Monitoring of criminal proceedings of Voitenko M.S., Plavak A.D., Kosolapy A.P., Bogaychuk R.V, Sidoruk V.M. (January 04, 2021)

01/04/2021 in the Kovelsky City District Court of the Volyn Region with the participation of a panel of judges Logvinyuk I.M., Lesik V.O., Panasyuk S.L., a regular court hearing was held in case No. 164/309/19 on charges of Voitenko M.S. , Plavak A.D. in the commission of criminal offenses under Part 2, 3 of Art. 307 of the Criminal Code of Ukraine – “Illegal production, manufacture, acquisition, storage, transportation, transfer or sale of narcotic drugs, psychotropic substances or their analogues”, Kosolapy A. P., Bogaychuk R.V., Sidoruk V. M. in the commission of criminal offenses, provided for in Part 3 of the same article of the Criminal Code of Ukraine.

On December 17, 2020, the court received statements from the accused Plavak A.D. and Voitenko M.S. on the challenge of the presiding judge in this case – Logvinyuk I.M. Both of the accused justified by the fact that the criminal proceedings on their charges were pending for a long time, the consideration of the case was artificially delayed by the court, and the presiding judge Logvinyuk I.M. treats them with prejudice; when making decisions, she is guided by a trumped-up charge against them.

When considering the applications by the panel of judges, it was established that Logvinyuk I.M. as the presiding judge did not violate the requirements of Art. Art. 321, 42 of the Criminal Procedure Code of Ukraine concerning the accused, like the rest of the members of the collegium. In addition, according to the court, the substantiation of the statements to the extent that it was the presiding judge Logvinyuk I.M. makes decisions that raise doubts about its impartiality do not deserve attention, since all procedural decisions in the case are taken by the court collectively, consisting of three judges. Analyzing the arguments of the applicants in conjunction with the materials of the criminal proceedings, the court refused to satisfy the challenges.

On 01/04/2021, the court considered the application of the defender Pradischuk M.M. about the recusal of prosecutor Maila S.I., justified by the fact that the prosecutor has no right to participate in the criminal proceedings under consideration, since he is personally interested in the results of the criminal proceedings. According to the lawyer, the prosecutor delays the proceedings in every possible way, which grossly violates the general principles of criminal proceedings. This, among other things, casts doubt on the lawyer’s impartiality. In addition, the lawyer noted that the prosecutor once again did not ensure the arrival of witnesses, and in its petitions for measures of restraint for the accused, the prosecution indicates that the presence of witnesses who have not yet been questioned are one of the reasons for their extension.

The prosecutor declared his disagreement with the application for recusal, noting that he was participating in the court hearing for the consideration of this criminal proceeding for the first time, and he brought written evidence to the court session on 01/04/2021 to provide them to the court. In his opinion, it is the lawyer’s statements that are a means of delaying the trial and abuse of protection of their rights. As a result, the court refused the lawyer to challenge the prosecutor.

After that, prosecutor Mailo S.I. invited the court to consider the petition to extend the measure of restraint for the accused Voitenko M.S., Plavak A.D., Kosolapy A.P. in the form of detention for a period of 60 days and the extension of the term of house arrest for the accused Bogoychuk R.V. The petition was based on the possibility on the part of the accused to exert pressure on witnesses, the likelihood of them committing new criminal offenses and other risks provided for by Art. 177 of the Criminal Procedure Code of Ukraine, which, according to the prosecution, have not decreased.

In turn, the defense objected to the consideration of this application. Lawyer Kudenchuk O.A. asked to postpone its consideration until 01/15/2021. In his opinion, hearing the petition so early, namely 14 days before the expiration of the previous judgment, would indicate a violation of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular, the right to a fair and public hearing of the case in terms of appeal previous court orders to extend the measure of restraint.

As a result, the court was unable to make a decision on the prosecutor’s petition, since the other lawyer – Nesteruk M.M. left the courthouse while the judges were in the deliberation room without alerting the court clerk. Lawyer Kudenchuk O.A. explained to the court that Nesteruk M.M. family force majeure circumstances arose, so he was forced to leave this court session. In this regard, the court decided not to consider the prosecutor’s petition and to postpone the hearing until January 15, 2021.

First of all, the experts of the ISHR suggest that the inability to call witnesses for a long time may indicate a delay in the proceeding. Which, accordingly, may have signs of a violation of the principle of reasonable terms of the trial. It is worth noting that the indictment was submitted to the court on February 14, 2019. Thus, the case №164 / 309/19 in the Kovelskiy city district court has been considered for almost 2 years.

Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms recognizes for every person prosecuted in a criminal case, the right to receive, within a reasonable time, a final decision on the justification of the charges against him, or rather to ensure that the accused do not remain under the weight of the charges for a long time and that a decision be made on the validity of the charges (“Wemkhov v. Germany”, paragraph 18, “Giulia Manzoni v. Italy”, paragraph 25, “Brogan and Others v. the United Kingdom”, paragraph 65).

As noted by the European Court of Human Rights, in the judgments in the cases “Nakhmanovich v. Russia”, paragraph 89 and “Ivanov v. Ukraine”, paragraph 71, the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms are called upon, among other things, prevent the accused from being in the dark about their fate for too long.

The ISHR observer notes the fact that the extension of detention in this case may, over time, become “automatic”. For the first time, by the Kovelsky City District Court of the Volyn Region, the term of detention for the accused Voitenko M.S., Plavak A.D., Kosolapy A.P. was extended on March 18, 2019, which means that the accused have been in custody for more than one year, pending a court decision.

The European Court of Human Rights argues that national courts must first and foremost ensure that, in a particular case, the detention of an accused person does not exceed a reasonable time. To this end, they must, taking due account of the principle of the presumption of innocence, examine all the circumstances of the case that may confirm or deny the existence of a public need that justifies deviations from the requirement of respect for individual freedom, and indicate this in their decisions on the extension of the term of detention (“IA v. France”, paragraph 102).

In addition, the failure to ensure the attendance of witnesses by the prosecutor may show signs of improper performance by the prosecution, which may be the main reason for delays in the consideration of the case.

The monitoring group of the International Society for Human Rights will continue to monitor this case.