Monitoring the trial of Pavel Volkov (session of August 27, 2018)

On August 27, 2018 in the Shevchenkovsky District Court of Zaporozhye a court session was held on the case of journalist Pavel Volkov, who is accused of infringement of Ukraine’s territorial integrity and information assistance to terrorists through his journalistic activities. P. Volkov was arrested on September 27, 2017 in his mother’s apartment. According to the lawyer, he was rudely detained without explaining to him his rights and was transferred to his apartment for a search. P. Volkov was also not given the opportunity to use the services of a lawyer, and the search was held simultaneously in all the premises, which made it impossible for the accused to monitor the search. Experts of the International Society for Human Rights have begun monitoring this litigation.

The course of the trial. After an almost two-month break due to the judge’s vacation, the hearing was held with a view to extending the measure of restraint in the form of detention. In addition to this issue, the request of the prosecutor’s office to investigate evidence that had previously been declared inadmissible by the court was also considered. To date, Pavel Volkov is in custody for 11 months.

Alleged violations of the European Convention

1)The court decision on the extension of detention details the requirements of national legislation, the observance of which is mandatory for such a decision. Among such requirements is the presence of: a well-founded charge, risks of non-fulfillment of procedural duties by the accused, etc. Also, the court points out that such factors as health status, age, the presence of social connections and other factors that are important and characterize the person should be taken into account. Despite this, the decision absolutely does not consider these circumstances, which are important when choosing a measure of restraint in accordance with Article 178 of the Code of Criminal Procedure. And the instructions in the defense’s petition to change the measure of restraint on house arrest for serious illness (asthma), strong social ties, and the existence of a permanent residence have not been reflected in the court’s decision. The European Court of Human Rights states that one of the purposes of making an informed decision is to demonstrate to the parties that their positions have been taken into account. Ignoring the facts referred to by a person deprived of liberty, may cast doubt on the “legality” of imprisonment (“Tymoshenko vs. Ukraine”). Moreover, in its decision the court did not give any new grounds for the extension of detention, but referred to the previously mentioned risks of non-fulfillment of procedural obligations and impeding the conduct of a judicial investigation, which in itself contradicts Article 5 § 1 and 4 of the European Convention (“Ivanov and Others v. Ukraine”, “Sinkova v. Ukraine”).

It can be stated that in the Ukrainian criminal trial, there is a negative tendency to use declarative references to the ECHR cases in court decisions, while ignoring the content and the background of the case.  In this case, the court, cites the obligations imposed on it, but does not justify how they took them into account when making a decision.

2) As the International Society for Human Rights has repeatedly pointed out, one of the basic rights in the field of legal proceedings is the right to a trial by a court within a reasonable time, as the ECHR practice indicates. The accused must have the right to expect to carry out the proceedings in his case with special care. The provisions of Article 6 of the European Convention on Human Rights are designed to prevent accused persons from being too long ignorant of their fate (“Nakhmanovich v. Russia”, “Ivanov vs. Ukraine”, “Burov v. Ukraine”). Despite this, Pavel Volkov has been in custody for 11 months, of which almost 2 months the court was on vacation, and the rest of the time, according to the statement of the defense, the process is intentionally delayed. As an example, the session of August 27 took only one and a half hours and the case was not considered in fact, which raises doubts that the court is showing due diligence in the proceedings (“Klyakhin against Russia”).

3) According to the lawyer, the defendant complains about the deterioration of health, the appearance of night attacks of suffocation due to asthma. The conditions in the cell are degrading, while the stuffiness and humidity are incompatible with the person suffering from asthma necessary for a normal life. Because of poor lighting, Pavel Volkov complains on deterioration of vision. Chronic diseases also worsened. According to P. Volkov, he does not have medical assistance in the remand prison, which can have very serious consequences. And the passing of necessary medicines by relatives takes several days, according to all procedures. The issue of failure to provide high-quality medical care, violated both national and international legal norms was raised by the Expert Council on several occasions, including in the case of A. Melnik and others, the case of A. Schegolev and the case of S. Denisyuk. The ECHR in its decisions unequivocally assumes all responsibility for the life and health of persons held in custody on the state. And the failure to provide adequate medical care qualifies as treatment incompatible with the guarantees of Article 3 of the European Convention (“Yakovenko v. Ukraine”, “Lunev v. Ukraine”).

Also, the International Society for Human Rights expresses its concern about the unjustified prohibition by the court of video shooting using a portable device (phone), taking into account the publicity and openness of the process.

The next hearing is scheduled for September 11, 2018. Experts of the International Society for Human Rights will continue monitoring this litigation.

Expert Council