Monitoring the “Odessa case” (hearing 12/03/2021)

On December 3, 2021, at the Supreme Anti-Corruption Court of Ukraine (VAKS), a court hearing was held regarding the extension of the pre-trial investigation time in case No.42017000000001097 dated April 10, 2017. According to the materials of this case, the mayor of Odessa Gennady Trukhanov, along with other 15 persons, is suspected of creating a criminal organization. The defendants in the case deny their guilt.

The principle of the reasonableness of the timing of the pre-trial investigation.

Investigative actions on these criminal proceedings began on April 10, 2017, and the terms were extended twice. According to the monitoring data of the Information and Analytical Center of the ISHR, the detective filed a petition with the court to extend the pre-trial investigation, in response to which the defense expressed disagreement about the validity of such a petition and appealed against it. Also, one of the lawyers stated that none of the defense representatives insisted on extending such terms. The defense attorney emphasized the readiness of the defense side to consider the case on the merits.

Most of the lawyers pointed to the manipulative nature of the actions of the pre-trial investigation bodies, the groundlessness of the suspicions imputed and the failure to comply with all pre-trial procedures.

It should be noted that such a lengthy consideration of the case may already be qualified by the European Court as a violation of the reasonableness of the terms of pre-trial consideration. At the same time, the very fact that the case has not yet begun to be considered on the merits does not necessarily mean that the countdown of the terms of the trial (in the understanding of Article 6 of the ECHR) has not yet begun. In the case of “Eckle v. The Federal Republic of Germany” (paragraph 73), the ECtHR indicates that in a criminal case, the “reasonable time” begins to be calculated from the moment the person is “charged”, this may happen before the case is brought to court, for example, from the moment the person is detained, or from the moment the person was officially informed about the initiation of a criminal case against him, or from the moment the preliminary investigation began.

Regarding the measure of restraint.

The lawyers also touched upon the question of the measure of restraint in relation to their clients. One of the lawyers indicated that the extension of the pre-trial investigation, if the court makes such a decision, would indicate the pressure of the prosecutors on the suspects.

Another lawyer, in support of these statements, focused attention on the bail set for his client in the amount of almost UAH 5 million, which puts economic pressure on the defense.

The question of credentials.

The lawyer of another of the defendants in the case, supporting his colleagues, also informed about the improper (in his opinion) procedure for considering the petition, due to the fact that the petition is not subject to consideration by the VAKS, the terms of the pre-trial investigation were to be extended by the Prosecutor General (as was the case before the amendments to the Criminal Procedure Code of Ukraine in 2018). Also, the lawyer reported a violation by the court and the prosecution of the general principles of criminal proceedings, namely the adversarial nature of the trial. In defense of his client, the lawyer reported non-compliance with the procedure for reporting a suspicion to his client, due to which the latter did not acquire the status of a suspect.

As noted earlier, on December 1, 2021, VAKS received a petition from the Prosecutor General with an initiative for the court to take over the issue of extending the pre-trial investigation. According to the monitoring data, on this basis, the defense asked to return the materials to the detective to extend the terms by the Prosecutor General, referring to a similar proceeding, where a different procedure for extending the terms was applied. The court rejected this request. On this basis, one of the lawyers challenged the judge.

Despite the challenge, information appeared on the official website of the Judiciary about the continuation of the consideration of the petition by the same investigating judge on 12/03/21. On December 2, 2021, another judge considered the issue of the challenge and made a decision about its refusal. Based on this, on December 3, 2021, the judge, who had previously been challenged, continued consideration of the issue of extending the pre-trial investigation of the case.

After discussion in the deliberation room, on December 3, 2021, the court decided to extend the pre-trial investigation of case No.42017000000001097 dated April 10, 2017 by 6 months until April 5, 2022. The court’s decision was declared final and is not subject to appeal.

The ISHR experts express extreme concern about the fairness of this trial, because when studying the court decisions, when communicating with the suspects, as well as personal observation of the trial, a number of instances were identified that may run counter to the guaranteed right to a fair trial.

The International Society for Human Rights will continue to monitor and clarify the details of this proceeding.