The Right to a Fair Trial in Ukraine

I N T E R N A T I O N A L S O C I E T Y F O R H U M A N R I G H T S THE RIGHT TO A FAIR TRIAL IN UKRAINE

REPORT 2019

The report is published with support of the Federal Ministry for Economic Cooperation and Development

The report is published with support of the Federal Ministry for Economic Cooperation and Development.

The Right to a Fair Trial in Ukraine

Editor: A. Alekseyev

February 2020

International Society for Human Rights

International Council, Borsigallee 9, 60486 Frankfurt am Main (Germany) Ukrainian section Pl. Lesi Ukrainki 1, 01196 Kiev (Ukraine) Contents

Introduction 6

1. Observance of the right to a fair trial in Ukraine, analysis of the situation, identiﬁcation of problematic trends8 1.1. Violation of a principle of reasonable length of proceedings ...... 8 1.2. Violation of the right to defense ...... 10 1.3. Torture and degrading treatment ...... 12 1.4. The inclusion of “doubtful” evidence into the case materials ...... 15 1.5. Other violations ...... 17 1.6. Positive trends ...... 18 1.7. Conclusions ...... 19

2. Analysis of statistics 21 2.1. The publicity of court hearings ...... 21 2.2. Court hearings ...... 22 2.3. Ratio of the number of detected violations to the incriminated crimes . . . . 23 2.4. Equality of the parties ...... 25 2.5. Relationship of the charge and the number of violations in the trial ...... 26 2.6. Conclusions ...... 27

3. Reports of the monitoring of court sessions in 2019 29 3.1. The trial of Ivan Bubenchik ...... 29 3.2. The trial of Konstantin Chernyshov ...... 30 3.3. The trial of Vladimir Dovgalyuk ...... 34 3.4. The trial of Sergei Goncharuk ...... 37 3.5. The trial of Dmitry Gubin ...... 39 3.6. The trial of Gennady Kernes ...... 39 3.7. The trial of Andrei Khandrykin ...... 42 3.8. The trial of Marina Kovtun ...... 43 3.9. The trial of C. Kozak ...... 46 3.10. The trial of Natalya Kulish ...... 48 3.11. The trial of Ruslan Kunavin ...... 52 3.12. The trial of Mehti Logunov ...... 53 3.13. The trial of Daria Mastikasheva ...... 55 3.14. The trial of Alexander Melnik ...... 58 3.15. The trial of Petr Mikhalchevsky ...... 68 3.16. The trial of Vasily Muravitsky ...... 69 3.17. The trial of Sergei Novak ...... 76 3.18. The trial of Larisa Papaevich ...... 78 3.19. The trial of Alexander Schegolev ...... 79 3.20. The trial of Sergey Sergeyev ...... 82 3.21. The letigations of Shostak versus Dunaev ...... 86 3.22. The trial of Vitaliy Sobenko ...... 88 3.23. The trial of Andrei Tatarintsev ...... 89 3.24. The trial of Natalya Van Doyveren ...... 95 3.25. The trial of Pavel Volkov ...... 96

2 3.26. The trial of Kirill Vyshinsky ...... 102 3.27. The trial of Victor Yanukovych ...... 105 3.28. The trial of Oksana Yarmolovskaya ...... 108 3.29. The trial of Stanislav Yezhov ...... 109 3.30. The trial of Elena Zaitseva ...... 111 3.31. The trial of S. Zinchenko ...... 111

A. List of ECtHR cases used in the report 115

3 Abbreviations

CPC Criminal Procedure Code ECHR Convention for the Protection of Human Rights and Fundamental Freedoms ECOSOC United Nations Economic and Social Council ECtHR European Court of Human Rights EU European Union IM Interior Ministry IMF International Monetary Fund ISHR International Society for Human Rights ORDLO Particular Districts of Donetsk and Lugansk Regions OSCE Organization for Security and Co-operation in Europe SBU Ukrainian Secret service UN United Nations

4 About the International Society for Human Rights

The International Society for Human Rights (ISHR) and its national branches are independent non-governmental human rights organizations (NGOs) which base their work on the Universal Declaration of Human Rights adopted by the United Nations. The ISHR seeks to promote international understanding and tolerance in all areas of culture and society. It is a non-profit organization, independent of all political parties, governments or religious groups. The ISHR acts on the philosophy that the realization of human rights and the improvement of social conditions cannot be pursued through the use of force. The ISHR was founded in 1972 to support individuals who share this principle and therefore seek to assert their rights in a non-violent manner. Our society has about 30 000 members in 38 countries. The ISHR has consultative status (Roster) at the United Nations ECOSOC, consultative status with the European Council, observer status at the Organisation of the African States and associated status with the Office of Public Information of the United Nations. The organization is mainly financed by donations and contributions. Priority areas of our work are:

1. Support of individuals or groups who are persecuted, imprisoned, and/or discriminated against;

2. Public relations in regards to human rights issues;

3. Education on human rights issues;

4. Humanitarian aid.

5 Introduction

In 2019, the International Society for Human bar and the prosecutor’s office remains as an Rights continued to monitor observation of important task. the right to a fair trial in Ukraine1. Since Monitoring, as a type of advocacy, helps to July, this work has been carried out as part of increase the transparency of the judicial pro- the project “Strengthening the rule of law in cess and is a means of observing the right to Ukraine” of the Ministry of Economic Develop- an open trial. During the monitoring period, ment and Cooperation of the Federal Republic we have repeatedly seen that the presence of of Germany. observers encourages the courts to improve Over the past year, we have managed to compliance with guarantees of a fair trial and significantly increase the amount of work. For build confidence in the proceedings. Litiga- the third year in a row, the number of reports tion monitoring, carried out in the form of prepared by the ISHR has been increasing. a long-term program, is becoming a unique In 2019, 114 court monitoring reports were diagnostic tool for the operation of key compo- published. For the second year in a row, the nents of the justice system. This is especially number of observed litigations is doubled (2017 relevant during the period of judicial reform – 9 trials, 2018 – 18 trials, 2019 – 42 trials) (see in Ukraine. In addition, according to OSCE Fig. 0.1). experts, trial monitoring programs are also an As positive result we consider not only effective mechanism for training and involving “quantitative indicators” for monitoring court lawyers and organizations in the process of cases, but also new opportunities arising from reforming justice systems2. the project “Strengthening the rule of law As in 2017 and 2018, observers at court in Ukraine”. First of all, it is about working hearings remain the main form of monitoring meetings with judges, lawyers, prosecutors and conducted by the ISHR (the total time spent other representatives of target groups. For the by the ISHR observers in the courts in 2019 first half of the project year, from July to De- exceeds 260 hours or 33 full working days) cember 2019, we held seven round tables in six and the publication of court hearing reports. regions of Ukraine (Kiev, Kharkov, Poltava, The ISHR experts actively interacted with Zaporozhye, Zhytomyr, Lvov), on which we representatives of the bar and the court, ex- acquainted representatives of the local legal changed information during working meetings community with our work and plans for the and attending court hearings. When preparing future, discussed the problems faced by the our materials, we try to rely on official docu- judicial system. In total, these events covered ments (court decisions, petitions of the parties, 129 participants, including 26 judges and rep- etc.) provided by the parties of the trial. An resentatives of the judicial administration, 34 important part of this activity is communica- attorneys, 12 journalists, as well as represen- tion with the defendants and their relatives. tatives of the prosecutor’s office, the OSCE, Monitoring materials are regularly published local authorities and the public. on the ISHR Internet resources, distributed In 2020 and 2021, another 14 events are among politicians and public figures of the EU planned within the framework of the project, countries, Ukrainian, European and American including two international conferences at lawyers and human rights defenders, represen- which the results of our work for 2019 and tatives of the OSCE monitoring mission in 2020 will be presented. Strengthening inter- Ukraine and other interested parties. action with representatives of the courts, the

1Work in this area was started in 2017. Details can 2p. 11 “Trial Monitoring: A Reference Manual for be found in the reports “Monitoring observation of Practitioners” Published by the OSCE Oﬃce the right to a fair trial in Ukraine. 2017” and “The for Democratic Institutions and Human Rights right to a fair trial in Ukraine. 2018” (ODIHR) Ul. Miodowa 10 00 -251 Warsaw Poland

6 50 120

100 40

80 30 60 trials 20 reports 40

10 20

0 0 2017 2018 2019 2017 2018 2019

Figure 0.1.: Dynamic of monitoring.

In the annual report, we will once again The report consists of three parts: the first try to highlight the main negative trends in part – consideration of negative trends identi- the field of human rights violations identified fied in the field of legal proceedings, the second in the monitoring process and qualify them part – analysis of the collected statistical data based on sources of international human rights and the third part – reports on monitoring law – primarily the European Convention and the court hearings, which served as a source the ECtHR case law, and also analyze the in the preparation of the report itself. statistical information collected during the monitoring and compare the data with the information for 2018.

7 1. Observance of the right to a fair trial in Ukraine, analysis of the situation, identiﬁcation of problematic trends

During the monitoring, based on the identified 1.1. Violation of a principle of negative trends of the past years, we collected reasonable length of data on similar cases recorded by our observers in 2019. Based on the information received, a proceedings list of negative trends for 2019 was formed. In 2019, the ISHR experts identified an im- In total, during the reporting period, the pressive number of human rights violations, in ISHR observers recorded 106 violations of hu- particular a violation of Article 6 of the Euro- man rights. Each of the violations, which will pean Convention, which, among other things, be discussed in this part of the report, we have declares the State’s obligation to ensure that repeatedly encountered during the monitoring the person charged with any criminal charge of various criminal proceedings. Namely “spe- has a fair hearing within a reasonable time. cific gravity” of each group of violations in rela- Note that in the criminal proceeding, the tion to the total number of detected violations observance of the principle of reasonable time makes it possible to talk about the existence is of the highest importance, since often a of established negative trends, observers and measure of restraint in the form of detention experts of the ISHR have encountered each of is applied to suspects/accused. So, in case of them in previous years (See table 1.1). violation of the reasonableness of the term of Speaking about negative trends, one cannot the trial the right of an innocent person (from but pay attention to the positive aspects iden- the point of view of the presumption of inno- tified during the monitoring. For example, in cence) remain “trimmed” for an unreasonably 42 hearings, our observers did not record vio- long time, which, among other things, can be lations. Positive trends will also be addressed regarded as inhumane treatment and torture in this section. (Article 3 of the European Convention). Traditionally, in our assessment of violations Throughout 2019, majority of the cases mon- of international human rights norms, we pri- itored by the ISHR experts were “politically marily relied on the European Convention and motivated”. Problems with the reasonableness its clarifying practice in the case law of the of the deadlines for trials in this category of ECtHR. Identified trends include: cases are a systematic trend (which is confirmed by the results of our monitoring in 1. violation of a principle of reasonable 2018 and 2017), although adherence to this length of proceedings; principle is a basic guarantee of justice. So, 2. violation of the right to defense; for example, in the case of A. Bik, the interrogation of witnesses of the prosecution lasted 3. the inclusion of “doubtful” evidence into for more than a year. Note that most of these the case materials; witnesses did not even know the accused, in addition, none of the witnesses provided the 4. torture and degrading treatment; court with information that would confirm the guilt of the accused. But despite this, the 5. other violations; court did not satisfy the petition of the lawyers to change the procedure for considering evi- 6. positive trends. dence1. In the case of P. Volkov, the ISHR

Let’s consider them in more detail. 1See Monitoring the case of V. Bik (hearing 02/07/19)

8 Violation of the principle of reasonable length of proceedings 25% Violation of the right to defense 15% Torture and degrading treatment 15% The inclusion of “doubtful” evidence into the case materials 10% Improper use and neglect of the case law of the ECtHR 7% Ignoring the court’s decisions 6% Pressure on attorneys 5% Placing the burden of proof on lawyers 4% Pressure on the court 2% Blocking the participation of accused and witnesses in a trial 1% Table 1.1.: “Specific weight” of each group of violations. experts were faced with a systematic and un- judicial review is the case of A. Melnik and founded adjournment of court hearings, for others, this proceeding has been going on for example, in December 2018, 6 out of 10 sched- more than five years, one of the reasons for uled sessions were canceled, in January and the excessive delay in sentencing was the fre- February 2019, only 6 of the 16 approved ses- quent change of judicial collegiums, as well as sions were held2,3. In one of the cases, we faced holding hearings only to extend the measure almost a six-month break in the consideration of restraint, and not to consider the merits9,10. of the case4. Also, observers noted the unsat- In the process of monitoring, the ISHR experts isfactory organization of court hearings in the encountered a case in which the preparatory case of K. Vyshinsky, the judicial review was court stage lasts from November 2014, at the systematically disrupted due to frequent trans- same time, the preparatory hearing which our fers on the initiative of the participants in the observers were supposed to attend did not take proceeding5. In some proceedings, which last place11. about 5 years, over the entire period of consid- The reasonableness of the terms of the trial eration, the overwhelming majority of sessions as a fundamental requirement for the func- were held only for the sake of considering ap- tioning of the judicial system is often men- plications for an extension of the measure of tioned in decisions of the ECtHR, including in restraint6. decisions against Ukraine (“Antonenkov and One way to drag the trial that the prosecu- others v. Ukraine”; “Yaroshevets and others v. tion is actively using – systematically fail to Ukraine”; “Gavrylyak v. Ukraine” and others). ensure the appearance of an expert/witness, But, despite the systematically established vi- etc.7,8. One of the cases that we can single olations of Art. 6 of the European Conven- out by the number of violations, in particular, tion, the situation as a whole does not change, the principle of reasonableness of the time for which encourages a return to the origins of the concept of reasonable terms and the features 2See Monitoring the trial of Pavel Volkov (Session on of their application of the ECtHR. January 9, 2019) Art. 6 of the European Convention high- 3 See Monitoring the trial of Pavel Volkov (Session on lights that each person prosecuted in a crim- January 21, 2019) inal case, the right to receive, within a rea- 4See Monitoring the case of Sergeyev and others (Ses- sion on 08/14/2019) sonable time, the final decision on the validity 5See Monitoring the case of Kirill Vyshinsky (Session on 08/20/2019) 9See Monitoring the case of A. Melnik, A. Kryzha- 6See Monitoring the Case of Marina Kovtun (Session novsky, I. Pasichny, I. Kunik (session on 09/24/19) on 08/15/2019) 10See Monitoring the case of A. Melnik, A. Kryzha- 7See Monitoring the case of Pyotr Mikhalchevsky novsky, I. Pasichny, I. Kunik (session on 9/25/19) (session on September 25, 2019) 11See Monitoring of the case of Vitaliy Andreevich 8See Monitoring the case of Sergeyev and others (Ses- Sobenko and Artur Vladislavovich Melnikov (sessions on 10/15/2019 and 10/22/2019) sion on 10/29/19)

9 of the charge against him, more precisely, the In 2019, the ISHR more than once faced achievement that the accused did not remain various cases of the violation of the right to for a long time under the weight of the charge defense, and sometimes with a clear denial of and that a decision be made on the validity the existence of such a right, not only from of the charge (“Vemkhov v. Germany”, p. 18; the prosecution, but also from the court. So, “Julia Manzoni v. Italy”, p. 25; “Brogan and in one of the proceeding, the observer noted others v. The United Kingdom”, p. 65). that the court accepted the request of lawyers In its case law, the ECtHR insistently draws to the court to act within the framework of the attention of national courts to a special the Code of Criminal Procedure of Ukraine as duty to ensure that all parties involved in the a refusal of the defense to express its position trial do everything in their power to avoid regarding the petition of the prosecution12. In undue delay in the proceedings (“Vernillo v. addition, we were faced with a situation where, France”). The provisions of Art. 6 of the Euro- at the request of the court, the petition for the pean Convention indicate that accused persons prosecution was not submitted for discussion cannot remain in ignorance for too long about at all, but it was examined by the judge alone, their fate (“Nakhmanovich v. Russia”, p. 89, which is not only a gross violation of the right “Ivanov v. Ukraine”, p. 71). to defense, but also a violation of a number According to the ECtHR, “requiring the of by-laws and regulations13. A similar situ- consideration of cases within ‘a reasonable ation occurred in another proceeding, when time’, the Convention emphasizes the impor- the board extended the period of detention tance of the administration of justice without without providing the lawyer with a written delay, which could jeopardize its effectiveness request from the prosecutor, without provid- and credibility” (“Vernillo v. France”, p. 38). ing time for familiarization with it, without The reasonableness of the length of the pro- requiring the prosecutor to read out the appli- ceedings should be assessed in the light of the cation in the courtroom and without hearing circumstances of the case and taking into ac- the arguments of the lawyer and the accused14. count the following criteria: the complexity of In addition, ISHR observers were faced with the case, the conduct of the applicant and the a situation where neither the accused nor his relevant state authorities (“Pelissier and Sassi defense were fully acquainted with the case v. France”, p. 43). file. In one of the proceedings, after the materials (11 volumes of 700 pages each) were opened for review, the accused was given only 1.2. Violation of the right to 4 hours to study them. That is, in one hour defense the accused should have read at least 1,750 pages, which is absolutely impossible and as The principle of fair trial includes, inter alia, a result leads to a violation of the right to an the right to defense. This right is guaranteed effective defense15. both by domestic law and international stan- Another type of violation of the right to dards. It should be attributed to fundamental defense is the stay of the accused in the plas- rights, in particular in criminal proceedings, tic boxes during court hearings. Such a fact since de jure the presumption of innocence is an absolute violation, since the accused is enshrined in law and guaranteed to every- cannot freely communicate with their lawyers one who is prosecuted. But de facto, often in society the views prevail according to which, 12See Monitoring the case of Kirill Vyshinsky (session even before the sentencing, the person who is on March 26, 2019) charged with any crime is already perceived 13See Monitoring of the case of A. Melnik, A. Kryzha- as guilty. In practice, this can lead to the situ- novsky, I. Pasichny, I. Kunik (session on 08/12/19) 14 ation when not the prosecutor’s office proves See Monitoring the case of Daria Mastikasheva (session on 10/21/2019) the guilt of the person, but the defense proves 15Monitoring the trial of Alexander Chibirdin (court his innocence. hearing of 03/12/2019)

10 during the hearing and coordinate further accused for unknown reasons, but also in situ- tions16,17,18, in addition, the communication ations where they are the only available way of the accused with lawyers in such a situa- of protection for the accused. So, in one of tion cannot be called confidential, and confi- the proceedings the public defender came to dentiality of communication is an important the hearings unprepared and, according to the component of the right to effective defense19. accused, had a weak position, in connection Another negative trend that we noted is the with which the accused had to independently imposition of a “state” defender. So, in one submit and explain to the court the essence of the proceedings the accused was provided of the petitions. At one of the hearings, she with a “state” defender who had the oppor- stated that she was not provided with effective tunity to communicate with the accused for legal protection23. only five minutes, i.e. there was not enough In the case of the ex-president of Ukraine, opportunity and time to build defense tactics. there was a situation when the court, in spite Also, having no experience in protecting de- of the principles of equality of the parties and fendants in criminal proceedings, when asked adversarial principal, violating the right to de- by a judge, what is the point of satisfying a fense, approved only 16 defense witnesses out defense complaint if the deadline for extend- of 139 declared, while more than 40 witnesses ing a measure of restraint ends tomorrow, the were approved from the list of prosecutors. lawyer said he was not ready to answer. Thus, In addition, the court did not allow even ap- it should be noted that the introduction of proved witnesses to be fully questioned by public defense without quality support only lawyers24. with the aim of ensuring formal compliance In addition to all of the above, it is im- with the norms cannot be considered as one portant to highlight violations of the right to that ensures the realization of the right to de- defense in the form of pressure on lawyers. In fense20. In one of the most high-profile cases one of the trials, the victim threatened the in recent years – the case of ex-president of lawyers of the accused during the court hear- Ukraine V. Yanukovych, the court, contrary ings, which is of concern to the experts of the to dozens of statements by the accused about ISHR, since, among other things, the presence refusing “state” defenders, involved them in of any threats may deter lawyers in their ac- the trial, in addition, from time to time the tivities to protect the client. In other words, court changed them, probably for more “con- a lawyer who feels a certain danger to his venient” to the court21. A practically similar life is likely to not provide an effective legal situation took place in the case of the mayor assistance25. of Kharkov G. Kernes22. The right of every person charged with a It should be noted that the violation of the criminal offense to an effective defense of a right to defense takes place not only when lawyer is one of the main foundations of a the public defenders are imposed on the ac- fair trial (ECtHR case “Crombie v. France”, 16See Monitoring the case of Pyotr Mikhalchevsky p. 89). (01/28/19, 2/1/19 sessions) The requirements of Art. 6 of the European 17See Monitoring the case of Elena Zaitseva and Gen- Convention, according to which everyone ac- nady Dronov (session on 08/14/2019) cused of a criminal offense has the right to 18See Monitoring the trial of S. Zinchenko, P. Am- defend himself in person or through counsel, broskin, A. Marinchenko, S. Tamtura, O. Yani- shevsky (session on 10/22/2019) may also be taken into account even before 19See Monitoring the trial of N. Savchenko and the case is referred to the court, and also if V. Ruban (court hearing 03/13/2019) 20See Monitoring the Case of Marina Kovtun 23See Monitoring the case on charges of Chubarova (08/15/2019 Session) Larisa Viktorovna (12/13/2019) 21See Monitoring the trial of V. Yanukovych (court 24See Monitoring the trial of V. Yanukovych (court hearing 09/13/2019) hearings November 18-25, 2019). 22See Monitoring of the case of Kernes G.A., Blinnik 25See Monitoring the trial of Alexander Chibirdin V.D., Smitsky E.N. (session on 11/15/19) (court hearing of December 3, 2019).

11 non-compliance with such requirements at the European Convention speaks of “assistance” very beginning can seriously affect the fairness and not of “appointment”. The appointment of the trial (“Imbrioshia v. Switzerland”, p. 36; of a lawyer does not provide effective assis- “Ocalan v. Turkey”, p. 131). tance, since a lawyer appointed for the pur- At the stage of the judicial review of the poses of legal assistance may evade his duties. case, a typical violation for Ukraine is the If the authorities are notified of the situation, lack of opportunity for the defense to get ac- they must either replace the defender or force quainted with the case materials, which may him to fulfill his obligations (“Artiko v. Italy”, irreparably violate the right to defense and p. 33; “Siyrak v. Russia”, p. 27). the principle of competition. The higher courts systematically review court decisions based on such issues, but the issue remains relevant. 1.3. Torture and degrading As stipulated by the decisions of the ECtHR, treatment the right to open all materials to the defense is not absolute and may be limited in order to The third trend, in terms of the number of vio- protect secret methods of investigation or the lations identified by ISHR observers, is torture identity of agents or witnesses (“Edwards v. and degrading treatment. The right not to be The United Kingdom”, pp. 33-39). However, subjected to torture and inhumane treatment the difficulties of the defense party related to is enshrined in many international conventions. the failure to disclose all materials should be Including the European Convention, article 3 balanced by the presence of legal procedures of which contains an imperative ban on tor- and be under judicial control (“Fitt v. United ture and inhuman treatment. The Convention Kingdom”, p. 20) with the possibility (both against Torture and Other Cruel, Inhuman legal and factual) of the court to analyze the or Degrading Treatment or Punishment has importance and usefulness of these materials reinforced the definition of torture. Thus, ar- for defense purposes. ticle 1 states that the definition of “torture” The ECtHR recalls that Article 6 § 3 (b) of means any action that intentionally inflicts se- the European Convention guarantees the ac- vere pain or suffering on a person, physical or cused “sufficient time and facilities to prepare moral, in order to receive information or con- his defense” and therefore suggests that the fession from him or from a third party, punish concept of protection on his behalf may con- him for an act that he or a third party has tain everything that is “necessary” to prepare committed or is suspected of committing, and for the main hearing. The accused must be intimidate or coerce him or a third party, or able to properly organize his defense, without for any reason based on discrimination of any limiting the possibility of providing all the rel- nature when such pain or suffering is caused by evant defense arguments in court and thereby a government official or other person, speaking affect the outcome of the trial. In addition, in an official capacity, or at their instigation, the rights accorded to all those charged with or with their knowledge or tacit consent. a criminal offense should include the oppor- The ISHR experts, summing up the moni- tunity to familiarize themselves, with a view toring for 2019, conditionally divided the sit- to preparing their defense, with the results uations in which the accused were subjected of an investigation conducted throughout the to torture or inhuman treatment into three proceedings. The question of the sufficiency groups: of time and facilities afforded to the accused must be assessed in the light of the circum- 1. Prolonged and unreasonable detention; stances of each particular case (“Tarasov v. Ukraine”, p. 88). 2. Failure to provide the accused with qual- In addition, the quality of free legal aid ified medical care during their imprison- remains an urgent and open question. The ment in a pre-trial detention center;

12 3. Stay of defendants in glass boxes (or Code of Ukraine32,33,34. It is important to note cages) during a session, without access that in one of the reports, the ISHR observers to water and food. drew attention to the complaint of the accused Goncharuk about the attempt on his life in the pre-trial detention center to which the court did not react in any way35. In addition Our observers repeatedly noted in their re- to the unjustified extension of the measure of ports the fact that the accused were not pro- restraint, the court committed such violations vided with medical care. In several proceed- as the extension of the measure of restraint ings, the accused suffered from chronic dis- even before considering the appeal against the eases, which, due to a long stay in the pre- previous court decision on this issue36. trial detention center, became extremely aggra- The third method of inhumane treatment, vated, and the courts did not respond properly recorded by the ISHR, is the presence of the to the defense’s requests for at least a medi- accused in glass boxes during court hearings 26,27,28 cal examination . It is worth noting that without access to water and food. So, in one of even the reaction of the court does not guaran- the trials, the accused were in a large (about tee the provision of any medical care. In one of 16-18 square meters) but limited by transpar- the proceedings, the court granted the request ent walls “aquarium” and could not communi- for a medical examination of the accused, but cate with their lawyers during the trial, except even after this examination he was not pro- through a few small (about 1 cm in diameter) vided with treatment, since it could not be and inconveniently located holes in the walls carried out in the conditions of the internal of the “aquarium”. Even during the break, 29 regime of the pre-trial detention center . they were in the “aquarium” and were not Prolonged and unsubstantiated detention able to eat37. A similar situation occurred in is probably one of the most common phrases the well-known “Maidan case”: five accused in the reports of the ISHR. Since in 2019, during the entire trial were in a tight glass box the ISHR was mainly monitoring “politically for many hours, although none of the partici- motivated” cases in which the accused were pants in the proceeding objected to this state charged with, for example, 111 articles of the of affairs, the ISHR experts are obliged to pay Criminal Code of Ukraine30, and this article attention to a possible violation of Article 3 was “non-alternative”, that is, the sanction of the European Convention38. of the article did not give the court the right Separately, it is worth mentioning the case to choose between measures of restraint, and of Mehti Logunov, since this is an unprece- secured only one type – detention31. In this dented case in which the court sentenced the connection, the prosecution was guided each 85-year-old defendant to 12 years in prison, time by the so-called “non-alternative” and that is, it actually sentenced him to life impris- indicated a list of standard risks in its appli- onment. The purpose of any punishment is to cations for the extension of the measure of 32See Monitoring the case of Pyotr Mikhalchevsky restraint enshrined in the Criminal Procedure (session 02/18/2019) 33See Monitoring the case of Andrei Tatarintsev – report for February 2019 26See Monitoring the trial of Alexander Chibirdin 34See Monitoring the trial in the case of Andrei Tatar- (court hearing of December 3, 2019) intsev (session on August 15, 2019) 27See Monitoring the trial of A. Melnik, A. Kryzha- 35See Monitoring the case of Sergei Goncharuk (session novsky, I. Pasichny, I. Kunik (04/09/19 session) 09/05/2019) 28See Monitoring the case of Andrei Tatarintsev – re- 36See Monitoring the case of Marina Kovtun (Session port for February 2019 08/15/2019) 29See Monitoring the case of Andrei Tatarintsev (ses- 37See Monitoring the cases of Elena Zaitseva and Gen- sion 10/29/19) nady Dronov (session on 08/14/2019) 30Treason 38See Monitoring the trial of S. Zinchenko, P. Am- 31The Constitutional Court of Ukraine declared “non- broskin, A. Marinchenko, S. Tamtura, O. Yani- alternative” unconstitutional shevsky (session on 10/22/2019)

13 give a person a chance for correction39. How- causes a feeling of fear, anxiety or inferiority ever, life imprisonment without the hope of that can break the moral or physical resistance release deprives a person of any hope of atone- of a person, it can be characterized as such that ment for his mistakes. An interesting position degrades human dignity, and it also falls under regarding this issue was expressed by one of the prohibition under Art. 3 of the European the judges of the ECtHR (Ann Power-Forde). Convention (“Pretti v. United Kingdom”, § She noted that Art.3 of the Convention in- 52). cludes what can be described as the “right The ECtHR has repeatedly emphasized that to hope”. Judgment indirectly recognizes that the state must ensure that a person is detained hope is an important and defining aspect of in conditions that are consistent with the prin- the human person. Those who commit the ciple of respect for their human dignity, and most disgusting and egregious acts that inflict method of restraint of freedom should not untold suffering on others nonetheless retain cause him mental suffering or difficulties that their basic humanity and carry the ability to exceed the inevitable level of suffering inherent change. Despite a lengthy and well-deserved in detention, and that, taking into account the sentence, they can reserve the right to hope practical requirements of the conclusion, the that someday they can atone for their mistakes. health and well-being of such a person should They should not be completely devoid of such be adequate (“Kudla v. Poland”, pp. 92-94). hope. To deny their experience of hope would One form of violation of Art. 3 of the Con- be to deny the fundamental aspect of their vention, which is often witnessed by ISHR 40 humanity, and that would be humiliating . observers when monitoring, is the lack of ade- Art. 3 of the European Convention is the quate medical care. embodiment of one of the fundamental val- In the case of “Kashuba v. Ukraine” the ues of a democratic society. The Convention ECtHR emphasized that the lack of medical categorically prohibits torture or inhuman or care during detention could amount to an ap- degrading treatment or punishment, despite peal that contradicts Art. 3 of the Convention. the circumstances or behavior of the victim The ECtHR came to a similar conclusion in (“Labitha v. Italy”, p. 119). the cases of “Chuprina v. Ukraine”, “Khum- It is worth noting that ill-treatment, how- matov v. Azerbaijan”, “Wuhan v. Ukraine”, ever, must reach a minimum level of cruelty and “Petukhov v. Ukraine”. in order to fall within the scope of Art. 3 of In the decision of the ECtHR in the case of the European Convention. The assessment of “Salakhov and Islyamov v. Ukraine” (p. 126) this level is relative; it depends on all the cir- “The court emphasizes that Article 3 of the cumstances of the case, such as the duration Convention obliges the State to ensure, tak- of the treatment, its physical and mental con- ing into account the practical requirements of sequences, and in some cases, gender, age and imprisonment, that the health and well-being state of health must also be taken into account of the prisoner is adequately guaranteed, in- (“Ireland v. the United Kingdom”, § 162). cluding by providing him with the necessary Abuse that achieves such a minimum level of medical care. . . One of the important factors severity usually involves actual bodily harm or for such an assessment is a sharp deterioration severe physical or mental suffering. However, in the state of health of a person in places even in their absence, in the case when the of detention, which inevitably casts doubt on behavior humiliates or dishonors the person, the adequacy of the medical care available demonstrating a lack of respect for his human there. . . ” In addition, the ECtHR has repeat- dignity or neglect of his human dignity, or edly pointed out that the provision of necessary medical assistance to persons in places 39 This was already mentioned by Cesare Beccaria in of detention is the responsibility of the state his treatise “On Crimes and Punishments” in 1764 40See Monitoring the case on charges of Logunov Mehti (“Wuhan v. Ukraine”, p. 71). Feofanovich (session 11/18/2019) In the ECtHR decision “Pohlebin v.

14 Ukraine” (§ 62), the Court states: “. . . state tHR formed the following legal position: if the authorities must also ensure that the data on convicted person is in custody without any the state of health of the prisoner and on the prospect of release and without the possibil- treatment that he received while in custody ity of reviewing his life sentence, there is a are comprehensively. . . State authorities must risk that he will never be able to atone for also prove that the necessary conditions have his crime: no matter what the prisoner does been created for the actual implementation of in prison, no matter how exceptional he is in the prescribed treatment regimen. . . ” the rehabilitation process. His punishment re- The ECtHR means that the “sufficiency” mains unchanged and not subject to review. of medical care remains the most difficult ele- In any case, the punishment increases over ment to evaluate (“Blokhin v. Russia”, p. 137). time: the longer a prisoner lives, the longer Authorities must ensure that diagnosis and his term. Thus, even when a life sentence is a care are prompt and accurate (“Pohlebin v. death sentence at the time of its imposition, Ukraine”, p. 62 and “Gorbulya v. Russia”, over time it becomes a poor guarantee of a p. 62) and, if necessary, monitoring the medi- fair and proportionate punishment. cal condition should be regular and systematic, In addition to the fact that the state must and include a comprehensive therapeutic strat- guarantee the implementation of the prohibi- egy aimed at successfully treating a detainee or tion of torture, it has an obligation to respond preventing the progression of illness (“Wuhan promptly to a violation of Art. 3 of the Euro- v. Ukraine”, p. 74 and “Kolesnikovich v. Rus- pean Convention. sia”, p. 70). The ECtHR notes that if a person makes a In addition, attention should be paid to groundless complaint about ill-treatment that another aspect of the application of Art. 3 of was such that violates Art. 3 of the European the Convention – restriction of freedom in the Convention, this provision, taken in conjunc- courtroom. The practice of the ECtHR has tion with the general debt of the state under established that although the placement of Art. 1 of the Convention “to guarantee to ev- the accused behind glass partitions or in glass eryone under [its] jurisdiction the rights and cabins does not in itself imply an element of freedoms defined in the. . . Convention”, in con- humiliation sufficient to achieve a minimum tent, it requires an effective official investiga- level of severity, this level can be achieved if tion (“Labita v. Italy”, p. 131). Consequently, the circumstances of the conclusion, taken as the authorities should always try in good faith a whole, cause them suffering or difficulties to find out what happened and not rely on that exceed the inevitable level of suffering hasty and unfounded conclusions to close the inherent in detention (“Yaroslav Belousov v. criminal case or use such conclusions as the Russia”, p. 125). basis for their decisions (“Assenov and Others v. Bulgaria”, p. 103). The case-law of the ECtHR shows that the court, despite its more loyal attitude to plastic boxes than to cells, still considers restrictive measures in the courtroom a violation of Art. 1.4. The inclusion of “doubtful” 3 of the European Convention prohibiting tor- evidence into the case ture (“Lutskevich v. Russian Federation”). materials Furthermore, when applying Art. 3 of the European Convention, the ECtHR takes into Under “doubtful” evidence, the experts of the account the very deep psychological experi- ISHR, in the first place, mean the evidence ences of the convict. This aspect is especially that according to the CPC can be regarded relevant in cases where the accused is actu- as inadmissible, for example, received or sub- ally sentenced to life imprisonment. For ex- mitted to the court, in violation of the proce- ample, in the case of “Winger and Others v. dural law. Throughout 2019, observers have The United Kingdom” (pp. 112-113), the EC- repeatedly noted in reports the fact of acces-

15 sion to the case file of a number of “doubtful” no pre-trial investigation attempted to inter- evidence, often used evidence that was not rogate the primary source of information43. directly related to the prosecution. ISHR ex- The evidence in the form of videos on which perts suggest that providing the court with nothing is visible, but only the journalist’s this kind of evidence can be carried out in or- voiceover is heard, which describes what is der to delay the trial, or to maximize the num- happening on the video44 can also be consid- ber of volumes of the case, complicating it. For ered doubtful. example, in many cases with “political compo- It is also important to note that in 2019 the nent” the film “Crimea. Way to the Homeland” situation of criminal prosecution of journal- was watched (case of V. Yanukovych, case of ists for their professional activities was still F. Kamalov 2018) or video of confrontations widespread. We believe that the use of materi- between protesters and law enforcement in the als and publications of journalists as evidence center of the capital, where it is impossible to is unacceptable. By the way, the OSCE Rep- determine the faces of the participants (case resentative on Freedom of the Media, Arlem of A. Khandrykin, case of A. Zinchenko and Desir, noted that “journalists should not be others), personal correspondence not related imprisoned for their professional activities”. to the prosecution (case of S. Yezhov, case of So, in one of the cases against the journalist, V. Muravitsky), etc. In 2019, there were fewer the prosecution used materials from the “RIA cases of inclusion of “doubtful” evidence in Novosti-Ukraine” website as evidence of the the evidence base, but they still took place. accused’s guilt45. In one of the proceedings, the lawyer re- In another criminal trial, the court consid- quested that the evidence referred to by the ered that one of the main evidence of the prosecution be recognized as inadmissible, accused’s guilt was screenshots taken from since they were obtained by investigators of stored pages of Internet resources, as well as the Kharkov Oblast State Security Service text documents taken from the accused’s lap- during pre-trial investigation with significant top and screenshots of correspondence taken violations of the procedural law, as well as with from his laptop. All these files were written the use of torture, which could potentially be a to discs. However, the prosecution could not violation of Art. 3 of the European Convention. answer questions regarding the procedure for The injuries were recorded by the employees writing these files to disks and the reasons for of the medical unit of the pre-trial detention the discrepancy between the date of recording facility No. 8. However, the court did not re- the disks and the compilation of the covered spond to the words of the defense41. There investigation protocol46. were cases when one panel recognized the evi- For a fair trial the importance of the admissi- dence as obviously unacceptable, and the next, bility and reliability of the evidence underlying despite this, decided to examine this evidence it is undeniable. and give them an assessment during the trial42. According to the ECtHR, it is necessary to In one of the trials, the court interrogated a take into account the quality of the evidence, witness who, from the evidence, indicated only including whether the circumstances in which a personal hostility to the accused, and at the it was obtained raise doubts about their relia- same time during the testimony he said that bility or accuracy (“Dzhallokh v. Germany”, he knew about the circumstances of the case p. 96). from third parties, and according to Article 97 of the Code of Criminal Procedure, such 43See Monitoring the case of Pyotr Mikhalchevsky evidence cannot be taken into account, since (sessions 01/28/2019; 2/1/2019) 44See Monitoring the case of Andrei Khandrykin (session 02/05/19) 41See Monitoring the case of Marina Kovtun (Session 45See Monitoring the case of Kirill Vyshinsky (session 09/26/2019) 08/20/2019) 42See Monitoring the trial of Pavel Volkov (session on 46See Monitoring the case of Vasily Muravitsky (ses- January 9, 19) sion 10/18/18)

16 In Ukraine, a typical problem is the first in- faced other violations of the right to a fair trial. terrogation without a lawyer, which is a form And although the number of similar violations of violation of Art. 6 of the European Con- recorded by us does not allow us to speak with vention. The ECtHR has repeatedly found a confidence about the presence of trends (other violation by Ukraine of Art. 6 of the European than those indicated earlier), nevertheless, the Convention in this aspect (“A.V. v. Ukraine”, total number of such “single”47 violations con- “Bortnik v. Ukraine”, “Balitsky v. Ukraine”, stitute about a third of the total number of and others). The result of such an interroga- violations recorded by observers in 2019. Such tion, as a rule, is the conscious testimony of the violations include: accused, which form the basis of the prosecution, and even worse, the basis of the sentence. 1. improper use and neglect of the case law Often, law enforcement officers use physical of the ECtHR; and psychological violence to obtain such evidence, which is an unacceptable violation of 2. ignoring the court’s decisions; the European Convention. In addition, obtaining evidence with violence is not limited to 3. pressure on attorneys; the first interrogation and may be systematic. 4. placing the burden of proof on lawyers; In accordance with the case law of the EC- tHR, the admissibility as evidence of evidence 5. pressure on court. obtained through torture in order to establish relevant facts in criminal proceedings leads to This list includes only those violations that its injustice in general, regardless of the evi- observers have repeatedly encountered. More- dentiary value of such evidence and whether over, cases of improper use and/or ignoring its use was critical to convict the defendant the case law of the ECtHR, ignoring court de- by the court (“Gafgen v. Germany”, p. 166). cisions and facts of pressure on attorneys were The reliability of evidence is undermined if recorded from 5 to 8 times. If we talk about it is obtained in violation of the right to silence cases in which observers recorded these groups and privileges against self-incrimination. The of violations, then problems with the incorrect right not to incriminate oneself requires, in use and/or ignoring of the case law of the EC- particular, the prosecution in a criminal case tHR took place in cases of P. Volkov48, D. Mas- not to allow the use of evidence obtained us- tikasheva49, P. Mikhalchevsky50, A. Tatar- ing coercion or pressure methods contrary to intsev51,52, S. Goncharuk53, A. Melnik54. the will of the accused (“Sounders v. United Cases of ignoring court decisions are recorded Kingdom”, p. 68). in the cases of A. Melnik55, A. Tatarint- In case of doubt about the reliability of a particular source of evidence, the need for 47Conditionally single, since some cases were recorded evidence to confirm it from other sources is several times 48See Monitoring the case of Pavel Volkov (session growing, as well as the ability of the accused 2.26.2019) to challenge such evidence (“Jallokh v. Ger- 49See Monitoring the case of Daria Mastikasheva (ses- many”, p. 96). In such situations, the question sion 10/21/2019) 50 that needs to be answered is whether the pro- See Monitoring the case of Pyotr Mikhalchevsky ceedings as a whole, including the method of (session 02/18/2019) 51See Monitoring the Andrey Tatarintsev case – report obtaining evidence, were fair (“Bykov v. Rus- for February 2019 sia”, p. 89). 52See Monitoring the trial of A. Tatarintsev (session 9.18.2019) 53See Monitoring the case of Sergei Goncharuk (session 1.5. Other violations 08/08/2019) 54See Monitoring of the case of A. Melnik, A. Kryzha- novsky, I. Pasichny, I. Kunik(session 08/28/2019) In addition to the trends listed above, during 55See Monitoring the case of A. Melnik, A. Kryzha- the monitoring period, ISHR observers also novsky, I. Pasichny, I. Kunik (session 04/09/2019)

17 Another positive point is the reduction in the number of negative trends. If in the report for 2018 the list of negative trends con- 40% sisted of 10 tendencies, in the current report it was reduced to 4. This indicates a decrease 60% in the number of violations62 in matters of pressure on lawyers, ignoring court decisions, improper use or ignoring of the ECtHR case law, blocking the participation of defendants with violations and witnesses in the court, placing the burden without violations of proof on defense, and pressure on the court. The observers’ reports noted the facts of Figure 1.1.: Percentage of court hearings with further mitigation of the measure of restraint violations. for persons accused under articles for which national legislation does not permit alterna- tives to detention. In many ways, this prac- sev56,57, S. Sergeev58, A. Chibirdin59. The tice was made possible thanks to the deci- pressure on attorneys took place in trials of sion of the Constitutional Court of Ukraine on D. Mastikasheva, E. Mefedov, A. Chibirdina60, declaring the provisions of Part 5 of Art. 176 P. Mikhalchevsky61. Code of Criminal Procedure unconstitutional, It is worth noting that these violations were which states that it is impossible to apply included in the list of negative trends identiﬁed a milder measure of restraint to suspects of by the ISHR observers in 2018, which may crimes against the foundations of national se- indicate “stability” of such abuses. However, curity of Ukraine than detention. the absence of the aforementioned violations On October 29, the Dnieper District Court in the list of the main negative trends (see of Kiev changed the measure of restraint from page 8) may indicate the presence of positive nightly house arrest to a personal obliga- changes, which will be discussed below. tion for the ex-Minister of Health of Crimea P. Mikhalchevsky63. 1.6. Positive trends On November 29, the Korolevsky District Court of Zhytomyr changed the opposition In addition to negative trends, in the course journalist V. Muravitsky’s measure of restraint of monitoring by the observers of the ISHR, from round-the-clock to night house arrest a number of positive changes were recorded. (which continued the tendency to mitigate the First of all, this is an increase in the number measure of restraint in this case, after the ac- of court hearings at which there were no vio- cused was released from the pre-trial detention 64 lations of the right to a fair trial. In 2019, at center in 2018) . 40% of hearings no violations were recorded, The practice of mitigating measures of re- see Fig. 1.1. straint was observed not only in cases with “political component”. On September 27, the 56 See Monitoring the trial of A. Tatarintsev (session Ordzhonikidze court of Zaporozhye changed 09/18/2019) the measure of restraint from detention to 57See Monitoring the case of Andrei Tatarintsev (session 10/29/2019) round-the-clock house arrest for S. Novak, ac- 58See Monitoring the case of Sergeyev and others (ses- cused of robbery65. sions 10/15/2019 and 10/22/2019) 59See Monitoring the trial of Alexander Chibirdin 62recorded by the ISHR observers (session of 03/03/2019) 63See Monitoring the case of Pyotr Mikhalchevsky 60See Monitoring the trial of Alexander Chibirdin (session 10/29/2019) (session 12/03/2019) 64See Monitoring the case of V. Muravitsky (session 61See Monitoring the case of Pyotr Mikhalchevsky 11/29/2019) (sessions 01/28/2019, 02/01/2019) 65See Monitoring the case of Novak and others (session

18 In 2019, ISHR observers did not encounter crease in the number of attacks66 on the par- the use of cells for keeping defendants in the ticipants in lawsuits by aggressively-minded courtroom, this can also be considered a posi- groups. tive change (although the use of glass boxes However, it must be understood that the still takes place). The rejection of such mea- facts described above are only “high-profile” sures of restraint in the courtroom has been and “vivid” problems of legal proceedings, observed for the second year in a row. which are especially noticeable for society. Countering them is more likely a natural process, since the judicial system67 cannot func- 1.7. Conclusions tion adequately in such conditions for a long time. It’s very important when such excesses In addition to the simple recording of viola- of the political life of society begin to subside, tions, it is necessary to identify their causes, to continue working to improve the situation as well as the causes of positive changes in in the judicial sphere and begin to focus on the judicial system of Ukraine. In our opinion, other, less high-profile but not less important compared with 2017 and 2018, the situation issues. has generally improved, primarily in cases in- Such problems, first of all, include the short- volving “political component”. Many of these age of judges, which is observed practically trials that the ISHR has been monitoring since throughout the country68. Undoubtedly, this 2018 or even 2017 have actually ended with circumstance is one of the factors of numerous conviction or acquittal, exchange within the violations of the principle of reasonableness framework of the conflict resolution in the east of the terms of the trial. Judges are simply of Ukraine or “decline in procedural activity” physically incapable of promptly considering after the mitigation of defendants’ measure of incoming cases. An obvious step towards solv- restraint from detention in a pre-trial deten- ing this problem is to increase the number of tion center to house arrest, personal obligation, judges, or at least bring the number of active etc. In our opinion, this is largely due to a judges to the established norm. change in the political situation in the country Another problem that, in our opinion, can after the presidential and parliamentary elec- be solved is the detention of defendants in tions held in 2019. Although, the beginning of glass boxes in the courtroom. It has already this trend we recorded back in 2018. been pointed out above that such practice Nevertheless, this state of affairs gives rise can lead both to a violation of the right to to other problematic aspects. For example, the defense (Article 6 of the European Conven- procedure of the so-called “exchange of pris- tion) and to degrading treatment (Article 3 oners” often does not lead to the official end of the European Convention). Refusal to keep of trials, since many cases are not closed, and defendants in glass boxes will help to elimi- the defendants released during the exchange nate these human rights violations. The ubiq- are left without acquittal. Such procedural un- uitous replacement of metal cells with glass certainty does not benefit the judicial system boxes in Ukrainian courts suggests that tech- and those interacting with it. This problem nically, such a solution can be implemented. requires a separate study and development of And to prevent hypothetical risks to the safety recommendations for its elimination. of court hearings69, we can evaluate foreign During the reporting period, some of the and domestic experience. measures to counteract violations of the right to a fair trial, proposed by the ISHR experts 66At least recorded by the ISHR observers 67 in the report for 2018, began to be imple- in the broad sense 68ISHR experts have repeatedly heard about problems mented. For example, a court security service with the lack of existing judges during each of the was formed, which, in turn, influenced the de- meetings held as part of the project 69which may appear in connection with the refusal to 09/27/2019) use boxes and cells in the courtroom

19 The need for educational work remains rele- initiatives should be not only participants in vant, we heard about this many times during the lawsuits, but also the public and media our working meetings with representatives of representatives. We hope that in 2020 we will the court, the bar and the prosecutor’s oﬃce. be able to actively engage in this important Moreover, the target audience of educational and, in many ways, priority area of activity.

20 2. Analysis of statistics

In this part of the report, we will familiarize readers in more detail with the results of the collection of statistical data that was conducted by ISHR observers in 2019. All results 37% are based on data from special questionnaires that observers ﬁll out after each court session 63% they attend.

2.1. The publicity of court present hearings absent

From the point of view of the right to publicity Figure 2.1.: Presence of international organi- of the trial, it is interesting to take a look at sations and mass media in court the data on the attendance of trials by repre- hearings. sentatives of international organizations, such as the OSCE and the UN, as well as Ukrainian media and public organizations. There were 38 cases of the presence of representatives of these institutions at court sessions, which is about a third of the total number of ISHR monitoring apealls (see Fig. 2.1). First of all, this presence was preparatory 8.5% 20% observed in cases that have a “political component” or a significant public interest. There is no doubt that the international community and Ukrainian civil society are not able to ensure the presence of third-party observers at all court hearings taking place in the coun- on the merits try, and ISHR is no exception to this issue. 72% It seems that it will be useful to increase the number of projects and programs that allow civil society and other stakeholders to monitor judicial processes in order to exercise the right Figure 2.2.: Court hearings. to public trial more widely. It is important for the observance of the right to a public trial that information about the dates and times of court hearings is available to a wide public. In Ukraine, the issue of such accessibility is solved by publishing a “political component”. However, we cannot the place and time of hearings on the official say that in some specific cases, information website of the judicial authority of Ukraine. about the time of the next hearing was often The monitoring results showed that only in 15 not published. of the 104 analyzed cases, information about the time of the upcoming court hearing was This result can be considered positive, but not published on the website of the judicial to understand the dynamics, we will continue authority (see table 2.1). Interestingly, all fif- to collect data in 2020 and compare the results teen hearings were held on cases that have of the two years in the next annual report.

21 hr hr eealrenme fprepara- of number large a year were last there of where results the account into Taking ilto ftepicpeo esnbetm of time reasonable of principle the of violation contrary, the on etc., witnesses, and/or victims 22 a trial of the probability a is there years, court the several by for considered been have trial. that cases held the in were of hearings stages preparatory the the quite if of However, that are one reasons fact is the this the 2019, obvious, in to began due trials is the hearing this ﬁfth If every preparatory. why reasons the in 2018). in 64% (from 72% to increased questioned parties, the consid- of directly evidence court the ered the where on merits, conducted were the the which and hearings 2018), of in number 30% (from 20% observers to decreased by of attended number The hearings the little. year, preparatory a This changed 2.2). has the Fig. situation with (see chart 2019 similar of results a prepare of we to number observers, decided ISHR total by attended the sessions in court (30%) sessions tory hearings Court 2.2. 3 2 1 hvhnosi or fKiev of court Shevchenkovskiy Zaporozhye of court Shevchenkovskiy Kharkov of court Frunzenskiy Kiev of court Podolskiy Kharkov of court reg. Ordzhonikidzhevskiy Zaporozhye of court Kuibyshevskiy Zhytomir of court Koroljovskiy Kiev of court Dneprovskiy Appeal of Court Kiev o xml,aogtetil nlzdi 08 the 2018, in analyzed trials the among example, for observers. ISHR Ukraine. by in Visited Trial Fair a to Right The “Report: See si h rvosya,w eeinterested were we year, previous the in As 2018”. ny58.Tevs aoiyo raslse for lasted trials of majority was vast 2018 The in 5.8%. consideration only began that cases of share 3 . Flso bcneo information. of abscence of Falls 2.1.: Table 2 was 1 1 1

, Bik 2018”: ae htbgni 09ws3% h re- the in place 30%, took was hearings 2019 preparatory in maining began that cases inlNO nodrt oio h trial, the monitor to order in NGOs tional area; this in abuse procedural prevent all to using possibilities judges, of withdrawal the Ukraine. in Trial Fair a to the Right in “The published report judges, of changes with frequent trials our in repeat participants ex- to to certain recommendations appropriate a it consider to we improved tent), has (although situation 2019 in the disappeared not has above years. three by for recorded us territorial repeatedly and been court has jurisdiction the changing of of practice composition the the tri- And these 2017. of since some als The monitoring 2019. been in has only ISHR not situation We similar hearings. a court faced preparatory of returns) stage (or the remains started to it is and case beginning the the that from the means Changing judges case. of the panel of chang- jurisdiction of the consequence a ing Most is 2014. situation even this or often, 2017 2018, in started trials 1 mn h nlzdtil,tesaeof share the trials, analyzed the Among 2. 1. described problem the that fact the to Due Volkov hls,i 08 0 fhaig eepreparatory. never- were and, hearings years) of 5 30% to 2018, 1.5 in (from theless, year a than more 2 1 1 oivlerpeettvso interna- of representatives involve To for reasons the carefully more study To Vyshinskiy

1 Gubin

2 1 Mikhalchevskiy

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1 Chernyshov Schegolev Yanukovich which often significantly reduces the risks of Art. 111 High treason; purposeful delay in the trial on both sides (we assume that both attorneys and prosecutors Art. 112 Trespass against life of a statesman are not interested in delaying the trial) or the or a public figure; court; Art. 113 Sabotage; 3. Use existing opportunities to inform a wide range of stakeholders of the high risks of Art. 255 Creation of a criminal organization; delaying the trial; Art. 258 Act of terrorism; 4. Adjust the defense/prosecution strategy Art. 258-3 Creation of a terrorist group or to take into account possible delays in the terrorist organization; trial. Art. 258-5 Financing of Terrorism; 2.3. Ratio of the number of Art. 260 Creation of unlawful paramilitary or detected violations to the armed formations; incriminated crimes Art. 263 Unlawful handling of weapons, am- The statistical data collected during the mon- munition or explosives; itoring allows us to check the common the- Art. 437 Planning, preparation and waging sis that in cases with “political component” of an aggressive war; more often4 occur violations of the right to a fair trial. In contrast to media or political Art. 438 Violation of rules of the warfare. statements, which often have a subjective nature, the numbers (the number of violations Even a brief review of the observers’ reports, recorded, the number of specific articles incrim- which are presented in the third section of this inated, etc.) allow us to get a fairly objective report, shows that all these accusations are picture. related to events in Eastern Ukraine, Crimea, First of all, we divided all cases that were or the confrontation on Maidan in the winter of monitored into “political” and “other”. In our 2013/14. The remaining charges were included opinion, the most objective way to do this is in the second group of “other” cases. Here is to group cases depending on the official charge. their full list: With this approach, cases that involve accusations of crimes against the foundations of Art. 115 Murder; national security of Ukraine, public security and/or crimes against peace, human security Art. 121 Intended grievous bodily injury; 5 and international law and order can be at- Art. 125 Intended minor bodily injury; tributed as “politically motivated”. During the monitoring period, we faced the following Art. 127 Torture; charges from this group: Art. 128 Negligent grievous bodily injury or Art. 109 Actions aimed at forceful change or negligent bodily injury of medium grav- overthrow of the constitutional order or ity; take-over of government; Art. 146 Illegal confinement or abduction of Art. 110 Trespass against territorial integrity a person; and inviolability of Ukraine; Art. 149 Trafficking in human beings and 4Compared to other trials. 5We use the terminology of sections of the Criminal other illegal transfer deals in respect of a Code of Ukraine human being;

23 Case Articles Viols. Case Articles Viols. 1* 115, 377 11 22* 111, 128, 407 1 2* 258-3, 437, 438 11 23 111 1 3* 111 10 24 109 1 4* 110, 111 10 25* 258, 258-5, 263 1 5* 191, 255, 258-3, 258-5, 366-1 5 26 109, 112, 258, 258-3, 263 1 6* 110, 113, 258, 258-3, 263 5 27 127 1 7 187, 190 5 28 115, 121, 340, 365 1 8* 110, 258-3 4 29 111, 437 1 9* 109, 112, 258, 258-3, 263 4 30 342, 345 1 10* 286 4 31 263 1 11* 109, 110, 111, 128, 263 3 32 146 1 12* 110, 111, 161, 258-3 3 33 258, 263 1 13* 111 2 34* 368 1 14* 111, 437 2 35* 125, 343, 357 0 15 109, 110, 111, 161, 263 2 36 187 0 16 342, 345 2 37* 115 0 17 149 2 38 187 0 18* 186 2 39 115 0 19* 111, 263 2 40 CC 0 20 110, 111 2 41 CC 0 21* 110, 260, 263 2 42* 115, 189 0

Table 2.2.: Trials, charged crimes (articles) and number of violations, the asterisk (*) marks the “political” cases.

viol. 1.60 sess. 40 violations

20 viol. 3.36 sess.

political trials 0 other polit. trials other

(a) Total violations in every type of trials. (b) Average count of violations on a trial.

Figure 2.3.: Violations distribution by type (political/other) of trials.

24 Art. 161 Violation of citizens’ equality based in the category of trials with “political com- on their race, nationality or religious pref- ponent”. In order to make the overall picture erences; of the investigated trials clearer, we have prepared a table that shows the charges and the Art. 186 Robbery; number of violations recorded in each case Art. 187 Brigandism; (see table 2.2). “Political trials” in the table are marked with an asterisk (*). For greater Art. 189 Extortion; objectivity of further analysis, the ratio of “political” and “other” cases was very successful – Art. 190 Fraud; 22 cases to 20 cases, almost one to one. Art. 191 Misappropriation, embezzlement or With this data, we were able to prepare two conversion or property by malversation; graphs: the first one showing the total number of violations in each of the two groups Art. 286 Violation of rules related to traffic of cases; the second one showing the average or driving safety by drivers; number of violations per session in “political” and “other” trials (see Fig. 2.3b). The second Art. 340 Illegal interference with the organi- graph is necessary to check whether the re- zation or holding of assemblies, rallies, sults were not affected by some “anomalous” marches and demonstrations; single cases (specific trials in which there was a large number of violations) or the fact that Art. 342 Resistance to a representative of we paid more attention to cases with “political public authorities, law enforcement offi- component”. cer, a member of a community formation As can be seen from the results of both for the protection of public order, or a the first and second graphs, the number of military servant; violations in trials with “political component” Art. 343 Interference with activity of a law is more than twice the number of violations enforcement officer; in other cases. Analyzing the data obtained, at least we can Art. 345 Threats or violence against a law say that there is a significant probability that enforcement officer; the thesis about a large number of violations in cases with a “political component”6 has real Art. 357 Stealing, appropriation, or extortion grounds. This means that such trials really of documents, stamps and seals, or acquir- need the close attention of civil society and ing them by fraud or abuse of office, or the international community, but the other endamagement thereof; categories of trials should not be ignored. Art. 365 Excess of authority or official powers; 2.4. Equality of the parties Art. 366-1 Declaring false information; An important component of a fair trial is the Art. 368 Taking a bribe; observance of the principle of equality of the Art. 377 Threats or violence against a judge, parties. In order to assess the situation in trials assessor or juror; that were monitored by ISHR, we analyzed the “attitude” of the courts to the parties Art. 407 Absence without leave from a mili- on the example of the court’s rulings on the tary unit or place of service. satisfaction or refusal of the parties’ petitions. As a result, two graphs were prepared (see It is important to note that some cases com- Fig. 2.4). bine both charges from the “political” list and articles from the second group. We put them 6in comparison with other trials

25 from defender from prosecutors

no yes 33% no 46% 54% yes 67%

Figure 2.4.: Accepted petitions.

According to the results obtained, slightly ratio of the parties’ petitions granted by the less than half of the defense petitions (46%) court of first instance, etc. The materials of were satisfied by the court. At the same time, the report were used by the ex-President’s about two-thirds of the Prosecutor’s office’s defense in the court of appeal. petitions were satisfied (67%). According to these data, during the trial, the prosecution is almost one and a half times 2.5. Relationship of the charge more likely to get a satisfactory court decision and the number of on their petitions. The gap, in our opinion, re- violations in the trial mains quite large and may indicate violations of the principle of equality of the parties in During the monitoring of the proceedings, a certain trials. certain correlation could be observed between However, it should be noted that in the violations and the presence of a “political com- 2018 ISHR report, when analyzing the ratio ponent” in the case. We decided to find out of satisfied petitions for new evidence, the gap in more detail how each of the articles of the between the satisfied petitions of the defense criminal code is related to the frequency of and the prosecution was even greater (more violations. For accurate results, a wider cov- than twice: 25% vs. 60%). Of course, the com- erage of trials is necessary, but it is already parison of the two results (2019 and 2018) can possible to present this research methodology only be indirect, since in the first case we are and use the results in the further development talking about all the petitions, and in the sec- of monitoring of legal proceedings in Ukraine. ond – only about petitions for the introduction It seems that such a tool will allow to iden- of new evidence. tify potentially “unfair” trials as objectively It is necessary to draw the attention of par- as possible (if you know the articles of accu- ticipants in court proceedings to the use of sation in the proceedings for which violations such “analytical tools” in the appellate in- most often occur) and more effectively direct stance as evidence of a violation of the princi- efforts to prevent violations of the right to a ple of equality of the parties. In 2019, the ex- fair trial. perts of the ISHR produced several reports on Each trial often includes different articles of the situation in specific criminal cases. In par- accusation (see, for example, table 2.2). It is ticular, the analysis of court records in the case impossible to directly determine which charge of ex-President of Ukraine Viktor Yanukovych (article of the criminal code) most affects the was carried out7, prepared graphs showing the fair trial in the case of Viktor Yanukovych. Final 7See the Report “Compliance with the right to a report”

26 Art. Violation ratio Xs Art. Xs Art. Xs Art. Xs 377 11 112 1.02 366-1 0 161 0 438 10.52 258 1 365 0 128 0 190 5 368 1 357 0 125 0 191 4.52 146 1 345 0 115 0 286 4 127 1 343 0 109 0 111 2.47 121 1 340 0 186 2 258-3 0.48 263 0 149 2 260 0.22 258-5 0 110 1.78 CC 0 255 0 113 1.73 437 0 189 0 342 1.5 407 0 187 0

Table 2.3.: Ratio of number of violations to the article of the Criminal Code. deviations of court sessions from the procedu- (“political/non-political”, see table 2.2) we see ral norm8. However, assigning to every article that articles 377, 438, 190 and 191 are lead- s of criminal code some violation ratio Xs, ing in terms of the violation rate. And most we can construct the system of equation. For of them do not have a “political component”. this we assign to every case Di, the set Si of Such contradictions with the observed picture charged articles. Summarizing for every case (see Fig. 2.3) caused by insufficient coverage all of the “weights” of involved articles we of trials, which affects the results of the al- obtain following system: gorithm. In particular, the above-mentioned four articles occur only once in the cases that  X D1 = Xs were monitored. This is the fundamental fact:   s∈S1 the algorithm first “selects” these unique ar-   X ticles as the pole of violations. To get a real D2 = Xs  picture, more extensive monitoring of the pro-  s∈S2 ceedings is necessary, however, the data ob-  ...  tained in 2019 allowed us to develop a model  X Di = Xs for calculating the coefficient of the number of   s∈Si violations for the articles of the criminal code.   ...

In general such systems don’t poses any 2.6. Conclusions exact solution. But, assuming, that no article 9 can have negative weight , i.e. Xs ≥ 0, we The use of statistical methods and mathemati- can find an admissible solution with minimal cal analysis is also used in such areas as litiga- error. In such a way we isolate the influence tion. They allow to check and, in certain cases, of every article on a trial. The application of confirm logical conclusions, guesses and pre- this method on a monitoring data of 2019 can dict the further development of the situation be seen in a tab. 2.3. using objective inputs, which are statistical Analyzing these results and comparing them data obtained by ISHR observers when mon- with the division of cases into two groups itoring trials. It appears that this approach facilitates a more objective analysis of the sit- 8 by “norm” we mean a fair trial, in which there are uation (both for observers and for participants no violations in a trial) and will facilitate strategy devel- 9Not to misinterpret as “negative” effect on a hearing! In this case the negative weight denotes decrease opment and decision-making for stakeholders of violation quantity. and the court.

27 ISHR experts continue to use and develop these methods when analyzing the results of monitoring the observance of the right to a fair trial in 2020. This work will make it possible to more accurately identify existing negative trends, model their development and determine the extent of the damage caused to the judicial system.

28 3. Reports of the monitoring of court sessions in 2019

The third part of the report includes the texts menchenko, V. Parasyuk. A large number of of reports prepared by ISHR experts during high-ranking listeners which are not partici- 20191. This information makes it possible to pants of the case is not typical of Ukrainian track the development of the judicial process judicial realities. The PMs expressed their in each particular case, to understand how readiness to act as guarantors of the suspect negative trends were formed, to see whether and (according to media reports), stated that or not the participants in the trial tried to I. Bubenchik is not guilty. The massive pres- prevent their formation. ence in the hall of officials can be regarded Trials are presented in alphabetical order, as an encroachment on the principle of inde- and reports on specific court sessions are pre- pendence of the court and pressure on it. The sented chronologically. ECtHR in one of its decisions noted that there are no doubts about independence when the “objective observer” does not have any reason 3.1. The trial of Ivan Bubenchik to worry about this in the circumstances of the case (“Clark v. United Kingdom”). Suc- Monitoring of the murder of law cessfully in one of her publications, the judge enforcement officers during the Maidan of the Izmailskiy City Court of Odessa Re- In July 2019, the lawyer of the relatives of the gion, Elena Balzhik, spoke out. She noted that murdered officers of the Ministry of Internal the lack of restraint in their subjective opin- Affairs, A. Goroshinsky, appealed to the ISHR ions of representatives of the legislative and with a request to begin monitoring the case of executive branches of government can be as- the accused Ivan Bubenchik, in which, accord- sessed in some cases as pressure on judges and ing to the lawyer, there are several violations. an attempt to intervene in the proceedings. The case has long been at the stage of pre-trial In addition, the principle of independence is investigation. very accurately described as one of the fac- In the course of studying the circumstances tors of confidence in the judicial system in of the case, it became known that on May 20, the commentary on the Bangalore Principles: 2014, Maidan activist Ivan Bubenchik pub- “. . . 27. Confidence in the judiciary will be un- licly admitted the crime, namely, the shooting dermined if the decision-making process by of three law enforcement officers. 04/03/2018 judges is perceived as being subject to inap- during an attempt to leave the territory of propriate external influences. To ensure the Ukraine the suspicion of murder, as well as at- independence of the judiciary and to maintain tempted murder was announced to Bubenchik. public confidence in the justice system, it is The suspect is taken to the Pechersky District important that representatives of the execu- Court of Kiev to select a measure of restraint. tive and legislative bodies, as well as judges, The prosecution petitioned for a measure of remember that actions that can be interpreted restraint in the form of house arrest, but the as affecting decisions made by judges are in- court did not approve the petition and re- admissible. . . ” leased the suspect on bail of the members of It is also worth noting that on the same the Parliament. day after the trial, the Prosecutor General of It is important to note that Ukrainian of- Ukraine Y. Lutsenko, by his decision, changed ficials were present in the courtroom, includ- the senior group of prosecutors in this hearing, ing PM O. Petrenko, A. Denisenko, S. Se- appointing his deputy A. Strizhevskaya, and 1All the reports are available on the website also announced on his social networks accounts humanrights-online.org that he considered the qualification of actions

29 of I. Bubenchik to be incorrect, therefore, de- 3.2. The trial of Konstantin cided to change the senior prosecutor. In turn, Chernyshov the new prosecutor “withdrew the suspicion” and, accordingly, the petition for the selection Monitoring of the case on charges of of a measure of restraint, although procedural Konstantin Chernyshov (session on legislation of Ukraine does not foresee such a 10/30/19) procedure. According to lawyers and the media, such actions of Y. Lutsenko were provoked On October 30, 2019, in the Ordzhonikidze by the statements of the MP V. Parasyuk to district court of Kharkov, a trial was to be the Prosecutor General, namely, the deputy’s held in the case of Konstantin Chernyshov, public statement that during the events of accused of criminal offenses under Part 1 of Maidan Y. Lutsenko called on activists to Art. 111, part 1, article 263 of the Criminal bring weapons to the Maidan. Code of Ukraine. Due to a malfunction of the vehicle of the convoy, as well as the presence of Attorney A. Goroshinsky (representing the a lawyer in the Kherson Court of Appeal, the relatives of the deceased police officers) be- session did not take place and was postponed lieves that all these facts indicate pressure to November 12, at 12:00 pm. on the court by the MPs and the leadership Konstantin Chernyshov is accused of trea- of the General Prosecutor’s Office, in addi- son. According to the Ukrainian secret ser- tion, the actions of Y. Lutsenko should be vice (SBU), the inspector of the response sec- regarded as abuse of power. The lawyer filed tor of the patrol police, Captain Chernyshev a petition with the National Anti-Corruption Konstantin, was recruited in 2014 by the spe- Bureau of Ukraine regarding the commission cial services of the Russian Federation. Using of a criminal offense by officials of the General his official position, he collected information Prosecutor’s Office of Ukraine (in particular, about ATO participants and famous public Y. Lutsenko), the case has not been considered figures, and then passed it through an agent for more than a year for unknown reasons. to the Main Directorate of the General Staff of the Armed Forces of the Russian Federation. In the course of their monitoring, the ISHR During a meeting with an agent of the General experts have already encountered illegal inter- Staff of the Russian Federation, Chernyshev ference by the Prosecutor General in crimi- handed over to the latter a flash card with the nal proceedings, for example, in the case of data he processed about Ukrainian volunteers N. Savchenko (report dated February 14-15, and military personnel who took part in the 2019). hostilities in the Donbass. In “Campbell and Fell v. The United King- By the decision of the investigating judge dom”, the ECtHR formulated several condi- of the Kiev district court of Kharkov dated tions, the observance of which allows us to 03/22/2018, the accused was detained, the establish whether the national judicial author- term of which was repeatedly extended by ity can be considered independent. Among the court. The total period of detention is others, these conditions include the follow- more than one and a half years. As a result of ing: the existence of guarantees against exter- communication with fellow representatives of nal influence on judges and how generally the international organizations, as well as a study body exercising judicial powers looks indepen- of previous judicial practice, it can state one dent (demonstrates its independence). Based of the problems of this case today: the issue of on these conditions, the trend that experts applying an alternative measure of restraint of the ISHR can already single out – interfer- to the accused in the form of a bail. In the ence in the trial from the outside (the case decision of the Ordzhonikidze district court of N. Savchenko, V. Yanukovych, S. Yezhov, of Kharkov dated August 05, 2019, a bail of etc.), indicates a systematic violation of the 384,200.00 UAH was established. principle of independence of the court. The defendant and the lawyer asked to re-

30 duce the amount of the bail previously deter- not consider it necessary to reduce the size of mined by the court to eighty minimum living the bail and thereby provide him with a real wages for able-bodied people. Counsel pointed opportunity to benefit from the release on bail. out that the accused was not previously held In the examination of the case by the domes- criminally responsible, has a family, place of tic courts, no relevant or sufficient grounds residence and poor health. were lodged with respect to the applicant’s But the petition was denied and, since the property status. As a result, the Court found sum for the family is unaffordable, the accused a violation of Article 5 §3 of the Convention. continues to be in custody. According to the In the case of Konstantin Chernyshov, sim- case-law of the European Court of Human ilar circumstances can be traced to the case Rights (hereinafter referred to as the Court), of “Gough v. Malta”. Only the Court, evalu- the guarantee provided for in Article 5 §3 ating the actual financial capabilities of the of the Convention is designed to ensure that accused, can provide a real opportunity to the accused appears in court (“Manguras v. benefit from release on bail. Representatives Spain”, § 78). Therefore, the size of the bail of the International Society for Human should be established taking into account the identity of the defendant, his property, his re- Monitoring the case of Konstantin lations with guarantors, that is, taking into Chernyshov (session 11/12/2019) account the belief that the prospect of losing the bail or measures against his guarantors if On November 12, 2019, a hearing was held in he does not appear in court will be sufficient the Ordzhonikidze district court of Kharkov to restrain him from escaping (“Nijmeister v. on charges of Konstantin Chernyshov for com- Austria”, § 14). mitting criminal offenses under Part 1 of Art. Since the issue under consideration is the 111, part 1, article 263 of the Criminal Code fundamental right to freedom guaranteed by of Ukraine. Article 5, authorities should make every effort Konstantin Chernyshov is accused of trea- to establish the appropriate amount of bail, so son. According to the SBU, the inspector when deciding on the need to continue to be of the patrol police response sector, Captain detained. In addition, the amount of the bail Chernyshev, was recruited in 2014 by the spe- must be properly justified in the decision on cial services of the Russian Federation and the definition of the bail and must consider the transmitted information that is a state secret. property status of the accused (“Manguras v. During the trial, the defense submitted a Spain”, §§ 79-80). The failure of the domestic number of petitions: courts to assess the applicant’s ability to pay the required amount may be perceived by the • On the recognition as unacceptable evi- ECtHR as a violation. dence obtained as a result of covert investiga- However, the accused, whom the judicial tive actions, namely audio, video surveillance authorities are willing to release on bail, must regarding Konstantin Chernyshov, monitoring correctly submit enough information that can a person in publicly accessible places, as well as be verified, if necessary, on the amount of the removing information from transport telecom- bail to be established (“Toshev v. Bulgaria”, munication networks. In addition, control over § 68; “Ivanchuk v. Poland”, § 66). the commission of a crime was carried out, for In “Gough v. Malta” § 75, the Court stated the implementation of which, in the manner the following: despite the fact that the proof confidential cooperation, a citizen of the longed detention after the release of the bail Russian Federation was involved, according to was granted was conditioned by the appealed the lawyer, and according to the requirements financial conditions due to his insolvency, for of the law, such a person cannot have access a period of almost one year, during which the to state secret. While the fact of conducting a applicant filed several requests , the courts did secret investigation is a state secret.

31 • On re-interrogation of a person involved arrested person has committed an offense is in confidential cooperation in conducting a a sine qua non condition in order for his con- covert investigative action. tinued detention to be considered legal, but after a while this condition is no longer suf- • On conducting forensic examinations. ficient. Then the Court must establish that the other grounds on which the decisions of The prosecutor opposed the satisfaction of the judiciary are based continue to justify the the petitions of the defense and filed his own deprivation of liberty. If these grounds turn motion to extend the detention. In the applica- out to be “relevant” and “sufficient”, then the tion, he noted the existence of risks of hiding, Court will find out whether the competent na- influence on witnesses and the commission of tional authorities showed “special good faith” new crimes. In addition, he referred to the in the conduct of the proceedings (“Labita v. gravity of the crime committed. At the mo- Italy”, § 153). ment, the total length of Chernyshov’s stay in At the same time, the burden of proof in re- custody exceeds one and a half years. solving such issues should not be shifted to the It should be noted that according to § 3 detained person in order to prove the existence of Art. 5 of the European Convention, after of reasons justifying his release from custody a certain period of time, only the existence (judgment in the case of “Iliykov v. Bulgaria”, of a reasonable suspicion does not justify the § 85). During the session on November 12, the deprivation of liberty, and the courts must give prosecutor did not provide any factual jus- other reasons for the extension of detention tification for the existence of risks. Despite (decision in the case of “Borisenko v. Ukraine”, this, on 11/13/2019, the Ordzhonikidze Dis- § 50). Moreover, these grounds must be clearly trict Court of Kharkov announced the deci- indicated by the national courts (“Eloev v. sion to refuse to satisfy all the requests of Ukraine”, § 60, “Kharchenko v. Ukraine”, § the defense, and to satisfy the request of the 80). The ECtHR often found a violation of § 3 prosecutor to extend the terms of detention. of Art. 5 of the Convention in cases where the This situation is typical and systemic for national courts continued detention, referring Ukrainian justice. Court decisions are based mainly to the gravity of the charges and using more on fear than on objective factual cir- template language, without even considering cumstances, the search and proof of which specific facts or the possibility of alternative should be assigned to the bodies of pre-trial measures (“Kharchenko v. Ukraine”, §§ 80-81; investigation. “Tretyakov v. Ukraine” § 59). The existence of a reasonable suspicion of Monitoring of the case on charges of a crime committed by a detained person is Konstantin Chernyshov (session 12/23/19) an indispensable condition for the legality of his continued detention, but after the lapse On December 23, 2019, a hearing was held in of time such a suspicion will not be sufficient the Ordzhonikidze district court of Kharkov to justify prolonged detention. The ECtHR in the case of Konstantin Chernyshov, accused has never tried to translate this concept into a of committing criminal offenses under Part 1 clearly defined number of days, weeks, months of Art. 111 (encroachment on the territorial or years, or at different times depending on the integrity of Ukraine), part 1 of article 263 severity of the crime. Once “smart suspicion” (illegal handling of weapons) of the Criminal is no longer sufficient, the court must establish Code of Ukraine. other reasons given by the courts that continue According to information provided by the to justify the person’s deprivation of liberty Ukrainian Secret Service (SBU), the inspector (“Maggie and Others v. The United Kingdom”, of the response sector of the patrol police, cap- §§ 88-89). tain K. Chernyshov, was recruited in 2014 by The ECtHR also recalls the immutability of the special services of the Russian Federation the grounds for suspicion. The fact that the and transmitted information that is a state

32 secret. In addition, the delay of the consideration A sentencing was scheduled for December of the case was directly affected by the defense. 23, 2019. At the start of the hearing, the clerk More than once lawyer Shadrin A. did not ap- said the verdict was being written. But later it pear at court hearings without good reason. became known about the change in the vector At the hearing on December 13, the lawyer of state prosecution. was insufficiently prepared. For example, he In accordance with the agreements between requested a second forensic examination of the uncontrolled territories of the Eastern re- the material evidence (explosive devices) that gion of Ukraine and Ukrainian government, were destroyed. He could not argue his posi- the simultaneous release (exchange) of persons tion on the type of examination. As a result, is planned. To fulfill the goals, the prosecu- the accused did not support the request for tor filed a motion to change the measure of such an examination. The lawyer also asked restraint from detention to a personal obliga- for a psychological examination of the witness, tion. although the court of appeal does not have This was probably an absolute surprise even such procedural rights. According to the ISHR for the judges. Their decision was scheduled for observer, the defense was situational in nature. 12/26/2019. But, subsequently, the session was It should be noted that this lawyer does not canceled. And K. Chernyshov was included in provide Chubarova L. with legal assistance on the exchange process with the LPR/DPR. the basis of an agreement, but was appointed The International Society for Human Rights by the court from the list of public defenders. will continue to monitor and clarify the details Due to the weak position of the defense coun- of the case of K. Chernyshov, including the sel, the accused independently clarified the question of what kind of decision the court essence of the motions to the judges, answered will make, taking into account the exchange questions from the judges, although she did procedure. not have the necessary legal knowledge. In addition, she “defended” herself against state- Monitoring the case on charges of ments by the prosecutor. In addition, Larisa Chubarova Larisa (12/13/2019) Chubarova previously stated that she was not provided with effective legal assistance. But at On December 13, 2019, the Kharkov Court the time of the trial, she said: “I am extremely of Appeal examined the appeal of Chubarova tired of my position of legal uncertainty. Let’s Larisa, a citizen of the Russian Federation, ac- consider as many questions as possible, since cused of committing a criminal offense on the we have already gathered in full force.” The grounds of part 4 of Art. 260 of the Criminal trial is characterized by absolute unsystematic- Code of Ukraine – the creation of paramilitary ity. This is one of the reasons for its duration. or armed groups not prescribed by law, part 1 of article 110 of the Criminal Code of Ukraine As the Cassation Criminal Court as part of – encroachment on the territorial integrity of the Supreme Court indicated in the decision of Ukraine, part 1 of article 263 of the Criminal June 6, 2019 in case No. 738/1085/17: “. . . the Code of Ukraine – illegal handling of weapons. effectiveness of the defense is not the same as By the decision of the Kiev district court of achieving the desired result for the accused by Kharkov dated 06/29/2017, Chubarova Lar- the results of the trial, but rather providing isa was found guilty of the above charges and him with appropriate and sufficient opportuni- she was sentenced to 11 years in prison. On ties using their own procedural rights or qual- December 12, 2017, the appeal proceedings ified legal assistance”. The Convention for the were opened. Thus, the Kharkov Court of Ap- Protection of Human Rights refers to “assis- peal has been hearing the case for more than tance” rather than “appointment”. The very 2 years. One of the reasons for the violation appointment of a lawyer does not provide ef- of reasonable time of trial is 5 facts of self- fective assistance, since a lawyer appointed for recusation of judges. the purposes of legal assistance may. . . evade

33 his duties. If they are notified of the situa- following: in accordance with the provisions of tion, the authorities must either replace him h. 1 Article. 331 of the Code of Criminal Pro- or force him to fulfill his obligations (“Artiko cedure of Ukraine – during the trial, the court v. Italy”, § 33; “Siyrak v. Russia”, § 27). is entitled, including – to change the measure The fact that a lawyer is provided by the of restraint against the accused only at the accused on a free basis does not justify his ac- request of the prosecution or the defense. Ac- tions. Representatives of the ISHR are forced cording to chapter 3 of section I of the general (in connection with the statements of the ac- provisions of the Code of Criminal Procedure cused) to establish a violation of § 3 of Art. 6 of Ukraine, the victim does not belong to the of the Convention (the right to effective legal prosecution in this case. assistance). 11/15/2017 Zhytomyr District Court found the accused Dovgalyuk V.O. innocent of the charge under § 7 of part 2 of article 115 of the 3.3. The trial of Vladimir Criminal Code of Ukraine and acquitted him Dovgalyuk in connection with the lack of evidence that a criminal offense was committed by him. Monitoring the case of Vladimir Dovgalyuk 12/22/2017 the Court of Appeal of the Zhy- (09/24/2019 session) tomyr Region on the appeal of the prosecutor on acquittal, opened an appeal proceeding. 09/24/2019 in the Bogunsky district court of Zhitomir, a hearing was held in the case In the appeal, the prosecutor requests the of Vladimir Dovgalyuk accused of murder of sentence of the court of first instance to be an- O. Zhadko that happened on 07/11/2014 (§ 7 nulled and a new sentence convicted of guilty of part 2 of article 115 of the Criminal Code of a criminal offense incriminated to him and of Ukraine). sentenced under § 7 of part 2 of article 115 of Chronology of the case: 11/18/2014 Zhyto- the Criminal Code of Ukraine – 15 years in myr District Court, by its decision, refused prison. to the prosecutor in choosing a measure of re- The court ruled: the acquittal of the Zhy- straint to the accused in the form of detention. tomyr district court of the Zhytomyr region The court decided at a preparatory hearing of November 15, 2017 under § 7 of part 2 of to appoint a criminal proceeding in respect of article 115 of the Criminal Code of Ukraine is the accused of a criminal offense under § 7 of canceled and a consideration of the criminal part 2 of article 115 of the Criminal Code of proceedings in the trial court is scheduled. Ukraine to trial in open court. January 18, 2019. The panel of judges of On 9/9/2015, at the request of the prosecu- the Zhytomyr Court of Appeal having exam- tor, the court decided to appoint in the case ined in a public court the presentation of the a repeated comprehensive computer-technical, chairman of the Zhytomyr District Court of phototechnical, and technical examination of the Zhytomyr Region about sending criminal the video recordings obtained from the surveil- proceedings from the Zhytomyr District Court lance cameras. 10/21/2015 considered the is- for consideration to another court, decided to sue of changing the measure of restraint to the send the case for consideration to the Bogun- accused. The victims, who are the brothers, sky District Court of Zhitomir. the mother and father of the victim, filed a On January 25, 2019, the prosecutor filed motion to amend the accused with a bail in a motion to change the measure of restraint custody because, as the author of the petition in the form of bail to detention. In support of substantiated, the evidence examined confirms this, he noted that there are risks stipulated the guilt of the accused. The prosecutor and by clauses 1, 3, 4, 5, 5, part 1 of Art. 177 the representative of the victims supported the Code of Criminal Procedure of Ukraine. The motion. The court concluded that there were defense side objected to the petition to change no grounds to satisfy this request based on the the measure of restraint, since the prosecutor

34 did not prove the existence of risks, and the The court granted the motion. Further, the petition is based only on assumptions. court considered access protocols for surveil- The court, considering the fact that there lance cameras, a plan for the layout of cameras. is no information about the violation by the Viewed videos from surveillance cameras. The accused of duties, including communication quality of video recordings made from surveil- with witnesses, decided to refuse the petition lance cameras located at some places in the of the prosecutor to change the chosen measure city does not allow a clear view of the faces. of restraint to the accused. The video showed how a person was walking 02/15/2019 Dovgalyuk V. filed an appeal behind the victim in the city, who was later against the rulings of the Bogunsky district identified by witnesses, confirming that the court of the city of Zhytomyr. He was denied person on the camera record and the person the opening of the appeal proceedings. running away from the house of the victim 04/23/2019 the defendant challenged the at the time of the murder is the same person. composition of the judges. In support of this, While watching the video, the brother of the he noted that the court violated his right to victim, emotionally commented, saying that a fair trial, in connection with the refusal to the accused was in the video. The court made satisfy his requests for the return of the case a remark to him. The defense also requested materials to the prosecutor. The dismissal of not to make value judgments. As the work- the accused and the defense counsel of the ing hours came to an end, the session was court was denied because of groundlessness. completed. The course of the session 09/24/2019 The session began 30 minutes late due to Monitoring the case of Vladimir Dovgolyuk the delay in the representative of the victims. (session September 27, 2019) One of the victims did not appear, his state- 09/27/2019 in the Bogunsky District Court ment about poor health and a request to hold of Zhitomir, a hearing was held in the case of a session without him were transferred to the Vladimir Dovgalyuk accused of murder (§ 7 of court. The representative of the victims asked part 2 of article 115 of the Criminal Code of to attach evidence that is with the prosecu- Ukraine). tor. The prosecutor filed a motion to attach Course of session At the hearing, considera- evidence to the case file. The court, having tion of evidence continued. The protocols of consulted on the spot, decided to attach. access to documents, a printout with infor- The court asked the defense side which doc- mation of telephone connections, certificate uments they would submit for the investiga- stating that the terminal of the accused op- tion, so that the defense would submit a list, erated in the zone of the same base stations since this is a procedural necessity. The de- of the operator on the day of the murder as fense party filed a motion for the inclusion of the terminal of the murdered person were sub- materials that had not previously been submitted and considered The forensic psycholog- mitted, these are 48 documents. The court ical examination, which was supposed to show granted the motion. whether the features of non-verbal behavior on The consideration of the case began. The the videos belonged to the same person, was following were read out by the court: the re- not considered and postponed for further con- port of the investigator, the protocol of the sideration, since not all videos were examined inspection from the scene of the event, the act by the court. The judge asked the prosecutor of using the service dog, the protocol of the in- to file all the existing videos on the case for spection of the body, the characteristics of the the next trial. victim’s place of work, the conclusion of the The prosecutor handed over to the court forensic expert. The prosecutor filed a petition documents the list of which at the previous to call forensic experts to ask questions about session was requested by the defense, these the possible painful sensations of the victim. evidences were attached to the case file.

35 The judge commented on the situation that, tions has been eliminated. He also indicated due to the workload of the judges, the next that at the hearing, the expert and the head court session may be held no earlier than in of the expert institution said that this was not December. The representative of the victims a forensic examination. asked to arrange a session earlier, but the Attorney Nagornaya commented that the schedule has already been filled for several 2012 Code of Criminal Procedure made it pos- months in advance. sible on a contractual basis to attract experts Also, the judge commented that they really and conduct such examinations, and this is a hope to increase the number of judges and 2014 lawsuit. attract young cadres, this will reduce the load Also, the defense came to the conclusion of and speed up the consideration of cases. another, but similar examination, conducted on video from the DVR. The prosecutor asked Monitoring the case of Vladimir Dovgalyuk a question, in what procedural way, did the (session 12/06/19) lawyer remove the drive from the DVR and send it for examination? And that the law has 12/06/2019 in the Bogunsky District Court no retroactive effect, and similar examinations of Zhitomir, a hearing was held in the case of at the time of their conduct should have been Vladimir Dovgalyuk accused of murder (§ 7 carried out exclusively by state experts. of Part 2 of Art. 115 of the Criminal Code of Ukraine). For explanation, the defense asked to read Hearing progress The representative of the the act of voluntary issuance to the attorney victims and one of the victims did not appear of the drive to the DVR. The prosecutor, in at the hearing. By agreement of the partici- turn, noted that the defense is empowered pants in the trial, the session was held without to initiate expert examinations, but it does their presence. The evidence of the defense was not have the right to independently conduct examined, namely the conclusions of the ju- them. The prosecutor asked that the evidence dicial portrait examination compiled in 2015. be declared inadmissible, since the procedure The examination was to show whether it is pos- provided for in the Code of Criminal Proce- sible to identify male figures that are present dure of Ukraine was violated. Lawyer Ferenc on the video files submitted by lawyer Fer- replied that he had fulfilled his duties within enc by anatomical, functional, general physi- the procedural framework. The defense ob- cal and external signs. Also, is it possible to jected to the prosecutor’s motion to declare identify the person who is present on these the evidence inadmissible. The court decided video files. The examination was carried out that the admissibility of the evidence would by a non-government institution. The results be resolved during the evaluation of all the showed that the images of the personalities evidence in the deliberation room at the time shown in the videos are unsuitable for identify- the court decision was made, since the pros- ing the person by signs of appearance, because ecutor’s arguments regarding the obviously of the small scale, low resolution, defocusing inadmissible evidence go beyond the scope of angle, etc. Art. 87 which clearly defines the basis for de- The prosecutor asked the court to draw at- termining evidence is obviously unacceptable. tention to the fact that the organizational Further, the court examined the results of and legal form of the expert institution is the portrait examination, and the forensic psy- non-government, and only state institutions chological examination carried out at the re- can conduct such examinations, and requested quest of the prosecutor. that this evidence be recognized as unaccept- During the monitoring of the trial, no viola- able. tions were recorded. It is worth noting the pro- Lawyer Ferenc commented on the prosecu- fessionalism of judges, their compliance with tor’s response, saying that since October 17 procedural rules and objectivity in the exami- of this year, the monopoly on expert examina- nation of evidence. Also, the efforts of judges,

36 despite the workload, to consider criminal pro- Ukraine. ceedings as soon as possible, without delaying In turn, lawyer O. Biletskaya filed a peti- the trial. tion to change the measure of restraint from detention to house arrest, arguing that the prosecutor could not justify any of the risks 3.4. The trial of Sergei of the defendant not fulfilling his procedural Goncharuk obligations. And, therefore, according to Art. 177 of the CPC, an exceptional measure of Monitoring the case of Sergei Goncharuk restraint in the form of detention cannot be (08/08/2019 session) applied. Also, the prosecutor’s petition did not substantiate the impossibility of avoiding On August 8, in the Shevchenkovsky District these risks with the help of milder measure of Court of Lviv, a regular court session was restraint, which is also a prerequisite for the held in the case of a member of the human selection of custody (Art. 176-178, 183 of the rights organization “Guardians of the Law” Code of Criminal Procedure). S. Goncharuk, who is accused of assaulting law enforcement officers in the building of the Prosecutors A. Misyong, Y. Melnyk, vic- Lviv Court of Appeal (Part 2 of Art. 342 and tims D. Yakovenko, T. Gorodechny, O. Melnyk part 2 of Art. 345 of the Criminal Code). and the representative of the victims, lawyer The International Society for Human Rights I. Gordon opposed the change in the measure has begun monitoring this case. of restraint and supported the request to ex- The criminal proceedings against S. Gon- tend the detention for 60 days. Not taking charuk were field to the unified register of pre- into account the defense’s arguments about trial investigations on 02/14/2019 and since the proportionality of the measure of restraint, that time (6 months) the accused S. Gon- applied in the form of detention (which lasts 6 charuk has been in custody. months) to the offense with which the accused This case was referred to a different judge is charged, the court rejected the defense’s re- (to judge O. Fedorova) since the judge D. Glyn- quest, satisfying the prosecutor’s request. The ska, who examined this case, is on sick leave, measure of restraint in the form of detention and according to a previous court ruling on was extended for another 60 days. the application of the measure of restraint, the Such an extension of detention casts doubts term of the accused’s detention expires. In this on the impartiality and objectivity of the court. regard, the prosecutor requested the need to The satisfaction of the petition of the prose- consider extending the measure of restraint. cutor, which does not technically meet the During the transfer of the case from one requirements of the criminal procedure (and judge to another, the accused’s requests to for the maximum period provided for by the change the measure of restraint were not trans- Code of Criminal Procedure) may be a conse- ferred to and attached to the case file, and quence of the court’s biased attitude and the therefore were not taken into account by the court accepting the prosecutor’s side. The Eu- court, which is a gross violation. Also, contrary ropean Court of Human Rights has repeatedly to Part 2 of Art. 184 of the Code of Criminal stated that after some time, the mere exis- Procedure (CPC), prosecutor A. Misyong filed tence of reasonable suspicion ceases to be the a request for an extension of the period of de- basis for detention (“Jablonski v. Poland”). tention without acquainting the accused with The ECtHR also noted that it was a viola- its contents. Having examined this issue, the tion of the domestic court’s reference to the court demanded that a copy of the petition seriousness of the charges against the defen- be submitted to the defender and announced dant and the risk of his escape or interference a three-hour break to comply with the right with the investigation, which were mentioned to defense according to the provisions of Part in the original order to detain him and did 2 of Art. 184 Code of Criminal Procedure of not change over time (“Deyneko v. Ukraine”).

37 In addition, the European Court of Human to the accused in the form of round-the-clock Rights has often found a violation of Article 5 house arrest. § 3 of the Convention in cases against Ukraine The accused announced a request to allow on the basis that, for extended periods of de- him to stay outside of glass “aquarium” during tention, the domestic courts relied on the same the session and seat next to his defenders. justifications (if any) for the whole period of The defense supported the motion of S. Gon- detention (“Kharchenko v. Ukraine”). charuk, and the prosecution objected. The court permitted the accused to seat next to Monitoring the case of Sergei Goncharuk his defenders. (session 09/05/2019) Lawyer V. Razumnykh challenged the panel On September 5, a hearing was held in the of judges arguing that the judges of the Lvov Lvov Court of Appeal at which the appeal Court of Appeal have a biased attitude to- of the accused civil society activist S. Gon- wards the accused S. Goncharuk because the charuk was considered about the decision of crime itself was committed in the premises of the Shevchenkovsky district court of Lvov, the Lvov Court of Appeal and the victims of which extended the detention of S. Goncharuk this case served and guarded the order of this (accused of assaulting law enforcement officers courthouse. in the building of the Lvov Court of Appeal) The court rejected the request of counsel for a period of 60 days. V. Razumnykh. In addition, 4 petitions were The International Society for Human Rights submitted from citizens of Ukraine, G. Yuzik, continues to monitor this case. O. Datsko, L. Konyukh, G. Prosolovich, (mem- Accused S. Goncharuk has been in custody bers of the public organization “Western since 02/16/2019 without the right to make Ukrainian Committee to Fight Against Or- a bail. According to the defense, during de- ganized Crime and Corruption”) about taking tention the accused’s health deteriorated, his Goncharuk on bail. body was completely covered with red spots. The court refused to satisfy the appeal of The defense filed a motion to attach evidence the defense and the accused on canceling the in the form of photographs to confirm the indi- decision of the Shevchenkovsky district court cated circumstances and a response from the of Lvov and refused to apply the measure of remand prison on the characteristics of the restraint to the accused in the form of round- accused. the-clock house arrest. The court also refused The court attached the evidence to the case to satisfy the petitions of citizens of Ukraine file. In addition, the accused S. Goncharuk on taking the accused S. Goncharuk on bail. stated that in the pre-trial detention center, It is worth noting that the ECtHR consid- in the cell there was an attempt on his life. The ers it a violation of the European Convention court ignored the accused’s statement without when a national court refers to the same justi- giving any significance to this. fication (if any) for extended periods of deten- The judge of the Shevchenkovsky District tion of the accused (the case of “Harchenko v. Court of Lvov, O. Fedorova, extending the Ukraine”). period of detention, motivated this decision During the monitoring of this trial, in or- by the fact that the risk to which the prosecu- der to provide more objective coverage and tion refers during the election of a measure of a comprehensive study, the ISHR observers restraint did not disappear and continues to received a video that captures the attack of exist. Sergey Goncharuk on law enforcement officials In turn, the defense objected, citing the (for which he is prosecuted). The video shows fact that the prosecution did not provide any how the defendant is trying to break the turn- evidence of the existence of these risks. The stile at the entrance to the courthouse and risks referred to by the prosecution can be kicks one of the guards after the policemen avoided if a measure of restraint is applied tried to stop him.

38 It is worth noting that members of regional not involved in the investigation from the very meetings (including judges and lawyers) held beginning. by the ISHR in September 2019 in Kiev, Zhyto- As stated by the European Court of Human myr, Lvov, Zaporozhie, Kharkov and Poltava Rights in § 54 of the “Kobiashvili v. Georgia” repeatedly spoke about the unlawful behavior case “. . . in assessing the fairness of proceed- of some civic activists in the courthouse. ings, the quality of the evidence should be taken into account, including whether there were circumstances in which it was obtained 3.5. The trial of Dmitry Gubin that cast doubt on their reliability or accuracy”. Monitoring of the case on charges of Besides, as a result of the search, comput- Dmitry Gubin ers were seized from the accused, which to date has not been returned. Which, potentially, On September 05, 2019 in Kharkov, a trial of could mean a violation of Clause 2, Article 8 of case No. 645/1034/19 supposed to be held on the European Convention. In the “Prezharovi charges of journalist Dmitry Gubin for part 1 v. Bulgaria” case, § 49 the European Court of of article 263 of the Criminal Code of Ukraine Human Rights accepts that “. . . in principle, (Illegal handling of weapons, ammunition or the retention of computers for the duration explosives). By agreement of the parties to of the criminal proceedings pursues the legit- the criminal proceedings, the hearing was ad- imate aim of preserving physical evidence as journed until October 16, 2019 (16:00). part of an ongoing criminal investigation, but According to the accused, criminal proceed- without any consideration of the relevance of ings were instituted because of his journalistic the information seized to the investigation and activities. It can be assumed that there is a vi- the applicants’ claims regarding the personal olation of the freedom of expression provided nature of the part of the information stored for in Art. 10 of the European Convention. on computers, judicial control will be formal, As stated by the European Court of Human and applicants will be deprived of sufficient Rights in § 38 of the case “Prager and Ober- safeguards against abuse”. schlick v. Austria” “. . . freedom of expression applies not only to ‘information’ or ‘ideas’, which are positively perceived as harmless or 3.6. The trial of Gennady cause indifference, but also to those that insult, Kernes shock, or embarrass the state or any part of society. Also, freedom of journalism covers the Monitoring of the case of Kernes G.A., possible use of some degree of exaggeration or Blinnik V.D., Smitsky E.N. (session even provocation”. 10/18/19) One of the evidence underlying the prosecution is the results of a search conducted by The course of the trial. On October 18, the the Ukrainian secret service (SBU) officers on Poltava Court of Appeal held a regular hearing March 12, 2018. The accused states that the in the case of a Ukrainian politician, mayor of prohibited items seized from him were delib- Kharkov, Gennady Kernes, in the case of ille- erately placed in his house by the government gal, by prior conspiracy by a group of people, officials. The accused disputes the lawfulness imprisonment of two people with torture, as of the investigative action, referring to: - the well as the threat of murder. use of force against him during the search, 04/17/2015, the judge of the Kievsky Dis- despite the lack of resistance on his part; - vio- trict Court of the city of Poltava Antonov, lation of the requirements of the legislation on appointed a preparatory hearing in the case, the independence and objectivity of witnesses, which started the proceedings. since two witnesses were brought by the SBU The public prosecution is represented by officers themselves, and the third witness was prosecutors of the General Prosecutor’s Office

39 of Ukraine. to challenge the judge, due to the fact that On April 28, 2015, the Kievsky District sessions are scheduled too often. Repeated ap- Court of the city of Poltava chose the measure plications for recusal interrupted, as the judge of restraint in the form of a personal obliga- stated, the interrogations of witnesses. tion. On 08/10/2018, on the day of the ruling on From the very beginning, the trial has been the closure of the proceedings, at a briefing, under the scrutiny of the public: in the face of representatives of the General Prosecutor’s a number of media that systematically cover Office of Ukraine announced the opening of the details of court hearings. On June 25, 2018, criminal proceedings against Judge Antonov, the court completed a clarification of the cir- according to Art. 375 of the Criminal Code cumstances of the case and verification of their of Ukraine, which provides for liability for evidence and moved on to the next stage – a deliberately unlawful sentence, decision or judicial debate. At the following court hear- determination. ings – 07/02/2018, 07/03/2018, 07/04/2018, At the same time, the judge said that on 07/07/2018, 07/06/2018, 07/09/2018 and 08/11/2018, the National Agency for the Pre- 07/10/2018, prosecutors of the General Prose- vention of Corruption, announced the verifica- cutor’s Office of Ukraine did not appear, de- tion of the declarations of Judge Antonov A.V. spite the fact that the group of prosecutors On August 11, 2018, a judge of the Kievsky consisted of 19 prosecutors of the General Pros- District Court of the city of Poltava submitted ecutor’s Office of Ukraine. an application to the High Council of Justice to ensure the independence of judges and the Moreover, according to § 1 of Art. 131-1 of authority of justice. the Constitution of Ukraine and § 1 of Part 08/23/2019, judge Antonov A.V. was dis- 1 of Art. 2 of the Law of Ukraine “On the missed as a judge of his own free will. Prosecutor’s Office”, the main function of the On the decision to close the proceedings, prosecutor’s office is to maintain public prose- the prosecution filed an appeal, which is con- cution in court. sidered in the Poltava Court of Appeal. On 08/10/2018, the judge of the Kievsky Dis- October 18, 2019, the next session was held in trict Court in Poltava, Antonov A.V. decided the Poltava Court of Appeal. Due to the fail- to close the proceedings in connection with ure to appear at the hearing of the defenders the refusal to of the prosecution to support it. of the two accused, the court postponed the Motivating its decisions, the court indicated consideration of the case until November 15, that, taking into account the conduct of the 2019. The trial began 30 minutes late. prosecution in the trial, the court is guided by At the hearing, the petitions of the accused the rule of law and non-violation of the gen- Blinnik and Smithsky on the adjournment of eral principles of criminal proceedings, such the hearing, in connection with the failure to as respect for the dignity, the presumption appear of their defenders, were examined. The of innocence and the provision of evidence of victim, in the court opinion, expressed the guilt, access to justice, adversarial procedure, intentional delay of the case by the defense. reasonable time, the court decided for closure The court granted the defendants’ motion, of the proceedings. postponing the consideration of the case until Thus, the Kievsky District Court of the city 11/15/2019. of Poltava regarded the failure of the prosecution to appear seven times in a row as a refusal Monitoring of the case of Kernes G.A., to support the charges in court. Earlier, on Blinnik V.D., Smitsky E.N. (session July 3, 2018, Judge Antonov A.V. reported on 11/15/19) interference in the activities of judges by the High Council of Justice and the Prosecutor On November 15, the Poltava Court of Appeal General of Ukraine. The report was motivated held a regular court hearing on the case of a by the fact that the prosecution filed a motion Ukrainian politician, a mayor of the city of

40 Kharkov, Gennady Kernes, accused of illegal, legal assistance of his own choice (§ 21). More- by prior conspiracy by a group of people, im- over, considering the purpose of the Conven- prisonment of two people with torture, as well tion, which is to protect rights and freedoms, as with the threat of murder. The accused the right to the fair administration of justice is G. Kernes was unable to arrive at this hearing a priority in a democratic society. The Court due to health problems. The accused filed a considers that any restrictive interpretation motion for consideration of the appeal in his of Article 6 will not be consistent with the absence. purpose of this provision (see “Mutatis mutan- According to Part 1 of Art. 323 of the Code dis, Delcourt v. Belgium”, 17 January 1970, of Criminal Procedure of Ukraine, if the ac- series A No. 11, § 25, and “Ryakib Biryukov cused, in respect of whom the measure of re- v. Russia”, No. 14810/02, § 37, ECHR 2008) straint in the form of detention has not been (§ 28). selected, did not arrive on call at the hear- ISHR experts see a tendency for the prosecu- ing, the court postpones the hearing, sets a tion to behave like this, which is also the case new date and takes measures to ensure the in other trials. During the monitoring of the appearance of the accused. trial of Viktor Yanukovych, the prosecution The prosecutor filed a motion for the pres- repeatedly stated such motions (trials Septem- ence of the accused G. Kernes, as well as for ber 13-18, 2019). In addition, for a long time, the appointment of lawyers from among the V. Yanukovych was represented in court by free legal aid. He also requested the provision five lawyers under the contract and one public of “state” defenders to the accused Smithsky defender, whom he refused in writing, but the and Blinnik. court insisted on his presence contrary to the laws of Ukraine. It should be noted that the accused In the process of discussing the petition, G. Kernes is already represented in court by the prosecutor announced his withdrawal from five lawyers, two of whom were in the court- consideration until the next session, in connec- room at the time of the hearing. According to tion with which the court did not decide on the norms of the CPC, as well as part 3 of ar- this petition. ticle 46 of the Law of Ukraine “On Advocacy”, Subsequently, the defense expressed the de- at the same time no more than five defend- sire of the accused Kernes to take part in the ers of one accused can take part in criminal next session by video conference, which the proceedings and lawyers of the free legal aid court granted. Center can be appointed only if the person either does not have funds for a lawyer under the contract, or does not have a lawyer in Monitoring of the case of Kernes G.A., cases where the presence of a defense attorney Blinnik V.D., Smitsky E.N. (session is mandatory. 12/20/19) Thus, the application submitted directly On December 20, the Poltava Court of Appeal contradicts the norms of national legislation. held a regular court hearing on the case of In addition, a request for the appointment of a Ukrainian politician, a Mayor of the city “state” lawyers for persons with lawyers un- of Kharkov, Gennady Kernes, accused of under the contract violates the right to freely lawful imprisonment of two people by torture, choose lawyers. The European Court of Hu- conducted by a group of persons by prior con- man Rights, in the “Khanzevatsky v. Croatia” spiracy, as well as a threat of murder. At this case, notes that although the right of every hearing, the accused Kernes took part in a criminal defendant to effective defense by a video conference with the Kharkov Court of lawyer is not absolute, it is one of the funda- Appeal. The defendants Smithsky and Blinnik mental features of a fair trial. An accused of a arrived at the Poltava Court of Appeal. As criminal offense who does not wish to defend regards the use of video communications, the himself in person should be able to resort to Court recalls that this form of participation

41 in the proceedings as such is not incompatible victim parties, the lawyer of accused Kernes’s with the notion of fair and public proceedings, filed a motion to adjourn the hearing due to but it must be ensured that the applicant can the unsatisfactory state of health of G. Kernes. participate in the proceedings and the hear- The court granted the motion of the defense. ing without technical obstacles, and must also At the next hearing, the accused Kernes ex- be ensured effective and confidential commu- pressed a desire to directly participate in the nication with a lawyer (§ 98 “Sakhnovsky v. hearing in the Poltava Court of Appeal. Russia”). No violations by the court of the Conven- It is worth noting that the Poltava Court tion for the Protection of Human Rights and of Appeal in order to ensure high-quality com- Fundamental Freedoms have been recorded. munication with the Kharkov Court of Appeal during the trial, according to the observer of the ISHR, took sufficient measures. This is 3.7. The trial of Andrei also confirmed by the absence of complaints Khandrykin and comments from both sides. The prosecutor submitted a petition for ac- Monitoring the case of Andrei Khandrykin cessing the copies of the case file on the deci- (sessions 08/22/19 and 08/30/19) sion to change the group of prosecutors, letters, On August 22 and 30, in the Dnieper dis- outlining the circumstances of the prosecu- trict court of Kiev, court hearings were held tors’ non-arrival to the Kiev District Court of in the case of an ex-officer of the “Berkut” Poltava, copies of summonses, sick leave. riot police unit regarding the events that took The defense side spoke about the impos- place on Maidan on January 20, 2014. Andrei sibility of satisfying the application, on the Khandrykin is one of three accused (two oth- basis that the documents were not previously ers left Ukraine) of torturing protesters during opened to the defense and the accused Kernes a confrontation between police and protesters is not able to familiarize himself with these near the stadium named after Lobanovsky documents, since he is in the Kharkov Court in Kiev (under Part 2 of Article 127 of the of Appeal. Criminal Code). The International Society for The court, after hearing the opinion of all Human Rights (ISHR) continues to monitor participants in the hearing, granted the prose- this case. cutor’s request and attached the relevant doc- In the trial, the stage of litigation began. uments to the materials of the criminal pro- At this session, a representative of a civilian ceedings. After that, the court proceeded to victim read out his debate speech, in which the examination of the appeal. he fully supported the prosecutor’s charge The prosecutor was the first to substantiate and asked for the same punishment for the the appeal as follows: 1. The decision of the accused – imprisonment for 8 years. After Kiev District Court to close the proceedings the debate speech was read by the lawyer of in connection with the refusal of the prosecu- A. Khandrykin in which he drew the court’s tion was made without such refusal, but only attention to the following facts: in connection with the non-appearance of the - the prosecutor did not present evidence prosecutors. Thus, the court did not correctly to the court that would directly indicate the interpret the rule of law on the waiver of the guilt of the accused, also, there is no evidence charge. 2. The court did not take into account even of the presence of Khandrykin at the the opinion of the victims. 3. The court should crime scene; - 11 witnesses were questioned, have passed a sentence, not a ruling. 4. The among whom were 2 doctors, 3 experts, 2 jour- court limited the right of the prosecution and nalists, and 1 police officer, as a result, it is the victims to file applications at the stage reliably known that one of the witnesses lied of additions, before proceeding to the debate. to the court, and the testimony of experts can- After the speeches of the prosecution and the not be taken into account, since the packages

42 which contained the conclusions of the experts on the territorial integrity of Ukraine, Part 2 were opened and destroyed. – according to the of Article 28 of the Criminal Code of Ukraine law, law enforcement officers can use force to – commission of a crime by a group of persons, protect citizens, and abuse of power can be Art.113 of the Criminal Code of Ukraine – imputed only in the case of grievous bodily sabotage, part 5 of Art. 27 of the Criminal harm or murder. - the prosecutor, demand- Code of Ukraine – complicity in a crime, part ing 8 years of imprisonment, in his debate 2 of Art.258 of the Criminal Code of Ukraine speech asks the court the question “Was the – terrorist act, Part 1 of Article 263 of the accused present at the crime scene?”, at least Criminal Code of Ukraine – illegal handling this question confirms the lack of evidence of of weapons, 258-3 of the Criminal Code of A. Khandrykin’s guilt. Ukraine – the creation of a terrorist group or After the lawyer’s speech, the court took terrorist organization, namely, Kovtun M.A. a break until August 30 to declare the sen- is accused of organizing an explosion in the tence. It is worth noting that the trial of rock pub “Stena” in the city of Kharkov on A. Khandrykin has great interest in society. November 9, 2014. Representatives of various public organiza- The hearing was attended by the prosecu- tions usually come to court hearings to ex- tion, defense, the defendant herself. There were press their opinion regarding the accused and also independent observers – representatives the trial itself. This session was attended by of the OSCE and the UN. The panel of judges about 10 aggressively-minded activists who was in full force. At this hearing, the question were rude to lawyer V. Rybin and accused of canceling the decision of the court of the A. Khandrykin. Those activists frustrated the first instance, which decided to extend the hearing demanding that the court force the measure of restraint in the form of detention, lawyer to change his rhetoric. was considered. The court of first instance de- On August 30, the court passed a verdict cided to extend this measure of restraint until of acquittal to Khandrykin, arguing that evi- 08/16/2019, on the basis that there are risks dence of guilt is insufficient. After this decision, stipulated by items 1, 5 of part 1 of article 177 the media began to actively accuse the judge of the Code of Criminal Procedure of Ukraine, of the illegal decision, thereby contributing to namely: the ability to hide the accused from undermining public confidence in the national the court, to commit another criminal offense, judicial system. It is worth noting that the and based on the totality of circumstances judge of the ECtHR from Ukraine Anna Yud- provided for by Article 178 of the Code of kovskaya, at the 12th extraordinary congress Criminal Procedure of Ukraine, namely: the of judges of Ukraine, noted that one of the severity of the punishment facing the accused reasons for Ukraine’s leading position in the if she is found guilty of committing criminal number of complaints to the ECtHR is the offenses, of which she is charged; lack of strong mass media campaigns, which put distrust of social ties, and permanent job. the courts in the heads of Ukrainians. The panel of judges of the appellate court when considering this complaint Kovtun, referring to the fact that the procedural deadlines 3.8. The trial of Marina Kovtun are ending (the hearing was on August 15, 2019, and the measure of restraint was contin- Monitoring of the case of Marina Kovtun ued until August 16, 2019), decided to refuse (08/15/2019 session) satisfaction of the complaint of the accused. On August 15, 2019, a trial was held in the The court case has been in process since Kharkiv Court of Appeal on charges of Marina 2014, the criminal proceedings were entered in Anatolyevna Kovtun in committing a criminal the register on October 21, 2014. For a period offense on the grounds of part 1 of article 110 of 4 years and 9 months (which is also con- of the Criminal Code of Ukraine – an attack firmed by information from the Unified Regis-

43 ter of Judicial Decisions), hearings were mainly a “public defender” from the free legal aid considered only regarding the measure of re- system, who was able to communicate with straint of the accused. Moreover, the accused the accused for only five minutes, i.e. there repeatedly filed complaints against court rul- was not enough opportunity and time to build ings about changing the measure of restraint, defense tactics. Also, having no experience in which she was refused. As it turned out, the protecting defendants in criminal proceedings, prosecution filed applications for an extension to the judge’s question – What is the point of the measure of restraint even before con- of satisfying your complaint if the deadline sidering a complaint against a previous court for extending the measure of restraint ends decision on this issue. Experts of the Interna- tomorrow, the lawyer said he is not ready to tional Society for Human Rights (ISHR) are answer. Thus, it should be noted that the confident that the extension of the measure of introduction of state defender without quality restraint, before the accused’s complaint about support only to ensure formal compliance with the previous extension of such measures and the standards cannot be considered as one that that other measures of restraint were not con- ensures the realization of the right to defense. sidered, could indicate a violation of part 3 of Article 5 of the Convention for the Protection 3. The prohibition of torture. No one shall of Human Rights and Fundamental Freedoms be subjected to torture, inhuman or degrading (case “Buryaga v. Ukraine”). In the decisions treatment or punishment. The defendant and of the ECtHR, it is noted that according to her counsel at the hearing asked to pay atten- part 2, § 3 of Art. 5 of the Convention, a per- tion to the fact that Kovtun during the period son accused of an offense must be released for of detention (4 years 9 months) has several trial unless the state proves the existence of chronic diseases, deterioration of her health, “relevant and sufficient” grounds for his/her which makes it unacceptable to further choose further detention (ECtHR judgment of June such a measure of restraint as detention. In its 8, 1995 in the case of “Jagchi and Sargin v. decisions, the ECtHR on such issues notes that Turkey”). Art. 3 of the Convention protects one of the Representatives of the ISHR also note sev- fundamental values of a democratic society, eral other negative trends and violations, according to which any torture or inhuman which are inherently negative and run counter or degrading treatment is prohibited, regard- to the fundamental human rights and freedoms less of the circumstances of the case or the protected by the European Convention. behavior of the victim (judgment in the case of “Labita v. Italy”). 1. Violation of the right to a fair trial, namely a violation of the reasonable time for Monitoring the case of Marina Kovtun consideration of the case. In this case, the per- (09/26/2019) son is deprived of the right under Art. 6 of the European Convention, which recognizes the 09/26/2019 after almost five years of trial, in right of every person prosecuted in a criminal the Kiev district court of Kharkov, a debate case to receive a final decision within a reason- took place between the parties in the case of able time on the validity of the charge against the public activist Marina Kovtun, accused of him, or rather, to ensure that the accused do organizing an explosion in the Kharkov rock- not remain for a long time under the weight of pub “Wall”. The accused is charged with com- the charge and that decision on the validity of mitting acts aimed at violating the territorial the charge be passed (“Vemkhov v. Germany”, integrity of Ukraine, changing the state border, “Julia Manzoni v. Italy”, “Brogan and Others sabotage, committing a terrorist act, leading a v. United Kingdom”). terrorist group, acquiring and storing weapons and ammunition (Part 1 Article 110; Part 2 2. The effectiveness of legal protection. At Article 28, Article 113; Part 5 Article 27; Part the hearing, the accused was provided with 2 Article 258; Part 1 Article 285-3; Part 2 Ar-

44 ticle 28; Part .1 Art. 32; part 1 of Art. 263 of the Kharkov garrison opened a criminal pro- the Criminal Code of Ukraine). ceeding No. 42015220750000058 of 02/02/2015 Prosecutor Oleg Maksyuk believes that the under Article 365, part 2 of the Criminal Code guilt of accused Marina Kovtun of the alleged of Ukraine. To date, the case is being heard crimes was fully proved by testimony, materi- in the Octyabrskiy court of Kharkov. als of undeclared investigative (search) actions In accordance with the case law of the Eu- and other materials of criminal proceedings. ropean Court, the admissibility of evidence The prosecutor asked for a maximum punish- obtained by torture in order to establish rel- ment under part 2 of article 258 of the Crimi- evant facts in a criminal proceeding leads to nal Code of Ukraine in the form of 12 years its injustice as a whole, irrespective of the evi- in prison with confiscation of property, as well dentiary value of such evidence and whether as recover more than 50 thousand UAH for its use was crucial for conviction of the de- conducting examinations and to satisfy claims fendant by the court (“Gafgen v. Germany”, of victims. § 166). In addition, the search in the garage, The accused Marina Kovtun refused to ad- where weapons and ammunition were found, mit her guilt. She stated that “all materials allegedly belonging to Kovtun M., was carried and evidence are falsified.” She demanded out illegally, since there was no resolution to that the records of the searches, which, ac- conduct a search. Later, in hindsight, the in- cording to her, were carried out with nu- vestigating judge confirmed the lawfulness of merous violations, as well as her testimonies, the search by his determination, based on the which were given at the pre-trial investiga- testimony of witness A. Mineev, who signed tion as a result of torture, be declared un- the search permit, in his garage. Although the acceptable evidence. She pointed out that notice of suspicion indicates that the garage witnesses who participated in the proceed- belongs to Kovtun M. and, accordingly, the ings “went to the SBU as to the work.” So, weapons and explosives found in the garage when conducting investigative actions, three are also hers. Who owns the garage, Minaev pairs of witnesses participated more than 12 or Kovtun, remains unknown. times (12/17/2014, 04/01/2015, 04/02/2015, Part 3 of article 233 of the Code of Crimi- 04/03/2015, 07/06/2015, 04/07/2015). nal Procedure of Ukraine, clearly and exhaus- The lawyer Yevgeny Olenev, in the debate, tively indicates only two grounds for entering pointed out that the accused Marina Kovtun a person’s home or other property without was not guilty of the crimes she was charged the determination of an investigating judge. with and believes that the prosecutor did not This is penetration in urgent cases related to provide direct, admissible evidence of the de- saving lives of people and property and the fendant’s guilt during the entire trial. The direct prosecution of persons suspected of com- lawyer requested that the evidence referred to mitting a crime. However, the testimonies of by the prosecution be declared inadmissible, A. Minaev, set out in the interrogation record since it was obtained by investigators of the dated November 16, 2014, do not contain the Ukrainian State Security Service of Kharkiv grounds prescribed by law, the witness did not Oblast during the pre-trial investigation, with indicate that there is a danger to people and significant violations of the procedural law, as property in the garage. He also did not say any- well as with the use of torture by SBU staff, thing about the possible presence of weapons which could potentially be a violation of Art. 3 in the garage. Nevertheless, SBU officials, with- of the European Convention. Physical injuries out any reason, entered the garage premises, were recorded by the employees of the medical and later into the Kovtun M. household. The unit of the pre-trial prison No. 8, as well as European Court has repeatedly noted that in the City Clinical Hospital for Emergency prior granting by the court of permission to No. 4. On the fact of bodily harm to Kovtun conduct a search is an important guarantee Marina, the Military Prosecutor’s Office of against abuse (“Bagieva v. Ukraine”, § 51).

45 The interrogation of witness A. Minaev was United Kingdom”, § 20), and the ability (both carried out before the data on the criminal legal and factual) of the court to analyze the offense itself were entered criminal investiga- importance and usefulness of these materials tion roster. This contradicts the requirements for protection objectives. of Article 214 of the Code of Criminal Proce- Such positions are specified in the practice dure of Ukraine, according to which a pre-trial of the Supreme Court. For example, in case investigation begins from the moment of en- 489/5992/13-k (the decision of the Court of tering information about the criminal offense. Cassation as part of the Supreme Court of Thus, a search conducted on the basis of such February 19, 2019) in violation of the require- evidence, which is the testimony of witness ments of Art. 290 of the Code of Criminal Pro- A. Minaev, is illegal in itself, and the evidence cedure, upon completion of the preliminary obtained during this search is unacceptable. investigation, the defense was not provided The materials of the criminal proceedings do with the decision of the investigating judges, not contain documents and testimonies con- on the basis of which unofficial investigative firming the ownership of the weapon by Kov- (search) actions were taken in the criminal pro- tun M. The weapons found in the garage lack ceedings, and therefore the defense was not her fingerprints and DNA traces. able to verify the legality of the sources for Video recording did not record the moment obtaining this evidence. In addition, in case of detection of weapons and ammunition in 385/2006/14-k (the decision of the Court of the garage, their movement from the garage to Cassation as part of the Supreme Court of the street, and also their packaging in accor- February 5, 2019), the Supreme Court formed dance with part 2 of Article 106 of the Code the following legal position: the opening in of Criminal Procedure of Ukraine (as part of a the conditions of public and public judicial single investigative action). Also, on the video review of certain materials of criminal pro- there is no written registration of the course ceedings that existed at the time of going to of the investigative action, the protocol, its court with the indictment, but were not open familiarization by the participants of the inves- to the defense, does not mean their automatic tigative action and signing. Accordingly, the admissibility, since under Part 12 of Art. 290 protocol of the investigative action submitted of the CPC, the criterion for admissibility of to the court was drawn up and signed out- evidence is not only the legality of its receipt, side the place and time of the investigative but also the preliminary discovery of materials action. This means that it does not reflect the by the other side for their direct investigation real course of the investigative action and is in court. unreliable. The court went to the deliberation room. The approximate date for the announcement In addition, the defense did not have the of the verdict is October 7, 2019. opportunity to familiarize themselves with the court decisions based on which the investigative actions were made, since all the materials 3.9. The trial of C. Kozak of the investigative actions were not disclosed. As the decisions of the European Court pro- Monitoring the case of Kozak and vide, the right to open the case materials is Kustovetskaya (session 11/01/19) not absolute and may be restricted in order to protect secret methods of investigation or 11/01/2019 in the Bogunsky District Court the identity of agents or witnesses (Edwards of Zhitomir, a hearing was held in the case of v. The United Kingdom judgment, §§ 33-39). Kozak C. and Kustovetskaya S., accused of The difficulties of the defense involved with the murder of a student from Berdichev, Yulia the failure to disclose all materials must be bal- Kozak (part 4 of article 189, § 6.12 of part anced by the availability of legal procedures, 2 of article 115, Criminal Code of Ukraine). are subject to judicial review (“Fitt v. The The offense provides for the possibility of life

46 imprisonment. Timeline of the case. be considered sufficient reasons for holding the 01/22/2018 the Berdichevsky city court person in custody for a sufficiently long period chose a measure of restraint in the form of de- of time (“Todorov v. Ukraine”), the court did tention for the accused Kozak C. 05/31/2018 not find grounds for continuing an exceptional the investigating judge of the Berdichevsky measure of restraint in the form of detention. City Court granted the request of the investi- The course of the session 11/01/2019 The gator to apply a measure of restraint in the trial began 2 hours late due to the delay in the form of detention to S. Kustovetskaya. delivery of the accused Kozak by the convoy. 06/11/2018 The Court of Appeal of the Zhy- The victim did not appear at the hearing. tomyr Region considered the determination of The representative of the victim provided the the head of the Berdychiv City Court on send- court with a request from her to conduct a ing criminal proceedings to another court. The hearing without her being present. determination is justified by the fact that the Berdichevsky District Court of the Zhytomyr At the time of the hearing, the conclusion Region does not have the required number of the examination was not ready. The pros- of judges for the distribution of the specified ecutor asked to postpone the hearing. The criminal proceedings. parties did not mind. But, since the term of the measure of restraint is ending, the court Since June 12, 2018, the case has been con- was forced to consider this issue at this court sidered in the Bogunsky District Court of Zhy- session. The prosecutor filed a request to ex- tomyr. tend the measure of restraint to the accused On December 13, 2018, when considering Kozak S. in the form of detention for another the applications of the prosecutor to continue 60 days. And the accused Kustovetskaya S. – the detention of the accused, the defendants round-the-clock house arrest also for 60 days. and the defense petitioned to change the de- The representative of the victim supported tention to round-the-clock house arrest. Re- the motion. The defense opposed the prosecu- garding the accused Kozak C. the court ruled tor’s requests and filed a motion to change the that since the trial is ongoing, witnesses, in- measure of restraint for Kozak S. for round- cluding the minor son of the accused, have not the-clock house arrest, and for the accused been questioned, which suggests the possibility Kustovetskaya S. – for house arrest at night. of influencing the witnesses, as well as taking The accused asked the court to give her the into account the identity of the accused and opportunity to work to support her elderly the gravity of the alleged criminal offenses, the parents and a minor child. court rejected the request of the defense. The court satisfied in full the application of the The court decided to continue Kozak’s de- prosecutor to extend the measure of restraint tention for another 60 days, and S. Kustovet- in the form of detention for Kozak S., leaving skaya softened the measure of restraint for the accused in custody for another 60 days. nightly house arrest. Regarding the accused Kustovetskaya C., In a comment to the representative of the the court decided to change the measure of ISHR, the judge said that a large number of restraint to round-the-clock house arrest. listeners supported the victim and demanded In the motivational part, the court noted that the accused be punished by the judges that the accused has a registration and per- in the court hearings on this case, which were manent residence, strong social ties, she has a held earlier. Also, aggressively minded ac- small child, she works. Given these factors, as tivists from “C14”, media representatives were well as the case law of the ECtHR, which in- periodically present. The court hearings were dicates that there must be exceptionally good covered in the local press. reasons for continuing to detain a person, only There was no press and activists at this the gravity of the crime, the complexity of the court hearing, there were only a few listeners case and the seriousness of the charges cannot who did not disturb order in the courtroom.

47 Monitoring of the case S.V. Kozak and fense under Part 3 of Article 149 of the Crim- S.V. Kustovetskaya (session 12/12/19) inal Code of Ukraine to which the measure of restraint was applied in the form of detention 12/12/2019 in the Bogunsky District Court for 60 days and the amount of bail in 192 thou- of Zhitomir, a hearing was held in the case of sand hryvnias was determined. Kulish Natalya Kozak C.V. and Kustovetskaya S.V., accused is suspected of committing a crime under Part of extortion and subsequent murder (part 4 3 of Art. 149 of the Criminal Code of Ukraine of article 189, § 6, 12 part 2 of article 115, (Human Trafficking). Criminal Code of Ukraine). The incriminated articles provide for the possibility of life impris- On June 11, 2019, police officers detained a onment. The International Society for Human 38-year-old woman at the Lvov International Rights continues to monitor this criminal case. Airport while receiving $ 2,700. According to the investigation, after receiving the money, Proceedings of the hearing 12/12/2019 The the woman planned to transfer her 17-year-old trial began 1 hour late due to the delay in the daughter for subsequent sexual exploitation delivery of the accused by the convoy. to the Czech Republic. At the hearing, the conclusions of the examinations were heard. The participants in the On June 12, 2019, a woman was given writ- hearing did not object to not reading the en- ten notice of suspicion of a criminal offense tire text. The examination indicated the cause under Part 3 of Art. 149 of the Criminal Code of death of the murdered woman. Judges read of Ukraine. According to the information of 3 expert conclusions. The results of the ex- the pre-trial investigation, it was established amination were attached to the case file. The that she was looking for “clients” to sell her defense filed a petition to interrogate the ex- daughter for sexual exploitation. It is worth perts who conducted the examination and the noting that the detainee has been repeatedly head of the forensic histological examination brought to administrative responsibility for department to explain its results and the med- non-fulfillment of parental obligations (Article ical terminology used. Despite the objections 184 of the Code of Administrative Offenses), of the prosecutor, the representative of the committing domestic violence (Article 173-2 victim and the victim herself against such of the Code of Administrative Offenses), en- an interrogation, the court, referring to Ar- gaging in prostitution, etc. (Article 181-1 of ticle 354 of the Code of Criminal Procedure the Code of Administrative Offenses). of Ukraine (according to which the court is Shikoryak M. M., an investigator of the obliged to interrogate an expert in a court investigative department of the Main Direc- session if the parties to the court state such a torate of the National Police in the Lvov Re- petition), granted this request. gion, as agreed by the prosecutor of the Lvov In the courtroom there were a large number region prosecutor’s office, requested the inves- of listeners who came in support of the victim. tigating judge to apply a measure of restraint The observer of the ISHR notes that during the in the form of detention towards Kulish Na- whole court session there were no violations talya because she is reasonably suspected of on their part. committing an alleged crime, may continue her criminal activity, hide from pre-trial investigation and the court, illegally influence wit- 3.10. The trial of Natalya Kulish nesses and victims, destroy or hide documents, commit another criminal offense, impede the Monitoring the case of Kulish Natalya establishment of truth in a criminal proceed- 06/13/2019 in the Galicia district court of the ing in another way, which makes it impossible city of Lvov with the participation of the pre- to apply a softer measure of restraint to the siding judge Strelbitsky V.V. a session was suspect and indicates the need to select the held in criminal proceedings on suspicion of measure of restraint in the form of detention. Kulish Natalya in committing a criminal of- The suspect tried to convince the court not

48 to appoint the measure of restraint on her facts that can confirm the existence of such knees. To support the woman her mother and a risk, or testify to its insignificant degree, three minor children came to court. However, which cannot serve as a basis for a measure of the presiding judge requested that all minors restraint in the form of detention. The ques- be removed from the courtroom. Defender of tion of whether detention is reasonable cannot a woman cited arguments in her defense. In be decided abstractly. It must be decided in particular, she claimed that the suspect does each case, taking into account specific circum- not have the financial ability to pay bail, and stances. two months behind bars for the mother will On August 7, 2019, the Galicia District become a psychological trauma for her small Court of Lvov extended the measure of re- children. The prosecutor objected the version straint in the form of detention within the of the woman that she sent her daughter to pre-trial investigation period by sixty days, seasonal agricultural work (picking strawber- that is, until 05/10/2019 with the determina- ries). Besides, the defendant was previously tion of the amount of bail of 192 thousand held administratively liable for non-fulfillment hryvnias to Kulish Natalya. The prosecution of parental duties, domestic violence, and pros- motivates its petitions with the fact that dur- titution. ing the pre-trial investigation it was estab- In its decision, “Murray v. The United King- lished that the risks stipulated by Article 177 dom” (28 October 1994, § 55), the European of the Code of Criminal Procedure of Ukraine Court of Human Rights notes that the purpose did not decrease and did not change, there of the detention is to continue the investiga- are reasonable grounds to believe that the sus- tion and to confirm or refute the suspicions pected person will be hiding from the pre-trial that warranted the detention. The facts that investigation and the court, as she is suspected give rise to the suspicion should not be as con- of committing a particularly serious crime, for vincing as those that are necessary to justify which a sentence of imprisonment of 8 to 15 a guilty verdict or a pure prosecution, which years is determined, without an alternative to is carried out at the next stage of the trial. applying another punishment, which will stim- In the case of “Fox, Campbell and Hartley ulate the suspect to hide from the pre-trial v. The United Kingdom” (30 August 1990 § investigation, the prosecutor and the court. In 32), the court indicates that the existence of addition, it is noted that there remains a rea- reasonable suspicion implies the existence of sonable risk of the destruction of documents facts or information, which could convince an that are essential for establishing the circum- objective observer that the person concerned stances of the criminal offense, in particular, could have committed a crime, however, what correspondence in the Viber, WhatsApp mo- can be considered “reasonable” depends on all bile applications with Person 2 regarding the the circumstances of the case. circumstances of the sale of a minor daughter; At the same time, it should also be taken unlawful influence on the victim and witnesses into account that, in accordance with the re- in criminal proceedings, in particular on Per- quirements of §§ 3 and 4 of Article 5 of the Con- son 2, since Kulish is familiar with him and vention for the Protection of Human Rights there are sufficient grounds to believe that he and Fundamental Freedoms and Practices of can give evidence that will serve as evidence of the European Court of Human Rights, the the commission of a suspected criminal offense restriction of a person’s right to liberty and against her. Also, the victim is the daughter security is possible only in cases provided for of the suspect, and therefore, there are rea- by law established procedure. The risk of con- sonable grounds to believe that Kulish N. will cealment of the accused from justice cannot influence her as a daughter to induce her to be assessed solely on the basis of the severity provide evidence that is favorable to her. of a possible court decision, this should be Suspect Kulish Natalya and counsel at the done taking into account a number of relevant hearing protested the petition and asked to

49 choose the measure of restraint not related to tion for the accused of N. Kulish was extended imprisonment. The defense party believes that until December 2, 2019 and a trial of the case the risks indicated by the investigator are not on the merits was scheduled on October 21, justified. The court, having heard the opinion 2019 at 11am. of the participants in the trial, having exam- The prosecutor, stating a petition for ex- ined the materials of the petition, concluded tending the period of detention at the hearing, that it was necessary to satisfy the petition. noted that the risks involved are provided for Since September 27, 1991, Ukraine has been in Article 177 of the Code of Criminal Pro- operating the Convention on the Rights of the cedure of Ukraine, which served as the basis Child, adopted on November 20, 1989, by the for the selection of a measure of restraint, but UN General Assembly. Article 16 of the Con- the grounds for applying a milder than deten- vention enshrines the right of the child to pro- tion restraint to the accused, are not provided. tection from all forms of unlawful interference The defendant and the defense counsel be- in the life of the child, his freedom. “No child lieved that there were no grounds for holding may be the object of arbitrary or unlawful Kulish in custody; defense referred to chronic interference with the exercise of his/her right diseases, and asked to choose a milder type of to privacy and family life, the inviolability of the measure of restraint. housing, the confidentiality of correspondence The court found that there was a reason- or unlawful encroachment on his/her honor able suspicion of the commission of a criminal and dignity. The child has the right to pro- offense under Part 3 of Article 149 of the Crim- tection of the law from such interference or inal Code of Ukraine by Kulish, which is the encroachment”. basis for the application of a measure of re- Even though according to § 4 of Part 1 straint. of Art. 178 of the Criminal Procedure Code When deciding the request for the extension of Ukraine, the presence of minor children is of the measure of restraint in the form of de- taken into account when choosing a measure tention, the court concluded that the evidence of restraint and § 2 of article 66 of the Crim- and the circumstances referred to by the prose- inal Code of Ukraine, which states that the cutor provide sufficient grounds for concluding list of circumstances that mitigate the punish- that there are risks stipulated by Part 1 of the ment is not exhaustive, the nature of the crime Criminal Procedure Code of Ukraine. committed with direct intent and useful mo- The prosecutor, in our opinion, committed a tive of the suspected Kulish Natalya violation violation of Clause 1, Article 5 of the Conven- of the freedom and dignity of her child, and tion for the Protection of Rights and Funda- the presence of risks that have not decreased, mental Freedoms, because the prosecution did the court decided to extend the measure of not provide sufficient and compelling reasons restraint in the form of detention. and evidence to continue the detention of the During the monitoring of the court hearings, accused. no violations, including violations of human rights, were found. In the case of clause 28 “Roman Mirosh- nichenko v. Ukraine”, the ECtHR provided its own conclusion that the person had been de- Monitoring of the criminal case of Kulish tained without reason for a rather long time. It Natalya (session 10/04/19) is stated that the primary sanction was based The monitoring group continues to monitor on a strong suspicion of a person committing a the case of the defendant Kulish N. crime, however, after a certain time, the prose- 10/04/2019 in the Zheleznodorozhny Dis- cution was obliged to provide other compelling trict Court of the city of Lvov with the partici- reasons for further detention, which was not pation of Judge A. Kirilyuk session was held in done. criminal proceedings No. 12019140000000394 According to the decision of the ECtHR in of 04/17/2019 in which the period of deten- the case “Solovey and Zozulya v. Ukraine”,

50 “The practice of keeping the accused in cus- restraint. The accused Kulish N. and her de- tody without specific legal grounds or in the fender Savaida M. objected to the petition of absence of clear rules governing their situa- the prosecution and stated that there were no tion, the application of which could result in grounds for holding her in custody. In addi- imprisonment of a person without permission tion, the lawyer Savaida M. drew the court’s from the court for an unlimited time, is incom- attention to the fact that the bail of 192 000 patible with the principles of legal certainty UAH is amounts to 40 minimum wages and and protection against arbitrariness, which neither the accused nor her relatives have the combine the Convention and the rule of law ”. opportunity to make a bail in this amount. On October 21, 2019, a hearing of this case The court did not take into account the ar- was scheduled for a panel of judges A. Kiri- guments of the accused and her counsel and lyuk, N. Rumilova, A. Liush. As we were able granted the prosecutor’s request, extending to establish, at the request of the defendant the detention of Kulish N. for 60 days – un- Kulish N. her lawyer was replaced. Since the til January 11, 2019, with the possibility of judge Rumilova N. was on a business trip the making a bail of UAH 192 000. hearing was adjourned to November 13, 2019 When deciding on the extension of the mea- at 3pm. sure of restraint in the form of detention, the court concluded that the evidence and the Monitoring the case of Kulish Natalya circumstances referred to by the prosecutor (11/13/2019) provide sufficient grounds for concluding that On November 13, 2019 in the Zheleznodor- there are risks stipulated by Article 177 of the ozhny District Court of the city of Lvov Code of Criminal Procedure of Ukraine and with the participation of the panel of judges fully satisfied the prosecutor’s request. How- A. Kiriluk, N. Rumilov, A. Liusha a ses- ever, the European Court of Human Rights sion was held in criminal proceedings No. requires, in the case of a bail, to take into 12019140000000394 in relation to Kulish N., account the property status of the accused accused of committing a crime under Part 3 of (suspect) and to justify the size of the bail. Article 149 of the Criminal Code of Ukraine Otherwise it could lead to a violation of the – “Human Trafficking”. The International So- European Convention (Clause 3, Article 5). ciety for Human Rights continues to monitor Thus, in the case of “Gafa v. Malta” (§ 70), this case. the ECtHR indicates that “the size of the bail The preparatory hearing in this case was should be established taking into account the scheduled for 3:00 pm. However, it began at identity of the defendant, his property, his re- 4:10 pm in connection with the stay of Judge lations with guarantors. In other words, given A. Kirilyuk in the deliberation room on an- the belief that the prospect of losing a bail other matter. In addition, the accused Kulish or measures against his guarantors in case he N. was delivered late from the pre-trial deten- fails to appear in court will be sufficient to tion center. keep him from escaping”. Prosecutor Krishtanovich S. filed a request According to the decision of the ECtHR in for an extension of the measure of restraint in the case of “Toshev v. Bulgaria” (§ 68), the the form of detention with the possibility of Court recalls that the guarantees referred to making a bail in the amount of UAH 192 000 in Article 5 § 3 of the Convention are aimed for a period of 60 days, arguing that the risks at ensuring the presence of the accused at provided for in Article 177 of the Code of the hearing. Therefore, the amount of the bail Criminal Procedure of Ukraine, which were should be assessed, first of all, taking into the basis for applying an exceptional mea- account his personality and his financial situa- sure of restraint in the form of detention, did tion, that is, it should depend on the degree of not decrease and the prosecution does not confidence that the possibility of losing funds see any reason to mitigate the measure of if he is absent from the hearing will become

51 the factor that will prevent him from escaping. 3.11. The trial of Ruslan Kunavin

Monitoring the case of the victim Ruslan Kunavin (session 07/30/2019) Monitoring the case of Natalya Kulish (session 12/16/19) On July 30, in the Court of Appeal of the Zhytomyr Region, a hearing was held in the case of the journalist Ruslan Kunavin. On On December 16, 2019 in the Zheleznodor- June 10, 2017, the journalist of the newspa- ozhny District Court of the city of Lvov per “20 Khvulin Zhytomyr” Ruslan Kunavin with the participation of the panel of judges was attacked with beating and robbery. His A. Kiriluk, N. Rumilov, A. Liusha a ses- journalist equipment was stolen from him. He sion was held in criminal proceedings No. was inpatient for more than a month, but due 12019140000000394 dated 04/17/2019 on to the severity of the injuries and after dis- charges of Kulish N. for committing a crime charge, he also needs to continue treatment. under the Part 3 of the Article 149 of the Crim- The trial was delayed and sessions were repeat- inal Code of Ukraine – “Human Trafficking”. edly rescheduled. Only on July 24, 2018, in At the hearing arrived defender of Kulish the Korolevskiy Court of the city of Zhytomyr, N., Savayda V.M. and the prosecutor of the a second court session was held, already with Lvov region Krishtanovich S. At the hearing, the participation of a lawyer, a representative lawyer Mikhail Savaida filed a motion to at- of the victim, who insisted on stopping the tach evidence of the defense to the materials delay of the trial. There was a complete inter- of the criminal proceedings. The prosecutor rogation of suspects who, under the weight of spoke out against addition of these materials, evidence, admitted their guilt. since he did not get to know them and the At the hearing, which was held on March defense, in his opinion, violated the procedure. 28, 2019, the prosecution witness did not appear again. The prosecutor began to insist The court, after hearing the parties to the on another adjournment of the hearing. How- defense and the prosecution, having examined ever, a representative of the injured journalist the materials provided, came to the conclusion protested. He indicated that such conduct by that the materials submitted by the defense the prosecutor and the court was regarded were not to be included in the materials of the as a violation of articles 4 and 6 (e) of the criminal proceedings, since the defense had Declaration of Basic Principles of Justice for indeed violated the order when the materials victims of crime and abuse of power. After were given to the prosecutor, certain art. 290 an exchange of views, the parties to the trial Code of Criminal Procedure of Ukraine. In came to the conclusion that it was possible to addition, these files, in the court’s opinion, continue the trial without this witness, since have no evidentiary value in the framework of other materials of the case, including inves- criminal proceedings under Art. 366 part 1 of tigative experiments fully show the picture of the Criminal Code of Ukraine. Court refused the crime. to satisfy the request of the defender of the On March 29, 2019, the verdict was an- accused Savydy M. nounced. The court found the defendants When considering the case in criminal Dmitry Kovalchuk and Dmitry Kolesnik guilty proceedings No. 12019140000000394 dated of an offense under Article 187 part 2 of the 04/17/2019 on charges of Kulish Natalya in Criminal Code – robbery by a group of people committing a criminal offense under Part 3 and sentenced them to 5 years in prison with of Art. 149 of the Criminal Code of Ukraine a 3-year delay in executing such a sentence, by observers of the ISHR, no violations of the without confiscation of property. In addition, right to a fair trial were found. the accused must compensate the journalist

52 45 thousand UAH for material damage and 62 place. We will remind, Mekhti Logunov (born thousand UAH moral damage. in 1934), a citizen of Ukraine, holds a Ph.D. On July 30, 2019, a court hearing was held in technical science was sentenced (on July 30, on the appeal of the prosecutor. The course 2018) to 12 years in prison under article 111 of the session. (treason). The trial, as well as the announce- The prosecutor filed an appeal, in which he ment of the verdict, took place behind closed asked the court of first instance to cancel the doors, without the presence of relatives, repre- sentence in connection with the discrepancy of sentatives of human rights organizations and the latter, the gravity of the criminal offense. the media. Accept a new sentence, which sentenced Ko- However, the meeting did not take place. valchuk D. in the form of imprisonment for 8 The official reason why it was canceled: the years with complete confiscation of property. court hall for the hearing of such case which The accused Kolesnik D. sentenced to 7 years has classified information wasn’t prepared. in prison with confiscation of all property. Earlier, on December 18, 2018, when the same The defense requested not to satisfy the appeal complaint had to be considered, the appeal of the prosecutor. The victim also re- judge fell ill. quested that the punishment chosen by the The Secretary of the court session reported trial court be left unchanged. that the new meeting in the case was post- The court announced the verdict. poned to September 3, 2019 and provided a cer- The Court of Appeal decided to satisfy the tificate stating that according to the changes complaint of the prosecutor in part. Consider- in the provision of the law “On amendments ing the presence of extenuating circumstances, to some legislative acts, regarding the enforce- the court concluded that the possibility of im- ment of the rights of participants in criminal posing a basic sentence, using Article 69 of proceedings and other persons by law enforce- the Criminal Code of Ukraine, is lower than ment agencies, during the pre-trial investiga- the lower limit established in the sanction of tion” of 16/07/2017, the procedure for the use part 2 of Article 187 of the Criminal Code of video recording technical devices during the of Ukraine in the form of imprisonment for a trial changed. term of seven to ten years with confiscation. But that exact hall where the meeting was According to the court, due to the gravity of supposed to take place, didn’t manage to pre- the crime (assault by prior conspiracy to in- pare. flict serious bodily harm), the correction of At the hearing were representatives of the the accused is possible only in conditions of ISHR and the OSCE mission. Mekhti Logunov isolation from society. was not brought to the court; his lawyer also Thus, the court decided sentenced the de- did not appear. However, the registry of the fendants for 5 years in prison with confiscation court did not make changes to the schedule of 50% of the property. of hearings on the official website of the judi- Upon a court verdict, a cassation appeal ciary of Ukraine and the case was planned for may be filed with the Cassation Criminal consideration. Court of the Supreme Court in 3 months pe- Despite the fact that the appeal hearing will riod. also be held behind closed doors, the Interna- tional Society for Human Rights will continue 3.12. The trial of Mehti its monitoring. We hope that the court will Logunov not delay the date of consideration of the case of M. Logunov until September and will appoint a meeting for the near future. Because Monitoring the case of Mehti Logunov the verdict in the case has not yet entered On April 11 the appeal of Mekhti Logunov on into force and the 84-year-old man is waiting the verdict of the court was supposed to take for appeal for 9 months. All this time Mekhti

53 Logunov spent in jail. mains unchanged and not subject to review. In any case, the punishment increases over Monitoring the case of Mehti Logunov time: the longer a prisoner lives, the longer (session 11/18/2019) his term. Thus, even when a life sentence is a death sentence at the time of its adoption, On November 18, 2019, the Kharkov Court over time it becomes a poor guarantee of a fair of Appeal examined the appeal against the and proportionate punishment. The Federal judgment of the court of the first instance Constitutional Court of Germany in the case of July 30, 2018, according to which Mehti of life imprisonment recognized, this would be Logunov was convicted of high treason (Article incompatible with the provision on human dig- 111 of the Criminal Code of Ukraine) and nity to forcibly deprive a person of his freedom sentenced to 12 years in prison. More than a without, at least, giving him the opportunity year has passed since the receipt of the appeal to someday regain this freedom. It was this in court (August 31, 2018). position that led the Constitutional Court to The trial itself has a significant public out- conclude that prison authorities are obliged to cry. But since the case materials include in- seek rehabilitation of a prisoner sentenced to formation that is a state secret, the case was life imprisonment, and that rehabilitation is heard in closed court. constitutionally necessary in any community Following the requirements of the law, the in which human dignity is central. court allowed representatives of the media, Similar considerations should apply within public organizations and others into the court- the framework of the Convention system, the room while announcing the operative part of very essence of which, as the Court has often the court decision. stated, is respect for human dignity. The appeal was denied. The sentence remained unchanged. Experts from the Interna- Also, in this decision, one of the judges (Ann tional Society for Human Rights cannot give Power-Forde) formed a separate position: Art. a legal conclusion regarding such a court deci- Section 3 of the Convention includes what can sion, since its justification will become known be described as the “right to hope”. Judgment after the announcement of the motivational indirectly recognizes that hope is an impor- part on November 22, 2019. tant and defining aspect of the human person. The lawyer said that he would appeal the Those who commit the most disgusting and decision of the Kharkov Court of Appeal. egregious acts that cause unspeakable suffer- In the context of this case, the experts of ing to others, nevertheless, retain their basic the International Society for Human Rights humanity and carry the ability to change. De- consider it necessary to pay attention to the spite a lengthy and well-deserved sentence, case law of the European Court of Human they can reserve the right to hope that some- Rights (hereinafter – the ECtHR). day they can atone for their mistakes. They Since Mehti Logunov turned 85 years old, should not be completely devoid of such hope. following common sense, we must understand To deny their experience of hope would be to that a sentence of 12 years is life-long for him. deny the fundamental aspect of their human- In a similar situation (case of “Vinter and ity, and that would be humiliating. others v. The United Kingdom”, §§ 112-113), In this regard, we consider it necessary to the ECtHR has formed the following legal po- recall that Mehti Logunov did not commit vio- sition: if the convicted person is in custody lent crimes against life and health. The article without any prospect of release and without under which he was sentenced is considered the possibility of reviewing his life sentence, somewhat politicized – high treason. there is a risk that he can never atone for his But the closed form of the hearing does crime: no matter what the prisoner does in not make it possible to assess the degree of prison, no matter how exceptional he is in the observance of the right to a fair trial with process of rehabilitation. His punishment re- respect to the scientist.

54 3.13. The trial of Daria years, does not comply with the principle of Mastikasheva reasonable time for judicial review and contradicts the provisions of the Convention for the Monitoring the case of Daria Mastikasheva Protection of Human Rights and Fundamental (session 07/05/2019) Freedoms. The prosecutor read out a request for an extension of the measure of restraint for On July 5, 2019, a hearing was held in the accused in the form of 60-day detention, the Krasnogvardeisky District Court of the justifying such a requirement by the presence Dnieper in the case of Darya Mastikasheva, a of standard risks that have not decreased over Ukrainian citizen who had lived in Russia be- the past time. He also noted that Mastika- fore her arrest. She is accused of high treason sheva has a temporary residence permit in the by recruiting veterans of the anti-terrorist op- Russian Federation, and therefore can hide eration in eastern Ukraine (ATO) to simulate from justice in the territory of this state. The the preparation of terrorist attacks in Russia, prosecutor did not provide any documentary which the Russian special services could use evidence of the existence of such risks. In total, to discredit the Ukrainian authorities. the petition took 1.5 pages of printed text. As it turned out later, on August 15, 2017, The ISHR notes that this position of the D. Mastikasheva was abducted, masked people prosecution is contrary to § 3 of Art. 5 of the with guns blocked her car and took her away Convention, according to which, after a cer- in an unknown direction. For several days, she tain period, the existence of justified suspicion was beaten, strangled, threatened with reprisal ceases to be the basis for detention and the against her young son and mother in order to courts must give other reasons for the exten- beat out a confession to the alleged crimes. sion of detention (“Yablonsky v. Poland”). After D. Mastikasheva gave her consent, the video with her confession was shown by the In addition, according to part 3 of article head of the Security Service of Ukraine (SBU) 176, part 1 of article 183 of the CPC, the V. Gritsak at a press conference in Kiev (held prosecutor is obliged to prove the risks of ob- on August 17, 2017), where the head of the structing the criminal proceedings and non- SBU reported on the capture of a dangerous fulfillment of personal obligations. And the spy. Criminal case has been opened on the fact court cannot apply a measure of restraint in of abduction and torture. the form of detention if there is no factual After the facts of the abduction and torture justification for such risks. of D. Mastikasheva became known to the gen- Lawyer V. Rybin protested, because the eral public, the authorities decided to send her prosecutor’s petition did not say anything for a compulsory psychiatric examination, and about why it is impossible to apply a differ- then she was held in a psychiatric hospital for a ent measure of restraint, which does not com- month, where due to refusal to undergo a psy- ply with the Code of Criminal Procedure of chological test, the marker “suicidal tendency” Ukraine. He recalled the need to prove the ex- was set in her case, and “penal tendency to istence of risks, which the prosecution did not escape” in the pre-trial detention center. do. In addition, the lawyer referred to the deci- Experts from the International Society for sion of the Constitutional Court of 06/25/2019 Human Rights continue to monitor this law- on the recognition of the provisions of part suit. 5 of article 166 of the Code of Criminal Pro- The session began with the presiding judge cedure of Ukraine as non-alternative to the declaring that, in fact, the case would only content of persons in pre-trial detention cen- be considered in September 2019, and today ters, suspected of committing crimes related only the question of the measure of restraint to state security and the fact that the courts will be decided. The ISHR notes that the de- in Ukraine have already begun to widely ap- fendant’s detention without consideration of ply this decision so as not to unreasonably the case has essentially been for almost two detain people who have not committed violent

55 crimes. Rybin also said that the words of the Ukraine (ATO) to simulate the preparation prosecutor about Mastikasheva’s temporary of terrorist attacks in Russia, which the Rus- residence permit in Russia are untrue, since sian special services could use to discredit the the term of it expired on July 3, two days be- Ukrainian authorities. Before official detention, fore the session. The passports of the accused Mastikasheva was abducted and subjected to were seized, so she cannot leave the country. threats and torture in order to obtain con- All property of the accused is arrested, and if fession. Earlier, the proceedings in the case she will escape from justice, it will go to the of Daria Mastikasheva were combined with state. Regarding the pressure on witnesses, the the case of Alexander Karatay. The hearing lawyer expressed doubt that a fragile woman was attended by representatives of the OSCE, is capable of exerting pressure on men par- ISHR, journalists. ticipating veterans of hostilities in the ATO Experts from the International Society for zone. Mastikasheva has strong social ties in Human Rights continue to monitor this law- Ukraine. Since her arrest, her young daughter suit. has been raised by her grandmother for almost The trial began without a lawyer Rybin. two years. Rybin also recalled the abduction of The court considered the refusal of the sec- Mastikasheva until her detention, torture and ond defendant from his lawyer Koval. Koro- coercion to plead guilty to video recording. tay said that his interests will also be repre- At the request of the prosecutor, Daria Mas- sented by lawyer Rybin. To the judge’s ques- tikasheva herself stated that in two years of tion, Mastikasheva answered that Valentin Ry- imprisonment no one had proved her guilt. bin should come from Kiev. The court decided to leave the accused in The court decided to appoint a public de- custody for another 60 days. fender to resolve the issue of extending the According to the ECtHR, an extension of de- measure of restraint without trying to contact tention under these conditions should be con- Rybin. A break was scheduled during which sidered “arbitrary”, since the need for such an two “state lawyers” came and Rybin appeared. extension was not proven in specific circum- He explained his lateness by poor road con- stances (“Khairedinov v. Ukraine”). In the ditions – heavy fog did not allow the car to same decision, the Court recalls that there is develop speed along the road from Kiev to a presumption in favor of release. Before con- Dnepropetrovsk. He stated that according to viction, a person should be presumed innocent Art. 53 of the Code of Criminal Procedure of and should be released as soon as his/her fur- Ukraine, the court can appoint public defend- ther detention ceases to be justified (“Vlasov ers only if the paid one cannot appear at the v. Russia”). The ECtHR unequivocally stated hearing, but the court secretary did not call in its decisions that the failure of the court to him to clarify this issue. At the same time, one consider any alternative measures of restraint of the public defenders immediately phoned in custody constitutes a violation of Article 5, Rybin during the break. §3 of the European Convention (“Sinkova v. Judge Druzhinin asked why Rybin did not Ukraine”). appear in court for 2 months. The lawyer explained that each time he informed the court Monitoring the case of Daria Mastikasheva of the reasons for his failure to appear, and (session 10/21/2019) he could provide confirmation upon written On October 21, 2019, a hearing was held request. The judge said that the prosecutor in the Krasnogvardeisky District Court of requested the extension of the measure of re- the Dnieper in the case of Darya Mastika- straint. sheva, a citizen of Ukraine, an athlete, a for- Rybin asked for a break for confidential com- mer Ukrainian Taekwondo champion. She is munication with the client Karatay. After the accused of high treason by recruiting veter- break, the lawyer filed a motion to challenge ans of the anti-terrorist operation in eastern the panel of judges in full force.

56 According to the report on the automatic The court retired to the deliberation room distribution of the case, the composition of and, having returned, rejected the challenge the court was formed without observing the and extended the measure of restraint for the requirements of Art. 35 of the Code of Crim- accused for 60 days. inal Procedure, i.e., the composition of the panel is illegal, which is the basis for the challenge of the panel of judges. The lawyer claims that the process of auto distribution was inter- vened and the principles of impartiality, objec- The presiding judge stated that in May 2019, tivity and randomness were not respected. So, a letter was allowed to the police investigator during the determination of the head of the to correspond with the victim Mastikasheva, board, all the judges of the Krasnogvardeisky and on September 30, 2019 a letter was sent district court, except Druzhinin, on January with permission to conduct investigative and 18, 2019 had the status: “no specialization in operational actions and it has been at the criminal proceedings” (including members of point of issue since 10/04/2019. The panel the current board Bilyk and Knysh). At the rejected the challenge, citing the fact that, in same time, a day earlier the judges had spe- the opinion of the panel of judges, the grounds cialization, and they participated in the distri- for the challenge were far-fetched and aimed bution. Accordingly, no one except Druzhinin at delaying the lawsuit. took part in the auto-distribution when choosing the head of the board in the Mastika- sheva case and the choice was made from one judge. When choosing the first member of the panel of judges having authority and having no prohibitions of auto-distribution, judges The collegium extended Mastikasheva’s de- Samsonova, Nekrasov, Bilyk were excluded as tention for another 60 days, without providing reserve judges, and the choice of the first mem- the lawyer with a written request from the ber of the panel of judge Knysh also consisted prosecutor, without giving him time to famil- of one possible. The second member of the iarize himself with it, without requiring the panel, Judge Bilyk, was determined from the prosecutor to read the request in the court- reserve judges. room and not having listened to the arguments of the lawyer and the accused, which could Rybin said that earlier, on August 30, he constitute a violation of the right for legal had already submitted a challenge to the aid. When extending the measure of restraint, board, but it was rejected and a decision was the court referred to the standard risks of es- made to extend the measure of restraint. Af- cape, pressure on witnesses, failure to fulfill ter that, the lawyer filed an application for a procedural obligations. The ECtHR notes that deliberately unlawful decision. “the obligation of the authorities to indicate He also said that according to the letter, the grounds on which they extend their deten- the investigator of the Novomoskovsk police tion as a ‘measure of restraint’ is becoming did not receive court replies on permission increasingly important at later stages of the to conduct investigative actions regarding the trial” (§ 87 of the decision of March 4, 2010 abduction and torture of Mastikasheva by the in the case of “Savenkova v. the Russian Fed- SBU. The head of the board asked whether the eration”), and also that “over time, the initial lawyer wants to comment on the prosecutor’s reasons for detention are becoming less and request for an extension of the measure of less substantial, and that the courts must pro- restraint to the accused. Rybin replied that ceed from‘substantial’ and ‘sufficient’ grounds the application had not yet been read out, for prolonged imprisonment” (§ 54 of the judg- and that the board should first consider the ment of February 10, 2011 in the case “Pelevin challenge. v. Russian Federation”).

57 3.14. The trial of Alexander the burden of proof of the prosecution once Melnik again shifted to the defense. The lawyer of A. Kryzhanovsky noted that Monitoring of the case of A. Melnik, his client in the conditions of imprisonment A. Kryzhanovsky, I. Pasichny, I. Kunik does not receive proper medical treatment. In (session 03/14/19) court, he is under the influence of an anes- On March 14, in the Gadyatsky District Court, thetic and at risk of a heart attack. A. Kry- two sessions took place in the case of Alexan- zhanovsky himself said that his relatives give der Melnik, the head of “Vizit” TV Company, him medicine (about $200 worth for 2 weeks), one of the four accused (along with A. Kryzha- because he does not receive the necessary novsky, I. Pasichny, I. Kunik) in the murder of medicines from the remand prison, he also has the mayor of Kremenchug A. Babayev and the to put in IV by himself (earlier, the accused al- judge of the Kremenchug Court A. Lobodenko. ready complained that they themselves had to The meeting was attended by the member of put in IVs in the conditions of the cell). And the Parliament Y. Bublik and the head of in such circumstances, the prosecution system- the “VEPR” enterprise, who were ready to atically filed petitions without justifying the take Alexander Melnik under a personal guar- risks, without taking into account the char- antee. Earlier, when a defense petition was acteristics of the accused, property and other announced to apply a measure of restraint factors. The lawyers of the other defendants in the form of a guarantee, the court refused also dismantled all the risks of non-fulfillment to consider it without the personal presence of procedural obligations, which were listed of potential guarantors. Also, lawyer R. La- by the prosecutor’s office when they filed ap- zorenko read the petitions of the head of the plications for the extension of the measure Committee for the Protection of the Constitu- of restraint in the form of detention, present- tional Rights of Citizens “Vybor” and other ing evidence that such risks were unfounded. public and charitable organizations who were The most controversial basis for the exten- willing to vouch for A. Melnik. The guaran- sion of the preventive measure in the form of tors described the accused as a reliable and detention, claimed by the prosecution, is the law-abiding citizen and stated that the stay presence of an uncontrolled territory within for almost 5 years in the remand prison is the borders of Ukraine. First, problems with too cruel to people, given the presumption ORDLO cannot place a burden on any person of innocence. The head of “VEPR” accused who is elected with the measure of restraint, es- the prosecutor’s office and law enforcement pecially since A. Melnik and others are charged agencies of insufficient qualifications, saying with articles of the Criminal Code not related that they are trying to falsify the case and are to uncontrolled territories. Secondly, the de- not looking for the real perpetrators of the fendants agree to wear an electronic bracelet, killings. any problems with which are momentarely The prosecution objected to the bail appli- transmitted to the police console. Thus, the cation. One of the prosecutors said that the ISHR does not consider the risk of escape to lawyers did not indicate in the petition about be justified and one that the court may rely the missing or diminished risks of A. Melnik’s upon in making a decision. failure to fulfill his procedural duties. And It should be noted that, according to the considering the personality of the accused and materials of the monitoring of the right to a the fact that he is “a self-sufficient, well-to-do fair trial (for the last 2 years), prosecutors, person”, the prosecution considered that there in the absolute majority of cases, file peti- is no evidence adherence to due process. Thus, tions that do not meet the requirements of even the fact that a person has property is an the CPC. In this regard, there are concerns aggravating factor for the prosecutor’s office, about the reasons and motives for the court to which contradicts the rules of the CPC and satisfy such petitions in violation of the norms

58 of criminal procedure. The problem of auto- Monitoring of the case of A. Melnik, matic extension of detention is one of the most A. Kryzhanovsky, I. Pasichny, I. Kunik common and relevant for Ukraine. As part of (session 08/28/19) the analysis of the monitoring materials by On August 28, a regular court session was the ISHR, the Civil Development Center iden- held in the Gadyachsky District Court of the tified a tendency to deliberately delay some Poltava Region in the case of the head of the cases in which the accused were deprived of “Visit” television company Alexander Melnik, their liberty for a long time and were in the who is one of the four accused (together with remand prison. Given the attendant problems: A. Kryzhanovsky, I. Pasichny, I. Kunik) in the not providing with long visits, lack of medi- case of the murder of the mayor of Kremenchug cal support, escorting in conditions that the A. Babayev and the judge of the Kremenchug ECtHR regards as torture, detention for more court A. Lobodenko. The trial began with the than a reasonable time (4 years and 7 months), announcement of the prosecutor’s motion to the ISHR expert council marks this trial as extend the measure of restraint in the form of one that does not comply with the principles detention of the accused Melnik, Kryzhanov- of the European Convention for the Protection sky and Kunik. The petition is motivated by of Rights and Fundamental Freedoms. the following: Prosecutors, in turn, stated that they are not obliged to bring any new risks of the de- 1. The severity of the possible punishment fendants failing to perform their procedural in the form of life imprisonment, the prosecu- duties, primarily because it is because the ac- tor considers the basis that the accused can cused are in custody that such risks do not hide from the court. arise. The prosecution asked the court not to satisfy the petition of the defense for a per- However, the European Court of Human sonal guarantee for A. Melnik and to change Rights admits that suspicion of serious crimes the measure of restraint for house arrest, for could initially justify detention. At the ini- the rest of the accused because of the lack tial stage of the proceedings, the need to en- of justification for the reduction or disappear- sure the proper conduct of the investigation ance of risks to escape, to influence experts and to prevent the escape or re-commission and witnesses, and also because of the public of the offense may justify detention. However, interest in the case. And in his speeches, one of even though the severity of the sentence is the prosecutors stated that the severity of the an important element in assessing the risk of charge, which provides for the possibility of life escape or re-offense, the Court recalls that imprisonment, cannot suggest softer measures the gravity of the charges alone cannot justify of restraint, especially personal surety. Such a the lengthy sentences (§ 102, Decisions of the position is completely contrary to the case law ECtHR “Panchenko v. Russia”). It is worth of the ECtHR, which notes that after a certain recalling once again that in the case of Melnik period has expired (4 years and 7 months can- and others, the accused have been in custody not be considered a short period), the presence for more than one year. of even reasonable suspicion ceases to be a rea- Regarding the risk of escaping, the ECtHR son for imprisonment. And in conjunction with recalls that such a danger cannot be mea- the fact that the prosecution has referred to sured solely based on the severity of the sen- the same grounds for detention, is a violation tence it faced (§ 106, Decisions of the ECtHR of Article 5 § 3 of the European Convention “Panchenko v. Russia”). (“Buryaga v. Ukraine”). The representative of the victims said that the petitions of the 2. The prosecutor presented the accused’s defense were “stated only to declare”, with- statement of distrust of the court in previous out taking the issue of prolonged detention hearings as a factor in increasing the risk of seriously. possible concealment of the accused.

59 3. Pressure on victims and witnesses. In § criminal proceedings, the parties must submit 73 of the ECtHR judgment “Lyubimenko v. to the court evidence of the circumstances to Russia”, the Court accepts that the authori- which they refer (Part 5 of Art. 132 of the ties could reasonably believe that the risk of Criminal Procedure Code of Ukraine). The pressure on witnesses and jurors was present side of the charge of requesting an extension initially. However, the Court is not convinced of the measure of restraint was limited only to that this basis alone could justify the entire a formal description of possible violations by five-year period of the applicant’s detention. the accused, not referring to specific evidence. Indeed, the domestic courts referred to the Based on the results of the examination risk of obstructing the trial in a short form, of the prosecutor’s request, the court ruled to without indicating any aspect of the appli- extend the measure of restraint for the accused cant’s nature or behavior, in support of his for a period of 60 days. conclusion that he would likely resort to intim- It must be emphasized that the accused idation. In the ECtHR view, such a generally have been in custody since September 2014. formulated risk cannot justify the applicant’s Under the Law of Ukraine “On Amending detention for more than five years. The domes- the Criminal Procedure Code of Ukraine on tic courts did not take into account the fact Improving the Procedure for Enrolling by the that this basis inevitably became less and less Court of the Term of Pretrial Detention in the relevant over time. Thus, the ECtHR is not Term of Sentence”, the court enters the term convinced that throughout the entire period of of pretrial detention based on one day for two the applicant’s detention there were substan- days in prison. The accused arrived in custody tial grounds for fear that he would interfere for 5 years, and in the case of recounting, the with witnesses or jurors or otherwise impede term will exceed 10 years. the consideration of the case, and, of course, According to § 35, Decisions of the EC- not to outweigh applicant’s right, hold a trial tHR “Muller v. France”, to assess whether within a reasonable time or release pending continued detention is justified, first of all, one trial. should examine all the circumstances proving 4. The agreed position of the accused. the existence or absence of such a requirement About this, according to the prosecution, said and state them in its decisions. one of the accused – Pasichny. The constancy of reasonable suspicion is a prerequisite for the lawfulness of prolonged 5. Obstruction of the interrogation of the detention, but after a certain period is insuffi- accused Pasichny by the accused Melnik. More- cient. The court must establish other grounds over, the defense referred to the right of the that continue to justify the deprivation of lib- accused to object and ask questions, which erty and will be “appropriate” and “sufficient”. cannot be interpreted as an obstacle. At the same time, § 91 of the Decision of the ECtHR “Buzadji v. Republic of Moldova” stip- 6. The presence of uncontrolled territories ulates that, first of all, the national judicial increases the risk of possible hiding from the authorities must ensure that in a particular court. case the preliminary detention of the accused 7. The impossibility of applying a milder does not exceed a reasonable time. Accord- measure of restraint is motivated by the fact ingly, they should, taking into account the that there is no control over the accused’s principle of the presumption of innocence, ex- communication at the place of residence, lack amine all the facts that are in favor or against of full control on the days of court hearings, the existence of the aforementioned require- and imperfection of electronic controls. ment of public interest or justify a deviation from the norm in Article 5 of the Convention, It should be noted that during the considera- and must state them in their decisions. tion of the application of methods to ensure Representatives of the ISHR are deeply con-

60 cerned about the lack of justification for such Experts of the International Society for Hu- prolonged detention. man Rights (ISHR) are convinced that all court procedural decisions that are not sub- Monitoring of the case of A. Melnik, mitted for discussion by participants in crimi- A. Kryzhanovsky, I. Pasichny, I. Kunik nal proceedings have signs of violation of the (session 08/12/19) right to defense and the adversarial principle of the parties to the trial. According to Part 2 On August 12, a regular court session was of Art. 22 of the Code of Criminal Procedure held in the Gadyachsky District Court of the of Ukraine, the parties have equal rights to Poltava Region in the case of the head of the collect and submit to the court evidence, mo- “Visit” television company Alexander Melnik, tions, complaints, as well as to exercise other who is one of the four accused (together with procedural rights provided for by the Code. A. Kryzhanovsky, I. Pasichny, I. Kunik) in the According to § 3 of part 4. Article. 42 of the case of the murder of the mayor of Kremenchug Code of Criminal Procedure of Ukraine, the A. Babayev and the judge of the Kremenchug accused has the right to express his position court A. Lobodenko. At the hearing, the de- in the court regarding the motions of other fense announced a motion to challenge the participants in the trial. prosecutor Savchuk. Based on permission, the prosecutor The lawyers of the accused Melnik, Kry- Savchuk met with the accused Pasichny in zhanovsky and Kunik expressed deep concern the pre-trial detention facility. Contrary to caused by the facts of extra-procedural behav- the requirements of the law on the mandatory ior of the presiding judge and the prosecutor participation of a lawyer in the proceedings Savchuk. The defense described the circum- of the prosecution, the defender of Pasichny stances of possible pressure on the accused was not notified of the meeting. The accused Pasichny, as a result of which the latter, in Pasichny claimed that the meeting took place the fifth year of pre-trial detention, declared without the participation of his counsel. his desire to cooperate with the investigation and plead guilty. In support of the request for By the totality of the above circumstances, the challenge of the prosecutor, the defense the defense side described the extra-procedural party refers to the permission of the presiding behavior of the prosecutor and the presiding judge to let the prosecutor meet one of the judge. Meanwhile, it is the observance of pro- accused, Pasichny. The specified permission to cedural rules that guarantees the rights of visit was issued on June 12, 2019, on the day participants in criminal proceedings. of the next session, but it was not submitted Apparent procedural violations of the prose- for discussion by the parties. cution preceded the statement by the accused Describing violations of the right to defense, Pasichny about his willingness to cooperate the lawyer pointed to inadequate considera- with the investigation and the intention to tion of the prosecutor’s request for a meeting conclude a guilty plea agreement, which later with the accused Pasichny, in particular: The formed the basis for changing the measure of application was not submitted for discussion restraint on the accused Pasichny for house ar- (the right to defense has not been realized – rest. Such a situation may go against the obser- to ask questions, to object); The application vance of the right to a fair trial. In the case of was examined by the judge alone (according “Natsvlishvili and Togonidze v. Georgia”, the to Article 12 of the Law of Ukraine “On Pre- ECtHR clarified that the courts are required to trial Detention”, permission to visit is consid- verify whether the plea agreement was reached ered by the COURT); Familiarization with the in accordance with applicable procedural and criminal proceedings, which served as the mo- substantive rules, whether the accused volun- tive for the prosecutor to appeal to the court, tarily and knowingly entered into it, whether is a procedural action that can be implemented there is evidence to support the guilty plea without judicial permission to visit. made by the accused, and whether the terms

61 of the agreement are appropriate. The experts possible only “if there are concrete signs of a of the ISHR see the improper observance of genuine need to protect the interests of society, the procedural guarantees of the participants which, despite the presumption of innocence, in the criminal proceeding. Based on this, in outweigh the principle of respect for individual the presence of signs of extra-procedural inter- freedom”, guaranteed by Article 5 of the Eu- action on the part of the prosecution, possible ropean Convention (§ 110 “Kudla v. Poland”). pressure on the accused cannot be ruled out. Earlier, on July 13, 2019, the court allowed the The above does not help to build trust in the prosecution to conduct additional investiga- court. tive actions involving the accused Pasichny, According to an objective criterion, it is who, in his sixth year in custody, declared necessary to establish whether there are facts his desire to conclude a plea bargain. After that may cast doubt on the impartiality of the familiarizing all participants with the materi- judge. From this point of view, even perfor- als of the investigative actions, the trial was mances can have a certain meaning. The most continued. important thing is the trust that the courts 09/24/2019, the hearing began with the ob- must evoke in a democratic society with the jection of the lawyer Mironov, which is based public and, above all, in the case of criminal on the following: proceedings, with the accused. So, any judge, • On September 5, the defense side got ac- for whose impartiality there are legitimate quainted with the protocols of investigative grounds for fear, should resign from the trial actions with the participation of the accused (ECtHR judgment in the case of “De Cubber Pasichny. Lawyer Mironov objects to their in- v. Belgium”). vestigation in court, in view of their apparent inadmissibility. In accordance with Part 2 of Monitoring of the case of A. Melnik, Art. 89 of the Code of Criminal Procedure of A. Kryzhanovsky, I. Pasichny, I. Kunik Ukraine, if it is established that evidence is (session 09/24/19) unacceptable during the trial, the court ﬁnds On September 24, a regular court session was the evidence inadmissible, which entails the held in the Gadyachsky District Court of the impossibility of examining such evidence or Poltava Region in the case of the head of the stopping its investigation at the hearing if such “Visit” television company Alexander Melnik, a study began. who is one of the four accused (together with • The defense party considers that the A. Kryzhanovsky, I. Pasichny, I. Kunik) in the court, when making decisions on the re- case of the murder of the mayor of Kremenchug examination of the accused Pasichny, after A. Babayev and the judge of the Kremenchug his consent to conclude a plea bargain, went court A. Lobodenko. beyond the scope of its powers, as it did not Accused Melnik, Kryzhanovsky and Kunyk separate the case against the accused Pasichny have been in custody for more than 5 years. (from. According to Part 3 of Art. 474 of the The case has been considered repeatedly from Code of Criminal Procedure of Ukraine, if the the very beginning in various courts; no sen- plea bargain is reached during the judicial tence has been imposed. review, the court urgently suspends the pro- Experts from the International Society for ceedings and proceeds to the consideration of Human Rights have repeatedly pointed out the plea bargain. the excessive length of trials in Ukraine, which are often accompanied by detention beyond • Additional investigative actions were car- reasonable time limits. The practice of the Eu- ried out after the expiration of the period ropean Court of Human Rights indicates that established by the court. this trend is contrary to the European Con- Representatives of the ISHR believe that it is vention on Human Rights and Fundamental highly advisable to conduct a thorough review Freedoms, since each extension of detention is of the methods for obtaining evidence.

62 The quality of the evidence must be taken defense, that became the basis for the petition into account, including whether the circum- to change the charge. stances under which it was obtained raise Recall that all four are accused of using doubts about its reliability or accuracy (EC- violence against a judge, contract killings by tHR case of “Dzhallokh v. Germany”, § 96, a group of persons by prior conspiracy with July 11, 2006). The objections of the defense mercenary motives, part 3 article 27, part 2 are attached to the case; a decision regard- article 28, part 2 article 377, part 3 article 27, ing the petition was not made at this court §§ 6, 11, 12 part 2 of article 115 of the Crim- hearing. inal Code of Ukraine. Before, I. Kunyk and Subsequently, the prosecutor requested the I. Pasichny were directly accused of murder adjournment of the case in connection with the in two different episodes. As a result of the need to change the charges. The court granted petition filed by the prosecution, the prosecu- the request, postponing the consideration until tor charged I. Kunik with intentional murder, the next day – 09/25/2019. made to order, with a preliminary conspiracy by a group of persons committed by a person Monitoring of the case of A. Melnik, who had previously committed a murder – §§ A. Kryzhanovsky, I. Pasichny, I. Kunik 6,11,12,13, part 2, article 115 of the Criminal (session 09/25/19) Code of Ukraine. Subsequently, the court announced a break On September 25, a regular court session in the court session in order to provide enough was held in the Gadyachsky District Court time for the defense in connection with the of Poltava Region in the case of the head of new charge. the “Visit” television company Alexander Mel- nik, who is one of the four accused (together The defense also expressed concern about with A. Kryzhanovsky, I. Pasichny, I. Kunik) ineffective appeal mechanisms against court in the case of the murder of the mayor of Kre- rulings on the extension of detention. On May menchug A. Babayev and the judge of the 11, 2019, the Gadyatsky District Court of the Kremenchug court A. Lobodenko. The Inter- Poltava Region extended the period of deten- national Society for Human Rights continues tion of the accused in the case by 2 months. On to monitor this trial. this determination, the defendants A. Melnik Accused Melnik, Kryzhanovsky and Kunyk filed an appeal. have been in custody for more than 5 years. By the ruling of the Sumy Court of Appeal The case has been considered repeatedly from dated 08/21/2019, the appeal was rejected, the very beginning in the courts due to changes and the ruling of the trial court was left un- in territorial jurisdiction and is currently under changed. consideration of the first episode (out of two). The Sumy Court of Appeal, justifying the At this hearing, the prosecution submitted risks of a possible obstacle to Melnik’s judicial a motion to amend the charge. This petition review of the case, limited themselves to one is motivated by the fact that the prosecution sentence, which contained only a statement of became aware of new circumstances during the the conclusion that there were corresponding trial, as a result of which it became necessary risks. At the same time, in §§ 100, 101, 102 to change the charge for all the defendants in of the Decision of the “Belevetskiy v. Russia” the case. ECtHR, the court notes that in the case under The defense side focused on the fact that consideration, the only reason for continuing new evidence appeared at the disposal of the the applicant’s detention was the fact that he prosecutor’s office after the accused I. Pasichny was charged with a particularly serious crim- in the sixth year of pre-trial detention revealed inal offense, danger which was considered as a desire to agree to a guilty plea. It was insufficient reason for his detention. The ECtHR vestigative experiments with the participation has repeatedly stated that, although the sever- of the accused I. Pasichny, according to the ity of the sentence is an important element in

63 assessing the risk of escaping or re-committing sure of restraint. At the same time, the Sumy a crime, the need to continue deprivation of lib- Court of Appeal examined the complaint on erty cannot be assessed from a purely abstract 08/21/2019, when the already appealed ruling point of view, taking into account only the lost its force. In this case, the ISHR experts gravity of the crime. Continuation of detention draw attention to the apparent inefficiency of also cannot be used to anticipate a sentence the appeal mechanism of the ruling on the of imprisonment (see Panchenko, cited above, extension of the measure of restraint. § 102; “Iliykov v. Bulgaria”, No. 33977/96, § 81, July 26, 2001; and “Letelje v. France”, Monitoring of the case of A. Melnik, decision of June 26, 1991, series A No. 207, § A. Kryzhanovsky, I. Pasichny, I. Kunik 51). (10/10/19 session) However, the Court reiterates that any sys- On October 10, in the Gadyachsky District tem of compulsory detention pending trial is Court of the Poltava Region, a regular court incompatible with Article 5 § 3 of the Conven- session was held in the case of the head of tion, as the national authorities are obliged to the Visit television company Alexander Mel- establish and demonstrate the existence of spe- nik, who is one of four accused (together with cific facts that outweigh the rule of respect for A. Kryzhanovsky, I. Pasichny, I. Kunik) in individual freedom (see “Rokhlina v. Russia”, the case of the murder of the mayor of Kre- No. 54071/00, § 67, April 7, 2005, with further menchug A. Babayev and judge of the Kre- references). In this case, the domestic authori- menchug court A. Lobodenko. ties did not state any specific facts confirming It should be noted that all defendants have the detention orders. ISHR experts are worried been in custody since September 2014. Over about the lack of justification for extending the course of all five years, several panels of the measure of restraint in court rulings. Since judges were replaced, but the verdict was never the prosecutor must prove the existence of the passed. As mentioned earlier, on June 12, 2019, corresponding risks of non-performance of pro- the Gadyachsky District Court of the Poltava cedural obligations, the court makes decisions region approved the permission for the pros- on the extension of the measure of restraint ecutor to meet with the accused Pasichny in based on the presence of specific facts that are the Poltava Penitentiary Institution. This pe- contained in the application. Thus, in order tition was not submitted for discussion by the to justify anything, it is enough for the court participants in the trial, despite the fact that to lay out the facts cited by the prosecution on the same day session was held on the case. in its decision. But in this case, prosecutors Moreover, according to § 3 of part 4. Ar- systematically ignore the norms of the Code of ticle. 42 of the Code of Criminal Procedure Criminal Procedure in terms of justifying the of Ukraine, the accused has the right to ex- extension of the measure of restraint. More- press his position in judicial seizing regarding over, one of the prosecutors, when asked by the motions of other participants in the ju- the observer of the ISHR why the norms of dicial proceedings. Based on the sanction au- Articles 177 and 183 of the Code of Criminal thorized by the court, the prosecutor visited Procedure on justification of risks are not re- the accused Pasichny in the pre-trial detention spected, replied that such a request is enough center without the participation of a defense for this court. What was meant by this phrase, attorney. Accused Pasichny himself claimed the representative of the prosecutor’s office that the meeting took place without his attor- did not explain. ney. Moreover, according to Part 1 of Art. 52 Particular attention should be paid to the of the Code of Criminal Procedure of Ukraine, fact that during the appeal of the decision to the participation of a defender is mandatory extend the measure of restraint of 05/11/2019, in criminal proceedings regarding particularly the Gadyatskiy district court once again issued serious crimes. a new ruling of 07/04/2019 to extend the mea- After meeting with the prosecutor, the ac-

64 cused Pasichny informed the court about his accused I. Pasichny, who, in his sixth year desire to conclude a plea bargain. Subse- in custody, declared his desire to conclude a quently, the court allowed the prosecution to guilty plea agreement. On October 16, 2019, conduct additional investigative actions involv- the Gadyatsky District Court approved a plea ing the accused Pasichny, the results of which agreement between the prosecutor Moskalenko became the basis for changing the accusation and the accused I. Pasichny. The sentencing for all the accused in the case. of the accused Pasichny followed after the sep- ISHR experts express concern over the fact aration of his case in a separate proceeding. that new evidence was gathered after the pros- The same panel of judges of the Gadyatsky ecutor visited the accused Pasichny in the District Court pronounced the verdict on the sixth year of pre-trial detention. Moreover, accused, which is considering the case with the meeting took place without prior notifica- respect to the rest of the accused. On October tion of the accused’s lawyer and without the 22, 2019, at the next court session, the defense participation of a defense counsel. filed a motion to challenge the panel of judges In § 85 of the ECtHR judgment “Yaremenko of the Gadyatskiy district court composed of v. Ukraine”, the European Court recalls that chairman S. Kirichka, judges E. Zakolodyazh- the right of every person charged with a crimi- naya, L. Tishchenko. The petition is mainly nal offense to have effective defense of a lawyer motivated by the fact that the defense fears appointed officially when necessary is one of that the collegium which convicted one of the the fundamental features of a fair trial. The accused (I. Pasichny) will not be able to con- Court observes that in this case the sentence duct an impartial and objective trial against according to which the applicant was convicted the remaining three accused. of the 1998 crime was mainly based on his con- By the decision of the panel of judges of the fession, which was obtained in the absence of Gadyatsky District Court, the application of a lawyer (§ 86 of the judgment). the defense was rejected. In view of the forego- At the session that took place on October ing, the ISHR experts suggest that attention 10, the prosecutor Savchuk filed a motion for be paid to the case law of the European Court separation into a separate proceeding, the case of Human Rights on the impartiality of judges. against the accused Pasichny, in connection with the conclusion of an agreement on guilty In §§ 114-116 of the ECtHR judgment plea. The court, after entering the deliberation “Rudnichenko v. Ukraine” (Application No. room, issued rulings on separation in a sepa- 2775/07), the Court notes that in the vast ma- rate proceeding, the case against the accused jority of cases involving impartiality, it focused Pasichny. on objective verification. However, there is no separation between subjective and objective impartiality, since the conduct of a judge can Monitoring of the case of A. Melnik, not only raise objective fears of impartiality A. Kryzhanovsky, I. Kunik (session from the point of view of an external observer 11/04/19) (objective test) but can also turn to the ques- On November 4, a regular court session was tion of his personal conviction (subjective ver- held in the Gadyatsky District Court of the ification). Thus, in some cases where it may Poltava Region in the case of the head of the be difficult to obtain evidence that can refute “Visit” television company, Alexander Mel- the presumption of the subjective impartiality nik, who is one of the accused (together with of a judge, the requirement of objective impar- A. Kryzhanovsky, I. Kunik) in the murder of tiality provides another important guarantee. the mayor of Kremenchug A. Babayev and The Court also emphasizes that in this respect Judge of the Kremenchug court A. Lobodenko even appearance may have a certain meaning Earlier, on July 13, 2019, the court allowed or, in other words, “justice should not only be the prosecution to conduct additional inves- perfect, but should be considered perfect”. At tigative actions with the participation of the stake is the trust that the courts in a demo-

65 cratic society must inspire in the public. Thus, Judge of the Kremenchug court A. Lobodenko. any judge with respect to whom there is le- At this hearing, the prosecutor filed a motion gitimate reason to fear a lack of impartiality to extend the measure of restraint to all the must withdraw its decision. accused. The application is motivated by the On November 4, 2019, the session began following: with a statement from the accused Melnik and Kryzhanovsky on the challenge of the 1. The severity of the possible punishment prosecutor Khodatenok. in the form of life imprisonment, the prose- The petition is motivated by the fact that cutor considers enough justification that the on September 11, 2014, after a court hearing accused can hide from the court. in the Court of Appeal of the Poltava Region, The European Court of Human Rights ac- the prosecutor Khodatenko told the media knowledges that suspicion of serious crimes that the accused Melnik was suspected of the may initially justify detention. At the initial murder of Judge A, Lobodenko. But, as of stage of the proceedings, the need to ensure September 11, 2014, A. Melnik was not in the the proper conduct of the investigation and status of a suspect on this fact. to prevent the escape or re-commission of the The accused A. Melnik filed a lawsuit in offense may justify detention. However, de- court on violation of the presumption of in- spite the fact that the severity of the sentence nocence. The defendant in the lawsuit was is an important element in assessing the risk the prosecutor’s office of the Poltava region of escaping or re-offending, the Court recalls represented by the mentioned prosecutor Kho- that the gravity of the charges alone cannot datenko. justify the lengthy periods of pre-trial deten- The lawyer of the accused A. Kryzhanov- tion (§ 102, ECtHR judgment of “Panchenko sky, M. Vasilishin, focused on the fact that v. Russia”). As regards the risk of escape, the only the fact that the prosecutor was the de- Court recalls that such a danger cannot be fendant in a civil case is enough for a reason- measured solely based on the severity of the able doubt about the bias of the prosecutor sentence he faced (§ 106, Decisions of the EC- in this criminal proceeding. By the decision of tHR “Panchenko v. Russia”). the board of judges of the Gadyatsky district It must be clarified that in the phrase “ini- court of November 4, 2019, the request for the tially acquit”, such an excuse cannot be ap- challenge of the prosecutor Khodatenko was plied to the defendants in this case, as their refused. term of detention exceeded 5 years. It should be noted that according to clause 2 of part 1 of Article 3 of the Law of Ukraine 2. The prosecution also considered it possi- “On the Prosecutor’s Office”, the activities ble to assert that the statement of the accused of the prosecutor’s office are based on the about distrust of the court is also a risk of principles of legality, justice, impartiality and non-fulfillment of procedural obligations. It objectivity. should be noted that the International Society for Human Rights has repeatedly expressed Monitoring of the case of A. Melnik, its concerns about a possible violation of the A. Kryzhanovsky, I. Kunik (session rights of the accused, including the right to 12/17/19) a fair trial. First of all, such concerns relate to the automatic extension of the measure of On December 17, a regular court session was restraint in the form of detention (without jus- held in the Gadyatsky District Court of the tification for such a need by the prosecution). Poltava Region in the case of the head of the television company “Visit” Alexander Melnik, 3. Pressure on victims and witnesses. In § who is one of the three accused (together with 73 of the ECtHR Decision “Lyubimenko v. A. Kryzhanovsky, I. Kunik) in the murder of Russia”, the Court accepts that the authori- the mayor of Kremenchug A. Babayev and ties could reasonably believe that the risk of

66 pressure on witnesses and juries was present that the defendants have been in custody since initially. However, the Court is not convinced September 2014. In accordance with the Law that this basis alone could justify the entire of Ukraine “On Amendments to the Crimi- five-year period of the applicant’s detention. nal Procedure Code of Ukraine on Improving Indeed, the domestic courts referred to the risk the Procedure for Enrolling by the Court of of obstructing the trial in a short form, without the Term of Pretrial Detention in the Term indicating any aspect of the applicant’s nature of Sentence”, the court enters the term of pre- or behavior, in support of his conclusion that trial detention based on one day of detention he would likely resort to intimidation. In the for two for imprisonment. In fact, the accused Court’s view, such a generally formulated risk have been in custody for more than 5 years, cannot justify the applicant’s detention for and in the case of recounting, the period of more than five years. The domestic courts did their detention will be (at the moment) almost not take into account the fact that this basis 11 years. In this regard, the International So- inevitably became less and less relevant over ciety for Human Rights considers the fears of time. Thus, the Court is not convinced that lawyers that the court will be forced to take throughout the entire period of the applicant’s into account the fact that the defendants have detention there were substantial grounds for already served more than the minimum sen- fear that he would interfere with witnesses or tence of 10 years of imprisonment specified in jurors or otherwise impede the examination of Part 2 of Article 115 of the Criminal Code, are the case, and, of course, not to outweigh the justified. Given the fact that the court is still applicant’s right to a trial within a reasonable considering the first episode of the two (first period of time or to release pending trial. murder), the term of detention of the accused may be much longer. Despite the gravity of 4. The impossibility of applying a milder the accusation, the International Society for measure of restraint is motivated by the fact Human Rights considers that the presumption that there is no control over the accused’s com- of innocence must also be taken into account, munication at the place of residence, there is according to which the accused should be at no full control in the days of court hearings, the stage until their guilt is proved to be inno- and also the imperfection of electronic con- cent. And the deprivations associated with the trols. criminal case should not be more than what a high-quality court hearing requires. It should be noted that during the consider- According to § 35 of the Decision of the ation of the application of methods to ensure ECtHR “Muller v. France”, in order to assess criminal proceedings, the parties must submit whether continued detention is justified, first to the court evidence of the circumstances to of all, one should study all the circumstances which they refer (part 5 of article 132 of the proving the existence or absence of such a Criminal Procedure Code of Ukraine). At the requirement and state them in its decisions. same time, the side of the charge of requesting an extension of the measure of restraint was The constancy of reasonable suspicion is a limited only to formal descriptions of possible prerequisite for the lawfulness of prolonged violations by the accused, not referring to spe- detention, but after a certain period is insuffi- cific evidence. In addition, the burden for the cient. The court must establish other grounds imperfection of electronic controls on the ac- that continue to justify the deprivation of cused cannot be considered as consistent with liberty and will be “appropriate” and “suf- the principles of human rights protection. ficient”. Following a review of the prosecutor’s appli- Clause 91 of the Decision of the ECHR cation, the court ruled to extend the measure “Buzaci v. the Republic of Moldova” stipulates of restraint by the accused for another 60 days. that, first of all, the national judicial authori- An unprecedented violation of the reason- ties must ensure that in a particular case the able time frame for a trial involves the fact preliminary detention of the accused does not

67 exceed a reasonable time. Accordingly, they up, the lawyer stated that the judicial review should, taking into account the principle of had already dragged on and it was time to the presumption of innocence, study all the move on to a judicial debate. However, the facts that are in favor or against the existence court granted the motion of the prosecution. of the aforementioned requirement of public The adjournment of court hearings for one interest or justify a deviation from the norm reason or another is one of the main reasons in Article 5 of the Convention, and must state for violating the principle of reasonableness of them in their decisions. the time limits for judicial review in Ukraine. As a rule, a session is postponed for a month or more. In almost every report, ISHR ex- 3.15. The trial of Petr perts note the fact that the trial was post- Mikhalchevsky poned for a long time. For example, in the case of V. Yanukovych, the hearing took place Monitoring the case of Petr Mikhalchevsky after more than two months of transfers. This (session on September 25, 2019) trend is not conducive to fair trial. Article 6 of the European Convention provides the On September 25, a hearing was held in the accused with the right to a fair hearing within case of the ex-Minister of Health of Crimea, a reasonable time. In its case law, the ECtHR surgeon Petr Mikhalchevsky, who is charged notes that Article 6 of the Convention, when with treason and encroachment on the territo- it comes to criminal cases, is designed to avoid rial integrity and inviolability of Ukraine. situations where the accused remains unaware The prosecution once again requested the of his fate for too long (“Nakhmanovich v. adjournment of the hearing due to the absence Russia”). A reference to the observance of a of expert Kovbasenko for interrogation. In his reasonable time is also contained in the provi- defense, the prosecutor stated that he failed to sions of sub. “C” Clause 3, Article 14 of the secure the appearance of the expert because he International Covenant on Civil and Politi- had left the expert institution and his where- cal Rights of 1966, from which it follows that abouts were unknown. He also added that they criminal cases must be tried without undue had sent a request to the Department of Na- delay, in strict accordance with the rules of tional Security of the Ukrainian Secret Service the proceedings, an important component of (SBU) to establish the place of residence of which is the time frame for considering cases. the expert, and just on the day of the court It is worth noting that the Constitutional hearing SBU sent a response. Base on that, Court of Ukraine declared unconstitutional the prosecutor asked the court to adjourn the the lack of alternative measures of restraint in session and send a judicial challenge to the the form of detention, which was enshrined in expert. article 111 of the Criminal Code of Ukraine. The defense party, in turn, requested the Guided by this decision, the court at previ- court not to satisfy this request, since it con- ous hearings changed the measure of restraint siders that the prosecution deliberately delays from detention to nightly house arrest, which the trial. The lawyer argued the statement by is certainly a positive point, since the case the fact that it was known that the expert law of the ECtHR for a long time indicates had been dismissed six months ago, and it was that the non-alternative measure of restraint because of this that the defense “withdrew” violates § 3 of Article 5 of the Convention request to call the expert, and after that the (“Sinkov v. Ukraine”). prosecution ﬁled a similar request and, as a result, the court hearings were rescheduled 3 Monitoring the case of Petr Mikhalchevsky or 4 times. As for the response of the SBU, (session 10/29/2019) the request from the prosecutor’s oﬃce was ready at the previous session, but for unknown On October 29, a hearing was held in the case reasons was sent only a week ago. Summing of the ex-Minister of Health of Crimea, sur-

68 geon Petr Mikhalchevsky, who is charged with ness of the trial is considered not only and not treason and encroachment on the territorial so much as just the final result, which Article 6 integrity and inviolability of Ukraine. of the Convention aims to achieve, but also as At a previous hearing, the court, on its own a general characteristic of the trial, one of the initiative, decided to “re-examine” the pros- essential elements of which is the adversarial ecution witness, because due to unidentified procedure and the equality of arms. technical problems there is no audio and video It is also worth noting that at this session, recording of the interrogation. At this session, the prosecutor’s motion to extend the mea- the defense objected to the court and pointed sure of restraint in the form of house arrest out that the court does not have the right to at night and the defense motion to change initiate a “second” interrogation, since accord- the measure of restraint from home arrest at ing to the criminal procedural law of Ukraine night to a personal obligation was considered. only parties can petition for the interroga- The court once again wanted to neglect the tion of witnesses (principles of equality and norms of the procedural law and make a de- adversarial action), and the court acts as an cision without hearing the petitions, but at arbitrator only. the request of the defense the petitions were The lawyer also emphasized that although it read out. The court granted the petition of was the court that called the witness, but, this the defense and replaced P. Mikhalchevsky’s witness contacted the prosecutor and said that measure of restraint to a personal obligation. he is unable to attend the hearing, which sug- It is worth noting the positive trend that the gests the idea of their extra-procedural com- ISHR experts can single out right now – the munication. In addition, the expert, whom courts are massively releasing the accused from the court was already summoning at the 4th custody, changing the measure of restraint to a session, once again failed to appear at the hear- milder one. So, for example, the court released ing, but came to the prosecutor, and wrote a under the personal obligation ex-SBU general statement by hand that he would not be able A. Shchegolev after almost 8 years (according to attend the session. to Savchenko’s law) of his detention. Based on this and focusing on the violation of the norms of the criminal procedure code, 3.16. The trial of Vasily as well as the principles of equality and adversarial treatment of the parties, the defense Muravitsky requested not to call the prosecution witness Monitoring the trial of Vasily Muravitsky for re-examination. The court, contrary to the (court hearing 10/01/19) requirements of the law, did not satisfy the petition of the lawyers. On January 10, 2019, the court session in the The principle of procedural equality of par- case of the journalist Vasily Muravytsky, ac- ties is not directly enshrined in the Convention cused of high treason and encroachment on for the Protection of Human Rights and Fun- the territorial integrity of Ukraine through damental Freedoms, however, based on the his journalistic activities, took place in the content of Article 6, which speaks of the right Korolevsky district court of Zhytomyr (part to a fair trial, this principle should be recog- 2 of article 110, part 1 of article 111, part 2 nized as one of the components of the right to of article 161, part 1 of article 258-3 of the a fair trial. The ECtHR considers the procedu- Criminal Code of Ukraine). Experts of the ral equality of the parties (equality of arms) as International Society for Human Rights con- one of the elements of a fair trial, which implies tinue to monitor this trial. Two of the three – within the meaning of § 1 of Article 6 of the lawyers of V. Muravitsky, A. Domansky and Convention – ensuring a “fair balance of the R. Bereshchenko, filed applications for the ter- rights of the parties” (“Batsanin v. Russian mination of the defense counsel’s powers in Federation”, “Yvonne v. France”). The fair- this case. The accused, commenting on the rea-

69 son for the breach of contracts with lawyers, decisions and norms of the European Conven- said that this happened by agreement of the tion to comply with the provisions of the Code parties and mutual decision. In the future, of Criminal Procedure is a violation. lawyer Svetlana Novitskaya, who entered the Lawyer S. Novitskaya, in her turn, stated case at the last court session, will defend Vasily that the petition of the prosecutor in violation Muravitsky in court. of part 2 of Article 184 of the Code of Crimi- The course of the session. Prosecutor nal Procedure was not granted to the defense Levchenko again filed a motion to change the for familiarization 3 hours before the case was preventive measure of the accused to detention. considered in court. In addition, she filed a As in previous petitions, the need to elect more petition for the abolition of any preventive severe (according to Article 183 of the Code of measures to the client due to his impeccable Criminal Procedure – exceptional) preventive behavior under house arrest and numerous measure, was due to the severity of the alleged statements and support from international or- crime, the possible escape of the accused from ganizations and members of the European Par- the country, as well as the possible continua- liament demanding to stop the persecution of tion of subversive information activities. The Vasily Muravitsky. The lawyer also pointed prosecutor’s risk of the fact that the accused out the fact that according to Article 17 of could be hiding from the court was argued by the Code of Criminal Procedure (presumption the good relations between V. Muravitsky and of innocence) V. Muravitsky is currently con- foreigners and representatives of international sidered innocent and worthy of appropriate organizations. Although, contrary to Article treatment. 200 of the Code of Criminal Procedure, the Vasily Muravitsky supported the petition prosecutor did not indicate a single negative of his counsel. He stated that, under house circumstance that arose after the decision to arrest, he could not exercise his right to work, apply a preventive measure in the form of could not support his family and contain a house arrest (according to Article 18 of the young child. He also had problems with con- Code of Criminal Procedure). During the stay ducting medical examinations in conditions of the accused under house arrest, there was of round-the-clock house arrest. Also, the ac- not a single violation on his part. cused stated that in their reports the OSCE The prosecutor also said that the court, re- and the ISHR already wrote that the prose- lying on the practice of the ECHR in deciding cutor Levchenko stated that the court should on the application of a preventive measure, not use the decisions of the ECHR in its de- contradicts the rules of the Code of Crimi- cisions, which was noted as a violation of hu- nal Procedure. According to him, in the prac- man rights. The prosecutor commented on this tice of the ECHR there are no decisions on statement, reiterating that the list of decisions the illegality of Part 5 of Article 176 of the of the ECHR without giving concrete argu- Criminal Procedure Code (which presupposes ments that concern the case, is meaningless the existence of non-alternative articles of the and that the defense does not provide proper Criminal Code) and the violation of human justification. And reports and statements of in- rights or freedoms by this article. Thus, it can ternational organizations should be perceived be assumed that the prosecutor intentionally as pressure on the court and its independence. urged the court to ignore article 17 of the Law Observers of the International Society for of Ukraine “On the execution of decisions and Human Rights draw attention to the fact that the application of the practice of the ECHR”, in the courtroom at each and every meeting which says: “the courts apply the Convention there are activists, including representatives and the practice of the Court as a source of of the radical nationalist group “C14”. And law”. And according to its legal force, interna- each session is accompanied by a violation of tional norms prevail over national law, which silence, provocations and sometimes threats certainly means that disregard of the ECHR against the accused and his defenders, as well

70 as appeals to the court. But for all the time of Since the protocol with the evidence was monitoring this case, the prosecutor has never not fully considered, it will continue to be stated about the alleged pressure on the court considered at the next session. As a result, the from aggressive activists, which may indicate court did not accept the lawyer’s request not his biased attitude. to attach the case file. After discussing the petitions in the deliber- At the end of the session, Muravitsky filed a ation room, the court decided to dismiss the petition for the possibility of attending Sunday petitions of the parties and extended the pre- service in the church, every Sunday. Having ventive measure in the form of round-the-clock specified the time spent in the church and house arrest for another 60 days, until March its location, the court granted the petition. 10, 2019 inclusive. Also, the defendants were requested to visit the dental office, but the court rejected it because Monitoring the case of V. Muravitsky the request did not contain official information (court hearing 30/08/2019) about the time of appointment. On August 30, 2019, in the Korolevskiy Dis- Monitoring the case of Vasily Muravitsky trict Court of Zhytomyr, a regular court ses- (session 08/14/19) sion was held in the case of the journalist Vasily Muravitsky, who is accused of treason On August 14, 2019, in the Korolevskiy Dis- and encroachment on the territorial integrity trict Court of the city of Zhytomyr, a regular of Ukraine (part 2 of article 110, part 1 of court session was held in the case of the jour- article 111, part 2 of article 161, part 1, ar- nalist Vasily Muravitsky, who is accused of ticle 258-3 of the Criminal Code of Ukraine) treason and encroachment on the territorial through his journalistic activities. integrity of Ukraine (part 2 of article 110, part The course of the session. The session began 1 of article 111, part 2 of article 161, part 1, with the announcement of the change of pros- article 258-3 of the Criminal Code of Ukraine) ecutor. Prosecutor Levchenko was succeeded through his journalistic activities. Experts of by prosecutor Yakhimchuk. the International Society for Human Rights Prosecutor Yakhimchuk continued to review continue monitoring this trial. The course of written evidence and materials obtained as a the session. result of covert investigative actions. The pros- Prosecutor Levchenko continued consider- ecutor provided screenshots of the computer ation of written evidence and materials ob- screen as evidence, according to the prose- tained as a result of covert investigative ac- cutor’s office, which belonged to the accused. tions. The prosecutor provided screenshots of Screenshots of correspondence in the Telegram the computer screen as evidence, according program were considered, as well as screen- to the prosecutor’s office, belonged to the ac- shots taken during typing. According to the cused. Screenshots of correspondence in the prosecutor, Muravitsky received instructions Telegram program were examined, which the from a certain person (whom the prosecutor prosecutor readout. According to the prose- called the curator and received a comment cutor, Muravitsky was involved in organizing from the lawyer and judge) for writing articles conferences aimed at undermining confidence on certain topics. in the government. The lawyer asked the court to note that The defense of the accused focused the the evidence had already been examined, that court’s attention on the fact that the mate- the evidence was inadmissible, and that the rials of the covert investigative actions were prosecutor was abusing his official position. received in violation of the CPC of Ukraine, as The prosecutor replied that the lawyer should they were carried out by operational officers not prevent the prosecutor from fulfilling his without the proper written order of the in- procedural duties. The study of evidence was vestigator, and the protocols themselves were continued. drawn up by unauthorized law enforcement

71 officers. Also, holding conferences in Ukraine staying under house arrest will be 16 months. is not illegal. The prosecutor replied that there In the case of “Navalny v. Russia”, the Euro- were relevant instructions, but they were clas- pean Court of Human Rights, having analyzed sified and will be provided later. the fact that the applicant spent 10 months The defense side objected to the inclusion of under house arrest, found a violation of Ar- this protocol. Lawyer Novitskaya stated that ticle 5 § 1 of the European Convention. The there was not a single examination confirm- national court of the Russian Federation did ing that it was screenshots from Muravitsky’s not substantiate the risks of non-fulfillment laptop, as well as their authenticity. by the accused of his procedural obligations, The court dismissed the motion of the de- including the possibility of escape to evade jus- fense to invalidate the evidence. tice. A similar situation is observed in the case of V. Muravitsky. Having been under house The court attached evidence of the prose- arrest for more than a year (while having a cutor. Then, the prosecutor insisted on a re- necessity to support the family, including two examination of the disc already reviewed at young children), given the conscientious ful- previous sessions. When asked by the judge fillment of all procedural requirements, the what it was for, the prosecutor Levchenko International Society for Human Rights is con- replied that he wanted to once again focus cerned about the impartiality of the court. the court’s attention on certain details. The lawyer objected to such actions, accusing the prosecutor of delaying the trial, but the court Monitoring the case of V. Muravitsky rejected her remark and continued to review (court hearing 10/18/2019) screenshots from the disk. When the court On October 18, 2019, in the Korolevsky Dis- asked the prosecutor what exactly he wants trict Court of Zhytomyr a regular court session to focus on, he answered that the date of the was held in the case of the journalist Vasily screenshot creation and its availability. Muravitsky, who is accused of treason and At the end of the session, the prosecutor encroachment on the territorial integrity of filed a motion to change Muravitsky’s mea- Ukraine (part 2 of article 110, part 1 of article sure of restraint from round-the-clock house 111, part 2 of article 161, part 1, article 258- arrest to detention without the possibility of 3 of the Criminal Code of Ukraine) through making a bail, arguing this by the fact that his journalistic activities. Experts from the Muravitsky can continue to engage in sub- International Society for Human Rights con- versive information activities, as well as the tinue to monitor this lawsuit. The course of severity of the article imputed to him. the hearing. The defense side filed a motion to cancel the At a previous hearing, a decision was made measure of restraint in the form of a round-the- to call a technical specialist and an expert clock house arrest, which, in the opinion of the linguist. The expert linguist failed to appear defense, cannot last more than 6 months, and and sent a corresponding letter. about the possibility of making bail and deter- One of the main evidences of the guilt of mining its size. The lawyer Novitskaya in her Muravitsky, which the prosecutor read out at petition stated that there is no tangible and a large number of court hearings, was screen- proper evidence of the guilt of the accused, the shots taken from saved pages of Internet re- examinations were conducted with violations, sources, as well as text documents taken from as well as calls by international organizations the accused’s laptop and screenshots of cor- to stop the persecution of political prisoner respondence taken from his laptop. All these Vasily Muravitsky. After the break, the court files were written to discs. The defense and decided to leave the round-the-clock house ar- the judges had questions during their consid- rest for another 60 days until 10/12/2019; the eration: how exactly these files were written petition of the prosecutor and the defense shall to disk and was it possible to change them be dismissed. The total term of the journalist before recording? Also, the question arose of

72 discrepancy between the recording date of the inal Procedure. The defense asked a number disc and the compilation of the surveillance of questions to the specialist regarding the protocol. stored and recorded data, their reliability and A technician was called to answer these the possibility of changes before recording to questions. He was asked a series of questions disk. Also, the specialist, answering the ques- by the lawyer and the accused. The prosecution, said that he could not clearly state who tor also asked a few questions. The specialist used the laptop and typed this text, this is confirmed that it is possible to change any determined by the investigator. file, including the saved web page, the date The prosecutor asked to attach evidence, of recording, modification and creation of the namely, a protocol for examining the laptop file, the text that is on the saved web pages. and a disc with recorded files. The lawyer and When asked by the court whether it is possible the accused objected to the initiation. The to confirm that these saved files were saved court attached the protocol with the disk to from the indicated Internet resources, the spe- the case file, indicating that the assessment cialist confirmed this by showing the court of the evidence would be given by the court the information hidden in the file. But, on a when deciding on this proceeding. question about Muravitsky answered that this As a result, the court attached two pro- information could also be changed. Vasily Mu- tocols, according to the defense, containing ravitsky drew the attention of the court to the questionable information, since the specialist fact that it was not indicated in the protocol invited to the court session and having exam- where exactly the web pages were stored, the ined the seized equipment could not answer screenshots of which the prosecutor submits as unambiguously that the information on the evidence of guilt. Before writing to disk, they recorded media could not be changed during were saved on the PC, but which one is not the investigation, and the investigator stud- indicated anywhere. The prosecutor requested ied files already saved to an unknown device that evidence be attached to the case file. (according to the defense, the device is not specified in the protocols) unknown by anyone Vasily Muravitsky objected to the sharing (which the lawyer focused on). The specialist of this evidence and asked to recognize it as noted that the authenticity and immutability unacceptable, arguing that there was no infor- of files can only be ascertained by means of mation on how the web pages were saved. The a special examination. Neither the prosecu- lawyer also objected to the initiation, calling tion nor the defense side requested such an the evidence obviously inadmissible. In her examination. opinion, there is no information about who According to the ECtHR case law, “. . . it saved the web pages and there is no reliable is necessary to take into account the qual- information about their authenticity and that ity of the evidence, including whether the cir- they were not changed. The prosecutor com- cumstances under which it was obtained raise mented that the defense did not submit any doubts about its reliability or accuracy” (case evidence that the files on the disk were modi- of “Jalloh v. Germany”, § 96). fied. The court attached the inspection report with the attached disk to the case file. Monitoring the case of V. Muravitsky Next, a laptop which was seized during a (court hearing 10/03/2019) search in the apartment of the accused. A specialist who was directly involved in this October 3, 2019 in the Korolevskiy District examination told how files were seized from Court of the city of Zhytomyr, a regular court the laptop’s hard drive. The seized data was session was held in the case of the journal- written to disk. The lawyer drew the court’s ist Vasily Muravitsky, who is accused of trea- attention to the fact that the disk was not son and encroachment on the territorial in- packed in accordance with the procedural re- tegrity of Ukraine (part 2 of article 110, part quirements of Article 106 of the Code of Crim- 1 of article 111, part 2 of article 161, part

73 1 of article 258-3 of the Criminal Code of match the date the protocol was written. The Ukraine) through his journalistic activities. court took into account the fact that the ex- Experts from the International Society for Hu- perts had already been summoned to the court, man Rights continue to monitor this lawsuit. but did not come, and decided to postpone The course of the session. the consideration of the evidence submitted The court continued to examine the writ- by the prosecutor with the discs until the next ten evidence and materials of the prosecution session, to which a technical specialist and obtained as a result of covert investigative ac- investigator will be invited to provide clarifi- tions. The prosecutor provided screenshots of cations. In connection with the expiration of the computer screen as evidence, according the term of the measure of restraint before the to the prosecutor’s office, which belonged to date of the next court hearing, the prosecu- the accused. Screenshots of correspondence tor filed a motion to change the measure of with a person which, according to the prose- restraint of the accused from round-the-clock cutor’s office, is living in the territory of the house arrest to detention. The prosecutor’s Russian Federation, namely with the editor of argument was based on the seriousness of the the Media “Politnavigator”. According to the accusation, the risks of absconding from the prosecutor, V. Muravitsky received payment court and the possibility of leaving the country from this person for the his articles. The defen- and moving to the Russian Federation. dant objected to the inclusion of this protocol, The defense also filed a motion to change considering it an unacceptable evidence and the measure of restraint from round-the-clock filed a motion, which was supported by the house arrest to a personal obligation. Arguing lawyer. After consulting on the spot, the court their petition with the fact that most of the decided to refuse to declare the evidence inad- evidence has already been investigated and missible and attached it to the case file. The filed, there are no witnesses or victims in the prosecutor filed, as evidence, petitions to the case, no material damage was claimed in the investigating judge for permission to conduct indictment and there are no risks. A round-the- covert investigative actions and an order to clock house arrest deprives V. Muravitsky of carry them out. Among them, permission to receiving full medical care, in addition, he has visually observe a person, take photographs, two young children and, due to house arrest, is acquire information from electronic informa- unable to work. Vasily Muravitsky also filed a tion systems, e-mail, audio and video control petition in which he asked the court to change over the place of residence of the accused. The the measure of restraint from round-the-clock defense side commented that all these requests house arrest to less strict, namely personal do not contain permission to interfere in pri- obligation, or night house arrest, bail. The vate communication. Consequently, the inves- main arguments are the need for treatment tigative activities were carried out in violation of the musculoskeletal system and support of the constitutional rights of the accused. The for the family. The accused pointed out the prosecutor commented that these are procedu- absence of violations during his stay under ral documents that confirm the conduct of the round-the-clock house arrest as the basis for investigation, and in themselves do not contain the petition. evidence. The court attached this evidence. The defendant filed another motion regard- Further, the prosecutor wanted to file an- ing an official letter from the European Par- other inspection protocol with the disc, but liament inviting him to speak at a hearing the defense insisted on examining it together on freedom of speech in Ukraine and Eastern with a technical specialist who could explain Europe as a speaker and expert. The hearing how the files were written to the disc and how will take place in the European Parliament the screenshots were created, since the defense building in Brussels, Belgium. V. Muravitsky has questions regarding their authenticity and asked the court for permission to stay out- that the recording date of the disc does not side Ukraine for three days. He also asked for

74 permission to apply for a biometric passport, saved Internet pages, on which there were texts with his subsequent delivery after a trip to allegedly written by V. Muravitsky and pub- the migration service. Travel and accommo- lished in an online publication. The lawyer dation will be provided at the expense of the drew the court’s attention to the fact that European Parliament and the European Green nowhere is indicated where the web pages were Faction. stored, which were later reviewed and system- The prosecutor objected to the satisfaction atized by the investigator, and by whom they of the requests of the accused and the defense were recorded and included in the case file. After the break, the court, guided by Ar- The investigator could not explain this, say- ticles 176-178, 181, 194, 331 of the Code of ing that he did not remember. The prosecutor Criminal Procedure of Ukraine, decided to provided the court with a smartphone and an leave the measure of restraint in the form of a external hard drive seized during the searches round-the-clock house arrest for a period of 60 conducted at the address of Muravitsky’s resi- days until December 01, 2019. V. Muravitsky’s dence, as well as files stored on the hard drive, request for the possibility of traveling abroad the date of which was 2014. was dismissed. The prosecution provided the results of a A similar situation with the extension of psychological examination and read its results. house arrest was noted by the ECtHR in the The defense did not object to the inclusion of case of “Buzazi v. Moldova”, where in § 121 this evidence, but noted that the results of this it was stated that “in the absence of any rea- examination contradict themselves, and that son to believe that the applicant was hiding the expert himself is not a forensic expert. or interfering in the investigation, the court Due to the fact that the term of the selected ordered his house arrest. The decisions to ap- measure of restraint is ending, the prosecutor point and extend the period of house arrest filed a petition for the measure of restraint were not based on any reasons in support of in the form of detention with the possibility such a measure, except for the seriousness of of making a bail in the amount of 300 living the crime imputed to him”, which the EC- wages of individuals’ incomes. The prosecu- tHR defined as a violation of the European tor again argued his request with the severity Convention. of the alleged crimes, the risks of absconding from the court, and ties with Russian politi- Monitoring the case of V. Muravitsky cians. He also indicated that accused social (court hearing 11/29/2019) connections are not sustainable and exist only On November 29, 2019, in the Korolevsky Dis- with his family. trict Court of Zhytomyr, a regular court ses- The lawyer objected to the satisfaction of sion was held in the case of the journalist this request and filed her own, in which she Vasily Muravitsky, who is accused of trea- asked not to apply any measure of restraint son and encroachment on the territorial in- to Muravitsky. During his time under house tegrity of Ukraine (part 2 of article 110, part arrest, no violations were recorded on his part; 1 of article 111, part 2 of article 161, part he has a family, two young children and prop- 1 of article 258-3 of the Criminal Code of erty. The lawyer also indicated that the rea- Ukraine) through his journalistic activities. sonable terms of keeping the accused under Experts from the International Society for Hu- house arrest were violated. man Rights continue to monitor this lawsuit. After the meeting, the court, taking into The course of the session. account the gravity of the alleged crime, the At the beginning of the trial, for interro- identity of the accused, the marital status, gation as a witness, the forensic investigator came to the conclusion that at this stage of M. Soroka was invited. Among other questions, the judicial review, the defendant’s fulfillment the lawyer asked the investigator a question of his duties specified in Article 177 of the regarding the evidence, namely the CD with Code of Criminal Procedure of Ukraine can

75 be ensured by a measure of restraint in the The accused Muravitsky filed a motion form of a house arrest at night time. During declaring the refusal from the services of the stay of the accused under round-the-clock lawyer Novitskaya. He asked, in connection house arrest, no violations were recorded and with the involvement of a new defense attor- the court did not find reasons to satisfy the ney, to postpone the hearing to the next previ- prosecutor’s request. The measure of restraint ously agreed date. However, the court clarified was elected until January 27, 2020. that the refusal from the defense counsel is The International Society for Human Rights carried out in the presence of the attorney and has repeatedly pointed out the case law of the therefore both defense counsels must arrive ECtHR, which states that there is a presump- at the next hearing: the one with whom the tion in favor of release (§ 39 “Khairedinov v. contract is being canceled, and the one with Ukraine”). Also, presumption is provided for whom it will be signed. in § 3 of Article 176 of the Code of Criminal Procedure, which states that a court refuses to apply a measure of restraint if the prosecu- 3.17. The trial of Sergei Novak tor does not prove that a milder measure of restraint cannot prevent the accused from vio- Monitoring of the case of Sergei Novak lating his procedural obligations. In this case, and others (session 27/09/2019) the ISHR observer notes a positive trend in the On September 27, 2019, a hearing was held journalist’s case – mitigation of the measure in the Ordzhonikidze district court of Za- of restraint due to the proper performance of porozhye in the case of Novak S., Khristenko his procedural duties, as well as the lack of O., Kononyuk A., and Boginsky R., who par- justification by the prosecutor of the need to ticipated via the online broadcast hearing. apply an exceptional measure of restraint to the accused in the form of detention. Sergey Novak is accused of committing a crime under part 2 of article 187 of the Crimi- nal Code of Ukraine (robbery committed by Monitoring the case of V. Muravitsky prior conspiracy by a group of people). This (court hearing 11/12/2019) article provides for imprisonment of 7 to 10 On December 10, 2019, in the Korolevsky Dis- years with confiscation of property. In addition trict Court of Zhytomyr, a regular court ses- to this article, the remaining defendants are sion was held in the case of the journalist charged with Part 2 of Art. 189 (extortion by Vasily Muravitsky, who is accused of treason prior conspiracy by a group of people). and encroachment on the territorial integrity The trial began with a delay for one and a of Ukraine (part 2 of article 110, part 1 of arti- half hours. After the judge announced all the cle 111, part 2 of article 161, part 1, article 258- participants in the trial, the defendant Bogin- 3 of the Criminal Code of Ukraine) through sky appealed to the court for the opportunity his journalistic activities. Experts from the to hear the case without him due to his health International Society for Human Rights con- problems. He stated that he was brought to a tinue to monitor this lawsuit. The course of videoconference under threat from the head of the session. the medical unit. The defendant’s lawyers also The lawyer Novitskaya did not appear at appealed to the court to provide their client the hearing, arguing that she had another case. with medical assistance and to determine the The prosecutor asked the court to draw atten- possibility of his further participation in the tion to the fact that the date was planned, and trial. Judge Apollonova announced a break for the lawyer could plan her time to participate 45 minutes to establish the state of health of in the hearing, or at least warn the court in ad- the defendant. vance. The letter about the lawyer’s failure to In fact, the break dragged on for an hour appear in the court came only in the morning, and a half. The investigator provided a cer- before the trial itself. tificate from the detention center, which she

76 personally went to pick up. The certificate it would be enough for the investigation to ex- states that the defendant Boginsky has no con- tend the term of the pre-trial investigation by traindications regarding his presence at the one month. hearing in the video conference mode. How- Attorney Kravets filed a motion to challenge ever, there was no outgoing number on the the investigating judge Apollonova, pointing certificate, which is provided for all outgoing to the repeated rejections of the lawyers’ peti- documents from the remand prison. There is tions, which indicated violations of the dead- also no mark on the provision of medical care, lines for filing documentation, as well as inade- no diagnosis is indicated. The certificate indi- quate medical assistance to the defendant and cates that it was issued by a medical assistant. possible judgmental bias. Judge Apollonova Lawyers filed a petition on the impossibility left, and to decide on the challenge of the of introducing this document into the case, judge after half an hour, investigating judge since its authenticity is doubtful. The court Vorobyev appeared in the courtroom. rejected the petition, attached a certificate to During the identification of the participants the case and continued the hearing. The pros- in the trial, Judge Vorobyov revealed that the ecutor made a request to extend the terms of lawyer with whom the suspect A. Kononyuk the pre-trial investigation from two months had an agreement signed, was not present in to four, namely until 12/01/2019, referring the courtroom because he was busy at another to the gravity of the charge and the number trial and, accordingly, the public defender Na- of defendants. The lawyers filed a counter- talya Nikonchik provided by the Center for petition on the inappropriateness of filing the Secondary Legal Assistance does not have the petition of the prosecutor in court, since there authority to represent Kononyuk when consid- is an order and limitation of filing the petition. ering the extension of the pre-trial investiga- Also, the defense made a request for the op- tion. portunity to familiarize themselves with the The judge continued the hearing without court records and the procedure for the dis- the defense of one of the suspects. tribution of judges. The lawyer Kravets also Attorney Kravets once again demanded that indicated that in the petition of the prosecu- Judge Apollonova be challenged, since she did tion in the decision attached to the petition, not adequately respond to the complaints of Judge A. Vorobyov is indicated, and in the the suspected Baginsky about poor health, nor final part is the signature of Judge Apollonova. to reports of pressure from the remand prison, The court rejected the petitions of the to refusal to provide medical assistance, or to lawyers, arguing that the corrections were improperly filed petitions of the prosecution. recorded and entered, and that all deadlines This gave reason to assume the bias of the and procedures were followed. The question judge. All lawyers supported this petition. of why the lawyers and their clients were not The prosecutor and investigator protested, provided (according to the Criminal Proce- Judge Vorobyov left to the deliberation room. dure Code 3 hours before the request was an- After coming back from the deliberation nounced) copies of the corrected documents, room, he rejected the lawyer’s request and the remained open. Lawyer Lyapin protested the hearing continued with the participation of extension of the pre-trial investigation, justi- Judge Apollonova. fying this by delaying the trial by the prose- Lawyers protested the prosecution’s request cution. Lyapin noted that in two months of for an extension of the pre-trial investigation, pre-trial investigation, only one interrogation saying that the investigation deliberately de- was conducted with his client Novak. And con- lays the trial without taking proper steps in sidering that Novak refused to give evidence the investigation. The investigator, without at the interrogation because of poor health, in providing the proper documents, explained fact, no procedural actions took place in two that the expert in forensic immunological ex- months. The lawyer expressed the opinion that amination is on sick leave and it will take time

77 until mid-October to conduct these examina- The analysis of the court verdict indicates tions. To conduct a phonoscopic examination, that in determining the sentence the panel of it is necessary to send materials to Kiev. Offi- judges took into account the severity of the cially, a phonoscopic examination is conducted crimes committed by her, which the legislator in a month. The court was not interested why classifies as especially serious; the totality of the materials were not sent for examination all the circumstances that characterize her, for 2 months. The judge left to the delibera- including the fact that she was not previously tion room, and after she ruled to extend the convicted, her marital status, lack of a per- terms of the pre-trial investigation for another manent job, lack of income; the state of her two months, namely until 12/1/2019. mental health; her behavior and form of guilt, The court went on to consider the petition lack of criticism of her behavior, and the fact for an extension of the measure of restraint that she did not admit her guilt. in the form of detention of each of the suspects individually. After hearing the views of It follows from the verdict that the court the parties, the court decided to extend the took into account the practice of the Euro- measure of restraint in the form of detention pean Court of Human Rights, in particular, for 2 months for the defendants Khristenko, the ECtHR decision in the case of “Kobets v. Kononyuk and Boginsky. It was decided to Ukraine”, in § 43 of which the Court noted change the measure of restraint for Novak from that according to its case-law in assessing ev- detention to round-the-clock house arrest for idence, it is guided by the criterion “beyond a period of two months. reasonable doubt”. Such evidence should flow from a combination of features or irrefutable presumptions, sufficiently weighty, clear and 3.18. The trial of Larisa mutually agreed. Papaevich Having heard the participants in criminal Monitoring the case of Larisa Papaevich proceedings, having examined the case mate- (session 09/10/2019) rials, the panel of judges decided to appoint Larisa Papaevich the maximum punishment 09/10/2019 in the Sikhovsky District Court provided for by the sanction of § 1 of part 2 of of the city of Lvov with the participation of a article 115 of the Criminal Code of Ukraine, panel of judges: presiding judge I. Rudakova, in the form of life imprisonment. According to judges – B. Mychko, C. Chernoy the session the verdict, when deciding on the measure of was held in the case of L. Papaevich, accused restraint in the form of detention, the court, under §§ 1, 2, 9, 13 of part 2 of Art. 115 of on the basis of the provisions of § “a” part 1 of the Criminal Code of Ukraine. The conviction article 5 of the Convention for the Protection in the form of life imprisonment was passed of Human Rights and Fundamental Freedoms, at this session. § 31, § 32, § 46 , § 62 of the decision of the On December 24, 2015, police officers de- ECtHR in the case of “Ruslan Yakovenko v. tained a 47-year-old resident of the village Ukraine” considered it necessary before the of Tyaglov, Sokolsky District, on suspicion of sentence entered into force not to change a killing two women (28 and 70 years old) and measure of restraint for L. Papaevich. an eight-year-old child. When considering the case in court, the accused’s health condition The International Society for Human Rights worsened, and therefore, from December 20, will clarify the details of the proceedings, but 2016, compulsory medical measures were ap- at this stage no human rights violations, in- plied to her in the form of hospitalization in a cluding the right to a fair trial, have been psychiatric institution with strict supervision. detected. In addition, L. Papaevich and her After the accused recovered, in July 2018, the lawyer did not report violations during or after proceedings were resumed. the trial.

78 3.19. The trial of Alexander Continued to watch the video. In the frame Schegolev of the assault on the “Maidan”, protesters go on the offensive, throw stones, beat law en- Monitoring the case of Alexander forcement officers with sticks. Someone com- Shchegolev (session 07/03/2019) mands into the microphone the supporters of the “Maidan” to advance. They talk about On July 3, 2019, in the Shevchenkovsky Dis- the capture of one riot police officer. In the trict Court of Kiev, a regular court session video, he is covered in blood, he is beaten, the was held in the case of the former head of the fire continues. Main Directorate of the Security Service of Commenting on this passage, the prosecu- Ukraine in Kiev and the Kiev Region Alexan- tor says that there are a lot of old people and der Shchegolev, who is accused of leading the children on the video (but almost nothing is headquarters of the anti-terrorist operation visible there because of the fire and smoke), against Maidan supporters (winter 2013-2014). most of the protesters are peaceful protest, At the previous session on June 26, Alexan- and the confrontation is solely due to the ac- der Shchegolev was changed the measure of tions of law enforcement officers. He also added restraint to round-the-clock house arrest. that no one beat the captured police officer Experts from the International Society for and there is no offense in this. Lawyer V. Ry- Human Rights continue to monitor this law- bin expressed his indignation at the rally and suit. beating of the police officer by the protesters The hearing began with examining, pro- and noted that what is shown on the screen vided by the prosecutor’s office, of video ev- has nothing to do with the indictment, Gen- idence – Channel 5 broadcast from Maidan eral Shchegolev is not on the screen, and the 2013-2014. In the video there is a blazing fire, indictment states that at that time he was and behind the scenes, a female voice reciting a generally in a different place. prayer in Ukrainian with a strong American ac- cent. The announcer speaks about the ongoing The judge agreed with the lawyer, but noted confrontation between the protesters and the that he could not prohibit the prosecution security forces, and that the “titushki” (people from providing the evidence that they wanted opposing Maidan) in the uniform of “Maidan to investigate. self-defense” throw grenades and shoot, and Lawyer K. Legkikh said that the captured supporters of the “Maidan” build barricades. police officer was beaten, and this can be None of this is visible in the video. seen in the video. Moreover, a voice similar Commenting on this passage, the prosecu- to the voice of Alexander Turchinov (one of tor says that by organizing a fire the Maidan the major Ukrainian politicians who lead the is being protected from law enforcement and Maidan) called “to transfer everything to the does not violate public order. Lawyer V. Ry- front lines”, and the lawyer believes that it bin said that the defense against the onset of was about explosives. He also reminded those law enforcement and a fire in the city center present that in previous sessions the prosecu- can hardly be called a peaceful protest. He tor said that all the protesters were peaceful, also noted that the accused is not present on and now – most of them. General Shchegolev, this video and the House of Trade Unions ap- as a person directly related to law enforcement pearing in the prosecution is not even visible. agencies, said that everyone on video had just Attorney K. Legkikh added that a video was seen the taking of a hostage – a criminal of- watched at the last session where Maidan par- fense. ticipants claimed to have used “Molotov cock- Further, on air of Channel 5, the announcer tails” against law enforcement officers. General talks about blocking part of the internal troops Shchegolev pointed out that words were heard from the side of the protesters, broken gates, on the video that the protesters could not arson of the checkpoint and barracks, as well overcome the police, and this is a violent act. as the seizure of several more police officer.

79 According to the channel, one of the captured Monitoring the trial of Alexander hands was torn off. It was further reported that Shchegolev (session November 20, 2019) in Rovno, Maidan’s supporters stormed the riot police base and disarmed more than 50 law On November 20, a regular court session was enforcement officers, in Lvov, Ivano-Frankovsk held on the case of the former head of the and Ternopol captured the Regional State Ad- Security Service of Ukraine in Kiev and Kiev ministration, the prosecutor’s office, set fire Region, Alexander Shchegolev, who is accused to the building of the Ministry of Internal of having led the headquarters of the anti- Affairs and the barracks. Trying to explain terrorist operation conducted against Maidan something, the prosecutor says that at first supporters (winter 2013-2014). Experts from everyone was peaceful and only after aggres- the International Society for Human Rights sion by law enforcement they began to resist. continue to monitor this lawsuit. Lawyer V. Rybin again called on the court It is important to note the changes that to return to the framework of the indictment, have occurred in this lawsuit since our last ob- since the video being viewed does not con- servation. Firstly, after 3 years and 10 months tain information about the crimes allegedly of detention, on June 26 a measure of restraint incriminated to General Shchegolev. for A. Shchegolev was replaced for round-the- clock house arrest. Thus, when making this Then the commentator on the video an- decision, the court was guided by the position nounced the breakthrough of the riot police of the Constitutional Court, which considered “Berkut” on the 6th floor of the House of Trade the provision of part 5 of article 176 of the Unions(Shchegolev is accused of ordering to Code of Criminal Procedure of Ukraine, which set it on fire). Someone yells into the micro- prescribes the so-called “non alternative” mea- phone: “Unions are on fire! This is Berkut, not sure of restraint, for persons suspected or ac- us!” cused of committing a serious or especially Attorney K. Legkikh drew attention to the serious crime. In addition, on October 25, the fact that the video was interrupted for 20 sec- court granted the defense’s request and re- onds after reporting that Berkut had entered placed A. Shchegolev’s measure of restraint the 6th floor. According to him, in this cut out with a personal obligation. fragment supporters of the “Maidan” tell what At this hearing, the defense considered the they are doing in the House of Trade Unions. return of the documents to A. Shchegolev In addition, the defender noted that, accord- (passport of a citizen of Ukraine and a pass- ing to the channel, the fire did not spread port for traveling abroad). Attorney V. Rybin on the floors where the Berkut was. Lawyer motivated this application by the fact that Rybin protested because there was an official his client, due to the lack of a passport, can- examination of the causes of the fire, which not exercise his constitutional right to receive confirmed that the fire was due to the bottles a pension and official employment. In addi- of combustible mixture brought to the House tion, according to A. Shchegolev, without a of Trade Unions. passport, he cannot conclude a contract for medical care. The prosecution objected to the Meanwhile, on Channel 5 video, one of satisfaction of the petition and noted that the the Maidan organizers shouted into the mi- absence of the accused’s documents was the crophone again: “Set fire to everything that only way to prevent A. Schegolev from trav- burns! The fire subsides, you need to maintain eling abroad. The court partially granted the it!” petition, having decided to return to the ac- At 10:35 am, about an hour and a half af- cused only the passport of a citizen of Ukraine. ter the start of the session, the military en- The only violation that the experts of the tered the room and asked everyone to leave International Society for Human Rights can the courthouse, because it was reported that single out after observing this court session is it was mined. The session was adjourned. that the session began with a delay of more

80 than an hour. In previous reports, the ISHR under round-the-clock house arrest. The mo- experts repeatedly spoke about the violation tivation for the petition was that due to the of the principle of reasonable time in this trial information disseminated by Shariy, the prose- (reports dated 12/13/2018; 07/02/2018), to- cutor’s office would not be able to monitor the day, according to the lawyer, the consideration fulfillment of the obligations of A. Shchegolev of criminal proceedings is moving faster due assigned to him by law. According to lawyer to a number of factors, among which, – loss of K. Legkih, the court was puzzled by this mo- interest in the case on the part of the Media. tivation for the prosecution, since it is not In one of its decisions, the ECtHR expressed entirely clear how the blogger is connected its position regarding media publications on with this criminal case. The court did not lawsuits. In the case of “Burns and Evert v. grant the request, leaving the accused with a Luxembourg”, the ECtHR noted that a fair measure of restraint in the form of a personal trial may not be possible with a “fierce press obligation. In a previous report, the experts of campaign against the accused”. the ISHR noted a positive trend in the form In general, only positive trends can be noted of the absence of unjustified adjournments of in trials of defendants in politically motivated court hearings, which, as a result, entails the cases. So, for example, the court changed possibility of considering criminal proceedings P. Mikhalchevsky’s measure of restraint to within a reasonable time. But at this hear- a “softer” one (report dated 10/29/2019), a ing, the lawyer, in a personal conversation, similar situation with S. Yezhov (report dated expressed his concern about the timing of the 07/03/2019). Court hearings, despite the work- proceedings in this case, the lawyer noted that load of the courts, began to be held much more “he himself might not live up to the final sen- often. The tendency to postpone court hear- tence” (irony). Of course, the words of the ings also “slowed down”. All these facts may defense should not be taken seriously, but nev- indicate that the current government does not ertheless it should be noted that this attitude exert pressure on the court regarding the con- of the lawyer is a matter of concern, since the sideration of the above cases. case has already been considered for about five years and it is difficult to predict how Monitoring the trial of Alexander many more years will pass before the final Shchegolev (session 12/12/2019) court verdict. On December 12, a regular court session was It is difficult to argue with the fact that held on the case of the former head of the violations of the principle of reasonableness Main Directorate of the Security Service of of time are most often encountered in crimi- Ukraine in Kiev and Kiev Region, Alexander nal proceedings and are noted by the ISHR Shchegolev, who is accused of having led the experts in the reports. We have already cited headquarters of the anti-terrorist operation dozens of judgments of the ECtHR, where the conducted against supporters of the Maidan Court speaks about the importance of this (winter 2013-2014). principle and the criteria that should be used Experts from the International Society for to correctly interpret the principle. So, taking Human Rights continue to monitor this law- into account the positive aspects of the orga- suit. nization of court hearings, it should still be Due to the workload of the board at this said that even if certain stages of the hearings hearing, it was possible to consider only one are carried out at an acceptable speed, the petition. The prosecution, referring to infor- total duration of the hearings may neverthe- mation from the video of A. Shariy (among less exceed a “reasonable time” (“Dobbertin v. other things, the well-known YouTube blog- France”, para. 44). In other words, the stream- ger in Ukraine), filed a motion to change the lined schedule of court hearings and the lack of measure of restraint to A. Shchegolev. Pros- rescheduling is certainly a positive factor, but ecutors asked the court to take the accused the volume of issues considered at the hearing

81 plays an important role in considering the case spiracy), Part 1 of Article 366 (official forgery), as a whole within a reasonable time. So, the part 1 of article 258-3 (other assistance to the experts of the ISHR believe that considering establishment or activities of a terrorist group only one petition per session is an unaccept- or terrorist organization), Part 2, 3 of Arti- able luxury, given the fact that A. Schegolev cle 258-5 (financing of terrorism repeatedly or has been under the burden of prosecution for from selfish motives, or by prior conspiracy by five years. a group of persons, or on an especially large It is worth noting that the ISHR observer scale). was a little late for the hearing and the presid- According to the defense, the defendants are ing judge made a remark in connection with charged with these articles (which may lead this. This is an interesting aspect, since ear- to up to 15 years in prison) for the fact that lier in this trial activists were often present the drivers arranged for the transportation of who could disrupt the course of the examina- pensioners from uncontrolled (by the govern- tion with their emotional statements and the ment) part of the Eastern Ukraine to receive board practically did not make any comments pensions, while the social service employees to them. In this regard, it can be assumed filled out these pensions. According to lawyers, that the presence of activists in some way put such cases are being opened to reduce social pressure on the court. ISHR experts have re- payments to citizens of Ukraine living in un- peatedly pointed to this in their reports and controlled territories. The victim in the case during working meetings. In the process of is the Pension Fund, whose representative was monitoring, we have already encountered a present at the hearing. similar situation. As an example, a judge of Sergeyev’s translator, who usually partici- the Svyatoshinsky district court was attacked pated in the sessions (because Sergeyev don’t next to his house immediately after the col- know Ukrainian language) did not appear legium, in which he presided, changed the mea- at the hearing. The court clarified whether sure of restraint to one of the defendants in this was a reason for the adjournment of the the Maidan case. session, but according to lawyers, the failure of the interpreter to appear was not a 3.20. The trial of Sergey reason to postpone the criminal proceedings, since the key issue was the petition of the Sergeyev lawyers to return to the defendants documents seized during the search, including passports Monitoring the case of Sergeyev and of Ukrainian citizens. others (Session 08/14/19) Lawyer Shostak appealed to the court with On August 14, 2019, in the Kommunarsky a request to return to the defendants Sergeyev court of Zaporozhye, a regular session was held and Gorban their documents, namely: to in the case of Makeevka’s drivers Sergeyev and Sergeev: passport of a citizen of Ukraine, IDP Gorban, as well as three employees of the So- certificate, pension certificate, driver’s license cial Security Administration of Zaporozhye: and foreign passport; to Gorban: passport of Voloshina, Khokhotva and Semenyuk, accused a citizen of Ukraine, driver’s license and tech- of committing crimes under Part 1 of Article nical passport for a car. 255 of the Criminal Code of Ukraine (creation The lawyer referred to the fact that the of a criminal organization), Part 5, Art. 191 defendants during the time of changing the (appropriation, embezzlement of property on measure of restraint, that is, finding them an especially large scale or seizure by abuse without restriction of freedom, always com- of official position by prior conspiracy by an plied with all the requirements of the court organized group of persons), Part 2, Article and the prosecutor’s office, as well as the fact 4 28 (commission of a crime by an organized that the defendants, without documents prov- group or criminal organization by prior con- ing their identity as citizens of Ukraine, could

82 not move freely even through the territory of Monitoring the case of Sergeyev and Zaporozhye, get medical care, get a job. Also, others (10/15/2019 and 10/22/2019) for employment they need a driver’s license, as they are professional drivers. On October 15 and October 22, 2019, the Kommunarsky District Court of Zaporozhye Prosecutor Balitsky Maxim Sergeyevich re- held hearings on the case of Makeevka drivers quested to satisfy the petition partially, refer- Sergeyev and Gorban, as well as three em- ring to his recent involvement in this case and ployees of the Zaporizhzhya Social Security the inability to fully study the criminal pro- Administration: Voloshina, Khokhotva and Se- ceedings against the accused in a short time. menyuk, who are accused of financing terror- The representative of the Pension Fund had ism by transporting Donetsk pensioners to no objections and requested a decision at the Zaporozhye to receive pension payments and discretion of the court. registration thereof. On April 24, the court released the drivers The court, having listened to all parties and from custody without measures of restraint consulted, made a decision to partially satisfy after 2.5 years in a pre-trial detention center. the lawyers ’request: not to return to Sergeyev The victim in the case is the Pension Fund, a foreign passport, and to Gorban a technical whose representative was present at both court passport for a car (the car was seized by the hearings. Experts from the International So- police). ciety for Human Rights continue to monitor The defendants will be able to receive the this lawsuit. documents on August 22, 2019. At the session on October 15, 2019, the head of the board of the judges noted that the wit- Since there were no witnesses at this hearing, nesses of the prosecutor again did not appear further issues were not considered. At the next at the hearing. To the judge’s question why hearing, it is planned to question witnesses there are no witnesses, the prosecutor replied stated by the prosecution. The next session is that the secret service (SBU) was entrusted scheduled for October 15, 2019. with the execution and that the SBU officers The International Society for Human Rights were looking for witnesses. expresses concern over the fact that since the The head of the board asked the prosecu- release of the defendants from custody with- tor where are about a dozen more witnesses, out a measure of restraint on April 24, 2019, on whom, on April 10, 2019, a resolution was the case has not been considered for almost 4 adopted on establishing the place of residence. months, and the next session will take place The prosecutor replied that the order was in 2 more months. Thus, at least six months transferred to the SBU. The court ordered the the case will not be considered in fact. Also prosecutor to execute the decisions of April 10 of concern is the constant shift of prosecutors by October 22. If this is not done, the letter who refuse to participate in this trial. Recall about the prosecutor’s non-fulfillment of the that this trial has been going on for the third court’s decision and deliberate delays in the year, which may run counter to the principle of trial will go to the Prosecutor General’s Office considering the case within a reasonable time and the regional prosecutor. and the norms of the European Convention The court also ordered the prosecutor to of Human Rights and Fundamental Freedoms. provide a translator to the accused Sergeyev, According to the ECtHR, requiring a hearing since the translator who appeared in court within a “reasonable time”, the Convention on 10/15/19 did not have a higher education. emphasizes the importance of administering Lawyer Antonina Shostak also filed a motion justice without delay, which could jeopardize to investigate material evidence that was not its effectiveness and credibility (Decision of the disclosed to the defense, namely two Volkswa- ECtHR of 02/20/1991 in the case of “Vernillo gen cars seized from Sergeyev and Gorban, v. France”). which were seized during detention and are

83 currently in the SBU parking lot. her in order to find out whether there was a The prosecutor also reported on the imple- long queue in the department and whether the mentation of the court ruling on the return of employees had time to serve a group of people. the documents seized from Sergeyev and Gor- To the question of the prosecutor, she clarified ban: passports, driver’s licenses, etc. Recall, that at different periods of time people needed this court ruling was carried out for six months to provide different documents for opening an because they could not find the allegedly account, but the main rule was that a per- lost documents. After the lawyers wrote com- son personally had to provide documents for plaints to the appropriate authorities, docu- opening an account and receiving a card, af- ments were found The session on 10/22/19 fixing his signature. Opening a proxy account also took place without an interpreter for the was impossible. Cases when Sergeyev opened accused Sergeyev. The court heard the opin- accounts instead of pensioners, put pressure ions of the parties present, Sergeyev and his on someone, took possession of the money of lawyers replied that the failure to appear of pensioners, offered remuneration to bank em- the interpreter was not a reason for postpon- ployees for opening accounts, she had not seen ing the criminal proceedings and the panel of and had not heard of such a thing. The witness judges had decided at this session to proceed emphasized that the bank constantly monitors to the examination of the case without an in- the process of working with clients. Regard- terpreter. The court ordered the prosecutor to ing terrorism, the seizure of budgetary funds monitor the appearance of the interpreter at by the accused, she does not know anything. the next session, which is scheduled for Novem- When asked by the lawyer about the violation ber 18, 2019. At the hearing, two prosecution of the law on money laundering and opening witnesses were heard. The first witness did accounts, she replied that she was not aware not know any of the accused, did not hear of such facts of violation of financial control their names, did not hear anything about the in Oschadbank. The witness clarified that it crimes or about seizing budget funds by the is impossible to get a card in a bank without accused. To the prosecutor’s questions regard- the personal presence of a person. ing the apartment belonging to the witness’s Regarding the absence of the remaining wit- family, he explained that his son and daughter- nesses, the Prosecutor explained to the court in-law and granddaughter had been living at that a series of measures had been taken this address in a one-room apartment since by the law enforcement authorities at the August 2016, the apartment was not rented to whereabouts of the witnesses. At the moment, friends, acquaintances and relatives, the res- the whereabouts of several witnesses are not idents did not receive any notifications from known, several do not have the opportunity social services. Last year this apartment was to come to the hearing for health reasons, one sold. is located outside of Ukraine, one witness has Another witness previously worked at Os- died. In this connection, the prosecutor filed chadbank as chief economist. Her responsibil- a motion to declare a break in the present ities included working with people, opening case to obtain a death certificate from the accounts and deposit accounts, issuing cards authorities of the Civil Registry Office. At- to a client. In the period 2014-2015, she had torney Zelinskaya objected to the satisfaction previously seen Sergeyev, she did not know of this application, arguing that according to and did not see the other accused. She knows Art. 23 of the Code of Criminal Procedure of Sergeyev as a driver who brought people from Ukraine, it is the prosecutor’s responsibility the Donetsk and Lugansk regions by minibus to ensure the appearance of witnesses and has for registration of pension and other cards. filed a motion to terminate the interrogation The witness noted that not only Sergeyev of witnesses in connection with the exhaus- brought people, it happened that 10 buses tion of the possibilities of their appearance. arrived at the same time. Sergeyev turned to The remaining lawyers supported this motion,

84 referring to Art. 28 Code of Criminal Proce- the participation of the interpreter. dure of Ukraine on a reasonable time. The During the trial, three prosecution witnesses court explained to the prosecutor that the re- were questioned. Two witnesses provided ex- quest for the issuance of a death certificate planations regarding their current or earlier could be made by the prosecutor, guided by apartments. The first witness said that un- his authority. known people tried to get into her apartment The court extended the deadline for estab- once, explaining that they were supposedly lishing the actual location of several witnesses registered there. At the same time, relatives of and ordered the pre-trial investigation body the already deceased stepfather were present, to ensure that witnesses appear at the next who lived in the apartment for several months hearing. in 2017, but they did not open to outsiders. The International Society for Human Rights The apartment is now empty, the witness did expresses concern over the fact that the pros- not hear about the visits of social services to ecution is delaying the consideration of this the address. She had not seen the accused be- trial. Recall that this trial has been going on fore, she does not know anything about the for the third year, which may go against the charge brought by them. In addition to rela- principle of considering the case within a rea- tives, no one lived in the apartment. sonable time and the norms of the European The second witness, answering the questions Convention of Human Rights and Fundamen- of the prosecutor about the apartment that he tal Freedoms. According to the ECtHR, it owned until 2017, said that the apartment was is the national authorities that should take on lease, he did not remember the name of “the measures provided for by law in order to the residents, they were probably refugees, he discipline the participants in the proceedings did not remember whether the social services and ensure that the case is considered within came or did not see correspondence intended a reasonable time” (“Kumierek v. Poland”, for him. He does not know the accused. judgment of September 21, 2004, complaint N The third witness is an employee of Oschad- 10675/02, § 65). bank in the city of Volnyansk, who worked in 2016 as a leading economist and was en- Monitoring the case of Sergeyev and gaged in customer service, opening accounts others (11/18/2019) and cards. Of the accused, she knows only On November 18, 2019, a session was held in Gorban as a driver who brought refugees to the Kommunarsky District Court of Zapor- draw up cards. She saw him in the department izhia on the case of drivers from Makeevka a couple of times, he also asked for a phone to Sergeyev and Gorban, as well as three em- get to know each other. Refugees approached ployees of the Zaporizhzhya Social Security a free specialist with documents. The fact that Administration: Voloshina, Khokhotva and Se- these are refugees was understood by registra- menyuk, who are accused of financing terror- tion, as well as by the fact that people usually ism. On April 24, the court released the drivers came in one or two, and if several people came from custody without measures of restraint in, then the next minibus arrived. Gorban just after 2.5 years in a pre-trial detention center. came in with people and waited, did not over- The victim in the case is the Pension Fund, see anyone, did not ask to open an account whose representative was present at the hear- without the presence of a person, all clients ing. Experts from the International Society were photographed with documents. for Human Rights continue to monitor this The head of the board asked the prosecutor lawsuit. what the rest of the witnesses, for whom the The interpreter for Sergeyev was again not court had previously passed a decision on the present at the hearing on November 18, 2019, location. The prosecutor explained that he was however, the accused and his lawyer did not ready to refuse from two witnesses – one of object to the consideration of the case without whom was outside Ukraine, working in Poland,

85 and the other died. The prosecutor promised the lawsuit of O. Shostak against O. Dunaev to personally control the appearance of three for the return of funds paid. During the trial, more at the next hearing. For two more elderly the court read out the rights to the parties witnesses who cannot appear in court because to the case provided for in Articles 43 and 49 they can’t walk, the prosecutor promised to of the Civil Procedure Code of Ukraine. The find out their position. judge repeatedly drew attention to the fact Also, the presiding judge again raised the that the most important thing in the trial is issue of the delivery to the court of unex- that the parties respect each other. plored material evidence, namely, two cars Earlier, the court decided to provide the De- seized from drivers upon arrest. fendant with the necessary documents for the According to observers of the International consideration of the case, but at the moment Society for Human Rights, this session was BIOL LLC has not received a response from held without violations, but it should be noted its state tax service. that the trial has been running for the third In connection with the replacement of the year, which may run counter to the principle representative of the Defendant (the power of of considering the case within a reasonable attorney for the provision of the services of time and the norms of the European Con- the previous lawyer was officially withdrawn), vention of Human Rights and Fundamental a request was filed by the Defendant to attach Freedoms. According to the ECtHR, it is the to the case file a notice of the court’s decision national authorities that must take “the mea- to request documents and acquaintance with sures provided for by law in order to discipline the new lawyer. The Defendant’s lawyer also the participants in the proceedings and ensure informed the Court that, for its part, BIOL that the case is considered within a reasonable LLC took all possible steps to provide the time” (The judgment of the European Court documents. in the case of “Kushmierek v. Poland” of 21 Applications were submitted by representa- September 2004, complaint N 10675/02, § 65). tives of both parties. The Plaintiff read out a statement about the increase in claims and 3.21. The letigations of Shostak provided calculations where the rental amount was increased based on the rental amount of 1 versus Dunaev (one) month, multiplied by 23 months (previously the amount of the debt was calculated Monitoring civil case O. Dunaev against by 4 months), which was sent by mail to the LLC “BIOL” (session 11/06/2019) Defendant only on 4 November 2019, which On November 6, in the Melitopol City Dis- deprived the Defendant of the right to timely trict Court of Zaporizhzhya Region, an open read this statement and submit its objections preparatory hearing was held on the recov- and explanations. ery of debt under a lease agreement for non- The representative of the Defendant filed residential premises, which was concluded in an application to leave the claim without con- 2016 between LLC BIOL (defendant) and Oleg sideration, arguing that when submitting the Dunaev (plaintiff). The plaintiff requests ter- statement of claim, the representative of the mination of the lease, release and return of Plaintiff did not provide the original order to real estate. confirm the authority granted, and the pro- Experts from the International Society for vided copy of the order was filled in improperly Human Rights (ISHR) monitor this trial. (a specific court was not indicated, the reverse The Melitopol City Court is considering sev- side was not filled at all (where information eral claims in this case, including the lawsuit of about restrictions on the powers of a lawyer O. Dunaev against O. Shostak (two owners of is indicated)). the enterprise) for the division of the BIOL fac- The representative of the Plaintiff consid- tory located on the territory of Ukraine, and ered that the grounds set forth in the Defen-

86 dant’s application to leave the claim unad- participants in the trial. Given the views of dressed are not justified, and the application both parties, the court announced a statement is not such that it can be satisfied by the of claim for debt collection under the lease court, since the Court accepted the claim for agreement, its termination and obligations to termination of the lease, exemption and the re- take certain actions with amendments to in- turn of immovable property, and several court crease claims and partially waive claims in hearings have already taken place, and when full. The representative of the plaintiff sup- submitting the statement of claim, the repre- ported the claims and provided the court with sentative of Dunaev, who signed the lawsuit, its arguments, referring to the evidence that was guided by general judicial practice. was attached to the case file. The plaintiff Judge Bakhaev taking into account the case drew attention to those moments that are not law of the European Court, in order to com- disputed by the defendant (the duration of ply with the rights of both parties, including the lease, the size and address of the leased the right of O. Dunaev himself to appeal to property, the list of property, except for the the court, ruled to reject the application to rent). leave the claim without consideration, and also granted the request of the representative of the Defendant to allow time to get acquainted It is interesting to note that the plaintiff with change in claims. at this hearing stated that since the copy of the lease that was the subject of the claim Monitoring civil case O. Dunaev v. LLC was provided to the plaintiff by the chief ac- “BIOL” (session 12/12/2019) countant of “BIOL” LLC, it was certified by On December 12, in the Melitopol City Dis- the head of “BIOL” LLC and made exactly trict Court of Zaporizhzhya Region, an open from the original lease agreement. In addition, court session was held on debt collection under as previously indicated in the ISHR report a lease agreement for non-residential premises, on this case, the statement of claim also in- which was concluded in 2016 between BIOL dicated that the Plaintiff did not have the LLC (defendant) and Oleg Dunaev (plaintiff). original lease agreement. In this case, the In- The parties proceeded to consideration of the ternational Society for Human Rights is forced merits. Experts from the International Society to question the procedural action taken at the for Human Rights (ISHR) continue to monitor last court hearing, namely the certification this lawsuit. of a copy of the lease agreement provided by The Melitopol City Court is considering sev- the plaintiff’s party. Since the plaintiff’s side eral claims in this case, including the lawsuit re-confirmed on December 12 the absence of of O. Dunaev against O. Shostak (two own- the original agreement. The representative of ers of the enterprise) for the separation of the the defendant once again drew the attention “Biol” plant located in Ukraine and the law- of the court that there already exist 3 (three) suit of O. Shostak against O. Dunaev for the lease agreements for non-residential premises return of funds paid. together with a copy, and the only original is Representatives of both parties took part with “BIOL” LLC. In order to express their in this court session. Judge Bakhaev I.M. an- opinion and give reasoned arguments for ob- nounced that on December 11, 2019, a counter- jecting claims, the representative of the de- claim had been received, which was returned in fendant filed an oral motion to announce the connection with violations of Articles 193, 194 break. of the CCP of Ukraine, as a result of which the judge issued a corresponding decision. The defendant’s party submitted explanations, which Considering the rights of the Defendant, the were attached to the case file. No other mo- court adopted a ruling on a break in the court tions or applications were received from the session until December 13, 2019.

87 3.22. The trial of Vitaliy the case and taking into account criteria such Sobenko as the complexity of the case, the conduct of the applicant and the relevant authorities, Monitoring of the case of Vitaliy Sobenko and this is a violation recorded in the case of and Artur Melnikov (session on 10/29/19) Sobenko and Melnikov, since a simple criminal case has been considered by the court for more 10/29/2019 in the Frankovsky district court than 5 years. of the city of Lvov, the criminal case no. 12014140080002713 dated 01/09/2014 on Monitoring of the case of Vitaliy Sobenko charges of Vitaliy Sobenok born in 1998 and and Arthur Melnikov (session 12/02/19) Arthur Melnikov born in 2000 for committing a crime under Part 2 Article 186 of the Crimi- 12/02/2019, in the Frankovsky District Court nal Code of Ukraine “Robbery, with the use of of the city of Lvov, with the participation of violence not dangerous to the life or health of Judge Vanivsky Yu. consideration of the case the victim, or with the threat of such violence, in criminal proceedings was held on charges or committed repeatedly, or by prior conspir- of Vitaliy Sobenko born in 1998 and Melnik acy by a group of persons” (young people are Arthur born in 2000 in committing a crime un- accused in the theft of a mobile phone). der Part 2 of Article 186 of the Criminal Code The defendant Melnikov A. arrived at the of Ukraine (“Robbery”), in which the court hearing without a lawyer, and therefore filed granted the accused Melnikov’s request for free a request for free legal assistance. legal help. The accused Sobenko V., his legal Prosecutor Benovskaya O.R. did not appear representative Sobenko Yelena, the accused’s at the hearing. The case is at the preparatory lawyer Ivanov Oleg, the accused Melnikov A., stage since November 14, 2014 and October the prosecutor of the Lvov city prosecutor’s 29, 2019, the preparatory session did not take office No. 3 Petrushkevich Olga arrived at this place. hearing. According to the observers of the ISHR, and The case is at the preparatory stage since the opinion of the defendant’s lawyer Ivanov November 14, 2014 and the hearing is still O.O., when considering this case, Article 1, ongoing. Clause 6 of the Convention for the Protection At the previous session the accused Mel- of Human Rights and Fundamental Freedoms nikov A. filed a request for free legal assistance. was violated, namely, a violation of the right Due to the fact that the session did not take to a trial by the court within the reasonable place on October 29, 2019, the petition of the time. accused Melnikov A. was considered during In addition, according to the decision of the session, which was held 12/02/2019. the ECtHR in the case of clause 253 “Nechy- The parties supported the petition of the poruk and Yonkalo v. Ukraine”, “the Court accused Melnikov A. The court granted this observes that the moment from which Article motion and postponed the consideration of 6 begins to apply to ‘criminal’ issues depends the criminal hearing against Sobenko V. and on the circumstances of the case. The leading Melnikov A. on 01/29/2020. place in a democratic society to a fair trial is In our opinion, and the opinion of attorney prompting the Court to give preference to the Ivanov O., when considering this case, Article ‘substantive’ rather than the ‘formal’ concept 6, Clause 1 of the Convention on the Protec- of ‘prosecution’, referred to in § 1 of Article 6 tion of Human Rights and Fundamental Free- of the Convention.” doms was violated, namely, a violation of the Also, in § 116 of the ECtHR decision of right to a trial by a court within a reasonable March 12, 2009 in the “Vergelsky v. Ukraine” time. case, it is stated that the reasonableness of the In particular, in § 47 of the decision in length of the proceedings should be assessed the case of “Baraona v. Portugal”, the Eu- in the light of the specific circumstances of ropean Court of Human Rights noted: “The

88 reasonableness of the length of the proceedings suit. should be determined taking into account the Before the session, Tatarintsev said that he specific circumstances of the case, taking into was not feeling well, since he had not been account the criteria formulated in the prac- given diabetes prescription tablets or the cor- tice of the Court, in particular, the complexity responding dietary supplement as a diabetic of the case, conduct applicant and relevant in the morning (the convoy took him from government authorities”. the pre-trial detention center at 7:00). The In § 116 of the ECtHR decision of March court clerk refused to call an ambulance with- 12, 2009 in the “Vergelsky v. Ukraine” case, it out a decision of the panel of judges. When states that “the reasonableness of the length of the question was brought before the court, the the trials should be assessed in the light of the prosecutor stated that apart from the words of specific circumstances of the case and taking the accused, there was no objective evidence into account criteria such as the complexity regarding his state of health. It was decided of the case, the conduct of the applicant and to interrogate the senior convoy, who, under the relevant authorities”, this violation exists oath, confirmed that Tatarintsev had not re- in the Sobenko case, since a simple criminal ceived any medicine or food in the morning. case has been examined by the court for more A paramedic called an ambulance examined than 5 years. the accused and recorded high blood pressure and sugar at the level of 11 (normal rate of 3.23. The trial of Andrei 5-6), writing in the examination sheet: “hyper- glycemic condition.” Explaining the situation Tatarintsev to the court, he said that in such a condition a diabetic coma is not excluded and it is possible Monitoring of the case of Andrei to withdraw from it only in a hospital. In ad- Tatarintsev (session 07/23/19) dition, the patient needs to take medicines on 07/23/2019 in the Kuybyshevsky district court time and adhere to a strict diet. The prosecu- of the Zaporizhzhya region, a hearing was held tor provided the court with a certificate from on the case of businessman Andrei Tatarintsev, the Zaporizhzhya Region branch of the state- accused of financing a terrorist organization, owned Center for Health Protection of the aiding in conducting an aggressive war, cruel State Criminal Executive Service of Ukraine, treatment of prisoners of war and civilians. which stated that Tatarintsev was provided Tatarintsev after 2014 continued to carry with the necessary treatment and diet. out entrepreneurial activity in the territory Attorney Vladimir Lyapin remarked to this bordering the territory uncontrolled by the that according to the prescription of the en- Ukrainian government (trading in diesel fuel). docrinologist, the last dose of the medicine According to the defendant, in 2014-2015 there with the meal of Tatarintsev should be carried were cases when, under pressure (fearing for out at 21:00, and the kitchen in the pre-trial the life and safety of his family), he had to give detention center closes at 18:00. Given that fuel to armed people who appeared to be mili- even the convoy confirmed Tatarintsev’s non- tary men of the unrecognized republics of the delivery of medicines, the lawyer called the “DPR/LPR”. There were also cases of robbery text of the certificate “a lie”. Since Tatarint- when diesel fuel and vehicles were taken from sev in this state cannot adequately understand him by force. To date, Tatarintsev, suffering what is going on in the courtroom, and there- from type 2 diabetes, has been detained for fore fully defend his interests, which is a vio- almost 2 years. The courtroom was attended lation of the right to defense, it is impossible by representatives of UN monitoring missions, to continue the trial. The court decided to ISHR and journalists. postpone the hearing until August 13, 2019 Experts from the International Society for due to the impossibility of the defendant to Human Rights continue to monitor this law- participate in it due to health reasons. Also

89 the court granted the request of the defense, the prosecutor’s motion to extend the measure decided to examine Tatarintsev in the 9th of restraint for the defendant. The prosecutor city hospital in Zaporozhye, since the head of demanded an extension of detention, having the pre-trial detention center refused to take read the list of standard risks from the Crim- the accused to the hospital without a corre- inal Procedure Code of Ukraine and added sponding court decisions, which had to wait that the court may not assign a bail to the for almost 2 months. The conclusion of the accused, since he is charged with committing ambulance paramedic that the patient can be violent crimes. The Constitutional Court in taken out of the state of hyperglycemia only its decision of 11/23/2017 indicated that the in a hospital was ignored by the court. validity of the application of measures related It should be noted that in the decision of the to the restriction of the human right to free- ECtHR in the case of “Salakhov and Islyamov dom should be subject to judicial review at v. Ukraine”, the Court emphasized that Arti- regular intervals, periodically by an objective cle 3 of the Convention imposes an obligation and impartial court, to verify the existence of on the state to ensure, taking into account the risks in which these measures are applied. practical requirements of imprisonment, that According to the case law of the ECtHR in the health and well-being of the prisoner are the case of “Todorov v. Ukraine”, there must adequately guaranteed, including by ensuring be exceptionally good reasons for extending him necessary medical care and if it is estab- detention. Moreover, as the Court points out, lished that the person in custody was deprived only the gravity of the crime, the complexity of such medical assistance, the Court deter- of the case and the seriousness of the charges mines whether this has reached the level of cannot serve as a basis for extending such a inhuman or degrading treatment in violation measure. of Art. 3 of the Convention. Moreover, “one of In addition, Art. 184 of the Code of Crimi- the important factors for such an assessment nal Procedure of Ukraine expressly states that is a sharp deterioration in the state of health the prosecutor’s statement for the application of a person in places of detention, which in- of a measure of restraint should contain a evitably casts doubt on the adequacy of the statement of circumstances, on the basis of medical care available there. . . ”. In the deci- which the prosecutor concluded that there are sion in the case of “Wuhan v. Ukraine”, the one or more risks noted in his application, and Court stated: “Just the fact that the doctor links to materials that confirm these circum- examined the prisoner and prescribed a cer- stances. The prosecutor did not confirm the tain type of treatment cannot automatically existence of risks either with written evidence lead to the conclusion that the medical care or with the testimony of witnesses. Instead of was sufficient. . . and also, if necessary, depend- materials confirming the existence of risks, he ing on the nature of the disease, to provide referred only to the indictment in which the regular and systematic supervision, including investigators wrote that Tatarintsev was born a comprehensive treatment plan, which should in a territory that is currently not controlled be aimed at treating the prisoner’s diseases by the Ukrainian authorities, therefore he has and preventing their deterioration, and not at close social ties and can escape there. There eliminating the symptoms. . . State authorities was no evidence of such links. At the same must also prove that the conditions necessary time, it was not taken into account that the for the prescribed treatment have been created accused was living in Kiev at the time of his so that this treatment is actually received”. arrest, and all documents by which he could Having decided that Tatarintsev’s condition cross the border were seized. does not allow him to participate in the hear- Attorney Lyapin asked not to satisfy the ing, announcing the postponement and setting prosecutor’s request on the grounds that the a new date for the hearing, the panel of judges prosecutor reads the same text for six months, nevertheless continued the session to consider despite the fact that he is obliged to bring

90 new circumstances each time. Tatariantsev is hospital No. 9 of Zaporozhie, where deteriora- in custody for almost two years. During this tion of his health was confirmed (the accused time, due to the poor state of health of the is ill with diabetes). The panel of judges of accused, the court did not begin considera- the Zaporozhya Court of Appeal considered tion of the case on the merits, and could not the appeal of the lawyer V. Lyapin against even hold a preliminary hearing, which is a the judgment of the Kuybyshevsky District violation of the reasonableness of time. Since Court of Zaporozhya Region dated July 23, Tatarintsev needs a diet for treatment, which 2019 – on the next extension of the measure authorities cannot provide in jail, he needs to of restraint to A. Tatarintsev in the form of work and provide himself with everything nec- detention for 60 days. The court session was essary. Therefore, the lawyer asked to appoint held in a form of video conference with the a bail and gave an example of the decision of Volnyansky pre-trial detention center, where the Orekhovsky District Court, which released the accused has been held for more than a on bail two persons who participated in the year. He participated in the session by video armed robbery, as well as those accused un- link, and directly in the courtroom of the Za- der Art. 115 of the Criminal Code of Ukraine porozhie Court of Appeal were the prosecutor (intentional murder), which Tatarintsev is not and lawyer of A. Tatarintsev. even accused of. The court immediately began examining the He also asked why the session continues if merits of the lawyer’s complaint. The lawyer in the court ruled that it should not be contin- his speech drew attention, firstly, to a violation ued? by the prosecutor of the norms of criminal pro- The court extended Tatarintsev’s detention cedural law when filing a request on July 23, in the pre-trial detention center for 60 days on 2019 to extend the detention of A. Tatarintsev: the basis that “it follows from the indictment the prosecutor did not provide the lawyer with that risks exist”, although according to Art. the written text of the petition; secondly, that 184 of the Code of Criminal Procedure, the in all petitions for an extension of the measure prosecutor is obliged to prove the presence of of restraint, the prosecutor repeats the same risks every time with a document at a hearing. arguments, without substantiating or proving Attorney Vladimir Lyapin intends to ap- the existence of risks of non-fulfillment by the peal the decision of the Kuibyshevsky District defendant of his procedural obligations and Court of Zaporizhzhya Region. the inability to avoid these risks with the help of milder measures, which is a prerequisite for Monitoring of the trial in the case of detention (Articles 176-178, 183 of the Code Andrei Tatarintsev (session on August 15, of Criminal Procedure). 2019) And this was done with disregard to the fact 08/15/19, the Zaporozhya Court of Appeal that the Constitutional Court of Ukraine on held a hearing in the case of Tatarintsev An- June 25, 2019 recognized the provisions of § 5 drey, accused of participating in events in east- of Article 176 of the Criminal Procedure Code ern Ukraine, namely, in a terrorist organiza- of Ukraine as unconstitutional (on the non- tion, aiding in the conduct of the aggressive alternative measure of restraint in the form of war, by prior conspiracy by a group of peo- detention for persons accused of committing ple, cruel treatment of prisoners of war and crimes under articles 109-114-1, 258-258-5, 260, civilians. 261 of the Criminal Code of Ukraine). At the The day before of the trial court, the hear- same time, the European Court of Human ings on the Tatarintsev case, scheduled for Rights (ECtHR) has repeatedly stated that August 13 and 14, 2019 were canceled due to after some time the existence of a reasonable the impossibility of the appearance of the pros- suspicion ceases to be the basis for detention ecutor. Also, before the appeal, Tatarintsev (the case of “Jablonski v. Poland”), and the was taken for medical examination to the city fact that other measures of restraint were not

91 even considered by the court when extending ECtHR, the state is obliged to take measures detention, may indicate a violation of § 3 of so that the person to whom the measure of Article 5 of the Convention for the Protection restraint in the form of detention is applied of Human Rights and Fundamental Freedoms does not experience deprivation and suffering (the case of “Buryaga v. Ukraine”). to a higher degree than that level that is in- Also, in the contested decision of the dis- evitable in prison (the case of “Kalashnikov v. trict court of 07/23/19 on the extension of Russia”). the measure of restraint, it is indicated that it Also, in the decision of the ECtHR in the cannot be appealed, which is a violation of the case “Salakhov and Islyamova v. Ukraine” (de- norms of Art. 372 Code of Criminal Procedure cision of March 14, 2013): “The court empha- of Ukraine. The Court of Appeal accepted the sizes that Article 3 of the Convention obliges appeal of the lawyer and examined it at this the State to ensure, taking into account the session. practical requirements of imprisonment, that The prosecutor, in his speech in the report- the health and well-being of the prisoner are ing session, essentially repeated all the same adequately guaranteed, including by providing arguments of the motions that were submit- him with the necessary medical care. . . One of ted by him throughout the entire trial of the the important factors for such an assessment consideration of the case by the court of first is a sharp deterioration in the state of health instance, without justifying in any way the of a person in places of detention, which in- impossibility of avoiding the risks he named evitably casts doubt on the adequacy of the in the case of applying a milder measure of medical care available there. . . ” restraint, for example, bail, as the lawyer has The ECtHR has repeatedly pointed out that repeatedly requested. The Court of Appeal at the provision of necessary medical assistance this session, however, demonstrated its willing- to persons in places of detention is the respon- ness to consider milder measures of restraint sibility of the state (judgment of December against Tatarintsev. The presiding judge asked 18, 2008 in the case of “Wuhan v. Ukraine”). A. Tatarintsev whether he had registration in The Court observes that Article 3 of the Con- the territory controlled by Ukraine and where vention imposes an obligation on the State to he plans to reside if released from custody. protect the physical health of persons deprived After receiving answers to questions and re- of their liberty. The court admits that the as- turning from the deliberation room, the court sistance that is available in the institutions of announced the determination to leave the the penitentiary system may not always be at lawyer’s complaint unsatisfied, the definition the same level as in the best public medical of the district court unchanged. Thus, once institutions. However, the state must provide again the period of detention was extended, adequate protection for the health of prisoners, this time until September 20, 2019. including by providing the necessary medical Dismissing the lawyer’s complaint, the ap- care (the case of “Kudla v. Poland”). pellate court did not take into account the The full text of the ruling of the court of chronic disease of Tatarintsev A. (Type 2 dia- appeal supposed to be announced and issued betes), and the fact that during the period of to the parties on August 20, 2019, however, pre-trial investigation and judicial review by the full text of the decision has not yet been the state authorities of the penal system, its given to the lawyer, and at the moment it is proper treatment was not actually provided, not possible to evaluate and comment on the as a result, there is a deterioration in the state reasoning part of the decision of the court of of health of Tatarintsev A., which is confirmed appeal to refuse to satisfy the lawyer’s com- by medical documents and what the lawyer plaint. repeatedly drew attention to. Such an attitude The next hearing in the case of Tatarintsev is contrary to the European Convention (Arti- A. will be held in the Kuibyshevsky District cle 3), and, according to the decisions of the Court of the Zaporozhya Region on September

92 18, 2019, at 10:00 am. Attorney Vladimir Lyapin noted that it is impossible to hold a hearing in such a bad Monitoring the case of Andrei Tatarintsev condition of the accused and once again noted (session 10/29/2019) that the state does not ensure the lawfulness of the implementation of the 2018 decision of the On October 29, 2019, an open court session Kuibyshevsky court on ensuring the accused’s was held in the Kuybyshevsky District Court state of health and proper treatment and the of the Zaporozhzhye Region in the case of pre-trial detention center still does not provide the businessman Andrei Tatarintsev, who is the accused with dietary food according to the accused of committing crimes under Part 1 of schedule (at 7:00, 10:00, 14:00, 16:00 and 19:00 Art. 258-3, p. 5 of art. 27, part 2 of article 28, during the day), adequate medical care is not part 2 of article 437, part 1 of article 438 of provided. The chief of the convoy was asked a the Criminal Code of Ukraine (financing of a question about eating, and he confirmed that terrorist organization, aiding in the conduct of Tatarintsev did not eat food in the morning. an aggressive war, cruel treatment of prisoners Tatarintsev specified that the violation of of war and civilians). food intake and medicines is taking place not According to Andrei Tatarintsev’s lawyer, only today, but every day. Systematically, the in 2014-2015, the accused was trading gasoline doctor appears only three days before the trial at a tank farm located in the territory of the and begins to measure sugar and pressure. The ORLDO, and after the obligation to the armed accused’s lawyer said that diabetes is a dis- men who represented the military of the un- ease that raises blood sugar, destroys blood recognized republics of the “DPR/LPR”, he vessels, including the brain, and if tablets are was forced to transfer fuel to the ambulance not taken in a timely manner, serious conse- station and other facilities. quences are possible, including a hypoglycemic Experts from the International Society for coma. He drew the court’s attention to the Human Rights continue to monitor this law- fact that Tatarintsev needed a full examina- suit. tion and asked to attach recommendations Before the session, Andrey Tatarintsev in- to the case file that patients with diabetes formed his lawyer about his poor health, high should be examined in a specialized medical blood pressure, dizziness, and dry mouth and institution. that he was given pills, but since the convoy took him at 6:30 in the morning, he didn’t eat The defense drew the attention of the panel anything and didn’t use sugar-lowering pills, of judges that each time it was found out at because they need to be consumed only after the court hearing that the rights of the accused eating. were being violated, and systemic inaction re- At the beginning of the trial, lawyer garding untimely provision of diet food and Vladimir Lyapin petitioned that the court call violation of the schedule of taking medications an ambulance, given the worsening health sta- was equated with torture, which could lead to tus of the accused. The arrived ambulance irreversible deterioration of health at any time. paramedic recorded a high blood pressure of ISHR experts note that such actions by the 160/90 at a rate of 120/80 and high sugar state violate article 3 of the European Con- 12.8 at a rate of 5.5. Having received convention for the Protection of Human Rights sent from Tatarintsev to take medications, the and Fundamental Freedoms, which states that paramedic gave pills to lower the pressure, over “No one shall be subjected to torture or to in- time, the pressure began to decrease. She fur- human or degrading treatment or punishment” ther informed the court that Tatarintsev’s con- (“Beketov v. Ukraine”). dition was moderate and he urgently needed On the court’s proposal to conduct court to take dietary food and take sugar-lowering hearings remotely, the accused A. Tatarint- tablets, otherwise serious consequences could sev refused, citing the fact that he has a de- occur. sire to attend all court hearings and to as-

93 sert his rights. The court concluded that the ISHR observers note that for the first time arguments of the defense were justified, and since Tatarintsev’s detention, the prosecutor the state did not really provide the minimum complied with the requirements of Art. 184 of level of nutrition and treatment to Tatarint- the Code of Criminal Procedure of Ukraine sev. Given the threat to the life of the accused, and provided the court with written confir- the court decided to send letters to the prose- mations of the risks stated in the application, cutor’s office, the penitentiary authorities in namely the memo of the head of the Depart- order to provide the necessary appropriate di- ment for the Protection of National Statehood etary nutrition and treatment, and arrange of the SBU, Colonel Andrushchenko, with ap- for the issuance of lunch boxes for the dura- pendices. Thus, the prosecution in the two tion of the defendant’s stay outside the Vol- years of the trial, for the first time documented nyansk penitentiary facility. The court decided the risks declared at the time of Tatarintsev’s to postpone the consideration of the case until detention, but did not present new risks, al- November 22, 2019. After this decision was though the case law of the ECtHR suggests made, Tatarintsev’s lawyer filed a motion to automatic reduction of risks over time if new provide by the medical office of the pre-trial ones do not appear. detention center with documents confirming According to the ECtHR decision in the that Tatarintsev really refused treatment and case of “Labit v. Italy” (No. 26772/95, para. demanding to provide copies of files where this 153), the extension of detention can only be fact was recorded. justified if there are specific public interests The prosecutor stated that the defense was that, despite the presumption of innocence, abusing its rights, delaying the consideration outweigh the principle of respect for individual of the case and trying to avoid any considera- freedom. Also, the European Court, in § 80 tion of the indictment on the merits, since it of the judgment in the case of “Kharchenko had previously been decided to conduct a med- v. Ukraine” (No. 40107/02), indicates that ical examination at the health institution that after a certain period, justified suspicion does the accused requested, but the doctors didn’t not in itself justify the deprivation of liberty, provide the charges yet. He also believes that and the judicial authorities must provide other the presence of high blood sugar is not direct grounds for further detention and sufficient evidence that the accused is not In addition, the Court often finds violations aware of his actions, does not understand what of Article 5 § 3 of the Convention due to the is happening in this trial and cannot take part fact that, even with long periods of deten- in the hearing and suggested to the defense to tion, the domestic courts often refer, if at all, hold a hearing at which the indictment will to the same set of grounds throughout the be read. entire period of the applicant’s detention, al- The prosecutor filed a petition for an exten- though Article 5 § 3 provides that, after a sion of the measure of restraint – detention certain time has elapsed, justified suspicion on the basis of all possible risks provided for does not in itself justify the deprivation of lib- in Article 177 of the Code of Criminal Pro- erty, and the judicial authorities are required cedure of Ukraine: the possibility of escape to provide other grounds for further detention, from the country, the absence of a registered which should be mentioned in decisions of na- place of residence in Ukraine, the fact that the tional courts (“Kharchenko v. Ukraine” No. accused’s wife and child are in Russia, and the 40107/02, para. 99, “Svershov v. Ukraine” No. possibility of exerting pressure on witnesses. 35231/02, §§ 63-65). Once again, the lawyer Considering that all participants in the alleged drew the court’s attention to the fact that terrorist operation charges have not yet been the prosecution claims that Tatarintsev re- identified, in the opinion of the prosecutor it fuses to take medicine, but the court has not is possible to transmit information that is in been provided with such evidence. In addition, the case file. for two years in custody, the Tatarintsev did

94 not receive treatment. Lyapin drew attention of a third party (any action using his official to the fact that the medical personnel of the position, combined with extortion of undue pre-trial detention center do not keep docu- gain, committed repeatedly). ments approved by order of the Ministry of According to the information provided to Health of Ukraine No. 110 dated 02/14/2012 the observer of the ISHR, on November 28, and are mandatory (medical records of outpa- 2016, the deputy head physician for the medi- tients form 025/o), the medical personnel of cal part of the Lvov Regional Clinical Hospi- the pre-trial detention center are not qualified tal, Van Doeveren N.R. was detained by police specialists for endocrinology and keep the med- while receiving from Dmitri Krivoruchyshchuk ical records in the forms that are not provided improper benefits in the amount of 6 000 UAH. for by the current legislation of Ukraine. On February 27, 2017, an indictment was It should be noted that the court again sent to the court based on the fact that Van rejected the petition of the lawyer Vladimir Douveren N.R. had established a mechanism Lyapin to pay bail for the accused in the for obtaining undue benefits from relatives amount of 300 000 UAH and extended the of patients for deciding on hospitalization of detention for another 60 days. patients in the department of hospital nephrol- The ISHR experts noted that this is not the ogy and dialysis. first time the court has decided to adjourn During interrogation at the hearing, wit- the hearing due to the impossibility of Tatar- ness Gusina Oksana, who is the head of the intsev’s participation in it for health reasons department of hospital nephrology and dialy- but continues the session to hear the petition sis at the Transplantation Center of the Lvov of the prosecution to extend the measure of Regional Clinical Hospital, was unable to ex- restraint. plain why she repeatedly received calls and had frequent telephone conversations with op- 3.24. The trial of Natalya Van erative worker Demkovich T. in particular for 30 minutes before receiving Van Doer- Doyveren eren N.R. funds from one of the patients – Dmitry Krivoruchyshchuk. Also, the witness Monitoring the case of Natalya Van could not explain why the coordinates of find- Doyveren (session 11/25/2019) ing her, operative worker Demkovich T. and 11/25/2019 at 2:30 pm in the Lychakovsky Krivoruchishchuk before receiving funds coin- district court of the city of Lvov with the cided. participation of Judge Lunyo S.I., prosecu- Witness Tychka Igor, who works as a tor Boyko P.M., accused Van Douveren N.R., neurologist in this hospital, confirmed that defenders Mytsyk A.V., Rever S.V. A ses- the creatinine level of the patient Dmitry sion was held in criminal proceedings No. Krivoruchishchuk according to the analyses 12016140000000991 of 11/18/2016 on charges he brought from the private laboratory of the of Natalia Van Doeuren, born on 05/06/1970, city of Drogobych “Medis” amounted to 800 in committing a criminal offense under Part 3 ml. This figure is significantly higher than nor- of Article 368 of the Criminal Code of Ukraine, mal, and a repeated analysis showed a level in which 3 witnesses were questioned: Gusina of 70 ml. creatinine in the blood, which is a A. I., Yakovlev I., Tychka I. normal indicator. This may mean that Dmitry Van Doeurenin, Natalya, is suspected of Krivoruchyshchuk is not really sick and could committing a crime under Part 3 of Article be used by operatives of the National Police. 368 of the Criminal Code of Ukraine – re- After analyzing the information provided, the ceiving an unlawful gain for an official in a International Society for Human Rights be- responsible position for himself, committing lieves that in this case there could have been such an official in the interests of someone who a provocation by the police, which violates § 1 provides undue benefits, and in the interests of Art. 6 of the Convention for the Protection

95 of Human Rights and Fundamental Freedoms. 3.25. The trial of Pavel Volkov

According to the decision of the ECtHR in Monitoring the trial of Pavel Volkov the case of “Ramanauskas v. Lithuania” dated (session 01/21/19) February 5, 2008, “A court under provocation means cases involving officials who are either On January 21, a regular court hearing on members of the security agencies or persons the case of journalist Pavel Volkov, accused acting on their behalf do not limit their ac- of encroaching on the territorial integrity tions only to an investigation of a criminal of Ukraine and assisting terrorists through case in essence in an implicit way, but affect his journalistic activities, took place in the the subject in order to provoke him to com- Shevchenko district court of Zaporozhe. mit a crime that otherwise would not have Before the beginning of the court session, been committed, in order to make it possible five unknown young people entered the court- to identify the crime, that is, to obtain be room and stated that they were from public evidence and a criminal investigation”. organizations, including veterans and participants of the ATO (anti-terrorist operation in So, in the case of “Teixeira de Castro v. Por- eastern Ukraine) and “C14”. Young people tugal”, of June 9, 1998, “The court concluded behaved aggressively, shouted insults at the that the police went beyond the functions of lawyers and all those present, and were not secret agents and provoked a crime, and there- sanctioned by the court to record video (recall fore there is no reason to believe that without that this panel was against video filming and their intervention the crime would be com- for it to be held by the observer of the ISHR, mitted. This interference and its use in this petitions were filed to obtain permission from controversial criminal proceeding meant that the court). A verbal altercation with lawyers from the very beginning the applicant was and others people present in the courtroom clearly deprived of the right to a fair trial.” led to the fact that the prosecutor, who was also in the room, advised lawyer S. Novitskaya By a decision of October 30, 2014 in the to call the police. The two police patrols who case of “Nosko and Nefedov v. Russia”, § 54, arrived approached a statement by attorney “The European Court also noted in its case- S. Novitskaya, who declared threats and ob- law that secret operations should be carried struction in the practice of law, as well as a out passively in the absence of pressure on statement from P. Volkov’s wife, Valeria Ev- the applicant to commit a crime using such dokimova. Later, V. Evdokimova provided the means as taking the initiative in contact with International Society for Human Rights with the applicant, persistent incentive, promise evidence that her fears about her wellbeing of financial gain or appeal to the applicant’s are not unfounded, as the social networks of pity”. Based on the results of the monitoring members of right-wing radical groups discuss of the court hearing on November 25, 2019, the possibility of using physical force on her, it was decided that the International Society and included her home address. Such actions for Human Rights would carry out subsequent cause the utmost concern of the ISHR Expert monitoring of this trial, however, on November Council and should, in our opinion, be closely 28, 2019, the prosecutor Boyko P.M. adopted studied and receive the proper response from a decision on the refusal of state charges in law enforcement agencies. Moreover, the fac- criminal proceedings on the charges of Natalia tor of systematic attacks and threats must Van Doeuren, born on 05/06/1970, under Part be taken into account, since earlier represen- 3 of Art. 368 of the Criminal Code of Ukraine. tatives of right-wing organizations (including “C14”) took active aggressive actions against 11/29/2019 Lychakovsky District Court of another accused opposition journalist V. Mu- Lvov accepted the prosecutor’s refusal of the ravytsky and his lawyer (A. Gozhiy) and also prosecution and closed the proceedings. attacked lawyer V. Rybin in the building of

96 the Court of Appeal of Kiev. established by law.” As it became known from a law enforcement The course of the trial. The court immedi- officer, several activists are minors, which fur- ately turned to the examination on two disks ther raises concerns of the International So- (one disk with the results of the examination ciety for Human Rights, because if criminal turned out to be non-working), during the an- proceedings are opened on at least one of the nouncement of information on the results of police reports (the lawyer or the defendant’s the examinations, lawyers S. Novitskaya and wife) there will be a fact of involvement of V. Lyapin declared petitions for recognition of minors in the commission of criminal offenses. examination protocols containing a secret pro- The court session began again with a delay tected by law, as well as for taking a decision – at 15:30 (the official time was 14:00), per- on applications submitted in the deliberation haps one of the reasons for the delay was the room. The court refused to consider these pe- presence of aggressive activists. According to titions, stating that the parties to the process the information available to the ISHR (namely would have to clarify these circumstances in the video taken by the observer), the court court debates. clerk tried to reassure the activists by asking Then the court proceeded to the investiga- not to delay the court session. The presiding tion of the Search Protocol, which was con- judge announced that this trial is causing a ducted on September 27, 2017 by the Secret public outcry, so the press secretary of the Service (SBU) at the place of registration of court will also conduct the filming, and every- the accused and at the place of residence. The one present can conduct the video only with lawyer V. Lyapin filed a petition for the recog- the permission of the court. The five young nition of the said Search Protocol as obviously men and the assistant of the member of the inadmissible evidence, arguing that the search local parliament who came up later (as the was conducted with significant violations of young man introduced himself) were present human rights and freedoms and with violation at the meeting, while filming the video and of the right to defense, since at the time of the commenting the process quite loudly without search P. Volkov was actually detained, while court permission. the detention report was issued and signed by These events can be interpreted as an at- P. Volkov only 9 hours after his actual deten- tempt to put pressure on the court, as a result tion, and in accordance with the provisions of of which strict compliance with the norms of Article 207 (“No one may be detained without both the Ukrainian criminal procedure legis- a decision of the investigating judge, a court”), lation within the framework of guarantees of Article 209 (“A person is detained from the the rights to an independent and fair court, moment when he is forced to remain near an and the norms of part 1 of the Article 6 of authorized officer or in a room determined by the Convention for the Protection of Human an authorized officer by force or by obedience Rights and fundamental freedoms guarantee- to an order”) and Article 87 (“Inadmissible ing: “Everyone has the right to a fair and pub- are evidence obtained as a result of a substan- lic hearing of his case for a reasonable time tial violation of human rights and freedoms”) by an independent and impartial court.” Also of the Criminal Procedure Code of Ukraine; guarantees for the independence of judges are evidence obtained in such a way is recognized established by the norms of Article 6 (indepen- by the court as obviously inadmissible. dence of the courts) and Article 48 (indepen- The lawyer V. Lyapin also referred to the de- dence of the judge) of the Law of Ukraine “On cision of the European Court of Human Rights the Judicial System and Status of Judges”, in the case of Rodionov v. Russia, in which the in particular, part 3 of Article 6 of the Law court found in a similar situation a violation states: “Interference in the administration of of Articles 3 and 6 of the Convention for the justice, influence on the court or judges in Protection of Human Rights and Fundamental any way is prohibited and entail responsibility Freedoms, drawing attention to comply with

97 all guarantees of the rights of the suspect in entrepreneurial activities in the territory bor- the context of the concept of a fair trial. dering the uncontrolled territory of Donbass The lawyer also proposed to view the video, (trading diesel fuel). which was made publicly available on the SBU Moreover, according to him, in 2014-2015 website, revealing the circumstances under there were cases when, under duress (fearing which the search report of P. Volkov’s place of for the life and safety of his family), he had to residence was submitted, claiming that he was give fuel to armed people who seemed to be actually detained without a detention report military men of the unrecognized republics of suspicion. The video was viewed, after which the “DPR/LPR”. There were also cases of rob- the court retired to the deliberation room for bery when diesel fuel and vehicles were taken a decision. Upon return, the court announced from him by force and threatened with the the operative part of the definition of refusal use of weapons. To date, Tatarintsev, suffering to satisfy the request of lawyer V. Lyapin (the from type 2 diabetes, has been detained for full text of the definition will be announced by more than 2 years. ISHR experts continue to the court on January 25, 2019). After this the monitor this lawsuit. trial, which lasted less than two hours, ended. The presiding judge Malevanny read out Three court hearings previously scheduled a certificate received from the branch of the for January and early February were can- state institution “Health Protection Center” celed (officially due to the work trip of one of the GUIS of Ukraine in the Zaporizhzhya of the judges). Earlier sessions in the case of Region (medical unit of the pre-trial detention P. Volkov were canceled due to the employ- center) after examining Tatarintsev with type ment of one of the judges in other criminal 2 diabetes in the 9th city hospital in Zapor- proceedings. As of today, from 10/30/2018 (af- izhia. It states that Tatarintsev needs insulin ter a change in the composition of the board), treatment, which the pre-trial detention cen- 10 out of 16 previously scheduled sessions were ter cannot provide due to the refusal of the canceled. The International Society for Hu- prisoner to measure the level of sugar in his man Rights has repeatedly drawn attention blood, and that Tatarintsev is in satisfactory in the process of Pavel Volkov’s case to the condition and can be kept in remand prison. permanent cancellation of court hearings and Attorney Vladimir Lyapin asked the defen- indicated that such a actions could violate the dant if he refused to measure sugar levels, to principle of reasonableness of terms in accor- which he answered negatively, and also said dance with Art. 6 of the Convention and Art. that since his examination in August 2019 he 7 of the Criminal Procedure Code of Ukraine. had not received any treatment and explained After the end of the trial, the young people that treatment could not be carried out in the who were present at the session gathered near pre-trial detention center, because you need the exit from the courthouse. The safety of to take all medicines with dietary food, which the participants in the process was ensured by is not provided there, measure sugar on an police officers who remained to monitor the empty stomach and after meals – breakfast observance of public order. there at 7 in the morning, and the doctor arrives at 9. The doctor of the pre-trial de- Monitoring the case of Pavel Volkov tention center came to Tatarintsev after the (session 07/11/2019) examination only once – to find out what was 09/18/2019 in the Kuybyshevsky district court prescribed to him. Then through the duty of- of the Zaporizhzhya region, a hearing was held ficer issued unknown “multi-colored” tablets on the case of businessman Andrei Tatarintsev, without instructions for use. accused of financing a terrorist organization, The chief of the convoy, under oath, stated aiding in conducting an aggressive war, cruel that food was not provided to the prisoner treatment of prisoners of war and civilians. when he was taken out for trial; accordingly, a After 2014, Tatarintsev continued to carry out patient with diabetes on the day of the court

98 hearing takes 7-10 hours without food. essary medical assistance to persons in places ISHR notes that these circumstances are of detention is the responsibility of the state contrary to the European Convention (Article (decision of December 18, 2008 in the case 3), and the decisions of the ECtHR, the state of “Wuhan v. Ukraine”). Further, the doctor is obliged to take measures so that the person Tovstyga reported that the pressure of Tatar- to whom the measure of restraint in the form intsev was increased – 170X100, blood sugar of detention is applied does not experience 12.9 with a norm of 5.5. This condition nega- deprivation and suffering to a higher degree, tively affects the nervous system, the thought than the level that is inevitable in prison (the process, because of which the accused cannot case of “Kalashnikov v. Russia”). adequately and fully perceive the information. Regarding the response of the medical unit of At the hearing, the endocrinologist of the the pre-trial detention center about the pos- city hospital in Zaporozhye Svetlana Tovstyga sibility of keeping Tatarintsev in there, the was questioned, who made up the treatment endocrinologist stated that “after six months plan for the defendant. Under oath, she said of such maintenance, we will get a disabled that all the six months of the examination, the man from a young man who has a minimal patient is in a state of decompensation – he life prognosis.” needs active treatment, a change in lifestyle and diet, and in addition to tablets, he needs The prosecutor stated that the court had re- insulin therapy three times a day before main peatedly heard medical workers who said that meals. Taking the prescribed drugs without excessive sugar levels could not indicate that diet is fraught with a hypoglycemic coma, the accused was unable to attend the hearings. which is life threatening. When she visited Lawyer Lyapin protested that not a single the medical unit of the pre-trial detention cen- doctor or ambulance paramedic gave such evi- ter, she discovered that there was no insulin dence. The court upheld the protest, but the at all, and the glucometer and instructions prosecutor ignored the court’s recommenda- for it were in Chinese. The endocrinologist tion and said that the doctor of the medical stated that Tatarintsev currently has chronic unit of the pre-trial detention center said that renal failure. After six months, the patient will “one cannot equate the state of health and the need dialysis – an artificial kidney or a kid- opportunity to take part in the session”. ney transplant. All documents confirming this In this regard, lawyer Lyapin filed a mo- have been submitted to the pre-trial detention tion to summon the representatives of the center. pre-trial detention center to the court in order In connection with the circumstances, the to clarify the circumstances of Tatarintsev’s ISHR recalls that in the decision of the EC- refusal of treatment prescribed in the hospital. tHR in the case of “Salakhov and Islyamov The defender connects this with the actions of v. Ukraine” (dated 14/03/2013) “the Court the military prosecutor’s office, which, accord- emphasizes that Article 3 of the Convention ing to him, influences the staff of the remand imposes an obligation on the State to ensure, prison. In this regard, the lawyer filed a com- taking into account the practical requirements plaint with the ECtHR, where the relevant of imprisonment, that the prisoner’s health proceedings have already been opened and a and well-being be adequately guaranteed, in- deadline has been set until mid-October for cluding by providing him with the necessary the submission of the results of the medical medical care. . . One of the important factors examination of Tatarintsev to the European for such an assessment is a sharp deterioration Court. in the state of health of a person in places The International Society for Human Rights of detention, which inevitably casts doubt notes that the ISHR observer was present at on the adequacy of the medical care avail- the sessions when the doctor of the pre-trial de- able there. . . ” In addition, the ECtHR has tention center medical unit spoke and recorded repeatedly indicated that the provision of nec- that she had not been sworn in and did not

99 show any identification documents or docu- sition of the ECtHR in the case of “Todorov ments confirming her professional competence. v. Ukraine”, there must be exceptionally good In addition, it turned out that this medical reasons for extending detention. worker has no status in the trial, was not officially summoned by anyone either as an expert Attorney Lyapin suggested that the court ei- or as a witness. ther assign Tatarintsev a bail (since according Tatarintsev asked the court to announce to the indictment there are no serious con- documents in which he allegedly refused sequences in his case and no one died), and treatment, since he did not sign anything further detention in a pre-trial detention cen- like that. The presiding judge replied that ter will lead to disability, and possibly death, this was a medical journal with the marks or “if the court is afraid of the military prose- “agreed/refused” but could not find it in the cutor’s office and the SBU”, recuse themselves. file. But he found the journal “providing diet food”, which is marked “given” and the sig- Thanks to the decision of the Constitutional nature, according to the judge, the one who Court of June 25, 19 on the recognition of issued, but not Tatarintsev. After conferring the provisions of part 5 of article 166 of the on the spot, the court granted the defense. Criminal Procedure Code of Ukraine as uncon- They also ruled that Tatarintsev’s state of stitutional (on the non-alternative measure of health did not allow him to participate in the restraint in the form of detention for persons hearing and postponed the trial until October accused of committing crimes under Articles 17. 109-114-1, 258-258- 5, 260, 261 of the Crim- This is not the first time the court has de- inal Code of Ukraine), the court was forced cided to adjourn the session due to the impos- to consider the possibility of making a bail, sibility of Tatarintsev’s participation in it due but decided to refuse to this extent, since “the to health reasons, nevertheless, continues the defense did not provide documents on the ma- hearing to hear the prosecution’s motion to terial condition of the accused”. As a result, it extend the measure of restraint. was decided to extend Tatarintsev’s detention The prosecutor did not provide the defense for 60 days without the right to make a bail. with a written request with annexes containing documentary evidence of risks 3 hours The ISHR is concerned that the evidence before its consideration in accordance with from the medical unit that the necessary treat- Chapter 18 of the Code of Criminal Procedure ment and nutrition is carried out despite the of Ukraine, which the lawyer drew attention testimony of the accused, the convoy, the en- to, but the judge still invited the prosecutor to docrinologist, the results of the examination, read it out. Nevertheless, lawyer Lyapin man- and the fact that the prescribed insulin is not aged to achieve compliance with the Code of in the pre-trial detention center is used as jus- Criminal Procedure and obtain a copy of the tification for the extension of the detention, as application. But it turned out that the prosecu- well as the fact that a certificate of the possi- tor prepared only two copies – for himself and bility of detention in the detention center for for the court, and having given one of them to health reasons was issued by the medical unit the defense, he did not have his own copy for of the pre-trial detention center, in which there reading in the session. In this regard, he asked is no qualified specialist (endocrinologist). the court for a break to make another copy of the petition. The lawyer protested, referring The court does not consider alternative mea- to the principle of equality and competitive- sures of restraint in custody, which may indi- ness of the parties. The court appointed the cate a violation of § 3 of Art. 5 of the Conven- break. In his application, the prosecutor re- tion for the Protection of Human Rights and iterated the same arguments every time this Fundamental Freedoms (“Buryaga v. Ukraine” issue is considered. According to the legal po- case).

100 Monitoring the case of Pavel Volkov as obviously inadmissible. In addition, the de- (session 07/11/2019) fense lawyers noted that in the appeal the prosecutor provided false information, which On July 11, 2019, the court published the confirms of audio recordings of sessions. The full text of the decision of the Zaporozhzhya accused Volkov said that the criminal case Court of Appeal on the appeal of the prose- against him, as well as similar cases against cutor against the acquittal sentenced by the many other opposition journalists, are polit- Shevchenkovsky District Court of Zaporozhye ically motivated and aim to prevent public on March 27, 2019 in the case of the jour- criticism of the actions of the previous govern- nalist Pavel Volkov, who was charged under ment, which is unacceptable in a democratic part 2 of article 110 of the Criminal Code of society. After hearing the arguments of the Ukraine (encroachment on territorial integrity) parties, the presiding judge asked the accused: and part 1 of article 258-3 (assistance to a ter- “So what did you vote for in a referendum in rorist organization). Donetsk?” “I have a Zaporozhzhya registra- The International Society for Human Rights tion, I could not vote there”, Volkov answered. regularly monitored the Volkov case. The acquittal says that most of the evidence provided by the prosecution has signs of un- The court of appeal decided to leave the ac- acceptable, but this is not decisive, since it quittal of the trial court unchanged, announc- was established that there was no criminal ing only the effective part of the decision. The offense in the actions of the accused. As a presiding judge, explaining the motivation for citizen of Ukraine and a journalist, the ac- such a decision, said: “We cannot criminally cused Volkov has the right to carry out his punish for lack of patriotism”. The full text professional activities and express his subjec- of the decision of the Court of Appeal noted tive opinion, judgments, and freely express his that the version of the charge under part 2 of views and beliefs. It is unacceptable for the article 110 of the Criminal Code of Ukraine state to use coercive means to combat freedom was reduced to the fact that Volkov, under un- of speech and freedom of expression. known circumstances, conspired with uniden- Thus, the court decided to acquit Volkov tified persons to commit intentional actions because of the lack of evidence of his guilt. with the aim of changing the borders of the The session of the court of appeal was territory and state border of Ukraine. The very held on June 27, 2019. The prosecutor pe- wording of the charges brought against Volkov titioned for the annulment of the acquittal, indicated that all this had the character of the re-examination of nine examination pro- an assumption only. Regarding the charges tocols,which were recognized as obviously in- under Part 1 of Art. 258-3 of the Criminal admissible evidence, and the imposition of a Code of Ukraine, the court did not establish sentence of 15 years in prison for Volkov. In his in Volkov’s actions either cooperation with a complaint, the prosecutor referred to the fact terrorist organization or terrorist orientation that, in his opinion, the trial court had not in the objects of written speech and video examined the evidence in their entirety, made materials that he created. The board of the incorrect conclusions from the linguistic exam- court of appeal indicated that the prosecu- inations of Volkov’s journalistic materials, and tor’s references to procedural irregularities, as also, in violation of the Criminal Procedure grounds for the annulment of the sentence, did Code of Ukraine, went to the stage of debate not directly affect the court’s decision on the without finding out the views of the prosecu- merits and indicated the prosecutor’s desire tion and not allowing the prosecutor to replace to reverse the decision, that was inherently the indictment. Lawyers Svetlana Novitskaya correct, for formal reasons. and Vladimir Lyapin insisted that the court thoroughly examined all the evidence and that Therefore, the complaint of the prosecutor is why it recognized a significant part of them was dismissed.

101 3.26. The trial of Kirill fendant, it turned out that prosecutors have Vyshinsky been referring to the same risks for the past 9 months, and that is how much the journalist Monitoring the trial of Kirill Vyshinsky is in custody. The experts of the International (session 03/26/2019) Society for Human Rights have repeatedly noted that the prosecution systematically ar- On March 26, a preparatory court session on gues its petitions with initial risks (cases of the case of K. Vyshinsky, the editor-in-chief of Shchegolev, Ezhov, Mikhalchevsky, Mastika- “RIA News Ukraine”, was held in the Podol- sheva, etc.), contrary to the well-established sky district court of Kiev. He is charged with practice of the ECtHR, which suggests that, treason. K. Vyshinsky was detained on May over time, the initial reasons for detention are 15, 2018, in Kiev during a search of “RIA less and less significant and that the courts News Ukraine” employees. The law enforce- should proceed from “substantial” and “suf- ment agencies of Ukraine claim that they have ficient” grounds for prolonged imprisonment found an employment contract with a Rus- (“Pelevin v. Russian Federation”). sian media group “Russia Today”, as well as a large sum of money and a firearm. On May When the court gave the floor to a lawyer 15, K. Vyshinsky was transferred from Kiev so that they expressed their position regard- to Kherson, and on May 17, the Kherson City ing the petition of the prosecutor, the de- Court applied a measure of restraint to the fense asked the court to hold a session within journalist in the form of detention. The In- the framework of the procedural legislation of ternational Society for Human Rights begins Ukraine (petitions for the measure of restraint monitoring this trial. are considered after they choose the date of At the beginning of the court hearing, the the court hearing and consideration of other defense of a journalist filed a petition regarding petitions). Based on this, the defense filed a the participation of one of the prosecutors in petition for the return of the indictment to the trial. Lawyers argued that, according to the prosecutors, as the prosecution provided the legislation of Ukraine, the prosecutor could evidence to the court and gave them its assess- not participate in the trial, since he entered ment, which directly violates the principles of into the proceedings only at the judicial stage competition, impartiality and the rule of the without the grounds provided by law. The court. Note that the adversarial nature of the court did not satisfy the defense petition. trial and the equality of arms are not men- The prosecution filed a petition for the use tioned in Article 6 of the Convention, however, of a measure of restraint in the form of deten- they are an important element of a fair trial. tion, arguing that the journalist could influ- The ECtHR has repeatedly in its decisions ence the witnesses, to escape from the court, pointed to the need to respect the principle of because K. Vyshynsky has an international competition (“Brandstätterv. Austria”, “Roe passport and he said that he wants to re- Davis v. the United Kingdom”). The court nounce the citizenship of Ukraine and due considered that the petition of lawyers was to the “no alternative” measure of restraint groundless and did not satisfy it. The petition for persons accused of treason. The European of the prosecution was expectedly granted. In Court has repeatedly recognized a violation their decision, the judges indicated that the of Article 5 § 3 of the Convention in cases lawyers refused to state their position regard- in which the national courts extended the ap- ing the motion of the prosecution, even so, plicant’s detention, referring mainly to the the refusal was not heard in the courtroom, severity of the charge without taking into ac- but only a request to work according to the count the specific situation, and not consider- procedural legislation. ing alternative measures of restraint (“Idalov The lawyers expressed their suspicion about v. Russia”). It is worth noting that in a pri- the judge’s bias and filed a motion to challenge vate conversation with the lawyers of the de- the entire board, which was not satisfied by

102 the court. According to lawyers, this case is to sit in it, as a result of which a stampede purely political, the decision of the government formed, not everyone was able to get into the officials in it prevails over the laws, one of the hall, and the operators had to get their feet defenders suggested that the court’s decisions on the benches in the hall to shoot the ses- were written in advance. sion. Experts from the International Society for Human Rights express concern about such Monitoring the case of Kirill Vyshinsky a decision by the administration of the Podol- (session 07/03/2019) sky District Court of Kiev, since this calls into question the openness of this resonant and On July 3, 2019, in the Podolsky District socially significant trial. Court of Kiev, the first hearing after the indictment was announced in the case of the The session began with consideration of the chief editor of RIA Novosti Ukraine, Kirill petition of the Prosecutor General of Ukraine Vyshinsky, who is charged with part 1 of art. to replace prosecutors in the case. The lawyers 111 of the Criminal Code of Ukraine (high of the accused protested, since such a replace- treason) for his professional journalistic activ- ment can occur only in the case of documented ities. K. Vyshinsky was detained on May 15, confirmation of the dismissal, illness or recusal 2018 in Kiev during a search of RIA Novosti of previously appointed prosecutors. Such doc- Ukraine office. The law enforcement agencies uments were not provided either to the court of Ukraine claim that they found a contract or to the defense. The court granted the pe- of the journalist and the Russian media group tition of the Prosecutor General’s Office and Russia Today, as well as a large amount of asked whether the prosecution had complied money and firearms. with the previous court ruling on the selection On May 15, K. Vyshinsky was transported of the procedure for examining evidence. The from Kiev to Kherson, and on May 17, refer- new prosecutors replied that they were not ring to the part 5 of article 166 of the Code familiar with the case, and therefore asked to of Criminal Procedure of Ukraine, which was declare a break “within the period of deten- recognized unconstitutional in June 2019 (on tion”. the inappropriateness of the detention of per- Observers of the International Society for sons suspected of crimes against state security) Human Rights are concerned that the unex- the Kherson City Court applied a measure of pected decision to replace the group of prose- restraint against the journalist in the form of cutors was made on the very day when, after detention in a pre-trial detention center. Af- the declaration as unconstitutional the pro- ter the indictment was announced, it turned vision of part 5 of article 166 of the Code of out that as unlawful acts that undermine the Criminal Procedure of Ukraine on the non- state security of Ukraine, Vyshinsky is charged alternative detention of persons suspected of with news notes posted on the RIA Novosti committing crimes related to state security, Ukraine website (in particular, that “Crimea Kirill Vyshinsky measure of restraint could has passed over to Moscow time”) and the change to a softer one. This was confirmed author’s columns of political experts who dis- by the lawyer Andrei Domansky, saying that cussed the advisability of granting autocephaly by such an action the prosecutor’s office suc- to the Ukrainian church. ceeded in postponing the consideration of the The International Society for Human Rights defense’s petition to change the measure of continues to monitor this trial. restraint to the accused, as well as deliber- The session on July 3, 2019 supposed to be ately delaying the trial, failing to comply with held in room No. 301, but after several dozen the court order on the selection of the proce- journalists of large national television chan- dure for examining evidence. Also, the defense nels appeared in court, the case was moved to called the disrespect for the court and the vio- room No. 2. The size of this hall objectively lation of the principle of equality of arms the did not allow journalists who came to the court unpreparedness of the prosecution for the hear-

103 ing scheduled in advance. Vyshinsky himself Ukraine” website, in which the prosecution noted that truth and justice are of no interest sees the corpus delicti, met journalism stan- to anyone, and the only sole purpose is to keep dards. The OSCE Representative on Freedom him in custody. The accused also expressed of the Media, Arlem Desir, noted that “jour- a reasonable doubt that prosecutors will be nalists should not be imprisoned for their pro- able to study 78 pages of the indictment and fessional activities” and called on Ukraine to 26 volumes of the case for the time remaining release Vyshinsky. until the expiration of the term of the measure During the session, it was planned to con- of restraint, i.e. until July 22, 2019, since he sider the defense’s complaint against the deci- himself studied these materials for 1.5 months. sion of the Podolsky District Court of Kiev on The court decided to postpone the hearing the extension of the measure of restraint in the until July 15, 2019, requiring the prosecutors form of detention of the journalist, but it did to prepare properly. The courthouse was at- not take place again. The first time the session tended by the leader of the right-wing group was adjourned due to the absence of one of “C14” Evgeny Karas, as well as persons with the lawyers, and today the reason was the sick insignia of the “Right Sector”. During and leave of the judge, which became known 20 after the session, they shouted insults at the minutes after the session was supposed to be- accused and demanded that Kirill Vyshinsky gin, although at first the delay was explained be sent to prison, which could be regarded as by technical problems with the courtroom. It pressure on the court. is worth noting that many journalists arrived at the trial, and one of the defenders, accord- Monitoring the case of Kirill Vyshinsky ing to him, came to the hearing from Kherson, (session 08/20/2019) which is 500 km away from Kiev. Such an organization of the trial does not facilitate On August 20, a hearing supposed to be held consideration of the case in reasonable terms, in the Kiev Court of Appeal in the case of the given the fact that the accused has been in chief editor of “RIA Novosti-Ukraine” Kirill custody in jail for more than a year. Vyshinsky, who is charged with high treason (Article 111 of the Criminal Code). In addition In almost every report, ISHR experts fo- to state treason, Vyshinsky is charged with cus on a systematic violation of the principle attempting to overthrow the constitutional of reasonable time (cases of V. Yanukovych, order (Article 109 of the Criminal Code), sep- S. Yezhov and many others), which is one of aratism (Article 110 of the Criminal Code), the main elements of fair trial. In its practice, inciting ethnic hatred (part 1 of article 161 of the ECtHR insistently draws the attention the Criminal Code) and illegal possession of of national courts to “a special obligation to weapons (part 1 of article 263 of the Criminal ensure that all parties involved in the trial Code Code). Vyshinsky was detained on May do everything in their power to avoid unjus- 15, 2018, in Kiev during a search of employ- tified delay in the consideration of the case” ees of “RIA Novosti Ukraine”. The law en- (“Vernillo v. France”). The provisions of Arti- forcement agencies of Ukraine claim that they cle 6 of the European Convention on Human found a contract between the journalist and Rights indicate that accused persons cannot the Russian media group “Russia Today”, as remain in ignorance for too long about their well as a large amount of money and firearms. fate (“Nakhmanovich v. Russia”, “Ivanov v. On May 15, Vyshinsky was transferred from Ukraine”). Kiev to Kherson, and on May 17, the Kherson It is important to note that throughout the City Court applied the measure of restraint trial, the prosecution refers to the initial risks against the journalist in the form of detention. in its requests for an extension of the measure Vyshinsky himself denies all charges and con- of restraint (possible influence on witnesses siders the case politically motivated. He claims and renunciation of citizenship of Ukraine, that all the materials on the “RIA Novosti- which, according to prosecutors, entails a de-

104 sire to hide from justice), although over time, announcement of the verdict was performed the initial reasons for detention are becoming with a violation, as according to lawyers of less and less significant. For example, accord- Viktor Yanukovych, the court warned them ing to the legal position of the ECtHR in the about the date of the verdict only the day case of “Todorov v. Ukraine”, there must be before and not three days prior (as required exceptionally good reasons for extending de- by law). tention. Moreover, as the Court points out, Among the gross violations of human rights only the gravity of the crime, the complexity identified during the monitoring of the trial of the case and the seriousness of the charges are the following: cannot serve as a basis for extending such a measure. 1. Refusal of the court to apply the mandatory rules of the European Convention on Mutual Assistance in Criminal Matters, 3.27. The trial of Victor which is ratified by Ukraine; Yanukovych 2. The involvement of the public defenders in the trial, despite the protests of Viktor The Ukrainian court of first instance Yanukovych and his official attorneys; sentenced the ex-President Viktor Yanukovych 3. Refusal of the court to hear the testimony of the majority of witnesses of the defense, January 24, Obolonskyi district court of Kiev including those whom the defense consid- sentenced the ex-President of Ukraine Viktor ers to be the main witnesses; Yanukovych, finding him guilty of treason (article 111 of the Criminal Procedure Code) and 4. Refusal of the court to permit the evalua- aiding and abetting the planning, preparation tion of expert opinions of independent in- and waging of aggressive war (articles 27, 437 ternational experts from the USA, Great of the Criminal Procedure Code). Thus the Britain, Switzerland, Ukraine and other court excluded from sentence charges of the evidence of defense; actions directed on change of state borders of Ukraine (article 110 of the Criminal Proce- 5. Pressure, threats and even use of force dure Code). The ex-President was sentenced against the ex-President’s lawyers by the to 13 years in prison. The lawyers of Viktor authorities; Yanukovych have already declared that they will appeal against this decision in the court 6. The court’s refusal to allow lawyers to of appeal. finish their speech in the debate; ISHR experts monitored this case since May 7. The reluctance of the court to wait for of 2017 (starting from the preparatory court the discharge of Viktor Yanukovych from meetings). During this period, many violations the hospital, to give him the opportunity have been identified that call into question the to speak with the last word. fairness of the trial. Observers of the ISHR recorded 46 episodes of violations of interna- Unusual for the realities of the Ukrainian le- tional principles, the Convention for the Pro- gal proceedings is the “speed” with which the tection of Human Rights and Fundamental decision was passed. The trial took 21 months, Freedoms and the decisions of the European although, for comparison, many trials on such Court of Human Rights. Recall that according serious articles (monitored by the ISHR) drag to national legislation, the Convention and the from 2014-2015 and so far none of them has decisions of the ECHR are the source of law come to an end. Usually the accused are held for the Ukrainian courts (law “On Execution in custody for 40-60 months, however, unlike of Decisions and Application of Practice of the Viktor Yanukovych’s trial, the courts consider European Court of Human Rights”). Even the such cases slowly, interrogating hundreds of

105 witnesses and evaluating new evidence. It can for a long time under the weight of the charge be said that in the process of the ex-President (“Vemkhov v. Germany”). In addition, the such “speed” of sentencing is achieved by re- ECtHR notes that the duration of criminal fusing to interrogate a large number of alleged proceedings to assess its reasonableness is cal- witnesses and refusing to accept new evidence. culated from the day when the person becomes That is not peculiar to the Ukrainian legal the accused until the end on the day the final proceedings. conviction or acquittal is issued (“Imbriosha v. Switzerland”, “Kalashnikov v. Russia”). Monitoring the trial of V. Yanukovych As already mentioned in the previous report, (court hearing July 15, 2019) the defense is determined and plans to finally exercise its legal right, namely, to interrogate On July 15, a hearing was held in the Kiev all the witnesses (the court of the first instance Court of Appeal in the case of the ex-president refused this), it is also planned to conduct of Ukraine V. Yanukovych. On January 24, repeated examinations. And of course, the the Obolonsky District Court of Kiev pro- question of the illegality of involving a public nounced a verdict on ex-President of Ukraine defender in the trial will be raised. V. Yanukovych, convicting him of high treason (Article 111 of the CPC) and complicity in Monitoring the trial of V. Yanukovych the planning, preparation and conduct of an (court hearing of 09/13/2019) aggressive war (Articles 27, 437 of the CPC). Once again, there was no court session, since On September 13, a hearing was held in the there was a malfunction in the automated Kiev Court of Appeal in the case of the ex- distribution system of judges and because of president of Ukraine V. Yanukovych. On Jan- this, a substitute judge was not selected. In uary 24, the Obolonsky District Court of Kiev this regard, the panel adjourned the hearing pronounced a verdict convicting ex-President to September. The parties did not object to of Ukraine V. Yanukovych of high treason (Ar- the forced transfer. ticle 111 of the Code of Criminal Procedure) Recall that the previous session was held and complicity in the planning, preparation on June 13, that is, considering the last post- and conduct of an aggressive war (Articles 27, ponement, it takes about 3 months to conduct 437 of the Code of Criminal Procedure). a preparatory hearing for the current judicial The session began when the lawyers of system. De jure, there are no procedural vio- V. Yanukovych handed over to the court his lations on the part of the participants in the petition about the refusal of the “state lawyer” trial, but de facto, the imperfection of the sys- Yu. Ryabovol, since he ignored the rights of the tem gives rise to a violation of the principle accused, violated the quality standards of proof reasonableness of the time limits for judi- viding free legal assistance. Prosecutors asked cial review. In the process of their monitoring, the court not to satisfy this petition, since ISHR observers systematically note a viola- they believe that participation in the trial of tion of this principle (the cases of Shchegolev, the public defender guarantees the accused Yezhov, Mastikasheva, etc.). More than once, uninterrupted legal protection. Yu. Ryabovol ISHR experts wrote that compliance with this said that he cannot leave the trial without a principle is a basic guarantee of fair justice. court decision, therefore, he asked the court The ECtHR emphasizes the importance of this to establish his legal status. The court did not principle in its decisions and recognizes the satisfy the petition of V. Yanukovych on the right of every person prosecuted in a crimi- refusal of the state lawyer. This court decision nal case to receive a final decision within a violates the right to defense, since the state reasonable time on the validity of the charges lawyer will participate in the trial contrary to against him (“Julia Manzoni v. Italy”), more the interests of the accused (as evidenced by a precisely, an object in a criminal case is the petition signed personally by V. Yanukovych). achievement that the accused do not remain It is worth noting that this position of the

106 court is contrary to the case law of the Eu- ing decided to hold court hearings using the ropean Court of Human Rights (ECtHR). In same procedure as the prior court, continues to the “Khanzevatsky v. Croatia” case, the EC- violate international obligations and national tHR noted that a person accused of a criminal legislation. offense should be able to resort to legal assistance of his choice. In addition, the court Monitoring the trial of V. Yanukovych motivated its decision by the fact that, thanks (court hearings November 18–25, 2019) to the participation of a state lawyer in the trial, V. Yanukovych will have high-quality On September 18-25, the Kiev Court of Ap- legal assistance. It remains unclear how such peal held hearings in the case of ex-president a defense will be of high quality if the funda- of Ukraine V. Yanukovych. On January 24, mental importance for preparing the defense the Obolonsky District Court of Kiev pro- implies the ability of the accused to commu- nounced a verdict on ex-President of Ukraine nicate with his defense counsel (the “Kahn v. V. Yanukovych, convicting him of high treason Austria” case), and V. Yanukovych has repeat- (Article 111 of the Code of Criminal Proce- edly filed petitions for refusing the “imposed” dure) and complicity in the planning, prepara- defender. It is also worth recalling that accord- tion and conduct of an aggressive war (Articles ing to Ukrainian legislation no more than five 27, 437 of the Code of Criminal Procedure). lawyers can participate in the trial, and in this The defense submitted a number of motions. situation, Yu. Ryabovol is the sixth. The court, in order to optimize the time, chose the following procedure – first to hear all the In addition to the statement, the lawyers petitions, and then make decisions on the en- filed three motions that related to the settle- tire block of petitions. ment of the issue of V. Yanukovych’s partic- Petitions of lawyers mainly related to in- ipation in court hearings. As before, lawyers terrogation of witnesses, “repeated” interro- insisted on Ukraine fulfilling its international gation of witnesses, investigation of evidence, obligations and using the norms of the Eu- examination. Based on the rhetoric of the de- ropean Convention on Mutual Assistance in fenders, we can highlight the main idea, which Criminal Matters for organizing video commu- was that the trial court was biased and un- nications with V. Yanukovych. The court saw fair in its decisions, in a hurry to “quickly” no reason to satisfy these requests and stated consider the case, made several procedural that the appeal hearing would be conducted violations. For example, the composition of in accordance with the procedure used by the the court was formed manually, and not us- court of the first instance. ing the auto-distribution system, in addition, Recall that when using the video communi- the decision to hold a preparatory hearing cation format, Ukraine should have cooperated was made by an incomplete composition of with the competent authorities of the Russian the court, which is a separate reason for the Federation, it was this fact that served as the annulment of the court verdict. The lawyers refusal of the court of first instance from this also noted that V. Yanukovych throughout procedure, the court referred to the fact that the trial expressed a desire to directly partici- high treason (of which V. Yanukovych is ac- pate in court hearings, but the court, contrary cused) was committed in favor of the Russian to the requirements of the international legal Federation. The court decided not to refer to aid treaty, which has been ratified by Ukraine, any norms of national or international law, but decided to hold sessions in absentia. ISHR ex- only guided by internal convictions. It is im- perts consider such court actions as a violation portant to note that according to Ukrainian of the defendant’s right to defense; the prac- law, the court has the right to use internal tice of the ECtHR confirms our findings. The conviction exclusively in assessing evidence ECtHR has repeatedly emphasized that the (Article 94 of the Code of Criminal Procedure charges cannot be compensated for by the pres- of Ukraine). Thus, the Court of Appeal, hav- ence of defendant’s lawyers in the trial (“Zana

107 v. Turkey”, § 72). The concept of “defense” France”, p. 34; “Klimentyev v. Russia”, p. 95). includes not only the qualified assistance of Regarding the interrogation of witnesses, lawyers, but also the ability to defend yourself the lawyers also noted the fact that even those on your own. witnesses whom the court granted to hear were It is worth noting that because of the reluc- not fully interrogated, for example, from the tance to work within the framework of inter- prepared 230 questions for P. Poroshenko, the national obligations to organize video commu- lawyers could only ask 6. This fact certainly nications with the accused and key witnesses indicates another violation of the right to an for the defense, the court invited lawyers to effective defense. The case law of the ECtHR interrogate witnesses via Skype, which is non- tells us that the right of a person accused of sense. The court is obliged to act within the committing a crime to an effective defense by framework of procedural legislation and is not a lawyer is one of the fundamental charac- entitled, at its request, to change the format of teristics of a fair trial (“Salduz v. Turkey”, the procedural actions. Section 9 of the Code p. 51). of Criminal Procedure of Ukraine regulates the issue of international cooperation, the con- 3.28. The trial of Oksana cept of “video communication via Skype” is not there, respectively, this format cannot be Yarmolovskaya used in criminal proceedings. Monitoring the case of the victim Oksana In addition, lawyers emphasized that the Yarmolovskaya (session 07/16/2019) court refused to consider 251 evidence, although, the examination took place in a spe- In the Galickiy district court of Lvov, a com- cial judicial procedure, and according to the plaint is considered against the decision to requirements of § 2 of Article 349 of the Code close the criminal proceedings on the fact of of Criminal Procedure of Ukraine, when us- an accident with a fatal outcome, according ing this format, all evidence provided by the to part 1 of Art. 286 of the Criminal Code parties is subject to investigation. In addition, (“Violation of the rules of road safety or the the lawyers requested that the right to defense, operation of vehicles by persons who drive ve- violated by the court of first instance, be re- hicles”). The International Society for Human newed, citing the fact that out of 139 declared Rights begins monitoring this case. defense witnesses, the court approved only 16, 11/19/2015 at 5 pm on the highway Lvov- while there were more than 40 approved pros- Shegini in the Gorodok town on the Lvovskaya ecution witnesses, which directly violates the street near house #663, the driver of a Volk- principles of disparity and equality of arms. swagen Jetta Z. Zakopets hit a pedestrian It is important to note that dispositiveness is B. Detsik, who died from injuries. a democratic principle of building a criminal According to the results of the pre-trial in- trial, as well as a characteristic feature of an vestigation, the investigator decided to close adversarial trial. Violation of this principle the criminal proceedings due to the lack of calls into question the fairness of the judicial corpus delicti. According to the victim – the review as a whole. When examining the is- mother of B. Detsik – the decision to close the sue of violation of the principle of equality case was made illegally, contrary to Part 2 of of arms, it should be said about the case-law Art. 9 of the CPC of Ukraine, which states of the ECtHR, which says that equal rights that “. . . the investigator is obliged to compre- of the parties is an integral feature of a fair hensively, fully and objectively investigate the trial. This principle requires that each party circumstances of the criminal proceedings. . . ”, be given a reasonable opportunity to present since the investigator, in her opinion, was not its case in such circumstances that do not put objective and impartial. On July 16, a com- it at a substantially disadvantageous position plaint about the decision to close the crimi- with respect to the opposite side (“Fouchet v. nal proceedings was to be considered. Given

108 the fact that the victim had previously par- the accused was not aware of what actions ticipated in the hearing without counsel, the he was forbidden to perform in that position. court invited her to turn to the Center for the Rybin claims that the information that ac- provision of free secondary legal assistance. cording to the investigation was disseminated Due to the lack of grounds for obtaining a by Yezhov is not classified. We are talking “state” lawyer, a contract lawyer was hired to about the telephone numbers of the Cabinet this trial. In this regard, based on the petition of Ministers employees, which are posted on of the new lawyer, the court postponed the the Internet in the public domain and whose consideration of the case until July 23 to pro- transfer to anyone does not threaten the in- vide the defense counsel with the opportunity terests of Ukraine. He also noted that this to familiarize themselves with the case. allegedly secret information had already been The next session in this case will take place announced by the prosecutor in an open court on July 23, 2019. session, which once again proves the absence of state secrets in it. The prosecutor’s office sent a request for an examination regarding 3.29. The trial of Stanislav the content in the specified information of any- Yezhov thing that could harm the interests of Ukraine but was then withdrawn. Thus, the court has Monitoring the case of Stanislav Yezhov no evidence of whether such information was (session 07/02/2019) distributed by the accused. The dubiousness of the prosecution is also On July 2, 2019, a court hearing was held confirmed by the situation with the witnesses. on the case of Stanislav Yezhov, a Ukrainian Since, according to the investigation, the crime official, former deputy head of the protocol was committed secretly, it is not clear what of the Prime Minister of Ukraine Vladymyr witnesses the accused can influence without Groysman, who is charged with part 1 of arti- being in a pre-trial detention center. cle 111 of the Criminal Code of Ukraine (high treason). In addition, in the case file there is no evi- S. Yezhov is suspected of espionage in favor dence of Yezhov’s connection with any foreign of Russia and he has been kept in jail since organization, since the investigation did not December 20, 2017. establish whether the email address to which Experts from the International Society for Yezhov sent messages was related to foreign Human Rights continue to monitor this law- intelligence services. suit. Rybin recalled the decision of the Consti- The session began with the request of lawyer tutional Court of Ukraine (CCU) to declare Valentin Rybin to change the measure of re- unconstitutional the provision of part 5 of ar- straint against the accused from detention to ticle 166 of the Code of Criminal Procedure house arrest. Rybin said that since the main- of Ukraine on the non-alternative detention of tenance of Yezhov in the pre-trial detention persons suspected of crimes related to state center is the main goal of the prosecutor’s of- security, and this is exactly the provision to fice, the prosecution is in no hurry to prove his which the prosecutor referred each time since guilt, and the defense, accordingly, is deprived the winter of 2017 when extending measures of the opportunity to prove the opposite. Ac- of restraint. Now, the prosecution is each time cording to the lawyer, Yezhov was appointed obliged to prove the existence of risks. Base Groysman’s assistant in violation of the law, on all the above, lawyer Rybin asked the court the official job description does not contain to change the measure of restraint for Yezhov Yezhov’s signature which would prove that he to a night house arrest. is familiarized with the document, and in the The prosecutor Krynin said that the risks personnel department of the Cabinet of Minis- did not decrease at all, since the Ukrainian Se- ters this job description is absent. Accordingly, cret Service (SBU) received information that

109 the lawyer at this session would demand a in conspiracy with the Russian General Staff, mitigation of the measure of restraint, refer- which could make a bail for him. ring to the decision of the CCU, and Yezhov, Lawyer Rybin protested because the indict- if released from custody, would immediately ment states that the damage was not caused, leave the territory of Ukraine, hiding from jus- and that such a sum was specially designated tice in the Russian Federation. This is written so that the family of his client could never in a letter from SBU General Petrov, which collect it. In addition, making a bail, unlike the prosecutor immediately transferred to the a house arrest, will not be able to prevent court. Yezhov from hiding from justice if he decides Rybin protested because he is the defen- to do so. dant’s lawyer and it is not possible to carry To decide on the petition, the court ad- out covert investigative actions in the frame- journed the hearing to July 3 and ordered the work of this criminal case. prosecutor to prepare reasoned evidence of Yezhov’s intentions to escape from justice. Even though the prosecutor Krynin insisted on the extension of Yezhov’s detention in the pre-trial detention center, he noted that if the Monitoring the case of Stanislav Yezhov court decided not to extend such a measure of (session 07/03/2019) restraint, he required a bail of 8.5 million hryv- On July 3, 2019, the Goloseevsky District nias. The prosecution considers this amount to Court of Kiev held a continuation of the ses- be justified, since according to its data the fam- sion to consider the petitions of the prosecu- ily of the accused has property worth about tor’s office and the defense on the measure 8 million hryvnias. The prosecutor included of restraint to Stanislav Yezhov, accused of the property belonging to Yezhov’s mother, treason. Stanislav Yezhov, a Ukrainian official, the seized property, a bank account as of 2016 ex-deputy head of the protocol of the Prime (without checking what is on it now), as well Minister of Ukraine V. Groysman, has been in as a sum of money that the accused lent be- the detention center since December 20, 2017. fore his arrest. Prosecutor Bannik, who joint Experts from the International Society for this case from the Savchenko/Ruban case, said Human Rights continue monitoring this trial. the lawyer did not prove that the risks were The prosecutor attached to the case a state- reduced. It should be noted that according to ment of Yezhov’s mother to prove the rela- part 1 of Article 183 of the Code of Crimi- tionship in order to explain to the court why nal Procedure, detention in custody can be the value of her property was included in the used only if the prosecutor is able to prove estimated amount of the bail. the risks of non-fulfillment by the accused of The lawyer Rybin in his speech indicated his procedural obligations and justify them. that the prosecutor’s petition did not say any- According to the principles of criminal pro- thing about the possibility of applying other ceedings, any doubts are always interpreted in measures besides detention or bail. favor of the accused, and therefore placing the The lawyer requested a change of measure burden of proof on lawyers is a gross proce- to nightly house arrest. dural violation and ignoring the presumption Yezhov drew the court’s attention to the of innocence. Also, according to the practice fact that the bail is exorbitant and the sum is of the ECtHR, over time, the presence of the his salary for 45 years, and the seized property same risks with the same justification ceases is already essentially a pledge. He also referred to be a enough reason for extending the mea- to judicial practice in a similar “Zamana” case, sure of restraint in the form of detention (case who was released on a personal obligation af- of “Deineko v. Ukraine”). ter 2 months in a pre-trial detention center, When asked by the court why the prosecu- stressing that he was being held in a pre-trial tor’s office requires such a large bail, Bannik detention center with the same charge for 1 replied that Yezhov had committed a crime year 8 months. Following a discussion in the de-

110 liberation room, the court decided to change lawyers drew attention to the fact that the the measure of restraint to round-the-clock trial court did not conduct a reasonable deter- house arrest with the obligatory wearing of an mination of the facts important for the con- electronic bracelet. sideration of the case (which violates the right to a fair trial (Article 6 of the Convention), decision in the case of the ECtHR “Pronin v. 3.30. The trial of Elena Zaitseva Ukraine”, spatio-temporal and causal dynamics of an accident: the speed and direction of Monitoring the case of Elena Zaitseva and movement of cars, the place of collision, what Gennady Dronov (session on 08/14/2019) kind of light they drove to the intersection, G. Dronov’s ability to notice Zaitseva’s car On August 14, a hearing was held in the at a speed of more than 100 km/h, etc. Also, Kharkov Court of Appeal to consider the ap- lawyer of G. Dronov accused the prosecutor’s peals of E. Zaitseva and G. Dronov, accused in office of an opaque and prejudiced choice of the case of violation of traffic safety rules by ve- experts and filed a petition to allow to perform hicle drivers, which resulted in the death of six the examination by an alternative organiza- people. The session began at a pre-announced tion. The petition was rejected by the court. time and, due to the big interest of the public In appeal by the defense of E. Zaitseva, the de- and many television channels, took place in fender referred to extenuating circumstances, the largest hall No. 2 of the Kharkov Court poor health and shifted most of the responsi- of Appeal. Due to its large size and unsatis- bility for road accidents to an older G. Dronov. factory performance of the auditorium’s au- In general, the court rejected the appeals of dio equipment, audibility within public places both parties, upholding the decision of the fenced off by the barrier was unsatisfactory court of the first instance, except for replacing and some speeches were barely audible, which the joint principle of payments to the injured negatively affected the principle of publicity parties with a partial one. The lawyers of the and openness of justice. But, as stated by the accused promised to file a cassation appeal press-secretary of the Kharkov Court of Ap- after receiving the motivational part of the peal E. Bondarenko, familiarization with the decision of the court of appeal. case materials and the technical recording of the session is possible only for the parties to the case. 3.31. The trial of S. Zinchenko The defendants were in a large “aquarium” (about 16-18 square meters), but limited by Monitoring of the trial of S. Zinchenko, the transparent walls, and could not communi- P. Ambroskin, A. Marinchenko, cate with their lawyers during the trial, except S. Tamtura, O. Yanishevsky (session on through a few small (about 1 cm in diameter) 10/22/2019) and inconveniently located holes in the walls of the “aquarium”, which can be equated to On October 22, a regular court session was torture according to the practice of the EC- held in Kiev on the case of former officers of tHR. Even during the break, they were in the the Kiev riot police “Berkut” regarding the “aquarium” and could not eat. This attitude events that took place on Maidan in January is contrary to Article 3 of the European Con- 2014. All five are accused of obstructing public vention, as confirmed by the decision in the rallies, abuse of power, murders, and other case of the ECtHR “Vorontsov and others v. crimes. Experts from the International Society Russia”. for Human Rights (ISHR) continue to monitor The essence of the appeal of G. Dronov was this lawsuit. contained in the absence of specificity and the About five years of judicial review have inclusion of dubious evidence in the evidence passed – the case is gradually moving to its log- base of the trial court. During the trial, his ical conclusion. As a rule, the first thing that

111 the International Society for Human Rights reasons. But just do not forget about the en- draws attention to in such lengthy trials is a trenched practice of the ECtHR, which states violation of the principle of reasonable time for that over time, the initial reasons for detention judicial review, however, it is necessary to take become less and less significant, and that the into account the complexity of the case and courts must proceed from “substantial” and the fact that the Ukrainian legal proceedings “sufficient” grounds for prolonged deprivation have not previously encountered similar-sized of freedom (“Pelevin v. Russian Federation”, cases. The trial involves a jury, five accused “Miminoshvili v. Russian Federation”). As re- and about one hundred and sixty victims. Re- gards the courts’ reference to the seriousness call that at the time the criminal proceedings of the charges as the main reason for the ex- were opened, the local government did not tension of their detention, the ECtHR has compile a list of jurors, all these nuances were repeatedly recognized that this argument is decided after the indictment was transferred not in itself the basis for continued detention. to the court, which certainly took a certain Despite the fact that the gravity of the charges amount of time. In addition, two defendants is an essential element in assessing the threat initially appeared in the case, and only after of escaping and re-committing a crime, the a year of trial three more suspects had been further need to restrict freedom cannot be jus- charged, respectively, the trial began anew. tified only by the gravity of the crime. Also, To date, all evidence of the prosecution has the extension of the period of detention can- been studied and evidence of defense has been not be used as a punishment in the form of practically studied. At this hearing, two de- imprisonment. This is especially true in cases fense witnesses were questioned, who reported where the legal qualification of the crime and, the information to the court in a single vein as a result, the charges against the person with minor inconsistencies. The main message were determined by the prosecution without of both witnesses – activists were extremely ag- a judicial assessment of the question whether gressive, threw Molotov cocktails and paving the evidence gathered is the basis to believe stones at law enforcement officers, and the offi- that the suspect has committed the offense cers, in turn, were forced to defend themselves (“Evgeny Kuzmin v. Russian Federation”). while fulfilling their duties. It is also worth noting that the four accused Several times, the parties tried in different are held in a glass box during the session. Ac- ways to interpret the words of witnesses in cording to the defense, the issue of glass boxing their favor, but it is worth noting the profes- was considered at the beginning of the trial, sionalism of the presiding judge, who instantly and then the court decided that the presence of suppressed such attempts. the accused in boxing would protect them from It is important to note the fact that four aggressive activists. Although participants in accused are detained during the entire trial, the trial do not object to the accused being in and for one of the accused, the court a few the “aquarium”, the International Society for months ago changed the measure of restraint Human Rights is concerned about this issue. to round-the-clock house arrest. By the way, The ECtHR case law shows that the court, to the former colleague of the accused, Andrei despite its more loyal attitude to plastic boxes Khandrykin, the Dnieper district court of Kiev than to cells, nevertheless considers restrictive applied a measure of restraint in the form of a measures in the courtroom a violation of Arti- personal obligation (the court passed a verdict cle 3 of the European Convention prohibiting of not guilty, see the report of the ISHR of Au- torture (“Lutskevich v. Russian Federation”) gust 22-30, 2019). The International Society and notes that such measures may affect the for Human Rights constantly focuses on the fairness of the hearing guaranteed by Article fact that any measure of restraint restricting 6 of the European Convention, in particular, a person’s right to freedom is an extreme mea- it is about obtaining practical and effective le- sure that can be applied if there are justified gal assistance (“Yaroslav Belousov v. Russian

112 Federation”). taken hostage in the building of the Ministry of Justice and watched how activists destroyed Monitoring the trial of S. Zinchenko, property of the state agency). P. Ambroskin, A. Marinchenko, S. Tamtura, O. Yanishevsky (session- In general, the ISHR experts cannot single December 17, 2019) out any violations at this court hearing. The ISHR observer tried to find out from the de- On December 17, a regular court session was fendants themselves whether they could point held in Kiev on the case of ex-employees of out any violations in their favor, but they said the Kiev riot police “Berkut” regarding the that there are no problems at this time. events that took place on Maidan in January The only point that caused concern was the 2014. All five are accused of obstructing public lengthy stay of the accused in custody. Since, rallies, abuse of power, murders, and other as you know, the right to liberty and security crimes. Experts from the International Society of the person is of paramount importance in for Human Rights (ISHR) continue to monitor a democratic society in the meaning defined this lawsuit. by the Convention (“Medvedyev and others v. During the trial, as a witness, court ques- France”, § 76; “Ladent v. Poland”, § 45, 18). tioned Elena Lukash, ex-Minister of Justice. Undoubtedly, under certain circumstances, the The interrogation itself lasted more than an application of a measure of restraint related to hour, so we will single out several key points the restriction of human freedom is an admis- from it: sible phenomenon, but the court decision in this case should be motivated by very strong 1. Representatives of the Maidan (A. Yat- arguments, otherwise prolonged detention may senyuk, V. Klitschko, etc.) repeatedly came to be regarded as a violation of Article 5 of the the administration of the President of Ukraine Convention. with various proposals for a ceasefire, in ad- The case law of the ECtHR confirms our dition, they complained that activists on the findings. Thus, the Court noted that the ab- Maidan were uncontrollable and “bad”. sence of any grounds indicated by the judi- 2. She noted that V. Yanukovych was cial authorities in their decisions on long-term against the force dispersal of the Maidan. detention may not be compatible with the principle of protection against arbitrariness, 3. She emphasized that she considers the as enshrined in § 1 of Article 5 (“Stasaitis v. amnesty of all activists and the parallel crim- Lithuania”, §§ 66-67). inal prosecution of law enforcement officials At the moment, we cannot ascertain the unfair. fact of an unjustified extension of the measure 4. She argued that the protests were not of restraint, since we are not familiar with the peaceful, a confirmation of this is the fact that motivation of the prosecutors when submit- even in the Law of Ukraine “On the Prevention ting the application and the motivation of the of Harassment and Punishment of Persons Re- board of the court when deciding on the exten- lated to Events that Occurred During Peaceful sion of the measure of restraint. Nevertheless, Meetings and the Recognition of Certain Laws the issue of detention has lost its relevance of Ukraine as invalid” refers to that activists in connection with the inclusion of ex-Berkut committed a number of crimes in the flesh officers in the exchange lists between Ukraine before seizing state power and are exempted and the LPR/DPR and the exchange that was from punishment for these crimes, that is, the subsequently made. phrase “peaceful protest” is inappropriate to The International Society for Human Rights use when describing the events of that time. wants to note the professionalism of the presiding judge in this criminal proceeding. So, 5. She noted that her employees personally despite the fact that phrases sounded from faced aggression by activists (employees were the witness that could lead to the idea that

113 the witness was trying to interpret the law to even towards the parties to the lawsuits while the court, the judge answered very respect- expressing their legal position (the case of fully. We consider this point to be important, V. Yanukovych, the case of A. Chibirdin). since more than once we observed during the sessions the openly boorish attitude of judges

114 A. List of ECtHR cases used in the report

A. V. v. Ukraine, Pokhlebin v. Ukraine,

Antonenkov and others v. Ukraine, Pretty v. the United Kingdom,

Artiko v. Italy, Saunders v. the United Kingdom,

Assenov and others v. Bulgaria, Siyrak v. Russia

Balitsky v. Ukraine, Tarasov v. Ukraine,

Blokhin v. Russia, Uhan v. Ukraine,

Bortnik v. Ukraine, Fitt v. the United Kingdom,

Browgun and others v. the United Kingdom, Hummatov v. Azerbaijan,

Buryaga v. Ukraine, Chuprina v. Ukraine,

Vemchow v. Germany, Edwards v. the United Kingdom,

Vernillo v. France, Jaroslav Belousov v. Russia,

Winger and others v. the United Kingdom, Jaroshovets and others v. Ukraine. Vorontsov and others v. Russia,

Gavrylyak v. Ukraine,

Gafgen v. Germany,

Gorbulya v. Russia,

Jalloha v. Germany,

Julia Manzoni v. Italy,

Ivanov v. Ukraine,

Imbrioshiya v. Switzerland,

Ireland v. the United Kingdom,

Kolesnikovich v. Russia,

Crombi v. France,

Kudla v. Poland,

Lutskevich v. Russia,

Nachmanovich v. Russia,

Odzalan v. Turkey,

Pelisie and Sassi v. France,

Petukhov v. Ukraine,

115 The Report is prepared by

Anton Alekseyev Excecutive director of International Society of Human Rights – Ukrainian Section, coordinator of the project “Strengthening the Rule of law in Ukraine”;

Alina Chukh Lawyer Ltd. “Informatsionno-pravovye sistemy”, regional project coordinator of the project “Strengthening the Rule of law in Ukraine” (Kharkov);

Karina Yasenetskaya leading lawyer-analytic of magazine “Yurist i Zakon” (Liga Zakon), regional project coordinator of the project “Strengthening the Rule of law in Ukraine” (Kiev).

The report is prepared in cooperation with the Civil Development Center.

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