Monitoring of criminal proceedings of Sagaidak Evgeny Sergeevich (hearings on October 29, 2020)

On October 29, 2020, a hearing in case No. 331/4277/17 was held in the Oktyabrsky District Court of Zaporozhye on charges of Evgeny Sergeevich Sagaidak accused of committing 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 court session was held with the participation of the prosecutor, the accused and his defense counsel. The victims and their representative did not appear at the hearing. Despite this, the parties considered it possible to hold the hearing without them.

The course of the trial: at the beginning of the trial, the accused filed a complaint about the violation of the trial procedure. He indicated that the trial began 50 minutes later than the scheduled time, despite the fact that the accused had been in a glass box all this time. The judge attached this statement to the case file and suggested that the case be continued.

He indicated that the trial began 50 minutes later than the scheduled time, despite the fact that the accused had been in a glass box all this time. The judge attached this statement to the case file and suggested that the case be continued.

In this court session, a disc with a video recording of the arrest of the accused by the police was examined.

After examining the materials of the case, the court proceeded to decide on the extension of the time limit for the application of the measure of restraint, since the term of detention was about to expire.

The prosecutor petitioned for an extension of the term of detention for two months, while asking to take into account when making a decision the characteristics of the accused, namely, the fact that he had previously been repeatedly prosecuted for mercenary and other grave crimes committed with violence. In addition, the prosecutor expressed her opinion that the aggressive behavior of the accused during and after the arrest indicates his unwillingness to take the path of correction.

The defense, for its part, asked the court to change the measure of restraint from detention to house arrest, arguing that the prosecution did not note any existing risks provided for by the current criminal legislation of Ukraine, which could justify the further detention of the accused.

The accused Sagaydak Y.S., in order to ensure his right to defense and the right to freedom, demanded to get acquainted with the arguments of the prosecution in writing. The accused also stated that the court was violating his rights by considering the prosecutor’s petition to extend the period of detention ten days before the expiration of the previous detention order, referring to the Law of Ukraine “On Amending Clause 20-5 of Section XI” Transitional Provisions “of the Criminal Procedure Code of Ukraine regarding the peculiarities of judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings and the consideration of certain issues in the course of judicial proceedings for the period of quarantine established by the Cabinet of Ministers of Ukraine in order to prevent the spread of coronavirus disease (COVID-19)” dated April 13, 2020, where it is noted that “during the pre-trial investigation and during the trial, an application for an extension of the period of detention shall be filed no later than ten days before the expiration of the previous detention order”. Thus, according to Y.S. Sagaydak, the court assumes the responsibilities of the prosecution, once again independently initiating the issue of extending the term of detention.

In addition, the accused emphasized that according to the Information Letter of the High Specialized Court of Ukraine for the Consideration of Civil and Criminal Cases on some issues of the procedure for the application of measures during pre-trial investigation and judicial proceedings in accordance with the Criminal Procedure Code of Ukraine dated April 04, 2013 No. 511-550 / 0 / 4-13, the investigating judge must carefully check the compliance of the submitted petition of the investigator, the prosecutor on the application of a measure of restraint to the requirements of Art. 184 of the Code of Criminal Procedure, as well as the timeliness of providing the suspect, the accused with a copy of the petition and materials that justify the need to apply a measure of restraint (no later than three hours before the start of the consideration of the petition). In case of non-compliance by the investigator, the prosecutor with the requirements of Art. 184 of the Code of Criminal Procedure, the judge considers the relevant petition and refuses to satisfy it.

The European Court of Human Rights (hereinafter – the ECtHR) notes in such cases that the national authorities are obliged to establish the existence of specific facts that may be grounds for further detention. Placing the burden of proof on a prisoner in such matters amounts to a violation of Article 5 of the Convention. The situation in which there is a derogation from the right to liberty in favor of detention is permissible only with an exhaustive list of facts and strictly defined cases. (§§ 84-85 of “Iliikov v. Bulgaria” case).

In § 41 of the case “Khayredinov v. Ukraine”, the ECtHR notes that in the present case the domestic courts justified the applicant’s continued detention mainly on the basis of the gravity of the charges against him. In rejecting his applications for release and in extending his detention without reference to any specific facts, they considered that this was the only reason sufficient to conclude that he might abscond or otherwise disrupt the course of the investigation. As regards the applicant’s detention pending trial, the only thing the court referred to was that the measure of restraint must be considered justified without considering its justification over time and taking into account the progress in the proceedings. The Court does not consider these grounds for the applicant’s continued detention “relevant and sufficient”.

It must be added that the validity of any period of detention, regardless of its length, must be convincingly demonstrated by the authorities (§ 66 of “Shishkov v. Bulgaria” case).

Thus, from the point of view of the ECtHR, detention under Article 5 § 1 (c) must satisfy the requirement of proportionality (§ 55 of “Ladent v. Poland” case).

The court, having consulted, decided to extend the term of detention of the accused Sagaidak E.S.

The issue of automatic prolongation of detention and the lack of proper reasoning for the existence of risks is often raised by ISHR observers in their reports. In many cases, observers are faced with the fact that prosecutors do not justify the existence of risks and the burden of making a decision rests entirely with the court. Thus, the prosecutor’s office does not perform its functions properly, which may lead to a violation of the rights of the accused under Art. 5 of the Convention. As, for example, in the case of R.A. Dubinevich (hearing of 05.12.2020) and V.I. Tyapkin (hearing of 04.01.2020).

The next court hearing is scheduled for December 08, 2020 at 10:30 am. The International Society for Human Rights will continue to clarify details and monitor this proceeding.