On January 19, in the Shevchenkovsky District Court of the city of Kiev, a trial was held in the case of Andrey Sergeevich Antonenko (soldier of the Special Operations Forces of the Armed Forces of Ukraine), Yulia Leonidovna Kuzmenko (volunteer and children’s cardiac surgeon), Dugar Yana Sergeevna (military medic), who are charged with Paragraphs 5, 12 of Part 2 of Art. 115; Part 3 of Art. 28; Part 1 of Art. 263; Part 2 of Art. 194 (premeditated murder committed by prior conspiracy by a group of persons; theft, misappropriation, extortion of firearms, ammunition, explosives, explosive devices or radioactive materials, or their possession through fraud; deliberate destruction and damage of property committed by arson, explosion or other generally dangerous method, causing property damage on an especially large scale, or resulting in the death of people) of the Criminal Code of Ukraine.
Recall that on July 20, 2016 in Kiev, journalist Pavel Sheremet died as a result of a car explosion. He was driving to the morning broadcast of his program. It is important to add that for more than 3.5 years, despite numerous expert examinations, interrogations of witnesses, and the seizure of video from surveillance cameras, there was not a single official suspect in the murder of Pavel Sheremet. And only in December 2019, the police first named the suspects in the case.
The hearing on January 19 was supposed to begin with the examination of the evidence, but first the court considered the petition of the lawyer of the accused Yulia Kuzmenko – T.G. Bespaly, in which he informed about the impossibility of his presence in this court session due to infection with Covid-19 and asked not to examine the evidence of the prosecution without his presence. Another lawyer, Yulia Kuzmenko – Andrey Kostin, said that he needed time to get acquainted with the case materials, so he also asked to postpone the examination of the evidence. Accused Yulia Kuzmenko supported the motion of both of her lawyers.
The court, having consulted on the spot, decided to recognize as impossible the transition to the stage of examining the written materials because of the failure to appear at the hearing of the defense lawyer T.G. Bespaly and in connection with the petition of the lawyer A.S. Kostin; decided, instead, to consider the petition of the defense to change the measure of restraint to the accused A.S. Antonenko.
It is worth recalling that on December 7, 2020, the court extended measures of restraint in the form of detention for Andrey Antonenko and round-the-clock house arrest for Yulia Kuzmenko, Yana Dugar remains on bail.
Lawyer D.S. Krugovoy filed a petition to change the measure of restraint to his client A. Antonenko from custody to a personal obligation. In addition, the lawyer asked the court to allow the accused to sit next to his defenders, arguing that the presence of the accused in a glass box during the trial limits his right to defense and to receive quality legal assistance.
The court decided to reject this request on the basis of the lack of guarantees of the proper behavior of the accused, saying that A. Antonenko could not control his emotions at the previous court hearings when he did not like certain decisions of the court.
The European Court of Human Rights agrees with the Government that order and safety in the courtroom are important and can be seen as a prerequisite for the proper administration of justice. However, the Court has noted on several occasions that Article 3 of the Convention absolutely prohibits torture and cruel or degrading treatment or punishment, and therefore there can be no justification for any such treatment (“Svinarenko and Slyadnev v. Russia”, para. 127). The observer of the ISHR noticed that a microphone was not installed in the glass box in which A.S. Antonenko was located, which is why, when the accused was given the floor, he was rather hard to hear.
It is worth mentioning that when considering an appeal against a measure of restraint, on December 7, 2020, the court also refused to allow A. Antonenko to sit next to his lawyers. Moreover, at the previous court session, which was monitored by an observer of the ISHR, several violations of the court proceedings were noticed, one of which was also a violation of the right to defense (then, according to the defense, the lawyers and suspects were not provided with the case materials for review).
As for the very petition to change the measure of restraint, the lawyer named a number of circumstances that have changed in the course of the court proceedings and require attention in connection with the consideration of this issue. This, in particular, the deterioration of the state of health of the accused during his stay in the pre-trial detention center, in support of which the lawyer provided the statement of the doctor who examined A.S. Antonenko.
Also, the defense attorney emphasized that the wife of the accused fell ill and although her diagnosis is still unknown, the young children of A. Antonenko have no one with whom to stay.
In support of his position, T.G. Bespaly referred to the testimony of about 200 interrogated witnesses, who, according to him, hardly remember A. Antonenko in their testimony, and also argued that the appeal filed by him earlier on the same issue, considered the illegal composition of the court.
At the same time, the lawyer asked the court, in accordance with Article 193 of the Criminal Procedure Code of Ukraine, to examine the materials of the prosecution, first presented by him at the hearing on December 12, 2020, which, according to the prosecutor, contain confirmation of A. Antonenko’s guilt, which the defense deeply doubts.
The lawyer also expressed his disagreement with the words of the judge regarding the improper behavior of his client during the court hearings, and, taking into account all these circumstances, asked to grant the petition.
Stanislav Kulik, the second lawyer of A.S. Antonenko, for his part, noted that his client may well be at home, deal with family affairs, receive proper medical care, which he cannot receive in the pre-trial detention center and perform any duties that may be assigned to him by court, while not being in custody. Moreover, since A.S. Antonenko is a public figure familiar to many people in our country, he simply cannot physically be able to hide from the court.
It is also worth saying that the defense side has repeatedly referred to the practice of the ECtHR, as well as to the recommendations of the Council of Europe, which say that during a pandemic it is recommended that courts, if possible, choose alternative measures of restraint that are not related to detention.
Referring to the jurisprudence of the ECtHR, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures to ensure that the person appears in court (“Idalov v. Russia”, para. 140). This provision not only proclaims the right to “trial within a reasonable time or release pending trial”, but also stipulates that “release may be conditional on the provision of guarantees to appear in court” (“Lelievre v. Belgium”, para. 97; “Shabani v. Switzerland”, para. 62).
The prosecutor replied that the accused had more than once extended the term of detention, the validity of the suspicion and the presence of the risks provided for by Article 177 of the Criminal Procedure Code of Ukraine, which, in his opinion, continue to exist, were checked. According to the prosecutor, making decisions on changing the measure of restraint without examining all the case materials would be a premature decision, because the currently available measure of restraint (detention) will ensure the proper procedural behavior of the accused at this stage of the proceedings.
It is important to pay attention to the fact that the prosecution, similarly to the defense, asked to examine all the materials of the case, while the defense believes that the study of this evidence will confirm the inexpediency of keeping the accused in custody, and maybe even his innocence, and the prosecution on the contrary, believes that it will justifies the need to apply this particular measure of restraint.
After consulting, the court decided to reject the defense’s petition to change the measure of restraint from detention to a personal obligation.
In “Labita v. Italy”, para. 152, the European Court of Human Rights stated that, first of all, national judicial authorities must ensure that, in any given case, the detention of an accused does not exceed a reasonable time. To this end, they should examine all the pros and cons of the existence of a genuine public interest requirement that, despite due respect for the principle of the presumption of innocence, would justify a departure from the rule of respect for personal liberty, and set them out in their decision on rejection of the application for release.
In this regard, the experts of the International Society for Human Rights believe that the study of the above-mentioned materials, which both parties consider so important for production, should be investigated as soon as possible in order to ensure the so-called “due diligence” on the part of the national court (“Klyakhin v. Russia”, para. 61).
The next hearing will take place on 02.02.2021 at 2:00 pm. The International Society for Human Rights will continue to monitor these criminal proceedings to clarify all the details.