Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session 12.17.19)

On December 17, a regular court session was held in the Gadyatsky District Court of the Poltava Region in the case of the head of the television company “Visit” 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 filed a motion to extend the measure of restraint to all the accused.

The application is motivated by the following:

• The severity of the possible punishment in the form of life imprisonment, the prosecutor considers enough justification that the accused can hide from the court.

The European Court of Human Rights acknowledges 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 re-offending, the Court recalls that the gravity of the charges alone cannot justify the lengthy periods of pre-trial detention (paragraph 102, ECtHR judgment of “Panchenko v. Russia”).

As regards the risk of escape, the Court recalls that such a danger cannot be measured solely based on the severity of the sentence he faced (paragraph 106, Decisions of the ECtHR “Panchenko v. Russia”).

It must be clarified that in the phrase “initially acquit”, such an excuse cannot be applied to the defendants in this case, as their term of detention exceeded 5 years.

• The prosecution also considered it possible to assert that the statement of the accused about distrust of the court is also a risk of non-fulfillment of procedural obligations.

It should be noted that the International Society for Human Rights has repeatedly expressed its concerns about a possible violation of the rights of the accused, including the right to a fair trial. First of all, such concerns relate to the automatic extension of the measure of restraint in the form of detention (without justification for such a need by the prosecution).

• Pressure on victims and witnesses.

In paragraph 73 of the ECtHR Decision “Lyubimenko v. Russia,” the Court accepts that the authorities could reasonably believe that the risk of pressure on witnesses and juries 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. 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 period of time or to release pending trial.

• The impossibility of applying a milder measure of restraint is motivated by the fact that there is no control over the accused’s communication at the place of residence, there is no full control in the days of court hearings, and also the imperfection of 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 side of the charge of requesting an extension of the measure of restraint was limited only to formal descriptions of possible violations by the accused, not referring to specific evidence. In addition, the burden for the imperfection of electronic controls on the accused cannot be considered as consistent with the principles of human rights protection.

Following a review of the prosecutor’s application, the court ruled to extend the measure of restraint by the accused for another 60 days.

An unprecedented violation of the reasonable time frame for a trial involves the fact that the defendants have been in custody since September 2014. In accordance with the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine on Improving the Procedure for Enrolling by the Court of the Term of Pretrial Detention in the Term of Sentence”, the court enters the term of pretrial detention based on one day of detention for two for imprisonment. In fact, the accused have been in custody for more than 5 years, and in the case of recounting, the period of their detention will be (at the moment) almost 11 years. In this regard, the International Society for Human Rights considers the fears of lawyers that the court will be forced to take into account the fact that the defendants have already served more than the minimum sentence of 10 years of imprisonment specified in Part 2 of Article 115 of the Criminal Code, are justified. Given the fact that the court is still considering the first episode of the two (first murder), the term of detention of the accused may be much longer. Despite the gravity of the accusation, the International Society for Human Rights considers that the presumption of innocence must also be taken into account, according to which the accused should be at the stage until their guilt is proved to be innocent. And the deprivations associated with the criminal case should not be more than what a high-quality court hearing requires.

According to paragraph 35 of the Decision of the ECtHR “Muller v. France”, in order to assess whether continued detention is justified, first of all, one should study all the circumstances proving the existence or absence of such a requirement and state them in its decisions.

The constancy of reasonable suspicion is a prerequisite for the lawfulness of prolonged detention, but after a certain period is insufficient. The court must establish other grounds that continue to justify the deprivation of liberty and will be “appropriate” and “sufficient”.

Clause 91 of the Decision of the ECHR “Buzaci v. the Republic of Moldova” stipulates that, first of all, the national judicial authorities must ensure that in a particular case the preliminary detention of the accused does not exceed a reasonable time. Accordingly, they should, taking into account the principle of the presumption of innocence, study all the facts that are in favor or against the existence of the aforementioned requirement of public interest or justify a deviation from the norm in Article 5 of the Convention, and must state them in their decisions.

The next hearing is scheduled for January 20, 2020.

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