Monitoring of trial of A. Lesik (the hearing 5/3/2018).
On the May, 3 in Dzerzhinsky district court of Kharkov preliminary court session in the case of Andrey Lesik, the former deputy of the Kharkov City Council, who is accused of resistance and infliction of bodily injury to employees of law enforcement agencies, has taken place, placed. The International Society for Human Rights has begun monitoring of this trial.
According to the information provided by A. Lesik’s defenders in December, 2017 he has been detained by the Ukrainian Secret Service (SBU) and Kharkov prosecutor’s office on suspicion of infringement of territorial integrity and inviolability of Ukraine. But two and a half months later (which the defendant has spent in the pre-trial detention center) in view of lack of evidence and numerous procedural violations of his rights, Andrey Lesik was released from custody.
After this, he has been charged with the new suspicion of resistance and infliction of bodily injury to employees of law enforcement agencies, namely to the staff of the SBU. Experts of the International Society for Human Rights already repeatedly faced similar situations in other trials. For example, in the case of E. Mefyodov it is usual practice to present new charges at the moment when the court makes the decision on his release.
Course of court session. Considering that last time the court has passed the decision on restraint for A. Lesik in the form of the round-the-clock house arrest the prosecutor initiated extension of this measure. But contrary to norms of criminal trial, she has handed to A. Lesik the petition for the restraint in the form of the round-the-clock house arrest only an hour prior to hearing. The judge has announced a break in the hearing since the Art. 184 of Criminal Procedural Code of Ukraine states that the suspect has to have not less than three hours for acquaintance with the petition.
In his turn, A. Lesik has submitted the petition for change of restraint to the personal obligation or the guarantee. Letters of guarantee of the People’s Deputy of Ukraine Mikhail Dobkin and the People’s Deputy Vasily Nemchenko have been attached to the petition and also at the hall there were two businessmen who have acted as Andrey Lesik’s guarantors and have characterized him as the responsible and respectable citizen. Lesik has pointed also to the fact that he has not missed any hearings yet, which also has to be regarded by the court as lack of risks from his side.
Besides letters of guarantee A. Lesik attached a statement that he and not the staff of the SBU was a victim if an assault. According to the attorney, his client was in the SBU on 12/8/2017 for obtaining the copy of the petition for change of restraint. Lesik’s demand to call his attorney has been denied, after that he was assaulted by the staff of the SBU. In regard to this incident the criminal case has been started on 12/9/2017, which was set in motion only on 3/5/2018 after the return to the prosecutor of the indictment on primary case of infringement of territorial integrity and inviolability of Ukraine.
The prosecutor has read her petition for the restraint in the form of the round-the-clock house arrest and has listed (without proving) the risks which she connected to the satisfaction of A. Lesik’s petition for application of a softer restraint. Among such risks she has specified also commission of other criminal offense connected with infringement of territorial integrity and inviolability of Ukraine despite a presumption of innocence and lack of the accusatory judgment. The prosecutor has considered existence of letters of guarantee and guarantors insufficient, because of impossibility to interrogate those guarantors who weren’t in the courtroom in that time, though she had no questions to the two other guarantors that were present at court.
As a result, the court has passed the decision to satisfy the petition of the prosecutor and to prolong the restraint in the form of the round-the-clock house arrest until 7/1/2018.
Alleged violation of the European convention of human rights and fundamental freedoms.
At this hearing it has been noted that the prosecutor doesn’t support her petitions with proofs while the defense has to prove and assert the rights of the client. According to rulings of the European Court of Human Rights (cases “Harchenko v. Ukraine”, “Eloyev v. Ukraine”, “Buryaga v. Ukraine”, “Klyakhin v. Russia”), decision on application of restraint without consideration of softer measures and justification of risks which do not allow for the application of a softer restraint is a violation of the European convention. Burden of proof of need of restraint, as well as proof of guilt, lies (with rare exception) on the prosecution.
In case of continuation of the given situation with assignment of a burden of proof on the defense, the principle of presumption of innocence will be violated (e.g case “Telfner v. Austria”).
The next hearing is appointed on 5/31/2018 . Experts of the International Society of Human Rights will continue monitoring of this trial.