Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session 04.09.20)

On April 9, 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 the hearing, the court continued to consider the prosecutor’s request for an extension of the measure of restraint to the accused A. Kryzhanovsky and I. Kunik.

The prosecution claims that the trial in the Gadyatsk court lasts 1 year and 9 months. During this time, written evidence for one episode and only part of the written evidence for another episode were studied. Material evidence and expert examinations remained unexplored, and witnesses for both episodes were not questioned.

The prosecutor D. Moskalenko at the session on April 9 continued to assert that the position of the defense of A. Kryzhanovsky was agreed with the other defendants and had signs of “procedural sabotage”. Speaking of “procedural sabotage”, the prosecution points out that the defense of Alexander Melnik makes petitions that are not related to the consideration of the case. Surprisingly, the “procedural sabotage” of A. Kryzhanovsky’s defense is also justified by the actions of Melnik’s defense.

ISHR experts note the fact that the application is motivated by circumstances not prescribed by law. The court, in turn, does not give an assessment of the foregoing, which may indicate agreement with the charge of “procedural sabotage” of the defense. At the same time, there is no groundless fear that the criminal proceeding is not performed in this case in the context of ensuring the rights, freedoms and legitimate interests of participants in the proceeding, including the justification of the grounds provided for in the Code of Criminal Procedure to extend detention.

Justifying the existence of risks, the prosecutor Moskalenko noted the following circumstances:

  • The severity of a possible sentence of life imprisonment is the reason that the accused can hide from court;
  • electronic controls are not perfect;
  • the interrogation of a witness, I. Pasichny, has not yet been carried out (note of one of the accused in the case, who made a deal with the prosecutor and has already been released);
  • Kryzhanovsky served in the Soviet army;
  • in Ukraine there are territories beyond the control of the Ukrainian authorities.

Each report on the case of A. Melnik and others, which includes an analysis of the prosecutor’s request for an extension of the measure of restraint in the form of detention, contains references to the decisions of the European Court of Human Rights, which states that the ECtHR recognizes that the 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 re-offending, the Court recalls that the gravity of the charges alone cannot justify the lengthy periods of pre-trial detention (§ 102, “Panchenko v. Russia”). 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”).

Nevertheless, every 2 months, when the time comes to resolve the issue of measures of restraint, it is this risk that underlies both the petition of the prosecutor and the court ruling. And the International Society for Human Rights states that the detention of the accused is unfounded and has automatic, i.e. one that does not include new risks and any new justifications, nature.

The motives of the prosecution for pressure on witnesses and victims should be supported by evidence.

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 jury members 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 hold a trial within a reasonable period of time or to release pending trial.

The prosecution, earlier on February 2020, in a petition for an extension of the measure of restraint, cited the case of the ECtHR “Labita v. Italy”. But after the ISHR experts revealed the manipulation and selective quoting by the prosecutor of the text of this decision, already in this petition the prosecutor does not speak about the name of the ECtHR case, but still quotes it.

Section 152 of the ECtHR “Labita v. Italy” states that in accordance with the jurisprudence of the Court, the question of the reasonableness of the term of imprisonment cannot be assessed in “abstracto”. The reasonableness of the accused’s detention must be determined in each case, depending on the particulars of the case. Prolonged detention may be justified if there are specific indicators of the urgency of the public interest, which, despite the presumption of innocence, prevail over respect for individual freedom.

The first for national judicial authorities is the obligation to ensure that the pre-trial detention of the accused does not exceed a reasonable time. To do this, they are obliged to consider all the facts for and against the existence of a genuine public interest, taking due account of the presumption of innocence, not applying the rule on respect for individual freedom, and to state all these factors in a decision that refuses the applicant’s release. It is on the basis of these arguments for making a decision and the facts mentioned by the Applicant in his complaints that the Court is called to decide whether there has been a violation of Article 5 § 3 of the Convention (§ 152 “Labita v. Italy”).

It should be noted that already in the next § 153 of the ECtHR case of “Labita v Italy”, it is stated that the persistence of a reasonable suspicion that the arrested person has committed a crime is the (most important) sine qua non condition for the legality of a lasting conclusion, but after a lapse of time insufficient. In such cases, the Court must establish whether the judicial authorities provided the basis for the continued deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also find out that the national authorities demonstrated “special diligence” in conducting the investigation and consideration of the case.

In this case, for reference, the accused stayed in custody for only 2 years and 7 months.

In paragraphs 163, 164 of the ECtHR “Labita v. Italy” case, the Court observes that the grounds for the relevant decisions were reasonable, at least in the beginning, although they were general in nature. The authorities referred to the prisoners as a whole and only abstractly mentioned the essence of the alleged crime. They did not point out any factors demonstrating that the risks to which they referred exist and did not establish that the applicant, who had not previously been prosecuted and whose role in the organization of the mafia type was allegedly insignificant (the prosecutor requested 3-year sentence in this case) was a danger. The fact that the charges against the applicant were based on evidence, which over time, became weaker and not stronger, was not taken into account.

The Court considers that the grounds specified in the contested decisions are not sufficient to substantiate the applicant’s preliminary detention for 2 years and 7 months.

Thus, in the context of the decision of the ECtHR, by which the prosecutor motivates his application, the extension of the measure of restraint for the accused in this case is unfounded.

The defense filed a motion to change the measure of restraint to A. Kryzhanovsky and I. Kunik. The defense’s position consists in the groundlessness of the prosecutor’s motions and the lack of evidence, the poor state of health of the accused, the introduction of an emergency and quarantine regime (the ban on gathering more than 2 people in one place), and the absence of facts of non-fulfillment of procedural obligations. The ISHR insists that due to quarantine measures, due to which communication between the cities of the country is suspended, and also air and almost all land borders are blocked, it is necessary to take into account the reduced risk of hiding from the court.

In addition, special attention should be paid to proceedings in which the terms of detention already reach the minimum penalty prescribed by the Criminal Code (including in cases covered by the so-called “Savchenko law”). In the present case, the period of detention had already exceeded 5.5 years and more than six months ago, in paragraph 9 of the ECtHR case of “Levchenko and Others v. Ukraine”, the Court having examined all available materials, concluded that in this case the length of pre-trial detention under the applicants’ custody is excessive. In view of the fact that the case of the ECtHR “Levchenko and Others v. Ukraine” is being considered in relation to the previously accused I. Pasichny (on his statement), the fact that the court completely disregarded the requirements of this case is of deep concern to the expert council of the ISHR.

The court ruled to extend the measure of restraint to all the accused.

The next hearing is scheduled for 04/22/2020.

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