Monitoring the case of Sergey Sergeyev and others (Session on February 17, 2020)

On February 17, 2020, in the Kommunarsky court of Zaporozhye, a session was held on the case of Makeevka drivers Sergey Sergeyev and Andrey Gorban, as well as three employees of the Zaporozhzhya Social Security Administration: Victoria Voloshina, Anna Khokhotva and Yulia Semenyuk, accused of committing crimes under Part 1 of Art. 255 of the Criminal Code of Ukraine (creation of a criminal organization), Part 5, Art. 191 (appropriation, embezzlement of property on an especially large scale or seizure by abuse of official position by prior conspiracy by an organized group of persons) Part 2, Article 4 28 (commission of a crime by an organized group or criminal organization by prior conspiracy), part 1 of article 366 (official forgery), part 1 of article 258-3 (other assistance to the creation or activities of a terrorist group or terrorist organization), Part 2, 3 of Article 258-5 (financing of terrorism repeatedly or from selfish motives, or by prior conspiracy by a group of persons, or on an especially large scale).

The Pension Fund undergoes as the victim in the case, although pensioners themselves, whose funds were allegedly illegally transferred to terrorists, did not file lawsuits.

Over the past hearings, the court ruled three times on the delivery to the hearing of arrested vehicles of drivers. Two times the prosecutor’s office ignored the court’s decision. This time the cars were delivered by the accused in the presence of responsible persons from the Ukrainian secret service (SBU). The board of the court examined the cars in the parking lot in front of the courthouse, and then in the courtroom heard the accused S. Sergeyev and A. Gorban.

Andrei Gorban said that a new battery, a set of keys, a fire extinguisher, a first-aid kit, a tow rope, and caps from disks disappeared from his car. Also, according to him, a new winter tire was removed, and the old summer one was replaced instead. In addition, on the way to the court, the front wheel nearly fell off. Sheathing is torn from the car, plastic near the windshield, there is a dent on the body near the bottom. According to Gorban, the car was serviced 5 days before the arrest and was in excellent technical condition.

Sergey Sergeyev also indicated that the new winter tires and battery from his car disappeared. In addition, cracks appeared on the windshield, a dent in the rear, the taillight was broken, the interior trim was torn out, and the seats were cut. In addition, the spare glasses stored in the glove compartment were lost.

The officer of the SBU responsible for storing material evidence said that the cars stored in the parking lot of the SBU for 3 years were transferred to him only 1.5 years ago and without an inventory.

During the session, it turned out that according to the data sheet and in fact, there were 7 seats (8 with a driver) in Sergeyev and Gorban’s cars, while the indictment states that each of the drivers transported more than 10 pensioners.

Lawyer Antonina Shostak filed a motion to remove the arrest regarding the ban on the use of cars and said that a technical examination would be carried out in order to hold accountable those responsible for the improper preservation of material evidence.

The court decided to consider the motion at the next hearing and adjourned the hearing to April 9, 2020.

The International Society for Human Rights expresses concern about allegations of damage and loss of property (of the accused) held in custody at the SBU, which falls under Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which states:

“Every individual or legal body has the right to respect for his property. No one may be deprived of his property except in the public interest and under the conditions provided for by law and the general principles of international law.”

In addition, part 2 of article 100 of the Code of Criminal Procedure of Ukraine states that “the party of the criminal proceedings who have been provided with evidence or a document is required to keep them in a condition suitable for use in criminal proceedings”. Part 4 of the same article assumes that “in the event of a loss or destruction by a party to criminal proceedings of the material evidence provided to him, he is obliged to return the same thing to the owner or to reimburse its cost.” According to Article 194 of the Criminal Code of Ukraine, intentional destruction or damage to property is punishable by a fine of up to fifty tax-free minimum incomes of citizens or correctional labor for a term of up to two years, or imprisonment for a term of up to three years.

In paragraph 50 of the Decision of the ECtHR in the case of “LLC Gastronom v. Russia”, dated March 19, 2019, the European Court notes that law enforcement and judicial authorities are required to take reasonable measures to store material evidence, and national law should provide for the possibility of bringing an action against the state to recover damage due to improper storage of the seized property. Moreover, the procedure for filing such claims must be effective so that the owner can really protect his rights.

In order to comply with the right to a fair trial, experts from the International Society for Human Rights will continue to monitor this trial.