Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Pasichny, I. Kunik (session 08.12.19)

Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Pasichny, I. Kunik (session 08.12.19)

On August 12, a regular court session was held in the Gadyachsky District Court of the Poltava Region in the case of the head of the “Visit” television company Alexander Melnik, who is one of the four accused (together with A. Kryzhanovsky, I. Pasichny, 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 the hearing, the defense announced a motion to challenge the prosecutor Savchuk.

The lawyers of the accused Melnik, Kryzhanovsky and Kunik expressed deep concern caused by the facts of extra-procedural behavior of the presiding judge and the prosecutor Savchuk. The defense described the circumstances of possible pressure on the accused Pasichny, as a result of which the latter, in the fifth year of pre-trial detention, declared his desire to cooperate with the investigation and plead guilty. In support of the request for the challenge of the prosecutor, the defense party refers to the permission of the presiding judge to let the prosecutor meet one of the accused, Pasichny. The specified permission to visit was issued on June 12, 2019, on the day of the next session, but it was not submitted for discussion by the parties.

Describing violations of the right to defense, the lawyer pointed to inadequate consideration of the prosecutor’s request for a meeting with the accused Pasichny, in particular:

The application was not submitted for discussion (the right to defense has not been realized – to ask questions, to object);

The application was examined by the judge alone (according to Article 12 of the Law of Ukraine “On Pre-trial Detention”, permission to visit is considered by the COURT);

Familiarization with the criminal proceedings, which served as the motive for the prosecutor to appeal to the court, is a procedural action that can be implemented without judicial permission to visit.

Experts of the International Society for Human Rights (ISHR) are convinced that all court procedural decisions that are not submitted for discussion by participants in criminal proceedings have signs of violation of the right to defense and the adversarial principle of the parties to the trial. According to Part 2 of Art. 22 of the Code of Criminal Procedure of Ukraine, the parties have equal rights to collect and submit to the court evidence, motions, complaints, as well as to exercise other procedural rights provided for by the Code. According to paragraph 3 of part 4. Article. 42 of the Code of Criminal Procedure of Ukraine, the accused has the right to express his position in the court regarding the motions of other participants in the trial.

Based on permission, the prosecutor Savchuk met with the accused Pasichny in the pre-trial detention facility. Contrary to the requirements of the law on the mandatory participation of a lawyer in the proceedings of the prosecution, the defender of Pasichny was not notified of the meeting. The accused Pasichny claimed that the meeting took place without the participation of his counsel.

By the totality of the above circumstances, the defense side described the extra-procedural behavior of the prosecutor and the presiding judge. Meanwhile, it is the observance of procedural rules that guarantees the rights of participants in criminal proceedings.

Apparent procedural violations of the prosecution preceded the statement by the accused Pasichny about his willingness to cooperate with the investigation and the intention to conclude a guilty plea agreement, which later formed the basis for changing the measure of restraint on the accused Pasichny for house arrest. Such a situation may go against the observance of the right to a fair trial. In the case of “Natsvlishvili and Togonidze v. Georgia”, the ECtHR clarified that the courts are required to verify whether the plea agreement was reached in accordance with applicable procedural and substantive rules, whether the accused voluntarily and knowingly entered into it, whether there is evidence to support the guilty plea made by the accused, and whether the terms of the agreement are appropriate.

The experts of the ISHR see the improper observance of the procedural guarantees of the participants in the criminal proceeding. Based on this, in the presence of signs of extra-procedural interaction on the part of the prosecution, possible pressure on the accused cannot be ruled out. The above does not help to build trust in the court.

According to an objective criterion, it is necessary to establish whether there are facts that may cast doubt on the impartiality of the judge. From this point of view, even performances can have a certain meaning. The most important thing is the trust that the courts must evoke in a democratic society with the public and, above all, in the case of criminal proceedings, with the accused. So, any judge, for whose impartiality there are legitimate grounds for fear, should resign from the trial (ECtHR judgment in the case of “De Cubber v. Belgium”).

Experts of the International Society for Human Rights will continue monitoring this trial. Previous materials can be found here.