Monitoring of criminal proceedings of Atroshchenko S.P., Zolotarev A.V., Kobak I.V. (session 03.13.20)

On March 13, 2020, a hearing was held in the Moscow District Court of Kharkov in case No. 643/13126/18 on charges of Sergey Pavlovich Atroshchenko (part 4 of article 189, part 2 of article 15, part 2 of article 28, part 2 Article 194, Part 2 Article 28, Part 2 Article 194, Part 2 Article 15, Part 3 Article 28, Part 2 Article 189, Part 3 Article 28, Part 2 Art. 122, part 1 of article 263 of the Criminal Code of Ukraine), Artem Vladimirovich Zolotarev (part 2 of article 15, part 3 of article 28, part 2 of article 184, part 3 of article 28, part 2 of article .122, part 1 of article 263 of the Criminal Code of Ukraine), Kobak Ivan Vladimirovich (part 2 of article 15, part 3 of article 28, part 2 of article 184, part 3 of article 28, part 2 of article 122 Criminal Code of Ukraine). This case was chosen by the International Society for Human Rights due to the complication of the process of monitoring the observance of the right to a fair trial during the quarantine period.

The indictment has arrived at the Moscow District Court of Kharkov on September 14, 2018.

On March 13, 2020, it was planned to investigate the case file and interrogate witnesses. However, during the trial, the prosecutor refused several witnesses and promised to ensure the presence of another witness at the next hearing. In addition, the prosecutor filed several documentary evidence, which were attached to the case file.

Also, at this session, the panel of judges decided to consider extending the measure of restraint by the accused. The initiator of the consideration of the issue was the court itself due to the planned vacation of judges. However, it should be noted that the issue of extension was considered only a month ago – on February 11, 2020, and the terms of the measure of restraint were not yet coming to an end.

Since the parties were not ready to consider the issue of the measure of restraint, the prosecutor limited his position to the following phrase: “Risks have not disappeared and continue to exist”, without revealing and substantiating the risks themselves.

The defense has outlined its position against the extension of detention with the following arguments:

– the issue cannot be considered without the filing of a petition by the prosecutor and, accordingly, its delivery to the defense;

– the court extends the terms referring to the same circumstances (there were 12 extensions of the terms of detention);

– the issue of measures of restraint was not considered separately for each of the accused.

The International Society for Human Rights notes that according to article 331 of the Criminal Code, the court has the right to initiate consideration of the advisability of extending the measure of restraint in the form of detention until the expiration of the previously extended line. But, firstly, the period of detention has not yet expired, and, secondly, the court must adopt a reasoned determination based on the results of the review. An exceptional measure of restraint, such as detention, in accordance with the provisions of Ukrainian law (Article 183 of the Criminal Code) can be applied only if the prosecutor proves that none of the milder measures of restraint can be sufficient. A full video broadcast of the session, analyzed by the ISHR observer, confirms the fact that the formal requirements of the criminal proceeding were not met.

The European Court of Human Rights notes that the domestic courts must first ensure that in a particular case the pretrial detention of the accused does not exceed a reasonable time. To do this, they must, taking due account of the principles of the presumption of innocence, investigate all circumstances of the case, which can confirm or refute the existence of a social need that justifies deviations from the requirement to respect individual freedom and indicate this in their decisions on the extension of detention. The question of whether there has been a violation of paragraph 3 of Art. 5 for the protection of human rights and fundamental freedoms (hereinafter – the Convention), the Court must decide, relying mainly on the grounds given in these decisions (“I.A. v. France”, paragraph 102).

According to paragraph 3 of Art. 5 of the Convention after a certain period of time, the mere existence of reasonable suspicion does not justify the deprivation of liberty, and the courts must give other reasons for the extension of detention (“Borisenko v. Ukraine”, para. 50). Moreover, these grounds must be clearly indicated by the national courts (“Eloev v. Ukraine” para. 60, “Kharchenko v. Ukraine” para. 80).

The ISHR often found a violation of paragraph 3 of Art. 5 of the Convention in cases where national courts continued to be detained, referring mainly to the gravity of the charges and using template language, without even considering specific facts or the possibility of alternative measures (“Kharchenko v. Ukraine”, paragraphs 80-81; “Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion of a crime committed by a detained person is a prerequisite for the legality of her continued detention, but after the lapse of time such a suspicion will not be sufficient to justify prolonged detention. The court never attempted to transfer this concept into a clearly defined number of days, weeks, months or years, or at different times depending on the gravity of the crime. Once “reasonable suspicion” is no longer sufficient, the court must establish that the other grounds given by the courts continue to justify the person’s deprivation of liberty (“Maggie and Others v. The United Kingdom”, paras. 88-89).

The Court also recalls the immutability of the grounds for suspicion. The fact that the arrested person has committed an offense is a sine qua non condition in order for his continued detention to be considered legal, but after a while this condition ceases to be sufficient. Then the Court must establish other grounds on which the decisions of the judiciary are based, continue to justify the deprivation of liberty. If these grounds turn out to be “relevant” and “sufficient”, then the Court will ascertain whether the competent national authorities found “special good faith” in the conduct of the proceedings (“Labita v. Italy”, paragraph 153).

As a result of the judicial review, the Court decided to extend the terms of detention for another 60 days.

Representatives of ISHR are concerned about this situation. The period of detention in this case was automatically extended, without the request of the prosecutor and the consideration of the risks themselves during the trial, without discussion of the parties.

In addition, we came to the conclusion that in 2020, part of the monitoring should be carried out in cases that are “not popular” among the media and international organizations, and are not “political”. Since they cannot be ignored.

The next hearing in case No. 643/13126/18 is scheduled for April 29, 2020. Representatives of the ISHR will continue to monitor and refine details.