On November 03, 2020, a hearing was held in the Berdichev City District Court of the Zhytomyr Region on the case of Shurman I. He is accused of murdering a woman and is charged with paragraph 7 of part 2 of article 115 of the Criminal Code of Ukraine.
On July 5, 2018, a 37-year-old woman was brutally murdered in Berdichev when she went out to walk the dog. Shortly after the woman left the apartment, she was found with a slit throat and multiple stab wounds. Two days later, Shurman I., a 15-year-old teenager, was arrested and was suspected of committing this crime. At present, less than half of the witnesses have been questioned in the case. During interrogations, a large discrepancy is seen in the testimony and time of events. Most of the evidence does not confirm the involvement of the accused in the crime and characterizes him from a positive side.
The defendant’s lawyer Krivoruchko L., did not appear at the hearing and filed a motion to postpone the trial due to the deteriorating health condition. She insists that the consideration of the case should not be carried out without her presence, because according to paragraph 1 of part 2 of Article 52 of the Criminal Procedure Code of Ukraine, the participation of a defense attorney in criminal proceedings against persons accused of committing a criminal offense under the age of 18 is mandatory.
In addition, the composition of the panel of judges was incomplete due to the fact that judge Vdovichenko T. was on sick leave.
It is worth paying attention to the fact that the situation with court hearings, which are postponed or held by an incomplete collegium, since the judges are ill, is not unique. The International Society for Human Rights is faced with such a problem in many criminal proceedings: the case of Shtepa N., the case of Melnik A., Kryzhanovsky A., Kunik I. and others.
At the court session on 11.03.2020, it was planned to consider the following issues:
1) on the possibility of continuing the consideration of the case with such a composition of the court and its participants – all the participants expressed their opposition;
2) on the advisability of extending the measure of restraint to the accused.
The prosecutor and other participants in the criminal proceedings objected to considering these issues without the defense. It should be noted that recently the ISHR faced an extension of the measure of restraint without the participation of defenders (the case of Filtsev A.), despite such a discrepancy between the court’s definition and the norms of the CCP, the appellate court left such a decision unchanged, and the complaint of Filtsev’s defenders was dismissed. That can undoubtedly create an unofficial precedent in non-observance of the right to defense in Ukrainian courts.
In accordance with Part 1 of Article 53 of the Criminal Code of Ukraine, the court is obliged to involve a defense attorney to conduct a separate procedural action in the manner prescribed by Article 49 of this Code, exclusively in urgent cases when there is a need to conduct a procedural action with the participation of a defense lawyer, and a previously notified defense lawyer cannot come to participate in the procedural action or ensure the participation of another defense lawyer.
The judge made a decision to involve a defense lawyer from the Legal Aid Center to resolve the issue of extending the measure of restraint for Shurman I.
According to Part 3 of Article 331 of the Code of Criminal Procedure of Ukraine, regardless of the availability of petitions, the court is obliged to consider the expediency of continuing the detention of the accused until the expiration of a two-month period from the date the indictment was filed with the court and the petition to apply a measure of restraint in the form of detention against the accused.
In accordance with paragraph 5 of part 20-5 of section XI of the “Transitional Provisions” of the Criminal Procedure Code of Ukraine, temporarily, for the period of quarantine established by the Cabinet of Ministers of Ukraine (Resolution of the Cabinet of Ministers of Ukraine No. 641 dated 07.22.20 as amended in accordance with Resolution No. 956 dated 10.13. 20) in order to prevent the spread of coronavirus disease (COVID-19) on the territory of Ukraine, if it is impossible for a panel of judges to consider an application for an extension of a measure of restraint in the form of detention in the period specified by this Code, it may be considered by the presiding judge.
The measure of restraint ends on November 14, 2020. The next court session is scheduled for November 24, 2020. This means that the chairman needs to consider the issue of extending the measure of restraint on November 3, 2020.
A lawyer from the Secondary Legal Aid Center arrived at the hearing. As a result of the examination, the court, having heard the opinions of the participants, extended the detention of Shurman I. for another 60 days.
So, the accused was elected a measure of restraint in the form of detention on July 09, 2018, and subsequently the period of detention was constantly extended, most recently on September 16, 2020. The risks indicated in the prosecutor’s petition remained the same as the previous times (all that are provided for in Article 177 of the Criminal Procedure Code of Ukraine).
In a decision of September 16, 2020, the court indicated: currently, Shurman I., already in this trial, continues to be accused of committing an especially grave violent crime. The sanction of the article, which provides for criminal liability for the crime of which Shurman I. is accused, provides for punishment in the form of imprisonment for a term of 10 to 15 years or life imprisonment with confiscation of property in the case provided for in paragraph 6 of part 2 of this article. When considering the prosecutor’s petition, it was essentially established that the state of health of the accused (according to the data available to the court), property status, strength of his social ties, his characteristics have not changed (age has changed upward), which indicates that there is no risk reduction, in this part characterizing this person.
In the context of the mentioned above, the International Society for Human Rights cannot but draw attention to the fact that the practice of the ECtHR has an absolutely opposite vector.
The ECtHR has repeatedly noted that the severity of the charge cannot in itself justify long periods of detention (“Ečius v. Lithuania”, para. 94).
According to paragraph 3 of Article 5 of the Convention, after a certain period of time, only the existence of reasonable suspicion does not justify the deprivation of liberty, and the courts must give other grounds for extending the detention (“Borisenko v. Ukraine”, para. 50). Moreover, these grounds must be clearly indicated by the national courts (“Yeloyev v. Ukraine”, para. 60; “Kharchenko v. Ukraine”, para. 80).
The existence of a reasonable suspicion that the detainee has committed a crime is a prerequisite and sine qua non for the legality of his continued detention, but after the expiration of the time, such suspicion will not be enough to justify a prolonged detention. The court has never tried to translate this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the severity of the crime. Once “smart suspicion” is no longer sufficient, the court must establish other court-based grounds that will continue to justify the deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).
The Court also recalls that the grounds for suspicion remain unchanged. If the arrested person has committed an offense, this is a sine qua non condition for his continued detention to be considered lawful, but after a while this condition is no longer sufficient. The Court must then establish other reasons on which the decisions of the judicial authorities are based, which continue to justify the deprivation of liberty. If these grounds are found to be “appropriate” and “sufficient”, then the Court shall examine whether the competent national authorities have shown “special good faith” in the conduct of the proceedings (“Labita v. Italy”, para. 153).
In the context of the above positions of the European Court, it is necessary to analyze the court’s decision of 11.03.2020 for the purpose of whether the grounds for extending the term of detention have changed.
As a result of the analysis, it was established that the past and current decisions are identical in substantiating the court’s position on the need to extend the terms of detention.
The court often found a violation of paragraph 3 of Article 5 of the Convention in cases where the 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).
Thus, the International Society for Human Rights is concerned that prolongations of detention may be automatic.
The next hearing will take place on November 24, 2020. ISHR observers will continue to monitor this case.