Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session on 04.08.20)

On April 8, 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 three 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.

At this hearing, the prosecutor’s applications for extending the detention of the accused Melnik and Kryzhanovsky were considered. Recall that the accused Alexander Melnik (like A. Kryzhanovsky and I. Kunik) has been detained since September 2014, which amounts to a prison term of more than 5.5 years. And only in the Gadyatskiy district court the case has been considered for almost 2 years.

The International Society for Human Rights has been monitoring this case since 2017. The group of observers is most concerned about violations related to the lack of adequate medical assistance to the accused, ignoring the decision on this proceeding and the general practice of the ECtHR, etc. The ISHR paid particular attention to the automatic extension of the measure of restraint in the form of detention for all three accused.

Throughout the monitoring period of this proceedings, a group of prosecutors, stating a request for an extension of the measure of restraint in the form of detention, limited themselves to voicing the list of risks identified by Article 177 of the Code of Criminal Procedure of Ukraine. Without their justification, as well as the justification of why an alternative measure of restraint, for example, round-the-clock house arrest, cannot be applied to the accused. However, such requests (formally not meeting the requirements of the CPC) were systematically granted by the court.

In order to prevent the prosecutor from abusing his powers, implementing the principle of publicity of court hearings, as well as in connection with quarantine measures related to the spread of COVID-19 virus infection, which excludes the physical presence of observers at court hearings, the ISHR requested the Gadyatskiy district court to broadcast the court hearings on 8 and April 9, 2020. The International Society for Human Rights expresses its gratitude to the court for the satisfaction of this request (statement), which testifies to the openness of the court to the human rights community.

However, even the video broadcast could not be reflected in the validity of the prosecutor’s request for an extension of the detention period. Although, it must be admitted that it has become a little more informative. As usual, the prosecutor D. Moskalenko pointed out that the risks did not decrease and only detention could guarantee A. Melnik’s fulfillment of his procedural duties and prevent the possible risks.

The essence of the hearing. In his application, the prosecutor D. Moskalenko indicated the following:

  1. The severity of a possible sentence of life imprisonment is the reason that the accused can hide from court;
  2. The “procedural sabotage” aimed at delaying the consideration of the case of the defense (the statement of the defense’s petition to provide the accused Melnik with mobile communications and the Internet) indicates that even with such a measure of restraint, A. Melnik is trying to evade the court;
  3. Imperfection of electronic controls;
  4. Pressure on the victim Shlyakhova – by discrediting her lawyer Kononenko in court;
  5. The presence of Melnik significant financial resources;
  6. Risk of pressure on witnesses.

ECtHR case law.

  1. With regard to the gravity of the possible punishment, the European Court of Human Rights admits that suspicion of serious crimes may initially justify detention. At the initial stage of the proceedings, the need to ensure the proper conduct of the investigation and to prevent the escape or re-commission of the offense may justify detention. However, although the severity of the sentence is an important element in assessing the risk of escaping or reoffending, the Court recalls that the gravity of the charges alone cannot justify the lengthy periods of pre-trial detention (§ 102, “Panchenko v. Russia”). Recall that A. Melnik has been kept in custody for more than 5.5 years, which in no way can be considered the “initial stage”.
  2. As regards the risk of escape, the Court recalls that such a danger cannot be measured solely on the basis of the severity of the sentence faced (§ 106, “Panchenko v. Russia”). The motives of the prosecution for pressure on witnesses and victims should be supported by evidence. In addition, for the period of quarantine measures, all borders of Ukraine (both air and ground) are closed. The risk of escaping the court by escape at this stage is substantially minimized.
  3. In § 73 of the ECtHR judgment “Lyubimenko v. Russia”, the Court accepts that the authorities could reasonably have considered that the risk of pressure on witnesses and juries was initially present. However, the Court is not convinced that this basis alone could justify the entire five-year period of the applicant’s detention. Indeed, the domestic courts referred to the risk of obstructing the trial in a short form, without indicating any aspect of the applicant’s nature or behavior, in support of his conclusion that he would likely resort to intimidation. In the Court’s view, such a generally 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 basis inevitably became less and less relevant over time. The motivation of the courts did not develop in order to reflect the evolving situation and to check whether this basis remained sufficient at an advanced stage of the proceedings. Thus, the Court is not convinced that throughout the entire period of the applicant’s detention there were substantial grounds for fear that he would interfere with witnesses or jurors or otherwise impede the examination of the case, and, of course, not to outweigh the applicant’s right to a trial within a reasonable time or to release pending trial.

The International Society for Human Rights cannot assess the arguments of the prosecution about the “procedural sabotage” of the defense, due to the fact that such terminology is absent in the procedural law. A  group of observers who have been monitoring this proceeding for several years asked to indicate that the prosecutor’s words about pressure on the victim, about threats to the prosecutor, cynical and impudent statements, cannot be confirmed. Observers believe that these words may have the nature of manipulations by the prosecution on camera in connection with the video broadcast.

Melnik’s lawyer, Ruslan Lazorenko, filed a motion to amend the measure of restraint, which is motivated by the following:

  • Melnik is a participant in the liquidation of the Chernobyl accident, as a result of which he is a disabled person, has numerous chronic diseases, confirmed by the protocols of medical examinations. In addition, over time, the number and severity of diseases only grows.
  • Repeatedly elected as a member of a local parliament;
  • Member of public organizations;
  • A measure of restraint was chosen on the basis of a motion by the prosecutor D. Khodatenko, who was not authorized in this criminal proceeding;
  • Detention of more than 5 years is a violation of reasonable time limits. In § 9 of the ECtHR case “Levchenko and Others v. Ukraine” (containing a complaint about this proceeding), the Court having examined all available materials, considers that in this case the length of the pre-trial detention of the applicants was excessive. The fact that the national court completely disregarded the provisions of the ECtHR in this case is of great concern to the human rights community.
  • The formal nature of the prosecutor’s request for an extension of the measure of restraint. Risks are not confirmed by actual circumstances.

Lawyer Mironov said that the prosecutor’s justification for the suspicion is based on the testimony of the accused A. Kryzhanovsky, which he gave during the pre-trial investigation. At the same time, in court, Alexander Kryzhanovsky denied this evidence, referring to the use of torture and pressure from the prosecution on him and his family.

The next hearing is scheduled for April 9, 2020.

Experts from the International Society for Human Rights will continue to monitor this trial.