Monitoring the trial of Ilya Sergeevich Turman (hearing on June 23, 2020)
On June 23, 2020, a preparatory hearing took place on case No. 701/171/20 on charges of Ilya Sergeevich Turman accused of committing crimes under Part 3 of Article 206-2, part 3 of Article 358 and part 2 of Article 366 of the Criminal Code of Ukraine. Ilya Sergeevich is suspected of holding an illegal general meeting of LLC “Victoria”, where he single-handedly made a decision to alienate 100% of the share of LLC “Victoria” in favor of another person.
The preparatory hearing began with the consideration of a request from a media representative for a video recording of the preparatory hearing, as well as an online broadcast of future hearings. The petition was motivated by the public interest in this case. The defense objected, in particular, the defense attorney stated that, firstly, the trial was broadcast on the website of the “Judicial Power”, and secondly, it violates the right of the accused to the presumption of innocence, since the media can form the public opinion that her client had committed the crimes incriminated to him despite the fact that his guilt has not yet been proven. However, the court granted the request, stating that there were no grounds for holding a closed hearing.
The lawyer of the accused petitioned that her client during the preparatory hearing was seated not in the glass box, but next to her. She referred to the fact that the stay of the accused in a glass box does not correspond to the case law of the ECtHR. The victim’s lawyer objected to this motion. He pointed out a possible threat to the health of the participants in the proceeding. The judge granted the request of the accused’s lawyer, motivating her decision by the fact that the presence of the accused in the glass box is a violation of the right to defense and would be degrading treatment.
It has been established by the case law of the ECtHR that, although the placement of the accused behind glass partitions or in glass cubicles does not in itself imply an element of humiliation sufficient to achieve a minimum level of severity, this level can be achieved if the circumstances of imprisonment (in a “cage”), taken as a whole will cause them suffering or hardships that exceed the inevitable level of suffering inherent in detention (“Yaroslav Belousov v. Russia”, § 125).
The court considers that the glass partitions do not have the harsh appearance of metal cages, in which simple exposure to the public could undermine the image of the accused and cause them to feel humiliated, helpless, fearful, distressed and inferior. The ECtHR also notes that glass structures are used in courtrooms in other member states, although their designs range from glass booths to glass partitions, and in most states their use is intended for “high security” hearings (“Yaroslav Belousov v. Russia”, § 124).
It is worth paying attention to the positive tendency for judges to satisfy requests for the accused to stay next to a lawyer during the trial, and not in a glass box. Thus, the judges successfully implement the above aspect of the application of Article 3 of the European Convention and recognize that the presence of an accused in a glass box is a violation of the right to defense and degrading treatment.
Also, the lawyer Kaplunova turned to the court with a motion to close the criminal proceedings in connection with the end of the pre-trial investigation. She argued that the prosecution opened the materials of the pre-trial investigation to the victims, but since the victims are not a party to the criminal proceedings, the period for their acquaintance with the materials of the pre-trial investigation is included in the above period. The prosecutor noted that the current criminal procedural legislation guarantees equal rights for the defense and victims to familiarize themselves with the materials of the pre-trial investigation. The lawyer’s motion was denied.
During the preparatory court hearing, the prosecutor filed a motion to extend the measure of restraint for the accused in the form of detention. In turn, the defense petitioned to change the measure of restraint. Justifying the existence of risks, the prosecutor noted the following circumstances:
1) Turman previously hid from the pre-trial investigation;
2) The accused has repeatedly ignored the calls of the investigator without good reason.
The defendant’s lawyer stated that the prosecutor’s request was formal. In support of her petition, the lawyer pointed out that the amount of bail of 2 million hryvnias is prohibitive for the accused, which is why he is forced to be in custody. She insisted on the possibility of imposing a less severe measure of restraint, not related to restriction of freedom. The court granted the prosecutor’s request.
According to the case-law of the European Court of Human Rights, the guarantee provided for in Article 5 §3 of the Convention is intended to ensure the appearance of the accused at the hearing (“Manguras v. Spain”, § 78). Therefore, the amount of the bail should be established taking into account the personality of the defendant, his property, his relationship with the guarantors, that is, taking into account the confidence that the prospect of loss of the bail or measures taken against his guarantors in the event of his failure to appear in court will be sufficient to keep him from escaping (“Neumeister v. Austria”, § 14).
Since the issue under consideration is the fundamental right to liberty guaranteed by Article 5, the authorities should make every effort to establish an appropriate amount of bail when deciding whether to continue the detention. In addition, the amount of bail must be properly justified in the decision to determine the bail and must take into account the property of the accused (“Manguras v. Spain”, § 79-80). The failure of the domestic courts to assess the applicant’s ability to pay the required amount could lead to a violation of the Convention.
However, in the decision of the Mankovsky District Court of the Cherkasy Region of March 03, 2020 on the determination of the bail, its size was not justified. This is exactly what the lawyer stated when filing an appeal against the court decision. However, the Court of Appeal did not provide a reasoned response to such an argument in its judgment of April 15, 2020.
As for the extension of the measure of restraint for the accused in the form of detention, it is worth noting that the indictment was received by the Mankovsky District Court of the Cherkasy Region on February 26, 2020. On March 03, 2020, Turman I.S. was elected a measure of restraint in the form of detention with the possibility of bail. By a decision of April 27, 2020, the measure of restraint was extended. In the case, a problem arose with the appeal of court decisions on the election and extension of a measure of restraint, since it is impossible to form a panel of judges in the court of appeal to consider the appeal due to the lack of the required number of judges. For this reason, the Cherkasy Court of Appeal appealed to the Cassation Court of the Supreme Court in order to make a decision to transfer the materials of criminal proceedings on the lawyer’s appeal against the decision of the Mankovsky District Court of the Cherkasy Region dated March 03, 2020 from the Cherkasy Court of Appeal to another court of appeal. As a result, the materials were transferred to the Kropyvnytskyi Court of Appeal, which did not satisfy the lawyer’s appeal.
Thus, the ISHR can state the emergence of a new negative trend in the justice system of Ukraine – the impossibility of promptly appealing against the decision of the first instance court on the election or extension of the term of detention. And the main reason for this is the huge shortage of judges.
In addition, the Cherkasy Court of Appeal, on the basis of a petition by the victim’s lawyer, “Victoria” LLC, considered the issue of jurisdiction. As a result, a decision was made to transfer the case materials for further proceedings to the Monastyrischensky District Court of the Cherkasy Region. Which led to the resumption of the preparatory court hearing stage, which took place on June 23, 2020.
The next court hearing is scheduled for July 02, 2020.