Monitoring of the case of A. Melnik, A. Kryzhanovsky, I. Pasichny, I. Kunik (session 08.28.19)

On August 28, 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.

The trial began with the announcement of the prosecutor’s motion to extend the measure of restraint in the form of detention of the accused Melnik, Kryzhanovsky and Kunik.

The petition is motivated by the following:

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

However, the European Court of Human Rights admits that suspicion of serious crimes could initially justify detention. At the initial stage of the proceedings, the need to ensure the proper conduct of the investigation and to prevent the escape or re-commission of the offense may justify detention. However, even though the severity of the sentence is an important element in assessing the risk of escape or re-offense, the Court recalls that the gravity of the charges alone cannot justify the lengthy sentences (paragraph 102, Decisions of the ECtHR “Panchenko v. Russia”). It is worth recalling once again that in the case of Melnik and others, the accused have been in custody for more than one year.

Regarding the risk of escaping, the ECtHR recalls that such a danger cannot be measured solely based on the severity of the sentence it faced (paragraph 106, Decisions of the ECtHR “Panchenko v. Russia”).

2) The prosecutor presented the accused’s statement of distrust of the court in previous hearings as a factor in increasing the risk of possible concealment of the accused.

3) Pressure on victims and witnesses.

In paragraph 73 of the ECtHR judgment “Lyubimenko v. Russia,” the Court accepts that the authorities could reasonably believe that the risk of pressure on witnesses and jurors was present initially. However, the Court is not convinced that this basis alone could justify the entire five-year period of the applicant’s detention. Indeed, the domestic courts referred to the risk of obstructing the trial in a short form, without indicating any aspect of the applicant’s nature or behavior, in support of his conclusion that he would likely resort to intimidation. In the ECtHR view, such a generally 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 basis inevitably became less and less relevant over time. Thus, the ECtHR is not convinced that throughout the entire period of the applicant’s detention there were substantial grounds for fear that he would interfere with witnesses or jurors or otherwise impede the consideration of the case, and, of course, not to outweigh applicant’s right, hold a trial within a reasonable time or release pending trial.

4) The agreed position of the accused. About this, according to the prosecution, said one of the accused – Pasichny.

5) Obstruction of the interrogation of the accused Pasichny by the accused Melnik. Moreover, the defense referred to the right of the accused to object and ask questions, which cannot be interpreted as an obstacle.

6) The presence of uncontrolled territories increases the risk of possible hiding from the court.

7) The impossibility of applying a milder measure of restraint is motivated by the fact that there is no control over the accused’s communication at the place of residence, lack of full control on the days of court hearings, and imperfection of electronic controls.

It should be noted that during the consideration of the application of methods to ensure criminal proceedings, the parties must submit to the court evidence of the circumstances to which they refer (Part 5 of Art. 132 of the Criminal Procedure Code of Ukraine). The side of the charge of requesting an extension of the measure of restraint was limited only to a formal description of possible violations by the accused, not referring to specific evidence.

Based on the results of the examination of the prosecutor’s request, the court ruled to extend the measure of restraint for the accused for a period of 60 days.

It must be emphasized that the accused have been in custody since September 2014. Under the Law of Ukraine “On Amending the Criminal Procedure Code of Ukraine on Improving the Procedure for Enrolling by the Court of the Term of Pretrial Detention in the Term of Sentence”, the court enters the term of pretrial detention based on one day for two days in prison. The accused arrived in custody for 5 years, and in the case of recounting, the term will exceed 10 years.

According to paragraph 35, Decisions of the ECtHR “Muller v. France”, to assess whether continued detention is justified, first of all, one should examine all the circumstances proving the existence or absence of such a requirement and state them in its decisions.

The constancy of reasonable suspicion is a prerequisite for the lawfulness of prolonged detention, but after a certain period is insufficient. The court must establish other grounds that continue to justify the deprivation of liberty and will be “appropriate” and “sufficient”. At the same time, paragraph 91 of the Decision of the ECtHR “Buzadji v. Republic of Moldova” stipulates that, first of all, the national judicial authorities must ensure that in a particular case the preliminary detention of the accused does not exceed a reasonable time. Accordingly, they should, taking into account the principle of the presumption of innocence, examine all the facts that are in favor or against the existence of the aforementioned requirement of public interest or justify a deviation from the norm in Article 5 of the Convention, and must state them in their decisions.

Representatives of the ISHR are deeply concerned about the lack of justification for such prolonged detention.

Experts from the International Society for Human Rights will continue to monitor this trial. Previous materials can be found here.