Monitoring the case of O.B. Bryndak (court session 12.10.2021)
On December 10, 2021, a court session was held at the High Anti-Corruption Court of Ukraine (VAKS), which considered the issue of changing the measure of restraint for one of the suspects in the “Odessa case” – O.B. Bryndak. According to the materials of the case, Oleg Bryndak, acting deputy mayor of the Odessa city – manager of the affairs of the executive committee, is suspected of creating a criminal organization, as well as of abuse of power.
The principle of publicity.
The judge denied the ISHR observers the opportunity to be present in the courtroom where the court session was held, despite its openness and the possibility of placing observers in the courtroom itself. The reasons for this refusal were not explained. At the same time, ISHR representatives were given the opportunity to watch the court session from another room online, but the session was not automatically broadcast, arguing that the judge must first consider the relevant application for permission to broadcast for observers. According to ISHR experts, such actions may violate the principle of publicity, in accordance with paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, while monitoring the observance of the right to a fair trial in the VAKS, observers have never encountered such situation – the broadcast to another courtroom was switched on automatically.
The hearing itself started 50 minutes late. It should be noted that observers of the IAC ISHR have repeatedly encountered deviations from the schedule of hearings in the VAKS.
Regarding the measure of restraint.
The prosecution filed a motion to change the suspect’s measure of restraint to keep him in custody for a period of 60 days. The prosecutor insisted on just such a measure of restraint, arguing that the pre-trial investigation had not yet been completed. But, since the detective should offer an alternative measure of restraint, he petitioned for the retention of the amount of bail in the amount of UAH 39,967,200 as an alternative measure of restraint.
The defense side has repeatedly pointed out that such a bail does not correspond to the financial capabilities of the suspect. According to O.B. Bryndak, if he sell all his and family’s property, this will not cover the pledge. Earlier, when choosing a measure of restraint, the observer noted that the judge did not focus on the possibility of O.B. Bryndak to deposit the amount required by the prosecution as a bail.
An analysis of the text of the decision of the investigating judge of the VAKS dated 4.11.21 on the measure of restraint confirms the fact that the bail significantly exceeds the resources of the suspect, and the court was guided primarily by the estimated amount of damage.
ISHR experts note that the practice of the ECtHR indicates that the amount of bail should still be set with reference to the assets of the person under investigation. In its decision, the national court must first of all assess the personal situation of the suspect and his resources (paragraph 30 of “Georgiev v. Bulgaria”, paragraph 69 of “Toshev v. Bulgaria”), the ability of such a person to pay the required amount (paragraph 75 of “Gafa v. Malta”). In paragraph 111 of “Hristova v. Bulgaria”, the ECtHR found a violation of Article 5 paragraph 3 of the ECHR on account of the domestic court’s failure to take into account the applicant’s resources and other circumstances, as the courts considered that the seriousness of the alleged offenses was a decisive factor in determining the amount of bail. Moreover, in the same Judgment “Hristova v. Bulgaria” (paragraphs 112-114), the ECtHR notes that even a reduction in the amount of 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 keeping a person in custody, is a violation of Article 5 paragraph 3 of the ECHR. And in this case, the prosecution also emphasized that the amount of the bail should be considered only on the basis of the requirements of the law, and not as a real opportunity to comply with the rights of O.B. Bryndak guaranteed by the ECHR. What an objective observer fears is that the amount of bail may be deliberately overstated so that there is no real alternative to detention.
According to lawyer of O.B. Bryndak, the determination of an amount of bail disproportionate to the financial capabilities of his client is carried out in order to put pressure on the accused. So, given the inability of the client to make payments on bail, he really expects detention, where O.B. Bryndak will be under pressure from the prosecutor’s office in order to obtain new evidence regarding other defendants in the case. The defense side considers such methods of the prosecutor’s office to be illegal.
In connection with the above, the defense demanded to reject the prosecutor’s petition.
The possible presence of a “political component”.
The defense also raised an objection to the validity of the suspicion of O.B. Bryndak with reference to the fact that the prosecutor did not give any grounds for his suspicion. Lawyers pointed out the groundlessness and bias of the accusation, as well as the fact that the proceeding is political and aimed at eliminating, among other things, O.B. Bryndak from office. Earlier, the prosecutor confirmed that there is a connection between the criminal prosecution and the suspect’s political affiliation with the “Trust the deeds” party. He also indicated that he believes that the party was originally “acquired” for use in illegal activities.
According to lawyers, the identity of the suspect, his strong social ties and positive procedural behavior are not taken into account.
According to the lawyer, the risks of non-compliance with O.B. Bryndak does not substantiate procedural obligations, does not take into account family circumstances and strong social ties, the trust of the territorial community of Odessa that he possesses and personal characteristics. In addition, the risk of evading investigation and trial is controversial, since O.B. Bryndak continues to work and appears before court and investigating authorities on demand. In addition, O.B. Bryndak deposited all the funds he could collect into the deposit account of the court – about UAH 1.5 million, which, of course, should also characterize him on the positive side.
Separately, the lawyers pointed out that the purpose of the measure of restraint, first of all, is to facilitate the observance by the suspects of all the procedural actions that were already observed by their client: he never missed court hearings; returned from business trips abroad if necessary to appear in court; initiated participation in the court session during his coronavirus illness via videoconference, despite the fever.
At the same time, ISHR experts note that paragraph 3.8.4 of the investigating judge’s decision states that risks should also be assessed taking into account the identity of the suspect, his character, and moral principles. However, the judge himself did not analyze all of the above circumstances, despite the fact that the defense provided materials proving the existence of such circumstances.
After discussion in the deliberation room, on December 10, 2021, the court rejected the defense’s request to change the measure of restraint to a surety, and granted the prosecutor’s request to change the measure of restraint to detention for a period of 60 days – until February 7, 2022, with the possibility of making a bail in the amount of UAH 24,970,000.
ISHR experts express extreme concern regarding the observance by the court of the principle of publicity and fairness of consideration of the issue of a measure of restraint, which may run counter to the guaranteed right to a fair trial.
The Information and Analytical Center of the International Society for Human Rights will continue to monitor this case, if an appeal is filed, and clarify the details of this proceeding.