Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing 02.12.20)

On February 11-13, hearings were 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 and I. Kunik) in the murder of the mayor of Kremenchug A. Babayev and judge of the Kremenchug court A. Lobodenko. All three sessions were devoted to the consideration of the prosecutor’s applications for an extension of the measure of restraint by the accused and the defense’s applications for changing the measure of restraint.

As in previous petitions, the prosecution refers to the following circumstances:

1) The severity of the possible punishment in the form of life imprisonment, the prosecutor considers the basis that the accused can hide from the court.

However, 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, despite the fact that 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 pre-trial detention (paragraph 102, ECtHR judgment “Panchenko v. Russia”).

As regards to 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 by the defendant (paragraph 106, Decisions of the ECtHR “Panchenko v. Russia”).

2) Pressure on victims and witnesses.

In paragraph 73 of the ECtHR judgment “Lyubimenko v. Russia,” the Court accepts that the authorities could reasonably believe that the risk of pressure on witnesses and jurors was present initially. 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 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 have a trial within a reasonable time or to release him pending trial.

3) The impossibility of applying a milder measure of restraint is motivated by the fact that there is no control over the communication of the accused at the place of residence, there is no full control in the days of court hearings due to imperfect electronic controls.

It should be noted that during the consideration of the application of methods to ensure 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 prosecutor limited himself only to formal descriptions of possible violations by the accused, not referring to specific evidence.

In the application for the extension of the measure of restraint, the prosecution found it possible to refer to the case of the ECtHR “Labita v. Italy”, where in paragraph 152 it is stated that in accordance with the judicial practice 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 upon 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.

For reference: in this case (“Labita v. Italy”), the accused stayed in custody for 2 years and 7 months.

In paragraphs 163, 164 of the decision in the case of the ECtHR “Labita v. Italy”, the Court notes 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 indicated in the contested decisions are not sufficient to justify the applicant’s preliminary detention for 2 years and 7 months. Recall that the defendants A. Melnik, A. Kryzhanovsky, I. Kunik have been in custody for more than 5.5 years.

The defense in the petition for changing the measure of restraint to Melnik, indicated the following circumstances:

1) Melnik is a participant in the liquidation of the Chernobyl accident, as a result of which he is a disabled person of group 2, has heart disease.

2) Detention for more than 5 years is a violation of reasonable time limits.

In paragraph 9 of the case of the ECtHR “Levchenko and Others v. Ukraine” (which, as mentioned earlier, includes the case of one of the previously accused – “I. Pasichny v. Ukraine”), the court examined all available materials and considers that in this case the length of pre-trial detention was excessive. Due to the fact that the case of the ECtHR “Levchenko v. Ukraine” is being considered in relation to the previously accused I. Pasichny (according to his statement), the fact that the court completely disregarded the requirements of this case is of deep concern to the International Society for Human Rights.

3) The formal nature of the prosecutor’s request for an extension of the measure of restraint. Risks are not confirmed by actual circumstances.

4) Further extension of custody makes it impossible to exercise the right to retirement benefits.

In accordance with Art. 10 of the Convention on the Rights of Persons with Disabilities, the participating States reaffirm the inalienable right of everyone to life and take all necessary measures to ensure its effective implementation by persons with disabilities on an equal basis with others.

At the same time, the participating States recognize that persons with disabilities have the right to the highest attainable standard of health without discrimination on the basis of disability. Participating States shall take all appropriate measures to ensure access by persons with disabilities to gender-sensitive health services, including rehabilitation for health reasons (Article 25 of the Convention).

The defense appealed to the court (November 4, 2019, December 17, 2019) to ensure that it is possible to exercise the right to retirement benefits by organizing a personal presence in the pension fund to arrange a pension for A. Melnik. According to the statement of the lawyers, the court, having not examined the applications on the merits, redirected them to the pre-trial detention center.

Moreover, in accordance with Art. 42 of the Code of Criminal Procedure of Ukraine, the accused has the right to file motions, and in accordance with Art. 350 of the Code of Criminal Procedure of Ukraine, the court decides on the fact of considering the application.

5) The defense claims that the transportation of the defendants has signs of torture, since the distance from the city of Poltava to Gadyach is 116 kilometers one way in extremely uncomfortable conditions. On days of court hearings, the accused are deprived of walks in the fresh air, and often breakfast.

In paragraph 108 of the “Yakovenko v. Ukraine” case, the court stated the following: with regard to the transport of prisoners, the ECtHR considered that individual compartments with an area of ​​0.4, 0.5 or even 0.8 square meters are not suitable for transporting a person, no matter how short the duration.

Based on the results of the consideration of the petitions, the court ruled to extend the measure of restraint for the accused for a period of 60 days.

It should also be noted that the International Society for Human Rights, in advance, requested the court to broadcast the court hearing on February 13, 2020 on the portal of the Judicial Authority of Ukraine. Unfortunately, the court was not able to broadcast “because of the consideration of the prosecutor’s request for an extension of the measure of restraint”. We do not quite understand this wording, however, the ISHR will re-send a letter to the Gadyatskiy District Court for video broadcasting when considering the extension of the measure of restraint for the accused. We hope that such cases do not tend to limit the publicity of the trial.

The next hearing is scheduled for 02/18/2020.

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