Monitoring of the case of Alexander Kryzhanovsky and Alexander Melnik (hearing on 02.06.20)

On February 6, 2020, the Kharkov Court of Appeal heard criminal proceeding on the appeal of A. Kryzhanovsky and A. Melnik against the decisions of the Gadyatsky District Court of the Poltava Region, which extended their term of detention.

Alexander Kryzhanovsky and Alexander Melnik are charged with the murder of the mayor of Kremenchug A. Babaev and the judge of the Kremenchug court A. Lobodenko. The term of detention of the accused exceeds 5 years. The ISHR has been monitoring this lawsuit since 2017 and more than once found violations of the European Convention. A detailed report on violations in this case can be found on the official website of the ISHR.

For convenience, we will break this report into two parts. The first will be devoted to the consideration of the appeal of A. Kryzhanovsky, and the second – to the appeal of A. Melnik.

1. Kryzhanovsky indicated that he had been in a pre-trial detention center for 65 months and the extension of his detention was automatic.

According to paragraph 3 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) after a certain period of time, it is just the existence of reasonable suspicion that does not justify deprivation of liberty, and the courts must give other reasons for the extension of detention (Judgment in the case of “Borisenko v. Ukraine”, para. 50). Moreover, these grounds must be clearly indicated by the national courts (“Eloev v. Ukraine”, para. 60, “Kharchenko v. Ukraine”, para. 80).

The European Court of Human Rights (hereinafter referred to as the Court) often found a violation of Art. 5 of the Convention in cases where national courts continued the detention of the defendant, referring mainly to the gravity of the charges and using template language, without even considering specific facts or the possibility of alternative measures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion of a crime committed by a detained person is a prerequisite for the legality of its continued detention, but after the lapse of time such a suspicion will not be enough to justify prolonged detention. The Court never attempted to translate this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the gravity of the crime. Once “smart suspicion” is no longer sufficient, the court must establish that the other grounds given by the courts continue to justify the person’s deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).

The Court also recalls the immutability of the grounds for suspicion. The fact that the arrested person has committed an offense is a sine qua non condition for his continued detention to be considered legal, but after a while this condition is no longer sufficient. Then the Court must establish that the other grounds on which the decisions of the judiciary are based continue to justify the deprivation of liberty. If these grounds turn out to be “relevant” and “sufficient”, then the Court will ascertain whether the competent national authorities found “special good faith” in the conduct of the proceedings (“Labita v. Italy”, para. 153).

In addition, the accused indicated that the appealed court decision had lost its force, since the period of detention was extended until December 22, 2019. And today is February 6, 2020.

Attorney of A. Kryzhanovsky stated that for reasons independent of the district court and the court of appeal the question could not be considered, since this is no longer relevant. The second lawyer drew attention to the need to close the appeal proceedings based on exhaustion of the action by the appealed court decision.

As a result of the judicial review, the appeal was rejected.

The impossibility of timely consideration of the case arose due to the lack of judges. At the first automated formation of the college of judges, the lawyer of the accused stated about the challenge of the judge Grishin P.V.  As a result, while the composition of the judges was being re-determined, the relevance of the consideration of the appeal was lost. However, such a situation, in the opinion of the International Society for Human Rights, restricts person’s right of access to a court. A person has the right not only to initiate proceedings, but also the right to count on the solution of his question.

2. When considering the appeal of A. Melnik, the lawyer stated about the challenge of Judge S. Shchabelnikov since he had already recused himself and this issue had already been resolved by previous decisions. As a result, the application was granted. The automated system will form a panel of judges for the third time. However, this is not necessary. Indeed, the next decision to refuse to satisfy the appeal because its consideration is no longer relevant does not affect the right of A. Melnik and other accused to consider the case within a reasonable time.

It should also be noted that on February 12, 2020, the Gadyatskiy District Court is once again considering the issue of extending the measure of restraint for A. Melnik, A. Krizhanovsky and another accused in this case, I. Kunik. Thus, given the automatic extension of the measure of restraint for the accused, the new court ruling on the extension of detention will be the second one that was scheduled for consideration by the Kharkov Court of Appeal. That even more calls into question the realization of the right to appeal the court ruling on the appointment or extension of a measure of restraint.

The International Society for Human Rights will continue to monitor and refine the details of this proceeding.