Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Kunik (session 01/21/20)
On January 21, a regular court session was held in the Gadyatsky District Court of the Poltava Region 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 this hearing, the evidence of the prosecution was investigated, namely the video of the investigative experiment with the participation of the former accused I. Pasichny, who had previously made a deal with the prosecutor and plead guilty.
Earlier on June 12, 2019, the Gadyatskiy District Court of the Poltava region approved a visit of the prosecutor with the accused I. Pasichny in the Poltava Penitentiary Institution. This petition was not submitted for discussion by the participants in the trial, despite the fact that on the same day the proceedings were held.
On the basis of the sanction authorized by the court, the prosecutor visited the accused I. Pasichny in the pre-trial detention center without the participation of a defense counsel, despite the requirement of the Criminal Code on the mandatory participation of a defense counsel in proceedings for particularly complex crimes (Articles 52, 53 of the Criminal Code). The accused himself also confirmed that the meeting took place without the participation of a lawyer. In addition, the meeting, which is a procedural action, was not recorded. 07/13/2019, the court allowed the prosecution to conduct additional investigative actions with the participation of I. Pasichny, who, in his sixth year in custody, declared his desire to conclude a guilty plea agreement. Due to the lack of documentary recording of the meeting and the absence of a lawyer, the other three defendants and their lawyers think that the prosecutor could put pressure on I. Pasichny.
At this session, the defense also stated that the prosecutor Savchuk visited another accused, A. Kryzhanovsky in the Poltava pre-trial detention center. And again, the communication took place without a lawyer and without procedural fixation. On this fact, the defense side challenged the prosecutor Savchuk. The court postponed consideration of the application for challenge because of the failure to appear at the hearing of the prosecutor Savchuk.
According to Part 1 of Art. 52 of the Code of Criminal Procedure of Ukraine, the participation of a defender is mandatory in criminal proceedings regarding particularly serious crimes.
Earlier in the court hearings, the accused already complained to the court that during the technical breaks on the days of the sessions, the prosecutor Savchuk tried to communicate informally with the accused, waiting for one of them near the toilet. The International Society for Human Rights is concerned about this way of obtaining evidence and agreements from the prosecution. We hope that the court will pay attention to this feature of the procedural actions in terms of its admissibility and legality.
During the trial, the petitions of the parties were not announced.
The defense repeatedly, before this court session, drew the court’s attention to the lack of medical treatment for the accused. It should be noted that all defendants have been in custody since September 2014. Over more than five years of detention, the health of the accused has deteriorated significantly.
Lawyers expressed concern about the position of the court regarding the petitions of the accused to provide inpatient treatment. Despite the fact that the court had previously received the conclusions of the forensic medical examination indicating the need for in-patient treatment for A. Melnik and out-patient treatment for A. Kryzhanovsky, the court just redirects these requests to the Poltava pre-trial detention center.
The defense has repeatedly insisted on the necessary inpatient treatment of the accused who is in custody for more than 5 years. The need for inpatient treatment is also indicated by the conclusions of the forensic medical examination.
The European Court of Human Rights in its decision “Khamatov v. Azerbaijan” stated that the mere fact that the applicant was examined by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities had to ensure that the applicant not only visited the doctor and that his complaints were heard, but also that the necessary conditions were created for the actual implementation of the prescribed treatment.
Thus, the experts of the ISHR see insufficient court attention on solving the health problems of the accused.
In addition to the indicated problems, A. Melnik’s lawyer drew the attention of the ISHR observer to the problem of retiring a pension for his client. A.Melnik, as previously indicated in the ISHR reports, is a participant in the liquidation of the Chernobyl accident of category 1, as a result of which he received disability of group 2. Half a year ago, he received a letter from the pension fund (PF) at his home address about the possibility of transition to the Chernobyl disability pension. Given the fact that the accused himself is in the Poltava pre-trial detention center, he filed a statement stating that he was unable to arrive at the PF department. And he asked for the opportunity on his behalf by proxy to draw up papers by his wife or lawyer.
Nevertheless, in response to the appeal of A. Melnik regarding the recalculation of pensions, the PF responded that it was necessary for him to come personally to the department of the pension fund. By the decision of the Gadyatsky district court, in response to the request of A. Melnik, it was decided to send materials to the management of the pre-trial detention center in order to ensure the possibility of a personal visit to the PF. Despite this, for several months now, according to the lawyer, no action has been taken.
The ISHR insists that social protection, including for persons with disabilities, should be an important component of public policy. The restriction of the rights and freedoms of persons in custody should be carried out exclusively to the extent that is unavoidable if a person is held in custody. In a decision in the “Kalashnikov v. Russia” case, the ECtHR noted that the well-being of persons in custody should be adequately guaranteed by the state, taking into account the requirements of the deprivation of liberty. Considering the fact that a person’s detention does not deprive him of the right to social security, the inability to provide him with the opportunity to reissue a disability pension cannot be considered as such that meets the requirements of the European Convention.
At the hearing on January 23, the court considered the application for changing the measure of restraint for A. Melnik and decided to refuse to satisfy it. Considering the fact that the court announced only the operative part of the ruling, ISHR will continue to clarify the details of this hearing.
The next hearing is scheduled for February 4, 2020.
The International Society for Human Rights will continue to monitor this trial.