On November 15, the consideration of an appeal against the decision of the investigating judge of the High Anti-Corruption Court of Ukraine (VAKS) on the application of a measure of restraint in the form of bail against the director of the legal department of the Odessa City Council Inna Popovskaya, who is suspected of committing corruption crimes as part of a criminal organization, took place.
The course of the hearing.
It should be noted that at this hearing, the consideration of the complaint against the decision of the VAKS was already completed, it remained to hear the position of the prosecutor. Nevertheless, ISHR observer noted a number of interesting circumstances:
- The prosecutor, confirming his position on the need to reject the appeal, referred to the fact that “it is obvious to any outside observer and makes it possible to confirm the fact of participation in a criminal organization”. At the same time, he pointed out that this position is consistent with the practice of the ECtHR. What exactly was meant is not clear. Since the prosecutor did not clarify either the circumstances specific decisions of the European Court, it is not possible to assess the essence of what was said.
- The prosecutor also noted that there are three risks on the part of I. Popovskaya: to hide from the investigation and the court, to destroy or hide evidence and to influence other persons whose testimony is important in this proceeding. These risks, in his opinion, are confirmed by the materials that formed the basis of the petition and, accordingly, the decision to apply a measure of restraint in the form of bail to I. Popovskaya.
- According to the prosecutor, the bail in the amount of UAH 26 million, which was approved by the investigating judge, is proportionate to the damage caused. It is this size of the pledge that will be able to ensure the performance by I. Popovskaya of her procedural duties.
When discussing the amount of the bail, the judge asked the prosecutor several leading questions: does the amount of the bail correspond to the financial situation of the suspect, is there evidence that I. Popovskaya has property that is not declared and obtained illegally, etc. The prosecutor confirmed that the funds indicated in the official declaration are not enough to post bail. But for the rest of the questions, the prosecutor’s answers were based mainly on his personal opinion and assumptions.
For example, answering a question about an apartment that belongs to I. Popovskaya’s mother since 2014 [the criminal organization, according to the investigation, operated from February 2016 to June 2019], the prosecutor stated that, in his personal opinion, the information that the apartment belongs to the mother of the suspect is just “distortion of facts”. And to the judge’s question whether it could be such that V. Galanternik [who, according to the investigators, is the organizer of criminal activity] gave to I. Popovskaya this apartment in advance to assist the actions of the criminal organization, the prosecutor simply could not answer. But he noted that if the apartment was not acquired as a result of committing this criminal activity, then definitely as a result of another criminal activity, for which another criminal proceeding was also opened.
The situation was the same for other alleged sources of income.
The suspect’s lawyer, in his last remark, asked the court not to take into account the rumors and unsubstantiated statements. I. Popovskaya stated that in the second proceedings, which the prosecutor mentioned, she had already undergone a lie detector examination and answered all questions about the apartment and other property, which, according to the investigation, could have been obtained as a result of illegal activity or as an unlawful benefit. The detector confirmed that the information of the investigation does not correspond to reality.
I. Popovskaya told ISHR observer that the list of questions on the detector also included the question of her acquaintance with V. Galanternik and the question of receiving any money or property from him. The detector confirmed that the suspect did not know V. Galanternik and did not receive anything from him. And when making a decision with the amount of bail, the investigating judge made a number of mistakes, which created wrong impression of her property status.
ISHR experts note that the ECtHR, considering the complaints regarding the bail, insists that the amount of the bail should be established with reference to the assets of the person under investigation. In its judgment, the national court must assess the person’s ability to pay the amount claimed (paragraph 75 of the “Gaffe v. Malta” judgment). The ECtHR also adheres to the position 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 (paragraph 14A of the decision of “Neumeister v. Austria”).
After discussion in the deliberation room, the court decided to partially satisfy the complaint against the measure of restraint and set a new bail amount of about UAH 5 million instead of UAH 26 million.
The observer also notes as a positive moment that the presiding judge, despite the fact that two lawyers of the suspect were present in the courtroom, having seen the signatures of other lawyers on the documents, asked if these lawyers were currently the defenders of I. Popovskaya, in order to ascertain whether her right to defense has been violated.
The International Society for Human Rights will continue to monitor and clarify the details of this proceeding.