On July 16, 2020, the Lutsk City District Court of the Volynsky Region heard the case on charges against V.I. Tyapkin in the commission of a crime under Part 3 of Article 289 of the Criminal Code of Ukraine – illegal seizure of a vehicle.
At the hearing, the prosecutor filed a petition to extend the measure of restraint to the accused due to the fact that the consideration of the case is essentially continuing, and the risks on the basis of which Valentin Tyapkin is being held in custody continue to exist. The defendant’s lawyer objected to the satisfaction of the prosecution’s motion, pointing out that the prosecution’s witnesses had already been questioned, and the prosecutor had transferred the material evidence to the court, so Tyapkin had no way of influencing them.
In turn, the accused filed a petition to change the measure of restraint to house arrest, referring to the excessive length of stay in the pre-trial detention center in terrible conditions, which negatively affects his health.
The court decided to satisfy the prosecutor’s motion.
It is worth noting that in this case, the prosecution continues to improperly prove the existence of risks, which leads to an automatic extension of the terms of detention of the accused.
The ECtHR points out that the question of whether the length of detention is reasonable cannot be decided in the abstract. It must be decided in each case, taking into account the specific circumstances, grounds and duly documented facts, as well as have appropriate motivation. Continued detention can only be justified in a particular case if there are specific indications that it is required by the true demands of the public interest, which, despite the presumption of innocence, outweigh the rule of respect for personal freedom.
According to paragraph 3 of Article 5 of the ECHR, after a certain period of time the existence of a reasonable suspicion ceases to be a basis for deprivation of liberty and the judicial authorities are obliged to provide other grounds for continued detention. In addition, such grounds must be clearly indicated by the national courts (“Kharchenko v. Ukraine”, paras. 79-80).
The European Court of Human Rights has often found a violation of paragraph 3 of Article 5 of the Convention in cases where domestic courts continued detention, relying mainly on 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).
The existence of a reasonable suspicion that a detained person has committed a crime is a prerequisite for the legality of the continued detention, but after the expiration of such a suspicion, in the opinion of the ECtHR, will not be enough to justify a prolonged detention. The European Court of Human Rights 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 “reasonable suspicion” is no longer sufficient, the national court must establish whether there are other grounds justifying the deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).
The accused filed an appeal against the previous decision of the Lutsk City District Court of the Volynsky Region of April 1, 2020, which extended the terms of detention. As indicated in the decision of the court of appeal dated June 21, 2020, being duly notified of the time and place of the appeal hearing, the lawyer of the accused A.V. Lavrenchuk failed to appear in court twice, which led to a delay in the trial of the defendant’s appeal. As a result, the court of appeal ruled to instruct the Volynsky Regional Center for the provision of free secondary legal aid to ensure the participation of a lawyer in the consideration of the defendant’s appeal. However, as it became known to the ISHR observer, the accused later dropped the appeal and the proceedings were closed.
As indicated by the Cassation Court of the Supreme Court in its decision of June 6, 2019 in case No. 738/1085/17: “… the effectiveness of the defense is not identical with the achievement of the desired result for the accused by the results of the trial, but consists in providing him with adequate and sufficient opportunities using his own procedural rights or qualified legal assistance.”
Thus, the absence of a lawyer had a negative impact on the right of the accused to effective legal assistance. And, in fact, it led to the loss of the meaning of considering the complaint, since a new decision had already been taken, which extended the term of detention.
The International Society for Human Rights will continue to clarify the details and monitor the observance of the right to a fair trial in this proceeding.