On October 22, 2020, a hearing was held in the Shevchenkovsky District Court of Kiev in the case of Yuri Rossoshansky, who is accused of the murder of human rights activist Irina Nozdrovskaya. He is charged with paragraph 4 of part 2 of Art. 115 (premeditated murder committed with particular cruelty) of the Criminal Code of Ukraine.
The consideration of the case stopped at the examination of the evidence. The prosecutor requested that the video be included in the materials along with the protocol of the interrogation of the accused, on the basis of which a forensic psychiatric examination was carried out. But the defender of Y. Rossoshanskiy objected. He believes that the protocol is not a source of evidence. The court must interrogate the accused directly in the courtroom, so as not to create a bias towards the future testimony of his client.
The court concluded that the admission of evidence to the case file was unfounded and all testimony should be heard in court directly.
Further, the panel of judges examined the protocol of the investigative experiment. For technical reasons, the video of the investigative experiment could not be viewed.
The victims, having listened to the protocol under investigation, believe that the testimony of the accused is invented. The position is justified by the fact that many facts describing the area where the crime was committed do not coincide. The victims believe that Y. Rossoshansky did not commit the murder alone. They demand a second investigative experiment. They believed that someone is trying to hide the real killers of their daughter, since the investigative experiment was carried out without them and their lawyers.
The defender of Y. Rossoshanskiy draws attention to the fact that if the video had been examined, all the questions of the prosecution would have disappeared. The video shows that his client did not even guess what the murdered woman was wearing.
Further, the court considered the issue of extending the measure of restraint to the accused. Yuri Rossoshansky has been detained for almost 3 years. For the first time, the Shevchenkovsky District Court of Kiev, after the transfer of the indictment to the court, extended the accused’s detention on October 18, 2018.
According to the prosecutor, the measure of restraint in the form of detention should be continued due to the fact that Yuri Rossoshansky is accused of committing especially grave crime, for which the law provides for a penalty of imprisonment for more than 10 years. The prosecutor states that the risks have not diminished: the accused lives in the same town with the victims’ family and can illegally influence them. The prosecutor also drew attention to hostile relations between the accused and the victim, which may lead to the commission of other criminal offenses. In this regard, any other measure of restraint, except for detention, will not help to achieve the goal of criminal proceedings – the execution by the accused of procedural duties and preventing the commission of other criminal offenses
Y. Rossoshanskiy’s lawyer objected to granting the petition.
The ECtHR draws attention to the inadmissibility of prolonged unjustified detention.
The Court reiterates that the question of the reasonableness of the detention of an accused must be assessed in each case in the light of its particularities. The continued detention can only be justified on a case-by-case basis if there is concrete evidence of a genuine claim of public interest which, despite the presumption of innocence, outweighs the rule of respect for personal liberty enshrined in Article 5 of the Convention (paragraph 110 of the “Kudla v. Poland”).
The existence and persistence of reasonable suspicion that the person arrested has committed a crime is a condition sine qua non of the lawfulness of further detention. However, after a certain time, this becomes insufficient. In such cases, the Court must establish whether the other grounds adduced by the judicial authorities continued to justify the deprivation of liberty. If such grounds were “relevant” and “sufficient”, the Court must also establish whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (paragraph 152 of the “Labita v. Italy” judgment). The validity of any period of detention, no matter how brief, must be convincingly demonstrated by the authorities (paragraph 66 of the “Shishkov v. Bulgaria” judgment). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures to ensure his appearance in court (paragraph 83 of the “Jablonski v. Poland” judgment).
The Court has frequently found a violation of Article 5 § 3 of the Convention in cases where the domestic courts extended the applicant’s detention based mainly on the gravity of the charges and using stereotypical formulas without considering specific facts or considering alternative measures of restraint (paragraph 55 of the “Pelevin v. the Russian Federation” judgment).
The court has repeatedly pointed out that “… although the severity of a possible sentence is an important component in assessing the risk of escape or committing new offenses on the part of the accused, the need to extend the period of application of a measure of restraint in the form of detention cannot be assessed only from an abstract point of view, taking into account only the gravity of the charges. Continued detention cannot be used to await a verdict either” (paragraph 51 of the judgment in the case “Kolunov v. Russia”).
In many cases, the ISHR observers are faced with the fact that representatives of the prosecutor’s office do not adequately justify the need to extend the period of detention in their applications. In most cases, prosecutors do not justify the existence of risks, and the burden of justifying the risks rests entirely with the court.
As a result of considering this case, the court granted the prosecutor’s request and extended the measure of restraint in the form of detention for another 60 days.