Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing on 05/20/20)

On May 20, 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 murder of the mayor of Kremenchug A. Babayev and Judge of the Kremenchug court A. Lobodenko.

The court continues to consider written evidence of the prosecution.

At this hearing, a series of evidence related to temporary access to belongings and documents was examined. The prosecution submitted to the court the ruling of the investigating judge (permission to conduct temporary access), the temporary access protocol and an optical disk.

The purpose of temporary access is to obtain information from a mobile operator about calls of mobile terminals, which according to the investigation belong to the accused, as well as addresses of stations that recorded these calls.

The defense categorically objected to the inclusion of this evidence in the case, indicating that the investigator had received these documents without having the authority to do so. Temporary access is always preceded by the appropriate permission of the investigating judge. Like all court decisions, the definition of an investigating judge must be motivated and justified. The defense insisted on a mandatory retrospective assessment of the validity of the determination of the investigating judge.

The International Society for Human Rights notes that some of the objections of the defense were reflected in the following decisions of the ECtHR.

In paragraph 81 of the ECtHR judgment in “Malone v. The United Kingdom” (Application No. 8691/79), the Court stated that the existence of a law authorizing the interception of communications to assist the police in their investigation and detection functions may be “necessary in a democratic society … to prevent unrest or crime.” However, the exercise of such powers, because of their inherent secrecy, carries the risk of abuse, which in some cases can be detrimental to a democratic society as a whole. Moreover, the resulting interference can be considered “necessary in a democratic society” only if the specific secret surveillance system adopted provides adequate guarantees against abuse.

In paragraph 66 of the ECtHR judgment in “Ben Faiza v. France” (31446/12), the Court reiterates that the use of information regarding the date and duration of telephone calls and dialed numbers can create a problem under Article 8, which elements are “ an integral part of telephone communications ”, although it differs in nature from interception of messages (“PG and JH v. United Kingdom”, No. 44787/98, § 42). In any case, the collection and storage, without the knowledge of the interested party, of personal data regarding the use of the telephone constitutes an interference with the right of the interested party to respect his personal life and correspondence within the meaning of Article 8 (“Copland v. The United Kingdom”, No. 62617/00, § 44).

Consequently, the Court considers that the judicial claim, by virtue of which these documents were transferred to the investigators and used, constituted an interference by a public authority with the person’s right to respect for his private life (§ 68 “Ben Faiza v. France”).

Furthermore, the Court observes that the judicial claims are subject to further judicial review. In subsequent criminal proceedings against the person concerned, criminal courts may review the lawfulness of such a measure and, if it is declared unlawful, the court has the right to exclude evidence obtained in this way from the proceedings (§ 73 “Ben Faiza v. France”).

It should be noted that in accordance with Art. 162 of the Code of Criminal Procedure of Ukraine, information that is held by mobile operators is a secret protected by law. Any unauthorized access to such information constitutes an interference with the rights guaranteed by Art. 8 of the Convention (Right to respect for private and family life).

According to § 233 of the ECtHR judgment in the case of “Roman Zakharov v. Russia” (Application No. 47143/06), the review and supervision of secret surveillance measures can take effect in three stages: when ordering surveillance for the first time, during or after it is terminated … It is important that the established procedures themselves provide adequate and equivalent guarantees for the protection of his rights. In addition, the values ​​of a democratic society should be respected as accurately as possible in supervisory procedures if the limits of necessity in the sense of paragraph 2 of Article 8 can be exceeded. In an area where there is abuse and can have such harmful consequences for a democratic society as a whole, it is in principle advisable to entrust supervisory control to a judge. Judicial control provides the best guarantees of independence, impartiality and the right procedure.

As for the third stage, after the termination of supervision, the issue of subsequent notification of supervision measures is inextricably linked with the effectiveness of legal remedies in the courts and, therefore, with the availability of effective guarantees against abuse of supervision powers. Thus, the individual should be able to challenge their legitimacy in retrospect.

The Gadyatsky court, after hearing the arguments of the participants, decided to attach evidence of the prosecution to the case, followed by an assessment in the deliberation room when sentencing.

It should be noted that the International Society for Human Rights requested the court to broadcast the court hearing on 05/20/2020. The Gadyatsky District Court provided the broadcast, in connection with which the ISHR is grateful to the court for the openness of the court to the human rights community and the desire to comply with the principle of publicity during the quarantine period, which most courts use to ensure maximum closeness from an outside observer.

The next hearing is scheduled for May 21, 2020.

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