On July 12, a preliminary hearing on the case of Darya Mastikasheva took place in the Dneprovskiy District Court of Dneprodzerzhinsk. D. Mastikasheva is the citizen of Ukraine accused of high treason by recruiting veterans of an anti-terrorist operation in the east of Ukraine (ATO) to simulate the preparation of terrorist acts in Russia that Russian intelligence agencies could use to discredit the Ukrainian authorities.
At this court session, the prosecutor was given and read out the indictment, around which the last few sessions were disputes about its compliance with the Criminal Procedure Code. In the text of the indictment there is no charge, and D. Mastikasheva is mentioned only as a suspect and the operative part contains the list of articles of the Criminal Code on which she is officially only suspected. Despite the fact that the appellate instance considered such an indictment admissible, the board of judges found itself in a situation when it was the court that had to charge Mastikasheva. In this situation, the objectivity of the trial, in which the court takes over part of the functions of the prosecutor’s office, is questionable. As the European Court of Human Rights notes, an important part of the trial is trust in the court, first of all – with respect to criminal proceedings – from the accused (the case of “Sainer v. Turkey”). In determining the validity of the fear that certain courts are deprived of independence and impartiality, the opinion of the accused is important, but not decisive. The objective substantiation of such doubts is decisive (case “Inkal v. Turkey”). There is no doubt about independence when, according to the ECHR, an “objective observer” does not have grounds for concern about the circumstances of the case, which is being considered (“Clark v. the United Kingdom” case). ECHR warns that the presence of doubts by a “reasonable observer” that a court is independent and impartial can have significance in connection to the right to a fair trial (cases “Belilos v. Switzerland”, “Ochalan v. Turkey”).
When determining the order of consideration of evidence, the prosecutor suggested first hearing the accused, witnesses, and after that go to the study of documents. The lawyer pointed out that the defendant is not ready to testify now, and the prosecutor did not state the list of witnesses, so it is advisable to begin by considering the material evidence. Moreover, the defense believes that all the evidence on which the accusation is based is obtained illegally and is unacceptable, and accordingly the investigation of those evidences can be a sufficient reason for closing criminal proceedings.
In support of this, the lawyer recalled that on August 15, 2017, D. Mastikasheva was abducted; people in masks and with weapons blocked her car and took her away in the trunk of another car with a bag on her head in an unknown direction. For several days, she was beaten, choked, threatened with reprisal against her young son and mother in order to dislodge confession in the commission of the incriminated crimes. After D. Mastikasheva gave her consent, the video with her confession was shown by the head of the Security Service of Ukraine (SBU) V. Gritsak at a press conference in Kiev (August 17, 2017) where the head of the SBU reported on the capture of a dangerous spy. On the fact of abduction and torture criminal proceedings were opened. Moreover, according to the lawyer, to detain Darya Mastikasheva was brought to her car, which was several dozen kilometers from the place where she was kidnapped. And what was happening for two days with the car no one knows. That is why, explosives and other evidence found in the car cannot be used in court, and all the confessions obtained from Darya Mastikasheva through torture and blackmail should be declared inadmissible.
To confirm his position, the lawyer stated that it was necessary to watch the video of the press conference of the head of the SBU and to interrogate several witnesses. To which one of the judges stated that consideration of the fact of kidnapping and torture is not provided for in this trial process and has nothing to do with this case at all. Moreover, this information cannot be used as a basis for a “conviction”. Thus, without denying the fact of the abduction and torture of the accused, the court found this violation of D. Mastikasheva’s rights insufficiently serious to raise the issue of inadmissibility of evidence collected by the prosecution.
Despite this position of the court, the lawyer stated the list of defense witnesses, proving the necessity of questioning most of them at the court, which considered that 29 witnesses are too many and there is no need for their interrogation.
The prosecutor, in turn, said that consideration of issues related to kidnapping and torture of D. Mastikasheva is beyond the scope of this litigation and the lawyer is describing the events related to the kidnapping so precisely, that it looks like he himself ether participated, or organized them. And despite the fact that for half an hour the lawyer proved to the judges the necessity of calling the witnesses and their purpose of interrogation, the prosecutor stated that he was against all witnesses of defense without exception. As a result, the court decided to leave the question with the list of defense witnesses open until the moment of transition to the stage of interrogation of witnesses, agreeing, as a result, with the order of consideration of evidence proposed by the lawyer.
The second issue on the agenda of the court session was the extension of the restraint. The prosecutor, not even bothering with fulfilling his duties, limited himself to the phrase: “the risks did not disappear and did not decrease, so I will not read out the petition (on appointing restraint)”. At the clarifying questions of the court, the prosecutor also added that among the risks to obstruct the process he sees the defendant’s ability to hide from the court and influence witnesses, and the question of whether a milder measure can prevent risks, the prosecutor’s answer was unambiguous: the Criminal Procedure Code does not provide for alternative to detention measures for incriminated crimes.
Daria Mastikasheva stated that she was in terrible conditions in the remand prison, that in her case file, without explanation of the reasons, two “markers” had already been delivered (a propensity for suicide, and an inclination to escape). She is under psychological pressure, while the prosecutor cannot even justify the need to keep her in the remand prison.
When reading the petition to change the restraint, the lawyer again tried to prove that the whole case is built on inadmissible evidence that cannot be significant in any way and on their basis a person cannot be kept in custody. He pointed to strong social ties, the presence of a minor child, properties, a permanent residence in Ukraine, the lack of a Ukrainian citizen’s and travel passports, which according to Article 178 of the Criminal Procedure Code should be taken into account by the court when deciding whether to extend the preventive measure. Also, the lawyer drew attention to the fact that according to part 3 of Article 176, part 1 of Article 183 of the Criminal Procedure Code, the prosecutor is obliged to prove the existence of risks of impeding the conduct of criminal proceedings and non-fulfillment of personal obligations. And the court can not apply the restraint in the form of detention unless there is an actual justification for such risks. Taking into account the fact that the prosecutor completely read out the solicitation for the extension of the preventive measure, the Expert Council can state that the provided justification is not sufficient. Consequently, even for such formal reasons, the court could not satisfy the petition of the prosecutor (Part 3 of Article 176, Part 1 of Article 183 of the Code of Criminal Procedure).
In addition, the previous decisions of the ECHR, which according to the Constitution of Ukraine prevails over the norms of national legislation, indicates that even the presence of a strong suspicion that a person has committed serious crimes cannot justify a long period of pre-trial detention (“Scott v. Spain”).
The next session is scheduled for September 4. Experts of the International Society for Human Rights will continue monitoring this litigation. The previous materials can be found here.