Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session 11.04.19)
On November 4, a regular court session was held in the Gadyatsky District Court of the Poltava Region in the case of the head of the “Visit” television company, Alexander Melnik, who is one of the accused (together with A. Kryzhanovsky, I. Kunik) in the murder of the mayor of Kremenchug A. Babayev and Judge of the Kremenchug court A.Lobodenko.
Earlier, on July 13, 2019, the court allowed the prosecution to conduct additional investigative actions with the participation of the accused I. Pasichny, who, in his sixth year in custody, declared his desire to conclude a guilty plea agreement.
On October 16, 2019, the Gadyatsky District Court approved a plea agreement between the prosecutor Moskalenko and the accused I. Pasichny. The sentencing of the accused Pasichny followed after the separation of his case in a separate proceeding. The same panel of judges of the Gadyatsky District Court pronounced the verdict on the accused, which is considering the case with respect to the rest of the accused.
On October 22, 2019, at the next court session, the defense filed a motion to challenge the panel of judges of the Gadyatskiy district court composed of chairman S. Kirichka, judges E. Zakolodyazhnaya, L. Tishchenko. The petition is mainly motivated by the fact that the defense fears that the collegium which convicted one of the accused (I. Pasichny) will not be able to conduct an impartial and objective trial against the remaining three accused.
By the decision of the panel of judges of the Gadyatsky District Court, the application of the defense was rejected.
In view of the foregoing, the ISHR experts suggest that attention be paid to the case law of the European Court of Human Rights on the impartiality of judges.
In §§ 114-116 of the ECtHR judgment “Rudnichenko v. Ukraine” (Application No. 2775/07), the Court notes that in the vast majority of cases involving impartiality, it focused on objective verification. However, there is no separation between subjective and objective impartiality, since the conduct of a judge can not only raise objective fears of impartiality from the point of view of an external observer (objective test) but can also turn to the question of his personal conviction (subjective verification). Thus, in some cases where it may be difficult to obtain evidence that can refute the presumption of the subjective impartiality of a judge, the requirement of objective impartiality provides another important guarantee.
The Court also emphasizes that in this respect even appearance may have a certain meaning or, in other words, “justice should not only be perfect, but should be considered perfect”. At stake is the trust that the courts in a democratic society must inspire in the public. Thus, any judge with respect to whom there is legitimate reason to fear a lack of impartiality must withdraw its decision.
On November 4, 2019, the session began with a statement from the accused Melnik and Kryzhanovsky on the challenge of the prosecutor Khodatenok.
The petition is motivated by the fact that on September 11, 2014, after a court hearing in the Court of Appeal of the Poltava Region, the prosecutor Khodatenko told the media that the accused Melnik was suspected of the murder of Judge A, Lobodenko. But, as of September 11, 2014, A. Melnik was not in the status of a suspect on this fact.
The accused A. Melnik filed a lawsuit in court on violation of the presumption of innocence. The defendant in the lawsuit was the prosecutor’s office of the Poltava region represented by the mentioned prosecutor Khodatenko.
The lawyer of the accused A. Kryzhanovsky, M. Vasilishin, focused on the fact that only the fact that the prosecutor was the defendant in a civil case is enough for a reasonable doubt about the bias of the prosecutor in this criminal proceeding.
By the decision of the board of judges of the Gadyatsky district court of November 4, 2019, the request for the challenge of the prosecutor Khodatenko was refused.
It should be noted that according to clause 2 of part 1 of Article 3 of the Law of Ukraine “On the Prosecutor’s Office”, the activities of the prosecutor’s office are based on the principles of legality, justice, impartiality and objectivity.
The next hearing is scheduled for 11/21/2019.
Experts from the International Society for Human Rights will continue to monitor this trial.