Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing on 05/21/20)
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.
At a hearing on May 21, the court continued to examine the evidence of the prosecution, namely, the investigating judge’s definition of temporary access to information about the connections of mobile subscribers, relevant protocols and optical discs.
The defense stated that some of the decisions of the investigating judges on temporary access were not open to the accused and lawyers, and due to the fact that a protocol was drawn up on their basis and an optical disk was obtained, all of the above evidence are unacceptable.
On the issue of opening pre-trial investigation materials to the defense, the ECtHR in its decisions demonstrates a consistent position on the inadmissibility of violating the principle of adversarial and equal rights of the parties.
According to § 77 of the ECtHR decision in the case of “Lisa v. Estonia” (Application No. 59577/08), a fundamental aspect of the right to a fair trial was that criminal proceedings, including elements of such proceedings that are related to the procedure, must be adversarial and that between the prosecution and the defense must be equality of arms. The right to an adversarial trial in a criminal case means that both the prosecution and the defense must be able to learn and comment on the evidence submitted by the other party. In addition, article 6, paragraph 1, requires the prosecution authorities to disclose to the defense all material evidence at their disposal in favor of or against the accused.
Despite statements by the defense that it was impossible to further investigate such documents, the court continued to examine the information on the optical disk. This decision was motivated by the fact that although the definitions of the investigating judges were not open, research of the protocol and the disc is possible, since the latter were opened to the defense.
ISHR experts believe that only strict adherence to the legal rules for the collection and provision of evidence can guarantee the observance of the rights of participants in a democratic society. On the contrary, well-founded doubts about the legality of the legal procedure should form the basis of the motives of the procedural decisions of the court in such a way as not to violate the right to defense.
At this hearing, the court did not decide on the inadmissibility of the investigated documents and announced a break until 05/26/2020.
Concern is also caused by the fact that the accused Melnik has not been able to apply for a pension for a long time.
Previously, the ISHR has already documented the unsuccessful attempts of the accused to exercise the right to retirement. Melnik repeatedly appealed to the court with a request for his delivery to the pension fund office. At the same time, the court, without making any decision, sent a petition to the remand prison. In turn, the administration of the Poltava remand prison stated that it is impossible to deliver Melnik to a pension fund office without a court order.
In accordance with Art. 10 of the Convention on the Rights of Persons with Disabilities, the participating States reaffirm the inalienable right of everyone to life and take all necessary measures to ensure its effective implementation by persons with disabilities on an equal basis with others.
However, the participating States recognize that persons with disabilities have the right to the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access by persons with disabilities to gender-sensitive health services, including rehabilitation for health reasons (Article 25 of the Convention).
The ISHR experts believe that, with the appropriate powers, the court has stepped aside from resolving the issue of pension for the accused Melnik, which certainly violates his constitutional rights.
We believe that issues with violation of reasonable time limits for the trial, as well as ignoring the court’s request for delivery to the pension fund office should be considered in the context of disrespect for the honor and dignity of the participants in the proceeding.
ISHR also expresses deep concern about the current trend of ineffective revision of determinations on extending measures of restraint. Earlier, we have repeatedly recorded that the definitions are reviewed after the expiration date, that is, after the next extension of the detention by the trial court.
As of today, the definition of Kunik regarding the extension of the terms of detention of 12/17/2019 has not been revised in the appeal. At the same time, already twice the Gadyatsky court extended the measure of restraint to the accused I. Kunik.
This state of affairs gives reason to assert a systematic violation of the rights of the accused to a fair trial.
The next hearing is scheduled for May 26, 2020.
Experts from the International Society for Human Rights will continue to monitor this trial.