Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing 09.15.20)
On September 15, in the Gadyatsky District Court of the Poltava Region, a court hearing was held in the case of the head of the “Vizit” TV company Alexandr 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. Babaev and the judge of the Kremenchug court A. Lobodenko.
Prior to the hearing, lawyer R. Lazorenko drew the observer’s attention to the fact that some of the evidence that the defense considers important – 40 court rulings on the conduct of a search (regarding the weapon from which, according to the prosecutor’s office, the shots were fired) are not provided to them for review and study. Lawyers have repeatedly filed motions to oblige the prosecutor’s office to provide documents for review, but the court did not satisfy any of them. The lawyers also asked the court to oblige the prosecutor’s office to provide them with other evidence for review – documents on the movement of the deceased judge A. Lobodenko. However, the court also rejected these requests. In the opinion of the ISHR, this may indicate a violation of the right to defense and one of the fundamental principles of legal proceedings – equality of arms.
As foreseen by the ECtHR judgments, the difficulties of the defense associated with not disclosing all materials must be balanced by the existence of legal procedures and be under judicial control (“Fitt v. The United Kingdom”, para. 20), with the possibility (both legal and factual) of a court to analyze the importance and usefulness of these materials for protection purposes. In addition, the rights due to all those charged with a criminal offense should include the opportunity to familiarize themselves, in order to prepare their defense, with the results of the investigation carried out throughout the proceedings (“Tarasov v. Ukraine”, para. 88).
One of the defendants, A. Kryzhanovsky, was unable to arrive in Gadyach for the court hearing due to poor health and difficult conditions of escort. The court, after consulting, decided on the possibility of his participation in the videoconference mode. This situation cannot but cause concern. The ISHR recorded a negative trend in the health status of A. Kryzhanovsky for several years: from just feeling unwell, back pain, the need to take painkillers before the start of each hearing, to the current one – the complete impossibility of personal presence. We are obliged to note this fact, which undoubtedly has signs of a violation of the European Convention on Human Rights.
One of the forms of violation of Art. 3 of the Convention, which is often established by the observers of the ISHR during monitoring, is the lack of adequate medical assistance. Thus, in the “Kashuba v. Ukraine” case, the ECtHR stressed that the lack of medical assistance during detention may constitute an appeal that contradicts Art. 3 of the Convention. The ECtHR came to a similar conclusion in the cases “Chuprina v. Ukraine”, “Hummatov v. Azerbaijan”, “Wuhan v. Ukraine”, and “Petukhov v. Ukraine”.
Lawyer M. Vasilishin also read out the petition of A. Kryzhanovsky, who has been in jail since September 2014. According to him, during his entire stay in custody and even after the medical examination on April 2018, his client did not receive proper medical assistance. Since March 2020, he has been moving with the help of a stick or other people, has lost all upper teeth, which is why he cannot eat solid food. Due to the lack of medical support, the inflammation in the upper jaw does not go away and A. Kryzhanovsky cannot eat normal healthy food for almost a month, which in turn led to an even greater deterioration in his health. In the petition, the accused asks the court to pay attention to his problem and ensure an adequate level of medical support.
By videoconference, A. Kryzhanovsky also added that he wants to take part in court hearings in person, but cannot. And he asked the court to provide his treatment both at the hospital, according to the conclusion of the medical examination, carried out almost 2 years ago, and at the dentist.
The prosecutor, as well as the representative of the victims, asked the court to pay attention to the fact that this issue does not apply directly to the court, but to the pre-trial detention center. Therefore, they suggested to the court that the letter with A. Kryzhanovsky’s petition be sent there. And despite the fact that the defenders urged the court to make a decision that oblige the medical institution at the pre-trial detention center, which is a separate legal entity from the pre-trial detention center, to provide the necessary legal assistance, the court decided to send another letter to the pre-trial detention center management. In this case, one can note not so much the failure to comply with the court decisions, but the possible self-removal of the panel of judges from resolving the issue with the provision of proper treatment.
According to the observer of the ISHR, the statement of the lawyer O. Mironov that such an attitude is used by the prosecutor in order to persuade the accused to take certain actions in favor of the prosecution, for example, confessing to committing the incriminated crimes that the accused did not commit [according to the lawyer], are not groundless. It should be recalled that earlier, after a long period of health problems, one of the accused, I. Pasichny, made a deal with the prosecutor. In the reports of the ISHR, it was recorded that Igor Pasichny complained about his health condition for a long time, asked the court to facilitate the provision of medical assistance to him, but never received it. After some time, when he could no longer physically come to court sessions and took part in the videoconference mode, I. Pasichny made a deal and pleaded guilty to the incriminated crimes, after which the prosecutor personally petitioned to change his measure of restraint to house arrest. International Society for Human Rights cannot assess the court’s decision, but since it was made on the basis of a deal, it can be assumed that the defendant’s poor health was one of the reasons for such a deal. According to the definition of article 1 of the UN Convention against Torture,” the definition of “torture” means any act by which a person is intentionally inflicted with severe pain or suffering, physical or mental, in order to obtain information or confessions from him or from a third party …”.
When examining material evidence, namely wad and wad containers, the defense drew the court’s attention to a number of inconsistencies of evidence with official documents and legislation, for example, the names of the attesting witnesses, the purity of the wads allegedly removed from the bodies, etc. Which casts doubt on the ownership and admissibility of this evidence.
Since A. Kryzhanovsky was unable to evaluate and study the material evidence via videoconference, the prosecutor suggested stopping the proceedings to provide treatment for A. Kryzhanovsky, or still find out his state of health and why he was not taken to the hearing. The court, having consulted, decided to attach all the evidence, giving A. Kryzhanovsky the right to examine the evidence separately upon request.
Due to the fact that A. Kryzhanovsky became ill and needed to call an ambulance to the pre-trial detention center, a break was announced until September 16, 2020.
Experts from the International Society for Human Rights will continue to monitor this trial.