On November 18, the Appeal Chamber of the High Anti-Corruption Court of Ukraine (VAKS) considered the appeal of the lawyers of O. Bryndak against the decision of the investigating judge of VAKS dated November 4, 2021 on the application of a measure of restraint in the form of a bail in the amount of almost UAH 40 million. Oleg Bryndak, the acting deputy Head of the Odessa City Council, is suspected of participating in a criminal organization in Odessa.
The hearing began 75 minutes late. It is worth noting that ISHR observers have repeatedly encountered deviations from the schedule of hearings in the VAKS Appeals Chamber (from 20 minutes to postponement of a hearing to another day). According to one of the defenders, this situation is disrespectful to the parties.
One of the lawyers of O. Bryndak – A. Leshchenko at the beginning of the session petitioned to postpone the session due to the fact that only before the session he learned that his appeal had been returned. Technically, he sent it at the end of the working day on November 9, but the post office stamped the envelope only the next day – November 10, due to this the court did not accept the complaint because of missing deadlines. Therefore, A. Leshchenko asked the court to give him the opportunity to prepare a petition for the restoration of the time limits and attach to it a receipt confirming the submission of the petition on time.
Despite the consent of the rest of the lawyers and the prosecutor, the court refused the request and asked the lawyer to express his position orally. One of the judges of the collegium even said that the defense should be grateful to them, since after appealing the refusal in the Supreme Court, the defense will have the opportunity to re-submit an appeal against the decision of the investigating judge of VAKS.
Such actions of judges arouses suspicion among the ISHR experts. Considering that, according to the schedule of hearings, another hearing was to begin within an hour, the refusal to give one of the lawyers time to prepare his position, which means ensuring the right to defend the suspect, is not entirely clear. Subsequently, during the hearing of the lawyers, the presiding judge interrupted the defense lawyers several times and decided to establish a time limit for two of them (just 15 minutes).
The analysis of the hearing and the study of the decisions of the VAKS allows ISHR experts to highlight several key points of the appeal:
1. The amount of the bail does not match the resources of the suspect.
In the petition for the selection of a measure of restraint in the first instance, the National Anti-Corruption Bureau of Ukraine (NABU) detective asked the investigating judge to apply to O. Bryndak a measure of restraint in the form of detention and bail in the amount of more than UAH 100 million. The investigating judge of VAKS refused the petition and decided to elect the suspect a bail in the amount of UAH 40 million. The prosecutor agreed with the decision of VAKS and stated in the appeal that he supported the decision of the first instance.
According to the lawyers, the prosecutor agrees with the decision of the investigating judge, because he knows that such an amount is still exorbitant for O. Bryndak. This means that he will not be able to pay it and the question of detention will be raised again.
According to the suspect himself, if he sell all his and his family’s property, this will not cover the bail. When calculating the bail, the judge did not assess the financial capabilities of O. Bryndak.
Analysis of the text of the decision of the investigating judge of VAKS from 11.04.21 on the measure of restraint confirms the fact that the bail significantly exceeds the resources of the suspect.
ISHR experts note that the practice of the ECtHR indicates that the amount of the bail should still 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). In paragraph 111 of the judgment of “Hristova v. Bulgaria”, the ECtHR found a violation of Article 5 § 3 of the ECHR due to the fact that 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 offenses was a decisive factor in determining the amount of the bail. Moreover, in the same judgment of “Hristova v. Bulgaria” (paragraphs 112-114), the ECtHR notes that even a reduction in the amount of the bail may not be sufficient if the person does not have sufficient financial resources. Detention due to failure to pay the requested bail, if the amount is inappropriate and there are insufficient grounds for the detention of the person, is a violation of Article 5 § 3 of the ECHR. This clarification may be important for the case of O. Bryndak, if he is unable to pay the entire amount of bail and the prosecution will demand a change in the measure of restraint to detention.
2. Incorrect use of the case-law of the ECtHR.
Earlier, ISHR experts have already stated the reasons given by the prosecution for large amounts of bail in the proceedings of I. Popovskaya and L. Trukhanov [they are suspected of similar crimes], referring to the ECtHR decision in the case of “Manguras v. Spain”, namely on the basis of the alleged damage caused. Nevertheless, it is worth noting that this position of the ECtHR is exceptional, as indicated in this decision by the European Court itself, noting that under certain circumstances it does not seem unreasonable to take into account the amount of damage imputed to a person (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), but this position was not taken into account by either the prosecution or the investigating judge.
3. The personality of the suspect, his strong social ties and positive procedural behavior were not taken into account.
According to the lawyer, the risks that O. Bryndak does not substantiate procedural duties, does not take into account family ties and strong social ties, the trust of the territorial community of Odessa and positive characteristics. In addition, the risk of evading the investigation and trial is controversial, since O. Bryndak continues to work and appears in court and investigative bodies at the first request. In addition, O. Bryndak deposited all the funds he could raise to the court’s deposit account – about UAH 1.5 million, which undoubtedly should also characterize him on the positive side.
At the same time, ISHR experts note that in paragraph 3.8.4 of the decision of the investigating judge it is indicated that the risks should also be assessed taking into account the personality of the suspect, his character, moral principles. However, the judge himself did not analyze all of the above circumstances, despite the fact that the defense provided certain information.
4. Ignoring the norms of the ECHR
In addition to the controversial use of the practice of the ECtHR, IAC ISHR experts also note the disregard for the norms of the ECHR. According to the observer, the collegium reacted not quite correctly to the statements of the lawyers about the violation of paragraph 2 of Article 6 (presumption of innocence) and paragraph 1 of Article 8 (the right to respect for personal correspondence). On the first point, the presiding judge noted that this does not apply to the issue of the amount of the bail (although the suspect’s appeal did not concern the amount of the bail, but its cancellation), made a remark to the defense lawyer, and later limited his speech to 15 minutes. Regarding Article 8 of the ECHR, the judge asked the lawyer, “Would you like us to perform covert investigation right in court?” The lawyer’s remark that the ECHR is also a source of law was ignored by the court. Such an attitude raises doubts about the impartiality of the court among the objective observers of the IAC ISHR.
5. The similarity of the decisions of the VAKS on measures of restraint.
ISHR experts note a number of coincidences between the decision of the investigating judge in the case of I. Popovskaya and O. Bryndak. In particular, all the decisions of the ECtHR, which were used by the investigating judge in the case of O. Bryndak coincide with the decisions used in the case of I. Popovskaya down to the used paragraphs of all these cases of the ECtHR. Also noteworthy is the almost complete similarity of some paragraphs of both decisions. This may indicate that both documents (decisions of I. Popovskaya and O. Bryndak) were prepared by the same persons, despite the fact that the investigating judges in these cases are different.
In addition, ISHR observer notes that the statement of the defense that the proceeding is political and is aimed at eliminating, among other things, of O. Bryndak from office, the prosecutor confirmed that the criminal prosecution is related to political affiliation with the “Trust the Deeds” party. He also indicated that he believed that the party was originally acquired for use in illegal activities.
The International Society for Human Rights will continue to monitor and clarify the details of this proceeding.