Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing on 07.28.20)

On July 28 and 29, in the Gadyatsky District Court of the Poltava Region, a regular 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. Babayev and the judge of the Kremenchug court A. Lobodenko.

At these sessions, the prosecutor’s petitions to extend the measure of restraint for the accused in the form of detention and the defense petition to change the measure of restraint were considered.

As in previous motions, the prosecution referred to the following circumstances:

1)The severity of the possible punishment in the form of life imprisonment, the prosecutor considers as the reason that the accused can hide from the court.

However, the European Court of Human Rights recognizes that suspicion of serious crimes may initially justify detention. At the initial stage of the proceedings, the need to ensure proper investigation and to prevent escape or reoffending may justify detention. However, while the severity of the sentence is an important element in assessing the risk of escape or reoffending, the ECtHR recalls that the gravity of the charges alone cannot justify lengthy pre-trial detention (para. 102, “Panchenko v. Russia”).

As regards the existence of a risk of escape, the Court reiterates that such a risk cannot be measured solely on the basis of the severity of the sentence the person faced (para. 106, “Panchenko v. Russia”).

2) Pressure on victims and witnesses.

In para. 73 of the ECtHR judgment “Lyubimenko v. Russia”, the Court acknowledges that the authorities could reasonably have considered 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. Thus, the Court is not convinced that during 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 time or be released pending trial.

3)The impossibility of applying a milder measure of restraint, motivated by the fact that there is no control over the communication of the accused at the place of residence, the lack of full control during the days of court sessions, the imperfection of electronic controls.

It should be noted that during the consideration of the application of methods of ensuring 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 prosecution in the petition for the extension of the measure of restraint limited itself only to formal descriptions of possible violations by the accused, without referring to specific evidence.

The defense argued the petition to change the measure of restraint by the groundlessness of the accusation and the absence of risks of non-fulfillment of procedural duties. The characterizing data of the accused, according to the lawyers, indicate the absence of such risks.

In addition, the violation of the reasonable time limits for the trial and detention in this case was stated in two decisions of the ECtHR. As a result of consideration of the complaint of the accused I. Kunik and I. Pasichny, the ECtHR pointed out violations by the national court of the permissible terms of detention.

In paras. 35,36,38 of the ECtHR judgment “Bevz and Others v. Ukraine” (on the Kunik complaint), the Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case at hand and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what is at stake for the applicant in the dispute. Having examined all the materials presented to it, the Court did not find a single fact or argument capable of persuading it to come to a different conclusion. Having regard to its case-law on this point, the Court considers that in the present case the length of the proceedings against the applicants was excessive and did not meet the “reasonable time” requirement.

Accordingly, there has been a violation of the para. 1 of the Article 6 of the Convention.

At the same time, the court took into account that 5 years and 8 months of the trial is a violation of Article 6 of the Convention.

In paras. 25-30 of the judgment of “Bevz and Others v. Ukraine” (on the complaint of I. Kunik), the ECtHR notes that the seriousness of the charges against the applicants and the risk of their escape or interference in the relevant investigations were mentioned in the initial orders for their detention. These reasons remained the main reasons for the applicants’ detention pending their conviction or release. The Court also notes that the decisions in respect of the accused were formulated in general terms and contain repeated phrases. They do not suggest that the courts have properly assessed the facts relevant to the question of whether such a measure of restraint is necessary.

In addition, over time, continued detention requires further justification; however, the courts did not provide any further arguments. It appears that the domestic courts did not attempt to demonstrate the existence of specific facts proving the actual existence of the said risks, which, the courts argued, outweighed respect for individual freedom. In fact, the burden of proof was wrongly shifted to the applicants.

The ECtHR has frequently found a violation of para. 3 of the Article 5 of the Convention in cases against Ukraine on the ground that, even with respect to long periods of detention, the domestic courts relied on the same set of grounds (if any) in all cases of the relevant detention.

In view of the above, the Court considers that relying primarily and usually on the gravity of the charges, the authorities extended the applicants’ “pre-trial detention on grounds that could not be considered “sufficient” and “appropriate” to justify its length.

Accordingly, violations of Article 5 para. 3 of the Convention have been found.

Despite the fact that the prosecutor again did not change the request to extend the measure of restraint, nor to the already existing two decisions of the European Court of Human Rights specifically in this case, as well as the fact of the automatic extension of the measure of restraint recorded by the International Society for Human Rights, the Gadyatsky court granted the requests prosecutor to extend the detention of all accused.

During the entire period of monitoring of trials, the International Society for Human Rights records for the first time a direct disregard by a national court of the decisions of the ECtHR rendered in relation to the same cases.

The experts of the ISHR do not have sufficient grounds to believe that there are political or other, different from the judiciary, motives for making decisions, but deliberate disregard for the decision of the ECtHR is contrary to judiciary practice.

The next court hearing is scheduled for August 4, 2020.

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