reasonable time frame, this should not be done at the expense of the procedural rights of one of the parties (“OAO Oil Company Yukos v. Russia”).

The lawyers have repeatedly drawn attention to the fact that in this court session it is the defense side who must prove the innocence of their clients, which, in principle, is not their procedural duties, and the prosecution has no direct evidence against the accused.

The jurisprudence of the European Court of Human Rights suggests that the principle of the presumption of innocence requires, inter alia, that, in the performance of their duties, judges do not prejudice that the accused has committed a relevant offense; the burden of proof lies with the prosecution and any doubt is interpreted in favor of the accused. In order for the accused to properly prepare and present his defense, the prosecution must inform him of the initiation of legal proceedings against him, as well as provide evidence sufficient to convict him (“Barbera, Messegi and Jabardo v. Spain”; “Janosevich v. Sweden”). The presumption of innocence is violated when the burden of proof is shifted from the prosecution to the defense (“Telfner v. Austria”).

After reading the indictment, the accused themselves did not fully understand the essence of the accusation, in particular, the nature, motives and reasons for the accusation brought against them, therefore, the lawyer of the accused Munger V.N., Shadrin A.S., filed a request for a written clarification of the essence of the charge, in particular the way and method the accused Munger contacted the accused Levin (since in the indictment, according to the defenders, this was not stated).

The court, referring to Article 291 of the Code of Criminal Procedure and the fact that at this stage the court is obliged to clarify the charge only in the form in which it is presented in the indictment, did not consider this petition, but several times orally explained to each accused the indictment.

During the court hearing, the petition to change the measure of restraint against the accused V.N. Manger was also considered (bail instead of detention) in connection with the emergence of new circumstances of the case, namely, the beginning of the electoral process and the desire of the accused to participate in local elections.

The prosecutor opposed the granting of the petition, saying that the beginning of the electoral process did not fall under the category of new circumstances of the case, because the accused had known this information earlier.

Having listened to the opinion of the participants in the proceedings, the court decided to leave this petition without consideration.

The European Court of Human Rights reiterates that the question of whether a person’s detention was justified or not cannot be assessed abstractly. The question of whether the accused should be kept in custody must be assessed on the basis of the facts of each particular case and in accordance with its specific characteristics (“Idalov v. Russia”).

Also, in this court session, a civil claim was filed by one of the representatives of the victims, for the recovery of 23 million hryvnia in favor of the victims and a repeated petition for the seizure of the property, since the petition filed earlier was partially fulfilled. Consideration of these applications will take place at the next court session.

The next court hearing is scheduled for September 18, 2020. The International Society for Human Rights will continue to monitor this trial.