Monitoring of the criminal proceedings of Radutny Grigory Vyacheslavovich, Gonchar Vitaliy Valerevich, Shmorgun Sergey Ivanovich (04/01/2020)

On April 01, 2020, in the Lutsky City Court of the Volynsky Region, a hearing was held in case No. 164/63/19 on charges of Radutny Grigory Vyacheslavovich, Gonchar Vitaliy Valerevich, Shmorgun Sergey Ivanovich in committing a criminal offense under part 3 of Article 187 of the Criminal Code of Ukraine (robbery with penetration into housing, another premise or storage). The indictment was filed to the court on January 31, 2019.

During the trial, a witness was questioned. He was provided with a translator, since he does not speak the Ukrainian language at the required level.

After interrogation, the court provided the opportunity for the accused to testify. Shmorgun S.I. limited himself to the statement that he had not committed a criminal offense. Gonchar V.V. asked the court to give him more time to prepare for testimony. Radutny G.V. refused to testify, referring to the fact that “… I have a lot of case materials that I still need to familiarize myself with … I have no privacy with my defense counsel.” To which the Court indicated that the accused had “more than enough time … each court hearing the accused was warned that it was necessary to be prepared to testify”. In addition, the Court stated that “every court session gives the court the impression that it is the defendants who drag out the trial. “Every court hearing is adjourned, in the court’s opinion, for no reason.”

As indicated in the statement of the Supreme Court of March 19, 2019 in case No. 748/636/16, “the party involved in the trial is obliged to conscientiously use its procedural rights and steadily fulfill its procedural obligations”.

A superficial analysis of the court schedule shows that the case is being heard in court quite actively. Hearings in the court of first instance are held monthly. According to the judge, the accused were warned about the need to testify and, according to the court, could initiate confidential communication with a lawyer in advance, familiarization with the materials of the criminal proceedings. However, based on the comments of the judges and the accused themselves, the latter neglected the exercise of their rights.

It should be noted that the court’s statements regarding the unreasonable adjournment of court hearings are of interest, since it is the court that makes the decision to continue the hearing, or announce a break. In addition, such judges’ treatment of the accused may give the impression of a violation of the principle of the impartiality of the court.

However, in connection with the defendant’s request for confidential communication with the defense counsel, the proceedings were postponed.

In addition, the court examined the issue of extending the terms of detention at the request of the prosecutor, which, according to the practice already established for the Ukrainian prosecutor’s office, limited itself to the following argument: “risks stipulated by Article 177 Code of Criminal Procedure of Ukraine has remained unchanged at present”. The International Society for Human Rights once again notes that according to the Ukrainian procedural law, an exceptional measure of restraint in the form of detention can be applied only if the prosecutor proves that none of the milder measures of restraint can prevent the risks of the defendant not fulfilling his procedural obligations (Article 183 of the Code of Criminal Procedure). As a result of consideration of the petition of the prosecution for the extension of the measure of restraint in the form of detention and the petition of the defense to change the measure of restraint to round-the-clock house arrest, the court decided to extend the detention for 60 days.

As the court indicated, “at the hearing the prosecutor proved the existence, at present, of risks that have not disappeared, as defined by Article 177 Code of Criminal Procedure of Ukraine. Radutny G.V., Gonchar V.V., Shmorgun S.I. accused of committing a particularly serious crime, for which a penalty of imprisonment of up to 12 years is prescribed. In addition, Radutny G.V. does not have a permanent residence. And also, there are no medical data on the impossibility of being detained. And, there is reason to believe that the accused will not comply with the procedural obligations assigned to them if they choose a measure of restraint not related to deprivation of liberty. Being free, they can commit another criminal offense.”

Despite the fact that each of the parties can cause a delay in the consideration of the case, and in this proceeding the court directly stated that the behavior of the accused helps to delay the proceeding, the question of the measure of restraint cannot be considered superficially. The prosecutor, arguing the need to extend the terms of detention, stated: “Given the defendants’ request for confidential communication with lawyers, familiarization with the case file, it will be impossible to complete the judicial review before April 11 (the date of the end of detention).” Undoubtedly, this should not be the basis for the automatic extension of detention and the objective observer, who is the ISHR, has the impression that the deadlines are automatically extended. Such court actions may have signs of violation of Part 3, Article 5 of the European Convention.

The European Court of Human Rights has often found a violation of Article 5 of the Convention in cases where the national courts continued to be detained, referring mainly to the gravity of the charges and using template language, without even considering specific facts or the possibility of alternative measures (“Kharchenko v. Ukraine”, paras 80-81; “Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion of a crime committed by a detained person is an indispensable condition for the legality of his continued detention, but after the lapse of time such a suspicion will not be sufficient to justify prolonged detention. The ECtHR never tried to translate this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the severity of the crime. Once “smart suspicion” is no longer sufficient, the court must establish that the other grounds given by the courts continue to justify the person’s deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).

The court also recalls the immutability of the grounds for suspicion. That an arrested person has committed an offense is a sine qua non condition in order for his continued detention to be considered legal, but after a while this condition is no longer sufficient. Then the Court must establish that the other grounds on which the decisions of the judiciary are based continue to justify the deprivation of liberty. If these grounds turn out to be “relevant” and “sufficient”, then the Court will ascertain whether the competent national authorities found “special good faith” in the conduct of the proceedings (“Labita v. Italy”, para. 153).

Also, one should pay attention to the technical shortcomings of the work of the judicial authority website, which the representatives of the ISHR were able to identify through monitoring of this case.

Today, in quarantine, monitoring of many cases is carried out by viewing broadcasts of court hearings on the judicial authority’s website. So, case No. 164/63/19 in the calendar of broadcasts of court hearings was dated May 01, 2020. However, when watching the video itself on YouTube, we found that the hearing took place on April 01, 2020.

Since the case is of interest to the International Society for Human Rights, despite the misinformation on the website of the judiciary, we decided to monitor the broadcast dated April 01, 2020.