Monitoring of the trial of А. Melnik, А. Kryzhanovskiy, I. Pasichnyi, I. Kunik (court hearing of 16.11.2017)
On November 16, 2017, in Kharkov there took place a session of the court of appeal to consider a claim by the prosecutor related to the decision by the court of the first instance to return the indictment in the case of Alexander Melnik, Head of “Vizit” TV company, who is one of the four (together with A. Kryzhanovskiy, I. Pasichnyi, I. Kunik) accused of the murder of A. Babayev, the mayor of Kremenchug, and A. Lobodenko, the judge of the Kremenchug court.
As during the previous court hearing, the accused participated in the trial in the mode of a video conference (they are held in Pre-trial detention centre in Poltava). The experts of ISHR repeatedly pointed out that such a format of participation by the accused could result in limitation of their procedural rights, since all four are deprived of the possibility to be physically present at the trial. Let us again draw the attention to the practice of the European court for human rights (the case “Sakhnovskiy against Russia”), according to which the efficient defence is impossible without realization of the right of accused to communicate with his/her defender out of earshot of third persons.
In the course of the trial the defence filed several petitions, among them a petition requesting a change of the preventive measure and provision of in-patient medical treatment, envisaged by the law, for Alexander Melnik who is suffering from chronic diseases (including hypertension). All petitions by the defence were either rejected or re-directed to the state authorities (including judicial authorities) as appropriate. It is noteworthy that the court of appeal had left the issue of in-patient medical treatment provision for Alexander Melnik without consideration on the ground of the instance allegedly being inappropriate. Along with this, the issue of the instance being inappropriate did not prevent that very court from passing a decision to extend detention for the accused. There also appears an issue of challenging by the defence party of the decision to extend the preventive measure passed by the court of appeal of the Kharkov region, having gone beyond the limits of the appeal petition (decision dated 26.10.2017), having acted in fact as a court of the first instance.
There occurs a situation when a person suffering from a chronic disease cannot receive any adequate medical aid due to purely procedural reasons. A court of appeal, which is located in the other region, has passed a decision on the issue not included into the petition of appeal (to extend the term of detention) but has refused to consider the issue of the in-patient medical treatment provision which had arisen right after the decision to leave the accused in the Pre-trial detention centre. The situation is aggravated by the statement of the prosecutor’s office alleging that, according to law, in-patient medical treatment is provided to those who are indicted but not to the accused ones, who Alexander Melnik is at the moment. Now the defenders should either file the appeal against the decision on detention (while it is not clear where to appeal to), or address the Poltava-based courts requesting them to pass a decision on an in-patient medical treatment where they run a risk of being rejected due to the “inappropriate” procedural status of Alexander Melnik. It will require time, but a person suffering from a chronic disease requires a quality medical aid constantly. What happened to consideration of procedural rights of Alexander Melnik, when the court of appeal had initiated those proceedings?
According to the practice of the European court for human rights, for instance, in the cases “Yakovenko against Ukraine” and “Lunyov against Ukraine” the official authorities were assigned the responsibility to provide protection of health of those imprisoned.
The court of appeal has upheld the petition of the prosecution and ruled to start the trial from a preparatory court hearing. It must be noted that the trial of A. Melnik, A. Kryzhanovskiy, I. Pasichnyi, I. Kunik has been lasting for about 3 years already (from the beginning of 2015), and now it will actually start “from the beginning”.
This case has attracted attention of the OSCE monitoring mission whose representatives attended the court hearing. The experts of the International Society for Human Rights will continue monitoring and clarifying the details of this trial. Previous materials can be viewed here.
Expert Council of ISHR