Monitoring the case of Petr Mikhalchevsky (session on September 25, 2019)
On September 25, a hearing was held in the case of the ex-Minister of Health of Crimea, surgeon Petr Mikhalchevsky, who is charged with treason and encroachment on the territorial integrity and inviolability of Ukraine.
The prosecution once again requested the adjournment of the hearing due to the absence of expert Kovbasenko for interrogation. In his defense, the prosecutor stated that he failed to secure the appearance of the expert because he had left the expert institution and his whereabouts were unknown. He also added that they had sent a request to the Department of National Security of the Ukrainian Secret Service (SBU) to establish the place of residence of the expert, and just on the day of the court hearing SBU sent a response. Base on that, the prosecutor asked the court to adjourn the session and send a judicial challenge to the expert.
The defense party, in turn, requested the court not to satisfy this request, since it considers that the prosecution deliberately delays the trial. The lawyer argued the statement by the fact that it was known that the expert had been dismissed six months ago, and it was because of this that the defense “withdrew” request to call the expert, and after that the prosecution filed a similar request and, as a result, the court hearings were rescheduled 3 or 4 times. As for the response of the SBU, the request from the prosecutor’s office was ready at the previous session, but for unknown reasons was sent only a week ago. Summing up, the lawyer stated that the judicial review had already dragged on and it was time to move on to a judicial debate. However, the court granted the motion of the prosecution.
The adjournment of court hearings for one reason or another is one of the main reasons for violating the principle of reasonableness of the time limits for judicial review in Ukraine. As a rule, a session is postponed for a month or more. In almost every report, ISHR experts note the fact that the trial was postponed for a long time. For example, in the case of V. Yanukovych, the hearing took place after more than two months of transfers. This trend is not conducive to fair trial. Article 6 of the European Convention provides the accused with the right to a fair hearing within a reasonable time. In its case law, the ECtHR notes that Article 6 of the Convention, when it comes to criminal cases, is designed to avoid situations where the accused remains unaware of his fate for too long (“Nakhmanovich v. Russia”). A reference to the observance of a reasonable time is also contained in the provisions of sub. “C” Clause 3, Article 14 of the International Covenant on Civil and Political Rights of 1966, from which it follows that criminal cases must be tried without undue delay, in strict accordance with the rules of the proceedings, an important component of which is the time frame for considering cases.
It is worth noting that the Constitutional Court of Ukraine declared unconstitutional the lack of alternative measures of restraint in the form of detention, which was enshrined in article 111 of the Criminal Code of Ukraine.
Guided by this decision, the court at previous hearings changed the measure of restraint from detention to nightly house arrest, which is certainly a positive point, since the case law of the ECtHR for a long time indicates that the non-alternative measure of restraint violates paragraph 3 of Article 5 of the Convention (“Sinkov v. Ukraine”).
The next session is scheduled for October 29, 2019. Experts from the International Society for Human Rights will continue to monitor this trial.