Monitoring of the cases of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing 11.19.2020)

On November 19, 2020, a hearing was held in the Gadyach District Court of the Poltava Region in the case of A. Melnik, the head of the “Visit” TV company, who is one of three defendants (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.

Earlier, the International Society for Human Rights appealed to the Gadyach District Court of the Poltava Region with a request to conduct a video broadcast of the court hearings on November 18, 19 and 20. However, on November 23, 2020, the ISHR observer received a reply stating that video broadcasting is allowed on the basis of a court decision, which is adopted by a panel of judges, taking into account the position of the parties and the possibility of such actions being carried out without prejudice to court proceedings. Since Judge E. Zakolodyazhnaya was on sick leave, the application of the ISHR could not be considered, since clause 20-5 of Section XI of the “Transitional Provisions” of the Criminal Procedure Code of Ukraine does not provide for the possibility of solving this issue by the presiding judge.

At the court session on November 19, 2020, the prosecutor’s petition to extend the period of detention was considered.

The issue was decided by the presiding judge, since in accordance with paragraph 5 of clause 20-5 of section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine temporarily, for the period of quarantine established by the Cabinet of Ministers of Ukraine (Resolution of the Cabinet of Ministers of Ukraine No. 641 dated July 22, 2020 as amended in accordance with Resolution No. 956 dated October 13, 2020) in order to prevent the spread of coronavirus disease (COVID-19) in Ukraine, if it is impossible for the panel of judges to consider an application for the extension of a measure of restraint in the form of detention within the time period specified by this Code, it may be considered by the presiding judge.

As in previous requests for extensions of detention, the prosecution referred to:

• the severity of the possible punishment in the form of life imprisonment.

However, the ECtHR has repeatedly noted that the severity of the charge cannot in itself justify long periods of detention (“Ečius v. Lithuania”, para. 94).

According to paragraph 3 of Article 5 of the Convention, after a certain period of time, the mere existence of reasonable suspicion does not justify the deprivation of liberty, and the courts must give other grounds for extending the detention (“Borisenko v. Ukraine”, para. 50). Moreover, these grounds must be clearly indicated by the national courts (“Yeloyev v. Ukraine”, para. 60; “Kharchenko v. Ukraine”, para. 80).

The existence of a reasonable suspicion that a detainee has committed a crime is a prerequisite and sine qua non for the legality of his continued detention, but after the expiration of the time, such suspicion will not be enough to justify a prolonged detention. The Court has never tried to translate this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the severity of the crime. Once “smart suspicion” is no longer sufficient, the court must establish other, court-based grounds that will continue to justify the deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).

The ECtHR also recalls that the grounds for suspicion remain unchanged. If the arrested person has committed an offense, this is a sine qua non condition for his continued detention to be considered lawful, but after a while this condition is no longer sufficient. The Court must then establish other reasons on which the decisions of the judicial authorities are based, which continue to justify the deprivation of liberty. If these grounds are found to be “appropriate” and “sufficient”, then the Court shall examine whether the competent national authorities have shown “special good faith” in the conduct of the proceedings (“Labita v. Italy”, para. 153).

• risk of pressure on victims and witnesses.

In paragraph 73 of the ECtHR judgment “Lyubimenko v. Russia”, the European Court acknowledges that the authorities could reasonably believe that the risk of pressure on witnesses and jurors was present in the first place. However, the Court is not convinced that this ground alone can justify the entire five-year period of the applicant’s detention. Indeed, the domestic courts referred to the risk of complicating the proceedings in a succinct manner, without indicating any aspect of the applicant’s character or conduct, in support of their conclusion that he was likely to resort to intimidation. In the Court’s opinion, such a usually 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 ground inevitably became less and less relevant over time. The motivation of the courts was not developed to reflect the evolving situation and to check whether the sufficiency at the advanced stage of the proceedings retained this basis. Thus, the Court is not convinced that, throughout the entire period of the applicant’s detention, there were compelling grounds for fear that he would interfere with witnesses or jurors or otherwise obstruct the examination of the case, and, of course, not in order to outweigh the applicant’s right to prosecute within a reasonable period of time or to be released pending trial.

As a result of consideration, the petition of the prosecution was granted. The court argued its position by:

• the fact that there is a real need to interrogate a large number of witnesses, therefore there is an objective risk of pressure on witnesses, and A. Melnik may take actions that will hinder the trial.
• referring to the motive and method of the criminal offense, which has a high level of public danger.

The International Society for Human Rights in each report on the results of the monitoring of court hearings, at which the issue of extending a measure of restraint was raised, expresses its concern over the situation and believes that the extension of the terms of detention of A. Melnik, A. Kryzhanovsky, I. Kunik may be automatic. Following the positions of the ECtHR, cited above, such actions of the State may violate the rights of the accused under Article 5 of the European Convention.

According to the lawyer, at the hearing, the presiding judge considered the prosecutor’s petition, but refused to consider the defense’s petition to change the measure of restraint. The International Society for Human Rights expresses its concern about the violation of the principle of equality in the case of A. Melnik, A. Kryzhanovsky, I. Kunik. We believe that the principle of equality should be implemented regardless of unforeseen force majeure conditions, such as, for example, quarantine. Indeed, the principle of equality of arms is only one feature of the broader concept of fair trial, which also includes the fundamental right to adversarial criminal proceedings (“Barbera, Messege and Jabardo v. Spain”, paras. 33-34).

The International Society for Human Rights will continue monitoring the criminal proceedings of A. Melnik, A. Kryzhanovsky, I. Kunik.