On July 8, 2020, the Supreme Anti-Corruption Court considered the case in criminal proceedings number 42017000000004969 on the suspicion of ex-deputy and former president of the “Ukrbud” company Maxim Viktorovich Mikitas of committing crimes under part 3 of Art. 27; part 5 of art. 191; part 4 of Art. 369; part 3 of Art. 209; part 3 of Art. 28; part 3 of Art.358; part 3 of Art. 368; part 4 of Art. 358 of the Criminal Code of Ukraine.
Course of the hearing:
On 06.30.2020, the Supreme Anti-Corruption Court received a petition from the lawyer R.Y. Kirichenko, demanding to change the measure of restraint applied to the suspect M.V. Mikitas in the form of detention on remand in the house arrest with a ban on leaving the house.
In support of the requirements to change the applied restraint, the defense attorney refers to the existence of circumstances that:
– testify to the groundlessness of the reported suspicion of committing the criminal offenses incriminated to him;
– they deny the existence of the risks provided for in paragraphs 1-5 p. 1 of Art. 177 of the Criminal Procedure Code of Ukraine, namely: the risk of hiding from preliminary investigation and / or the court; the risk of illegal influence on witnesses, other suspects, experts in criminal proceedings; risk of committing another criminal offense; the risk to destroy, hide or distort any of documents that are essential for establishing the circumstances of a criminal offense; risk of obstructing criminal proceedings in a different way.
According to the defense, the number of border crossings by the suspect, which, among other things, justify the existence of this risk, without appropriate documentary evidence, cannot serve as evidence that the latter has the ability to freely cross the border and leave the territory of Ukraine. The lawyer believes that, given the completion of the pre-trial investigation, the use of a measure of restraint in the form of detention is unjustified.
The defense attorney also refers to the existence of other circumstances that were not taken into account when applying a measure of restraint in the form of detention, namely: the immoderation of a certain amount of bail and the fact that the court did not take into account actual information about the material condition during its determination, as well as information characterizing the personality of the suspect and his social and marital status.
In accordance with the jurisprudence of the European Court of Human Rights, the risk of concealment cannot be measured solely on the basis of the severity of a possible sentence, at least at further stages of the proceedings. It must be assessed taking into account several relevant factors, in particular, personal data, moral qualities, property, relations with the respondent State in which the person is being prosecuted, as well as his international contacts (“Miminoshvili v. Russian Federation”).
The suspect supported the petition, asked to satisfy it and take into account the circumstances cited by the defense lawyer in the petition, in particular about the need to care for the mother who needs care and treatment, in support of which the relevant certificates and documents were provided.
Prosecutor Skibenko A.I. objected to the petition, referring to its unfoundedness and groundlessness. For example, the defense attorney’s assertion that the suspect did not violate procedural obligations is refuted by the conclusion of the Appellate Chamber of the Supreme Anti-Corruption Court, which, by its ruling, turned 30 million hryvnias into state revenue, contributed as collateral precisely because of the latter’s violation of procedural obligations.
The prosecution also pointed out that all the arguments to which the defense attorney refers in his petition, in fact, boil down to disagreement with the decision of the Appellate Chamber of the Supreme Anti-Corruption Court. However, in accordance with the provisions of the Code of Criminal Procedure of Ukraine, when proving the need to change the applied restraint, the defender must cite new circumstances that were not investigated when applying the measure of restraint and affect the court’s conclusion about the applied measure of restraint.
After consulting, the court decided to refuse to satisfy the lawyer’s petition.
In its decision, the court refers to the analysis of the case law of the European Court of Human Rights, which highlights the following criteria of the proof standard of “reasonable suspicion”:
- the existence of facts and information that made it possible to convince an objective observer that the person concerned may have committed a criminal offense;
- the facts that justify the suspicion can be “reasonably” considered to fall under the signs of an offense under the criminal liability law;
- the reasonableness of a suspicion cannot be established in abstracto or based on subjective assumptions, but must be supported by specific evidence in criminal proceedings;
- the reasonable suspicion standard of proof does not require the competent authorities to operate with evidence sufficient to bring charges or convictions.
And, the interpretation of the term “reasonable” depends on all the circumstances of the case (“Fox, Campbell and Hartley v. The United Kingdom”).
The International Society for Human Rights will continue to monitor and clarify all the circumstances of this case.