Monitoring of criminal proceedings of Evgeny Sergeevich Sagaidak (hearing on December 08, 2020)
On October 29, 2020, a hearing in case No. 331/4277/17 was held in the Oktyabrskiy District Court of Zaporozhye on the charges of E.S. Sagaidak in the commission of a crime under Part 2 of Art. 187 of the Criminal Code of Ukraine, namely, robbery committed by prior conspiracy by a group of persons or a person who has previously committed robbery or banditry.
The International Society for Human Rights has already monitored this case on October 29, 2020.
At the hearing on December 8, 2020, the investigation of the disc with the video recording of the arrest of the accused by the police authorities continued.
Defendant E.S. Sagaidak and his lawyer drew the attention of the judges that during his arrest he was not provided with a lawyer. The accused insisted on the need to provide him with legal assistance, but the representatives of the police did not provide a defense lawyer.
Paragraph 1 of Article 6 of the ECtHR generally requires access to a defense lawyer from the first interrogation of a suspect by law enforcement officials, unless it has been demonstrated in the specific circumstances of the case that there are compelling reasons to restrict such a right. Even if compelling reasons may in exceptional cases justify denying access to a lawyer, such a restriction, regardless of the reasons, must not unreasonably violate the rights of the accused under Article 6 of the Convention.
The ECtHR must assess the existence of compelling grounds for restricting access to a defense lawyer. Next, it must assess the amount of damage that was caused to the right to defense in the case of the relevant restrictions. If compelling reasons are established, a comprehensive assessment of the proceedings should be carried out to determine whether they were “fair” in accordance with the purposes of Paragraph 1 of Article 6 of the Convention (“Ibrahim and Others v. The United Kingdom”, para. 264).
During a comprehensive study of proceedings in order to assess the impact of procedural deficiencies on the fairness of criminal proceedings in general, it is necessary to take into account such an inexhaustible list of criteria in the practice of the ECtHR: (a) whether the applicant was in a particularly vulnerable position; (b) the regulations governing the pre-trial investigation procedure and the admissibility of evidence during their assessment, as well as their observance; (c) whether the applicant had the opportunity to challenge the admissibility of the evidence or challenge its use; (d) the quality of the evidence, whether the circumstances in which it was obtained have raised doubts about its reliability and accuracy, taking into account the extent and nature of any duress; (e) if the evidence was obtained unlawfully, the relevant unlawfulness, and if it was caused by a violation of another article of the Convention, the nature of the violation found; (f) in the case of testimony, the essence of the testimony and whether the applicant retracted it or changed it in a short period of time; (g) the way in which the evidence was used, as well as, in particular, whether the evidence became an integral or significant part of the evidence base on which the conviction was based, as well as hundreds of other evidence in the case; (h) whether guilt was found to be guilty by professional judges or jurors, and in the latter case, the content of any attitudes to the jury; (i) the degree of public interest in investigating and punishing a particular offense; (j) other relevant procedural safeguards provided for in national law and ECtHR practice (“Ibrahim and Others v. the United Kingdom”, para. 274).
On the basis of previous arguments, the defense asked the domestic court to declare the arrest record as inadmissible evidence, since the procedural action was carried out without a defense counsel.
The judge refused to satisfy the defense’s petition and indicated in the court decision that the current legislation does not require stopping the investigative action – in case of a search of the person – before the defense lawyer arrives at the place of detention, but only indicates the need to ensure confidential communication between the defense lawyer and the suspect before interrogation, which was done properly by the investigator. The absence in the protocol of the person’s detention of a written reference to the message of the legal aid center about the detention of a person does not indicate a violation of the right to defense, since the requirements of Art. 213 of the Criminal Procedure Code of Ukraine were actually fulfilled by the investigators, which was verified by the court during the court session. However, the domestic court noted that the issue of the invalidity of the evidence would be decided upon assessing the remaining evidence at the time of the final decision in the criminal proceedings.
The International Society for Human Rights draws attention to the lack of a unified practice in the issue of invalidating the detention protocol. Thus, in case no. 645/1774/17, during the arrest and search, the suspect was not properly provided with a defense lawyer, while from the beginning of the detention she insisted on this, she did not refuse the participation of a defense lawyer. The conduct of the procedural action was not postponed by the investigator until the arrival of the defense counsel chosen by the accused or until the arrival of the involved defense lawyer from the free legal aid agency. Procedural rights do not require a suspect to actively resist law enforcement officials in their intentions to conduct procedural actions, in this case a search of a detainee, without a final decision on her petition to have a lawyer. Neglecting the request for a lawyer on the part of the suspect, a search was conducted, the results of which the suspect also did not confirm with her own signature. On the proposal to sign the protocol, the suspect drew attention to the absence of a lawyer and refused to participate in the procedural action without him. In case No. 645/1774/17 on November 7, 2019, the Frunzensky District Court of Kharkov declared the detention report invalid.
Thus, the national courts have yet to develop a unified approach to resolving the issue of invalidating the detention report, which was drawn up without the participation of a lawyer.
Then the participants in the court session proceeded to the study of written evidence. The defense attorney asked the court to re-conduct the portrait examination. However, the court rejected this request.
Also, at the hearing, the petition of the accused and the lawyer to change the measure of restraint from detention to house arrest was considered. E.S. Sagaidak argued it as follows:
– he is in custody for a long time (more than 3 years);
– none of the risks, to hide from the court or obstruct the court proceedings, are justified;
– he has no intention to continue criminal activity.
Checking for the risks under Art. 177 of the Criminal Procedure Code of Ukraine, the national court notes that due to the lack of data on the employment of E.S. Sagaydak before his imprisonment, drawing attention to the presence of two episodes of criminal acts, a selfish motive for the crime, and also taking into account the two convictions of the accused, there is a likelihood of continued criminal activity. According to the court, this risk is significant and such that it prevails over a person’s right to personal freedom.
Without questioning the decision of the national court, the International Society for Human Rights draws attention to the fact that the justification for the need to extend the period of detention remains unchanged in the court’s decision.
It should be noted that the ECtHR has often found a violation of paragraph 3 of Art. 5 of the Convention in cases where domestic courts continued detention, referring mainly to the gravity of the charges and using formulaic language, without even considering specific facts or the possibility of applying alternative measures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”, para. 59).
The next court hearing is scheduled for December 17, 2020. The International Society for Human Rights will continue to monitor this case.