Monitoring of the trial of Daria Mastikasheva (session 04.09.18)
On September 4, a regular meeting was held in the Dneprovskiy district court of the city of Kamianskoe (Dneprodzerzhinsk) on the case of Daria Mastikasheva, a Ukrainian citizen accused of treason by recruiting veterans of an anti-terrorist operation in the east of Ukraine to simulate the preparation of terrorist acts in Russia, which Russian special services could use to discredit the Ukrainian authorities.
The International Society for Human Rights has repeatedly drew attention to the multiple inconsistencies in the trial of D. Mastikasheva with rulings of the ECHR and the European Convention.
The lawyer initially drew the attention of the court to the fact that the session began 1.5 hours after the appointed time, which, considering how seldom the court sessions are, significantly delays the process of the case, while the accused is in custody. Also, the lawyer stated his readiness to work for a week in a row from morning until the end of the working day in order to expedite the consideration of the case, but the court appointed two meeting dates with a break of two weeks each. This fact cannot be viewed as necessary diligence called for by the European Court of Human Rights in cases where the suspect is held in custody (“Kalashnikov v. Russia”).
Moreover, at this meeting the court was supposed to start to consider the evidence of the prosecution, but the prosecutor was not ready. He explained this by the need to consider very important petitions, so he will prepare for the next meeting.
For almost two months from the date of the announcement of the indictment, the prosecutor was not able to prepare. It can be assumed that his task in the case of D. Mastikasheva is in fact not the consideration of the case within a reasonable time, but the delay in the process of keeping the accused in custody. Moreover, the prosecutor was not even ready to consider the petition, since he did not prepare it, but referred to the fact that according to the norms of the criminal procedure the court is obliged to consider the expediency of extending the measure of restraint after the expiration of the term of previous detention. The prosecutor confined himself to the words “I will not read out the petition for an extension, because the court has repeatedly made such a decision. I believe that the risks that have been established have not disappeared and have not diminished“. The prosecutor even did not name term to which it is necessary to prolong a measure of restraint in the form of detention. This attitude of the prosecutor raises a strong doubt in the objectivity of the court, because it creates a sense of lack of equality of parties and the presence of deliberate awareness of the prosecution in the decisions that the court will take. Only after the clarifying question of the judge, the prosecutor agreed to name the risks: risk of absconding and the ability to influence witnesses. He did not confirm his words with any evidence or materials, as required by the provisions of articles 176-178 of the Code of Criminal Procedure.
Thus, the prosecutor already for the second time shifted his duties to court.
According to the practice of the ECHR, the extension by a court of detention under these conditions should be considered “willful”, since it was not proved necessary for such extension in specific circumstances (“Hayredinov v. Ukraine”). In the same decision, the European Court of Human Rights recalls that there is a presumption in favor of liberation. Before conviction, a person must be presumed as innocent and must be released once his/hers further detention is no longer justified (“Vlasov against Russia”).
The defense party has filed a petition for changing the restraint from custody to 24-hour house arrest, arguing that there is no reasonable charge against D. Mastikasheva, all evidence was obtained illegally, the accused is in custody for more than a year without considering the case in fact, which cannot meet the principle of reasonableness of time. Also, the lawyer said that even the prosecutor is not interested in this process: he does not see any risks and the need to prepare motions with the justification of the need to extend the measure of restraint in the form of detention and evidence of possible failure to fulfill the assigned procedural duties in case of applying an alternative measure of restraint. To the judge’s question about the petition, the prosecutor replied briefly: “I object” and only after clarifying by the court, further commented that Mastikasheva is accused of the “non-alternative” (according to Article 176 of the Code of Criminal Procedure) article of the Criminal Code, and therefore there is no reason even to consider alternative measures of restraint. Regarding “non-alternative” articles, the ECHR unequivocally pointed out in its decisions that the mere presence of a strong suspicion that a person had committed serious crimes cannot justify a long period of imprisonment (“Kalashnikov v. Russia”) and no consideration by the court of any alternative to detention of measures of restraint is a violation of Article 5 § 3 of the European Convention (“Sinkova v. Ukraine”).
The court also considered the petition of the lawyer of Darya Mastikasheva in favor of her mother, whom he represents, with regard to the lifting of the arrest and the return of money withdrawn during the search on 17.08.17. According to the lawyer, the purpose of withdrawing funds is confiscation, in the event if Mastikasheva will be found guilty. Also, the lawyer asked the court to get acquainted with the decision of the Babushkinsky district court of the Dnieper city, in which for the entire amount personally provided by N. Petrichenko (the mother of D. Mastikasheva) during the search, the sum was seized without any justification for the ownership of these funds personally by Daria. At the moment N. Petrichenko is taking care of her (Daria’s) young son.
With regard to the petition, the court asked the lawyer whether he had any evidence that the funds belonged to the mother, and not to D. Mastikasheva, thus transferring the burden of proof to the lawyer. The prosecutor, in turn, also objected to the petition because the lawyer did not give any proof of the ownership of N. Petrichenko’s funds, while for the arrest of these funds investigators did not need any evidence that the money belonged to D. Mastikasheva. As a result, the court refused to lift arrest of the seized money.
The next session is scheduled for September 19, 2018. Experts of the International Society for Human Rights will continue monitoring this litigation. The previous materials can be found here.