Pre-trial investigation of the Sheremet case (court hearings February 2020)

On July 20, 2016, the journalist Pavel Sheremet was murdered. Сriminal proceedings were opened on the grounds of a crime under Part 3 of Art. 28, items 5.12, part 2, Art. 115 of the Criminal Code of Ukraine (intentional murder by an organized group). After almost 4 years of pre-trial investigation, 12.12.2019, the suspicion was announced to Y. Dugar (military paramedic), A. Antonenko (sergeant of the Special Operations Forces), Y. Kuzmenko (cardiac surgeon). ISHR experts began monitoring this criminal proceeding.

The criminal proceedings are at the stage of pre-trial investigation in the Pechersk district court of Kiev. Issues related to the measure of restraint were considered.

The prosecutor filed a motion to apply a measure of restraint in the form of detention for A. Antonenko and Y. Kuzmenko, and for Y. Dugar he applied for a round-the-clock house arrest (later changed to a night house arrest). According to the defense, these petitions contained only the risks stipulated by the Code of Criminal Procedure of Ukraine, which were not justified. So, for example, the prosecutor talked about the examination of video materials from surveillance cameras, which established the height of the killers, and after the defense began to use this data to confirm the innocence of the suspects, since the height of suspects differs by an average of 10 cm, the prosecutor spoke as follows: the conclusion was drawn that it is generally impossible to establish the height of people when walking and the expert did not even determine approximately height.

According to the ECtHR, it is necessary to take into account the quality of the evidence, including whether the circumstances in which it was obtained raise doubts about their reliability or accuracy (“Dzhallokh v. Germany”, para. 96). It is worth noting that this examination was the only evidence that the prosecutor operated on. The ISHR expresses its concern about this fact, since it is confident that the application of a measure of restraint restricting freedom should be supported by evidence that confirms the real existence of risks, since the right to liberty is of paramount importance in a democratic society and is guaranteed by the Constitution of Ukraine, the European Convention and a number of other international treaties.

On February 14, the Pechersky District Court granted the prosecutor’s motions and extended the measure of restraint to the suspects. On February 20, lawyers tried to appeal this decision, but the suspects were not brought from the pre-trial detention center, so the hearing was adjourned.

It is worth noting that, according to the lawyer Y. Dugar, the burden of proof in this proceeding rests with the defense, since the prosecutor’s office does not provide new evidence of guilt, but only tries to cast doubt on the evidence of innocence. For example, in court, 5 witnesses (2 nurses and 3 military) were interrogated by the defense, who confirmed the alibi of Y. Dugar and said that in July 2016 the latter was in a military hospital. In response to this, the prosecutor stated that the testimony should not be regarded as admissible, since they interrogated 10 employees from the same hospital who said they did not remember anything about the events of that time, which means that it was suspicious that some remember, and others did not.

It is important to note that shifting the burden of proof from the prosecution to the defense is an absolute violation of the presumption of innocence (“Telfner v. Austria”, para. 15). ISHR experts believe that not only the aforementioned circumstance violates the presumption of innocence in this criminal proceeding, systematic statements in the media by law enforcement officials and the executive regarding the pre-trial investigation and suspects, in particular, may also cause a breach of the presumption. We emphasize that we do not ascertain the fact of the violation, but assume the possibility of its existence, since the presumption of innocence can be violated not only by a judge or court, but also by other state authorities (“Allene de Ribemont v. France”, para. 36; “Dactaras v. Lithuania”, paragraph 42). Article 6, paragraph 2, prohibits statements by state officials about pending criminal investigations that promote public opinion about the guilt of the accused and predetermine the assessment of the facts by the competent judicial authority (“Ismoilov and Others v. Russia”, para. 161; “Butkevichius v. Lithuania”, para. 53).

In addition, the lawyer Y. Dunar named the list of violations that he considers were committed in relation to his client:

  1. Violation of the right to personal freedom (the suspect was detained without a court order and without drawing up a detention protocol).
  2. Violation of the right to defense (lawyers and suspects are not provided with case materials for review). The “means” that any suspected of committing a crime must have the ability to familiarize themselves with the results of the investigation in preparation for defense (“Hussein and Others v. Azerbaijan”, para. 175; “Yukos Oil Company v. Russia”, para. 538).

It is especially important to note the fact that today this criminal proceeding causes serious resonance in society. The media daily publishes new information on the position of the investigation and defense. The International Society for Human Rights believes that this media activity can be regarded as a massive campaign against any of the participants in the trial or aimed at achieving a certain effect in forming the court’s opinion on this case. In this case, there will be a violation of the principle of a fair trial. The ECtHR in the case of “Kuzmin v. Russia”, paragraph 62, emphasized that an unrestrained press campaign could have a negative effect on the fairness of the trial, influencing public opinion. In the course of their monitoring, the ISHR experts repeatedly faced situations when the court was subjected to pressure both from the executive branch and from mass media campaigns (A. Shchegolev’s case, A. Khandrykin’s case, V. Yanukovych’s case, former officers of “Berkut” riot police case, etc.). In the annual report for 2018, the ISHR experts identified pressure on the court as one of the negative trends of the year.

Why should mass media campaigns be regarded as one of the levers of pressure on the court? Based on the fact that the media act as a kind of regulators of public opinion, their publications can lead to the following consequences:

  1. By their publications condemning court decisions, for example, calling them illegal, they can raise the level of mistrust in the judiciary as a whole. The judge of the ECtHR, Anna Yudkovskaya, at the 12th extraordinary congress of judges of Ukraine noted that one of the reasons for Ukraine’s leading position in the number of complaints to the ECtHR is the mass media campaigns, which put distrust for the courts in the minds of Ukrainians.
  2. Mass publications denigrating a judge or a panel of judges can provoke people certain people to take measures that, in their opinion, can change the course of a judicial review. We faced a similar situation in the case of ex-officers of the “Berkut”, when the collegium changed measure of restraint for one of the accused to a lesser measure (detention was changed to house arrest), the media began to condemn this decision, and as a result, the presiding judge was attacked near his home, after which the accused was detained once again.

The International Society for Human Rights will continue to monitor this criminal procedure to clarify all the details.