Monitoring of criminal proceedings of Voitenko M.S., Plavak A.D., Kosolap A.P., Bogaychuk R.V, Sidoruk V.M. (November 20, 2020)

On 11.20.2020, in the Kovel City District Court of the Volynsky Region, with the participation of a panel of judges Logvinyuk I.M., Lesik V.O., Panasyuk S.L., a hearing was held in case No. 164/309/19 on the charges of Voitenko M.S., Plavak A.D. in the commission of criminal offenses under Parts 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”, Kosolap 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 November 20, 2020, the International Society for Human Rights carried out the first monitoring of this criminal proceeding. The examination of the case was scheduled for 10:00 am, but began at 1:10 pm due to the fact that the convoy was unable to leave the pre-trial detention center on time and bring the accused Kosolap A.P. on time.

The court session was attended by the defenders of all the accused and the prosecutor.

The prosecution filed a petition for an extension of the measure of restraint in the form of detention for a period of 60 days, concerning the accused Voitenko M.S., Plavak A.D., Kosolap A.P. arguing that the risks provided for by Art. 177 of the Code of Criminal Procedure of Ukraine, which were the basis for the application of an exceptional measure of restraint in the form of detention, did not diminish. The prosecutor indicated that Voitenko M.S., Plavak A.D., Kosolap A.P.  could put pressure on witnesses in this case and there is a high probability of committing new criminal offenses. And the prosecutor sees no reason to soften the measure of restraint.

The accused Kosolap A. P. and his defense counsel objected to the prosecution’s petition and stated that there were no grounds for keeping him in custody. Moreover, the lawyer of the accused Kosolap A.P.  drew the court’s attention to the fact that the prosecutor filed the petition prematurely, because the term of the measure of restraint had not yet ended and should continue until November 27, 2020. Therefore, the submission of premature motions before the expiration of the previous court decisions, in his opinion, violates his right to access to justice, in particular, the appeal against orders to extend the term of a measure of restraint.

In addition, the defense lawyer of the accused Plavak A.D. stated that the risks referred to by the prosecutor in his petition did not exist, the prosecutor could not ensure the appearance of witnesses from the prosecution, arguing that the place of residence of the witnesses was unknown, they were taking the necessary measures to establishing the whereabouts of witnesses and they will be mandatory present at the hearing.

The court supported the defense, agreeing with the opinion of the defense that there are no risks regarding pressure on witnesses, which the prosecutor indicated in his petition, but granted the prosecutor’s petition in full and assigned each accused, concerning which the issue of extending the period of detention was considered, bail in the amount of 192 thousand 100 UAH.

The ISHR Expert Council is concerned that the extension of the terms of detention in this case may be automatic due to insufficient reasoning by the prosecutor of the need to extend the exceptional measure of restraint. For more than 2 years the accused have been in custody.

Regarding this issue, the European Court of Human Rights argues that the national courts must, in the first place, ensure that, in a particular case, the imprisonment of an accused does not exceed a reasonable time. To this end, they must, taking due account of the principles 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 to respect individual liberty, and indicate this in their decisions to extend the term of detention (“IA v. France”, para. 102).

The ECtHR points out that at the initial stages of the investigation, the possibility of obstruction of justice by the accused justifies the detention of such an accused. However, once evidence is gathered, this rationale becomes less convincing. In particular, as regards the possibility of putting pressure on witnesses, the Court reiterates that the domestic courts must show that during the relevant period of the applicant’s detention there continued to be a substantial risk of intimidation of witnesses, it is not enough to rely only on some abstract possibility not supported by any evidence. The court must also analyze pertinent factors, such as progress in the investigation or proceedings, the applicant’s personality, his behavior before and after arrest, and any other specific factors to justify the risks that he might abuse the returned freedom by acting in for the purpose of falsifying or destroying evidence, or putting pressure on victims (“Sokurenko v. Russian Federation”, para. 88).

As mentioned above, the prosecution refers to the initial risks in its applications for the extension of the measure of restraint, namely the pressure on the witnesses. However, it is the defense that does not ensure the attendance of witnesses. Such actions of representatives of the prosecutor’s office contradict the principles of the Convention and may be the basis for recognizing a violation of the rights of the accused under Art. 5.

It should be noted that the accused Kosolap A. P. at the hearing on 11.20.2020, behaved aggressively, shouted and swore, used profanity towards the court and representatives of the prosecutor’s office. This behavior demonstrates a social danger to society and may be one of the reasons for the extension of detention.

In addition, the International Society for Human Rights is concerned about the timing of the consideration of case No. 164/309/19. The indictment was submitted to the court on February 14, 2019. Thus, the case of Voitenko M.S., Plavak A.D., Kosolap A.P., Bogaychuk R.V, Sidoruk V.M. has been considered in court 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 for a long time under the weight of the charges and that a decision be made on the validity of the charge (“Wemkhov v. Germany”, para. 18, “Giulia Manzoni v. Italy”, para. 25, “Brogan and Others v. United Kingdom”, para. 65).

In its judgments, the ECtHR indicates that the accused in criminal proceedings should have the right to have the proceedings in his case carried out with particular care, especially in the case of any restriction of freedom for a period until the end of the proceedings. Article 6 of the ECtHR requires courts to use all available procedural means to establish the guilt or innocence of a person without undue delay. This requirement is intended to ensure the earliest elimination of uncertainty regarding the legal fate of the accused, who remains in a state of uncertainty throughout the entire period of the proceedings, despite the fact that the proceedings are ongoing or have been suspended (“Doroshenko v. Ukraine”, para. 41).

The next court session was scheduled for December 21, 2021. The participants during the trial could not decide on the dates of the next hearings. They considered options to schedule a hearing for January. However, the court noted that the accused are in custody and it is necessary to choose an earlier date.

Thus, the International Society for Human Rights believes that the main reason for delays in the consideration of a case may not be the actions (inaction) of the court, but the improper performance of its powers by the prosecution, which cannot ensure the appearance of witnesses. In addition, the defense side also has difficulties in establishing the date of the hearing, which undoubtedly leads to a delay in the consideration of the case.

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