On November 17, a hearing was held on the consideration of appeals against the decision of the investigating judge of High Anti-Corruption Court of Ukraine (VAKS) on the application of a measure of restraint in the form of bail to the mayor of Odessa Gennady Trukhanov, suspected of complicity in the activities of a criminal organization. According to the investigation, G. Trukhanov, abusing his official position, illegally provided several land plots for construction, thereby causing significant damage to the territorial community. The prosecutor, in his first instance application, asked to apply to G. Trukhanov a measure of restraint in the form of detention with the possibility of paying a bail in the amount of more than UAH 100 million. Based on the results of the consideration, on November 11, the investigating judge of VAKS passed a decision to establish a measure of restraint in the form of bail in the amount of UAH 30 million and personal obligation.

The course of the hearing.

The defense in the appeal indicated that there was no need to apply measures of restraint against. At the hearing, the lawyer, in support of his position, petitioned to include evidence that in 2018 the property of G. Trukhanov was seized (accounts, apartment, land), as well as a receipt stating that his client had surrendered passports, and therefore could not go abroad.

The lawyer noted that the seizure complicates the use of funds, including the collection of the required amount to pay the bail. And the amount of the bail determined by the investigating judge is exorbitant for G. Trukhanov. The prosecutor objected that keeping the property under arrest is not a reason to reduce the amount of bail, since it is assumed that the person against whom such a measure of restraint is applied is not obliged to sell his property. The observer of the ISHR notes that it was also about the accounts on which there are free assets, which means that they also cannot be used for posting a bail, which undoubtedly should be taken into account by the court when determining the amount of the bail.

Referring to the “Kavala v. Turkey” judgment (paragraph 126), the lawyer stated that a suspicion could be considered justified if the objective observer did not have any doubts that the person could have committed the crime. The defender also noted that the decisions that constitute the subject of the crime were made by the Odessa council, a collegial body, and the mayor only signed the decisions. There is no evidence of pressure on members of the local parliament by G. Trukhanov.

In addition, G. Trukhanov stated that suspicion is contrary to the Article 7 of the Constitution of Ukraine. The constitution guarantees the work of local government. Thus, he not only disagrees with the measure of restraint, but also with suspicion in general, where, as he pointed out, the prosecutors used the phrases “I think” and not a single piece of evidence, only assumptions. G. Trukhanov also explained that in his work the mayor relies on the opinion of experts. Even those decisions that he signs are endorsed with the signatures of 5-11 specialists. For his part, when he began to understand the essence of the criminal offense incriminated to him, an official investigation was carried out and several people were suspended from work.

The defense indicated that the investigating judge pointed out in the decision that there is only a probable possibility of G. Trukhanov’s participation in a criminal organization, there is no direct evidence, only a number of indirect ones.

The observer of the IAC ISHR noted that the suspect called this a political case. It should be noted that Gennadiy Trukhanov is affiliated with the political party “Trust in Deeds”, from which he was elected mayor of Odessa and whose deputies were promoted to the regional and city councils. In his opinion, one of the developers and ex-president of Georgia M. Saakashvili were involved in the preparation of this criminal prosecution.

In turn, the prosecutor filed a complaint against the decision of the investigating judge and asked the board of the VAKS Appeals Chamber to increase the amount of bail and establish a measure of restraint in the form of detention. According to the prosecution, the suspicion brought against G. Trukhanov is reasonable. And the amount of losses allegedly caused by the mayor of the city is significant. This means that there are risks of the suspect’s failure to fulfill his procedural duties, which can only be prevented by being in custody or a very large amount of bail.

The ISHR experts note that this situation with the determination of the amount of the bail is in many respects similar to the situation in the proceeding of I. Popovskaya, who also goes under a similar suspicion (see report). As in the case of I. Popovskaya, the prosecution, referring to the decision of the ECtHR in the case of “Manguras v. Spain”, asked the court to take into account the amount of the imputed damage. Nevertheless, it is worth noting that this position of the ECtHR is exceptional, as indicated in the decision itself by the European Court, noting that under certain circumstances it does not seem unreasonable to take into account the amount of the damage imputed to it (paragraph 81). But in the same decision, the ECtHR notes that the amount of the guarantee provided for in paragraph 3 of Article 5 should be assessed mainly with reference to the accused and his assets (the same paragraph 81). And this position was omitted by the prosecution in its speech.

Analyzing the practice of considering complaints regarding bail, the experts of the ISHR note that the European Court still insists that the amount of bail should be established with reference to the assets of the person under investigation. In its decision, the national court must first assess the personal situation of the suspect and his resources (paragraph 30 of the “Georgiev v. Bulgaria” judgment, paragraph 69 of the “Toshev v. Bulgaria” judgment), the ability of such a person to pay the required amount (paragraph 75 of the “Gaf v. Malta” judgment), which, in fact, was not discussed at the hearing in the case of G. Trukhanov. In “Hristova v. Bulgaria”, the ECtHR found a violation of Article 5 § 3 of the ECHR because the domestic court did not take into account the applicant’s resources and other circumstances, since the courts considered that the seriousness of the alleged actions was a decisive factor in determining the amount of the bail.

The ECtHR also clarifies that when determining the amount of bail, the court should focus not on the amount of the alleged damage, but on the assets of the accused, since these funds are not intended to compensate for damage, but to ensure the presence of the accused at the hearing (para. 14A of the decision of “Neumeister v. Austria”, para. 78 of the decisions “Manguras v. Spain”). According to the ISHR experts, the bail should not be just an acknowledgment of the validity or groundlessness of the suspicion. The court is obliged to take into account the procedural meaning of the application of the measure of restraint and the person’s ability to comply with the restrictions imposed on him. The defense several times noted the fact that G. Trukhanov could have disappeared earlier, that he never missed hearings and always appeared at any summons from the investigating authorities. None of these allegations were refuted or even challenged by the prosecution, which, no doubt, should be considered by the court as positive procedural behavior.

The IAC ISHR observer notes that in this court session on November 17, the situation regarding the determination of the amount of the bail was similar to those listed above, according to which the ECtHR found violations of the European Convention. The parties devoted most of their time to discussing the validity of the suspicion, the situation with buildings in the country and in Odessa, in particular, the social significance of the distribution of land and the amount of the alleged damage. The defense party’s statement about the exorbitant amount of the bail was not discussed, which can be regarded as a disregard for the practice of the ECtHR and a violation of Article 5 § 3 of the ECHR.

After a discussion in the deliberation room, the court decided to uphold the decision of the investigating judge of VAKS regarding the measure of restraint in the form of bail. Noting, also, that “today they could not find a more reasonable solution.”

The International Society for Human Rights will continue to monitor and clarify the details of this proceeding.