Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session 03.12.20)
On March 12, in the Gadyatsky District Court of the Poltava Region, a regular court session was held 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 case of the murder of the mayor of Kremenchug A. Babayev and Judges of the Kremenchug court A. Lobodenko.
The court session, at which the prosecutor continued to read out the written evidence, was held by video conference with the accused Kryzhanovsky and Kunik.
The prosecutor filed a petition for the study of an optical disc, on which, according to state prosecutors, car similar to the car of the murdered mayor Kremenchug Babaev and a VAZ 2108 were recorded.
The defense objected to the evidence being attached to the case in view of its apparent inadmissibility. First of all, lawyers insisted on the unknown source of information on disk, as well as the method of obtaining information. Also, the defense claims that the disc inspection protocol was falsified. In the protocol, as witness, citizen Fedorov is indicated. The defense provided explanations and a report that Fedorov did not live and never lived at the address indicated in the protocol. In the lawsuits of the same case in the Kobelyatsky court, earlier it was not possible to find the specified witness for the interrogation.
The case law of the European Court of Human Rights in determining the term “fair trial” requires consideration of whether the defense rights are respected. In particular, it is necessary to verify whether the defense was given the opportunity to challenge the authenticity of the evidence and object to its use. In addition, in the opinion of the ECtHR, it is necessary to take into account the quality of the evidence, including the question of whether its reliability or the accuracy of the circumstances in which it was obtained is called into question. The burden of proof lies with the prosecution, and any doubt should be of benefit to the accused (paragraph 57, “Jean v. Ukraine”).
The Gadyatsky court granted the prosecutor’s request and attached the protocol with an optical disk.
It should be noted that the defense has repeatedly pointed out the lack of motivation for such court rulings.
The European Court of Human Rights in §§ 59.60.61 of “Jean v. Ukraine”, emphasizes that the Convention is not intended to guarantee rights that are theoretical or illusory, but rights that are practical and effective. This is especially true for the guarantees enshrined in article 6, given the important place that a right to a fair trial in a democratic society takes with all the guarantees provided for in this article. For the right to a fair trial to remain sufficiently “practical and effective”, Article 6, paragraph 1, shall be interpreted in the light of the preamble to the Convention, which, inter alia, proclaims the rule of law the common heritage of the Contracting States. Therefore, no provision of domestic law should be interpreted and applied in a manner that is incompatible with the obligations of the state under the Convention.
In addition, in accordance with the established case-law of the Court, the right to a fair trial cannot be considered effective if the requests and observations of the parties are not really “heard”, that is, duly examined by the court.
Finally, in accordance with the Court’s established case-law, reflecting the principle of the proper administration of justice, the decisions of the courts must duly indicate the reasons on which they are based. The Court, in particular, ruled that, ignoring the specific, relevant and important arguments of the defense, the domestic courts are not fulfilling their obligations under Article 6 § 1 of the Convention.
The next hearing is scheduled for 04/08/2020.
Experts from the International Society for Human Rights will continue to monitor this trial.