Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearting 06.02.20)

On June 2 and 3, in the Gadyatsky District Court of the Poltava Region, a regular court hearing was held in the case of the head of the “Vizit” TV company Alexander Melnik, who is one of the three accused (together with A. Kryzhanovsky, I. Kunik) in the case of the murder of the mayor of Kremenchug A. Babayev and the judge of the Kremenchug court A. Lobodenko.

At this hearing, the prosecutor’s petitions to extend the terms of detention of accused Melnik, Kunik and Kryzhanovsky were considered.

The accused have been in custody since September 2014 (which is 5.5 years without changing the measure of restraint).

In his petition, prosecutor Moskalenko justified the need to extend the exceptional measure of restraint with the following risks:

1) the presence of uncontrolled territories, which justifies the risk of the possibility of escape.

2) the presence of undisclosed witnesses, which confirms the risk of possible pressure on them.

The case law of the ECtHR, in such cases, speaks of the need to take into account the terms of detention.

In § 73 of the ECtHR judgment in the case of “Lyubimenko v. Russia”, the Court acknowledges that the authorities could reasonably have believed that the risk of pressure on witnesses and jurors was present in the first place. However, the Court is not convinced that this ground alone can justify the entire five-year period of the applicant’s detention. Indeed, the domestic courts referred to the risk of complicating the proceedings in a succinct manner, without indicating any aspect of the applicant’s character or conduct, in support of their conclusion that he was likely to resort to intimidation. In the Court’s opinion, such a usually formulated risk cannot justify the applicant’s detention for more than five years. The domestic courts did not take into account the fact that this ground inevitably became less and less relevant over time. The motivation of the courts did not evolve to reflect the evolving situation and to check whether the sufficiency retained this reason at the advanced stage of the proceedings. Thus, the Court is not convinced that during the entire period of the applicant’s detention there were compelling reasons for fear that he would interfere with witnesses or jurors or otherwise obstruct the consideration of the case, and, of course, not in order to outweigh the applicant’s right to be prosecuted within a reasonable period of time or release pending trial.

3) The defense declares a motion to declare the evidence inadmissible, therefore it delays the trial.

4) The lawyer of the accused Kryzhanovsky – M. Vasilishin, previously represented the interests of the accused Melnik in civil proceedings (2013).

5) The imperfection of electronic controls, according to the prosecutor, confirms the impossibility of applying a measure of restraint not related to imprisonment.

It should be noted that during the consideration of the application of methods of ensuring criminal proceedings, the parties must submit to the court evidence of the circumstances to which they refer (part 5 of article 132 of the Criminal Procedure Code of Ukraine). At the same time, the prosecution in the petition for the extension of the measure of restraint limited itself to only formal descriptions of possible violations by the accused, without referring to specific evidence.

6) The severity of the possible punishment.

With regard to the severity of the possible penalty, the European Court of Human Rights recognizes that suspicion of serious crimes may initially justify detention. At the initial stage of the proceedings, the need to ensure proper investigation and to prevent escape or reoffending may justify detention. However, while the severity of the sentence is an important element in assessing the risk of escape or reoffending, the Court reiterates that the gravity of the charges alone cannot justify lengthy pre-trial detention (§ 102, “Panchenko v. Russia”).

As regards the existence of a risk of escape, the Court reiterates that such a risk cannot be measured solely on the basis of the severity of the sentence that a person may face (§ 106, “Panchenko v. Russia”).

Also, in the petition for the extension of the measure of restraint, the prosecution once again incorrectly quotes the decisions of the ECtHR and does not link it with its arguments.

The prosecutor referred to § 58 of the ECtHR Judgment in the case of “Bekchiev v. Moldova”, pointing out that the risk of escape is assessed in the context of factors related to character, morality, place of residence, occupation, property status, family ties and all types of ties in the country.

At the same time, in the same decision and in the same paragraph, the court indicated that the expectation of a harsh sentence and the weight of evidence may be appropriate, but they are not decisive, and the possibility of obtaining guarantees can be used to compensate for any risk (“Neumeister v. Austria” § 10 ).

ISHR experts have been monitoring this trial since 2017, which gives us the right to conclude that the measure of restraint will be automatically extended and that there are no real facts that would confirm the risks. Petitions to the defense are handed in immediately before the hearing, and the reasoning about the advisability of extending the detention often does not meet the requirements of the Criminal Procedure Code. In addition, in this context, one can recall that earlier, when the observer asked the prosecutor about why the prosecution did not support the risks with any justifications and did not try to reasonably explain why no other, softer measure of restraint could be applied, the prosecutor, who, on this stage is a member of the group of prosecutors in the case of A. Melnik and others, said (literally) that for this court it is enough. That certainly casts doubt on the objectivity of the trial.

The defense referred to the formal nature of the prosecutor’s request to extend the measure of restraint. As well as unconfirmed risks by actual circumstances. In addition, in the opinion of the defense, reasonable time limits were violated.

Detention in custody for more than 5 years, based on the case law of the ECtHR, is a violation of reasonable time limits. In § 9 of the ECtHR case “Levchenko and Others v. Ukraine” (which, as we have repeatedly indicated, includes the case of one of the previously accused in this case – “Pasichny v. Ukraine”), the court, having considered all available materials, decided that in this case the duration of the applicants’ detention was excessive.

It should be noted that the International Society for Human Rights asked the court to broadcast the court session from 06.02.2020 and 06.03.2020. The Gadyatsky District Court provided the broadcast. The ISHR is grateful for the openness of the court before the human rights community.

The International Society for Human Rights will continue to monitor this trial.