THE RIGHT TO A FAIR TRIAL IN UKRAINE

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

REPORT

2020

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

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

The Right to a Fair Trial in Ukraine

Editor: A. Alekseyev

February 2021

International Society for Human Rights

International Council, Edisonstraße 5, 60388 Frankfurt am Main(Germany)

Ukrainian sectionPl. Lesi Ukrainki 1, 01196 Kiev (Ukraine)

Contents

Introduction 9

1 Observance of the right to a fair trial in Ukraine, analysis of the situation,identification of problematic trends 111.1 Violation of the principle of reasonable terms of the trial . . . . . . . . . . . . 111.2 Inclusion in the evidentiary base of “doubtful” evidence . . . . . . . . . . . . . 151.3 Incorrect use and/or disregard of the case-law of the ECtHR . . . . . . . . . . 181.4 Violation of the right to defense . . . . . . . . . . . . . . . . . . . . . . . . . . 191.5 Automatic prolongation of detention . . . . . . . . . . . . . . . . . . . . . . . 211.6 Other violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241.7 Positive trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251.8 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2 Analysis of statistics 282.1 The special situation in the cases of A. Tatarintsev and A. Melnik . . . . . . 282.2 Publicity of court hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282.3 Situation with observance of the right to a fair trial in Ukrainian courts . . . 292.4 Court hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312.5 Correlation of the number of detected violations with incriminated crimes . . 322.6 Equality of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342.7 Proceedings imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342.8 Relationship between the charge and the number of violations in the trial . . 352.9 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

3 Reports of the monitoring of court sessions in 2020 433.1 The trial of Evgeny Anisimov and others . . . . . . . . . . . . . . . . . . . . . 433.2 The trial of Sergey Atroshchenko and others . . . . . . . . . . . . . . . . . . . 493.3 The trial of Igor Avramenko . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533.4 The civil proceedings of LLC “BIOL” . . . . . . . . . . . . . . . . . . . . . . . 543.5 The trial of Igor Bliznyuk and others . . . . . . . . . . . . . . . . . . . . . . . 563.6 The trial of Alexander Chibirdin . . . . . . . . . . . . . . . . . . . . . . . . . 623.7 The trial of Vladimir Dovgalyuk . . . . . . . . . . . . . . . . . . . . . . . . . 633.8 The trial of Nazar Dubensky . . . . . . . . . . . . . . . . . . . . . . . . . . . 643.9 The trial of Roman Dubinevich . . . . . . . . . . . . . . . . . . . . . . . . . . 653.10 The claim of Iosif Dudich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683.11 The trial of Alexandr Efremov . . . . . . . . . . . . . . . . . . . . . . . . . . . 703.12 The trial of Vladimir Evstigneev . . . . . . . . . . . . . . . . . . . . . . . . . 713.13 The trial of Alexandr Filtsev . . . . . . . . . . . . . . . . . . . . . . . . . . . 723.14 The trial of Dmitry Gubin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743.15 The trial of Igor Gumenyuk . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743.16 The trial of Anatoly Hranovskiy . . . . . . . . . . . . . . . . . . . . . . . . . . 763.17 The trial of Igor Ignatov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793.18 The trial of Igor Kachur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793.19 The trial of Petr Karpenko . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803.20 The trial of Gennady Kernes and others . . . . . . . . . . . . . . . . . . . . . 823.21 The trial of Anton Kitaev . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

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3.22 The trial of Marina Kovtun . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853.23 The trial of Sergey Kozak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873.24 The trial of Leonid Kozhara . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883.25 The trial of Maksim Krivosh . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893.26 The trial of Konstantin Kulik . . . . . . . . . . . . . . . . . . . . . . . . . . . 913.27 The trial of Kulish Natalya . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923.28 The trial of Dmitry Kurylenko . . . . . . . . . . . . . . . . . . . . . . . . . . 983.29 The trial of Andrei Lesik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993.30 The trial of Igor Lozinsky and others . . . . . . . . . . . . . . . . . . . . . . . 1013.31 The trial of Bogdan Maistruk . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033.32 The trial of Vladislav Manger and others . . . . . . . . . . . . . . . . . . . . . 1043.33 The trial of Aleksander Melnik and others . . . . . . . . . . . . . . . . . . . . 1123.34 The trial of Maksim Mikitas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1413.35 The trial of Konstantin Mirchenko . . . . . . . . . . . . . . . . . . . . . . . . 1433.36 The trial of Vasily Mokrinsky and others . . . . . . . . . . . . . . . . . . . . . 1433.37 The trial of Vasily Muravitsky . . . . . . . . . . . . . . . . . . . . . . . . . . . 1443.38 The case of Naftogaz of Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . 1473.39 The trial of Vladimir Pakholok . . . . . . . . . . . . . . . . . . . . . . . . . . 1493.40 The trial of Roman Petruk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1503.41 The trial of Andrey Polivoda . . . . . . . . . . . . . . . . . . . . . . . . . . . 1513.42 The trial of Sergey Popov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1523.43 The trial of Inna Popovskaya . . . . . . . . . . . . . . . . . . . . . . . . . . . 1553.44 The trial of Grigory Radutny and others . . . . . . . . . . . . . . . . . . . . . 1563.45 The trial of Grigory Radutny and others . . . . . . . . . . . . . . . . . . . . . 1573.46 The trial of Anton Rosevtsov and others . . . . . . . . . . . . . . . . . . . . . 1593.47 The trial of Yuri Rossoshansky . . . . . . . . . . . . . . . . . . . . . . . . . . 1603.48 The trial of Evgeny Sagaidak . . . . . . . . . . . . . . . . . . . . . . . . . . . 1663.49 The trial of Sergey Sergeyev and others . . . . . . . . . . . . . . . . . . . . . 1703.50 The trial of Shapoval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1733.51 The trial of Alexander Shchegolev . . . . . . . . . . . . . . . . . . . . . . . . . 1753.52 The Sheremet case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1803.53 The trial of Nelia Shtepa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1813.54 The trial of Ivan Shurman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1873.55 The trial of Vitaliy Sobenko and others . . . . . . . . . . . . . . . . . . . . . 1913.56 The trial of Sorokin and Sorokin . . . . . . . . . . . . . . . . . . . . . . . . . 1923.57 The trial of Nikolai Sorokopud and others . . . . . . . . . . . . . . . . . . . . 1953.58 The trial of Alexander Streletsky and others . . . . . . . . . . . . . . . . . . . 1953.59 The trial of Irina Sukhanova . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1983.60 The trial of Irina Sukhorukova . . . . . . . . . . . . . . . . . . . . . . . . . . . 2003.61 The trial of Andrei Tatarintsev . . . . . . . . . . . . . . . . . . . . . . . . . . 2013.62 The trial of Oleg Tatarov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2243.63 The trial of Valery Terekhov . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2253.64 The trial of Ilya Turman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2253.65 The trial of Valentyn Tyapkin . . . . . . . . . . . . . . . . . . . . . . . . . . . 2273.66 The trial of “Ukrainian Railways” . . . . . . . . . . . . . . . . . . . . . . . . . 2323.67 The trial of Svetlana Vanzha . . . . . . . . . . . . . . . . . . . . . . . . . . . 2343.68 The trial of Voitenko and others . . . . . . . . . . . . . . . . . . . . . . . . . . 2343.69 The trial of Alexander Volkov . . . . . . . . . . . . . . . . . . . . . . . . . . . 2363.70 The trial of Pavel Volkov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

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3.71 The trial of Viktor Yanukovych . . . . . . . . . . . . . . . . . . . . . . . . . . 2393.72 The trial of Alexey Yarkovoy . . . . . . . . . . . . . . . . . . . . . . . . . . . 2483.73 The trial of Zinchenko and others . . . . . . . . . . . . . . . . . . . . . . . . . 248

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Abbreviations

CPC Criminal Procedure CodeECHR Convention for the Protection of Human Rights

and Fundamental FreedomsECOSOC United Nations Economic and Social CouncilECtHR European Court of Human RightsEU European UnionIM Interior MinistryIMF International Monetary FundISHR International Society for Human RightsORDLO Particular Districts of Donetsk and Lugansk RegionsOSCE Organization for Security and Co-operation in EuropeQDCB Qualification and Disciplinary Commission of the BarSBU Ukrainian Secret serviceUN United Nations

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Human rights are made for times ofunrest.

The International Society of Human Rights connects sections of human rights defendersfrom many countries on all continents. On UN’s Human Rights Day 1993, December 10,1993 25 Ukrainian human rights activists – members of the International Society for HumanRights globally – established the international public organization “International Society forHuman Rights – Ukrainian Section” (ISHR-US). Today ISHR in Ukraine has more than 3,500members.

The observation of court trials always has been a vital instrument. In 2020, more than 150reports on trials in the Ukraine were written. The general report build on these monitoringreports consists of three parts: the first part – identification of the negative trends in thejudicial system; the second part – analysis of the collected information; and the third part –short reports on the monitoring of court sessions.Having met the lawyers involved in the writing of this report I have to underline the

importance of such unbiased information about the situation in Ukraine and its value to theinternational community. Unbiased reports from a purely legal perspectives like this are anintrinsic part of European civil society and the idea of a modern democracy.

The protection of human rights defenders and lawyers is a prominent concern for the ISHR,the United Nations, and other international human rights organizations. Publicizing the workof human rights defenders often is an effective way to enhance their protection.

However, lawyers seeking to protect the human rights of accused persons often face the riskof persecution by those who prefer to keep such criminal cases quiet and out of public view. Itis important for human rights organizations to sensitively balanced the value of disseminatinginformation publicly and the possibility that by doing so, they may risk exposing lawyers orother human rights defenders to physical harm.

Human rights have not been hammered out by the global community for sunshine weatherand vacation time, but in 1948 after the most devastating war of all times. International humanrights standards even started out decades before that time, as rules for war times as the RedCross rules, to have minimum standards even in war.Thus times of turmoil, civil war, legal insecurity and even war are not times to give up

on human rights, but are times to even more emphasize that all human beings share thesame human dignity and the same human rights and that the major and most honorable taskof all States is to preserve them. This includes the necessity for the State to watch its ownperformance – called checks and balances in political history – and the need for civil society towatch and evaluate how the State is performing.

The human rights label is ingenious, and one can derive the most important characteristicsof human rights from it.

Human rights are universal. They simply apply to “people”.

Human rights are individual since people exist only as individual persons.

They are, however, also social, since there is never only one person. Rather, there are alwayspeople in society, and rights apply to everyone at the same time.

They are egalitarian because they are derived from what it is that makes being human thesame and not from what differentiates people or is conferred upon them.

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Human rights exist prior to the state because being human precedes everything else.

Human rights are enforceable, i.e., they are not only observations, appeals, or demands;rather, they are rights that can be enforced in a court of law.

They are indivisible because people are themselves indivisible and people stand in the center;no political system or ideology is in the center.

They are inalienable (meaning they cannot be taken away from a person) since an individual,even in the worst situation or as a criminal, remains a human being.

Thomas Schirrmacher, Prof. Dr. Dr.President of the International Council of the ISHR

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About the International Society for HumanRights

The International Society for Human Rights (ISHR) and its national branches are independentnon-governmental human rights organizations (NGOs) which base their work on the UniversalDeclaration of Human Rights adopted by the United Nations. The ISHR seeks to promoteinternational understanding and tolerance in all areas of culture and society. It is a non-profitorganization, independent of all political parties, governments or religious groups. The ISHRacts on the philosophy that the realization of human rights and the improvement of socialconditions cannot be pursued through the use of force. The ISHR was founded in 1972 tosupport individuals who share this principle and therefore seek to assert their rights in anon-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 Officeof Public Information of the United Nations. The organization is mainly financed by donationsand contributions.Priority areas of our work are:

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

2. Public relations in regards to human rights issues;

3. Education on human rights issues;

4. Humanitarian aid.

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Introduction

In 2020, the International Society for HumanRights continued to monitor the observance ofthe right to a fair trial in Ukraine1. The moni-toring was carried out within the frameworkof the project of the Ministry of EconomicDevelopment and Cooperation of the FederalRepublic of Germany “Strengthening the ruleof law in Ukraine”.For the fourth year in a row, we have been

able to significantly increase the amount ofwork. In 2020, 157 court sessions were moni-tored. The number of trials monitored by ISHRcontinues to grow (2017 – 9 trials, 2018 – 18trials, 2019 – 42 trials, 2020 – 72 trials) (seeFig.0.1).Despite the difficulties caused by the coro-

navirus pandemic and subsequent quarantinemeasures, the ISHR has not only increased“quantitative indicators” of monitoring of courtcases, but also continued to conduct the work-ing meetings planned within the framework ofthe project “Strengthening the rule of law inUkraine”. In 2020, we held 12 working meet-ings and round tables in six regions of Ukraine(Kiev, Kharkov, Poltava, Zaporozhye, Zhito-mir, Lvov). As part of these events, we contin-ued to establish working ties in the regions, aswell as familiarized representatives of the locallegal community with the results of the workalready done, discussed the problems facedby the judicial system, outlined the contoursof further joint work. In total, events in 2020were attended by 165 participants. And overthe two years, our events were attended by294 participants (including 129 participants ofround tables held in 2019).Students of law schools and faculties from

different regions of the country took an activepart in activities related to the implementa-tion of the project (round tables, monitoring ofcourt hearings, meetings with students at uni-

1Work in this area began in 2017. Details on obser-vations over previous years can be found in thereports “Monitoring the observance of the right toa fair trial in Ukraine. 2017”, “The right to a fairtrial in Ukraine. 2018” and “The right to a fair trialin Ukraine. 2019”

versities). The organizers of the project heldnegotiations with representatives of the BorisGrinchenko Kiev University, Yaroslav MudriyNational Law University, Poltava Law Insti-tute and Kharkov National University of In-ternal Affairs on the matter of internship forlaw students in the ISHR. In 2020, the educa-tional activities in the field of strengtheningthe rule of law has also reached out to the legalprofessionals. In October 2020, ISHR special-ists held a webinar “Using the practice of theECtHR and the tools of the ISHR”, certifiedby QDCB, for more than 1,700 lawyers fromDnepropetrovsk and Zaporozhye regions.

Last year, our work reached an internationallevel – the specialists of the ISHR began moni-toring the observance of the right to a fair trialin Armenia. We published first reports withthe results of the monitoring of court hearingsin this country.Monitoring, as an area of advocacy, con-

tributes to the transparency of the judicialproceeding and is a means of maintaining theright to a public trial. During the monitoringperiod, we were convinced more than once thatthe presence of observers drives the courts toimprove compliance with the guarantees of afair trial and build confidence in legal proceed-ings. Trial monitoring, as a long-term program,is becoming a unique diagnostic tool for keycomponents of the justice system. This is espe-cially relevant during the period of the next ju-dicial reform in Ukraine. In addition, accordingto OSCE experts, trial monitoring programsare also an effective mechanism for trainingand involving lawyers and organizations in theprocess of reforming justice systems2.As in previous years, attendance of court

hearings by ISHR observers, and the publica-tion of reports on the results of court hearingsis the main form of our monitoring (the totaltime of court hearings on which reports wereprepared in 2020 exceeds 346 hours or 43 full

2P.11“Monitoring of trials. A Practitioner’s ReferenceGuide” Published by the OSCE Office for Demo-cratic Institutions and Human Rights (ODIHR) Ul.Miodowa 10 00 -251 Warsaw Poland

9

0

20

40

60

80

2017 2018 2019 20200

50

100

150

200

2017 2018 2019 2020

Trials

Rep

orts

Figure 0.1: Monitoring dynamics.

working days). It should be noted that due tothe quarantine restrictions caused by the coro-navirus pandemic, some of the observationswere carried out using official broadcasts ofcourt hearings. ISHR experts actively inter-acted with representatives of the legal profes-sion and the court, exchanged information dur-ing working meetings and attending court hear-ings, and also communicated with the courtsto conduct video broadcasts of court hearingsof specific criminal cases. When preparing ourmaterials, we try to rely on official documents(court decisions, petitions of the parties, etc.)provided to us by the parties, and official videobroadcasts of court sessions. An importantpart of this activity is communication withthe defendants and their relatives. Monitor-ing materials are regularly published on theInternet resources of the ISHR, distributedamong politicians and public figures of the EUcountries, Ukrainian, European and Americanlawyers and human rights defenders, represen-tatives of the OSCE monitoring mission inUkraine and so on.

In the annual report, we will once againtry to highlight the main negative trends inthe field of human rights violations, identifiedduring the monitoring, and qualify them, re-lying on the sources of international humanrights law, primarily the European Conven-tion and the practice of the ECtHR, and alsoanalyze the statistical information collectedduring the monitoring, and compare the dataobtained with the information collected in pre-vious years.

Traditionally, the report consists of threeparts: the first part – consideration of the neg-ative trends identified in the field of legal pro-ceedings, the second part – the analysis of thecollected statistical data and the third part –the reports on the monitoring of court sessions,which served as a source in the preparation ofthe report itself.

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1 Observance of the right to a fair trial inUkraine, analysis of the situation,identification of problematic trends

During the monitoring, based on the identifiednegative trends of the past years, we collecteddata on similar cases recorded by our observersin 2020. Based on the information received, alist of negative trends for 2020 was formed.In total, 243 human rights violations were

recorded by the observers of the ISHR dur-ing the reporting period. It should be notedthat this figure is 130% higher than the num-ber of violations identified in 20191, althoughthe total number of observations, compared tolast year, increased only by 30%2. The reasonsfor such deterioration in the situation will bediscussed below.

We have repeatedly encountered each of theviolations that will be discussed in this partof the report during the monitoring of vari-ous criminal proceedings. Namely the “specificgravity” of each group of violations, in rela-tion to the total number of violations revealed,makes it possible to speak of the presence ofestablished negative trends. Observers and ex-perts of the ISHR encountered each of themin previous years (see table 1.1).

Speaking of negative trends, one cannot butpay attention to the positive aspects revealedduring the monitoring. For example, in 21%of hearings, our observers did not register vi-olations. The topic of positive trends will bediscussed in more detail in this section.

Traditionally, in our assessment of violationsof international human rights norms, we pri-marily relied on the European Convention andthe ECtHR, which clarifies its practice.The identified trends include:

1. violation of the principle of reasonableterms of the trial;

2. inclusion in the evidentiary base of “doubt-ful” evidence;

1106 violations2114 reports published in 2019

3. incorrect use and/or disregard of the case-law of the ECtHR;

4. automatic prolongation of detention;

5. violation of the right to defense;

6. other violations;

7. positive trends.

Let’s consider them in more detail.

1.1 Violation of the principleof reasonable terms of thetrial

It is not the first year that the violation of theprinciple of reasonable terms of the trial is themost frequent violation recorded by the ob-servers of the ISHR. Unfortunately, 2020 wasno exception. The results of the monitoringindicate significant problems with compliancewith Article 6 of the European Convention,which, among other things, declares the obli-gation of the state to ensure that the personwho is charged with any criminal charge re-ceives a fair hearing within a reasonable time.It should be noted that in criminal pro-

ceedings, the observance of the principle ofreasonable time is of the utmost importance,since often a measure of restraint that re-stricts freedom (i.e. detention) is applied tosuspects/accused. This means that in case ofviolation of the reasonableness of the terms,the rights of an innocent person (from the pointof view of the presumption of innocence) re-main “cut down” for an unreasonably long time,which, among other things, can be regardedas inhuman treatment and torture (Article 3of the European Convention).

In 2020, many proceedings revealed a largenumber of violations of the principle of rea-sonable time. For example, in the most high-

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Violation of the principle of reasonable terms of the trial 36%Inclusion in the evidentiary base of “doubtful” evidence 21%Automatic prolongation of detention 18%Incorrect use and/or disregard of the case-law of the ECtHR 17%Violation of the right to defense 16%Ignoring court decisions 13%Torture and degrading treatment 11%Other 11%Placing the burden of proof on defense 7%Pressure on the court 2%Pressure on lawyers 1%Blocking the participation of the accused and witnesses in the trial 0%

Table 1.1: Proportion of each group of violations in relation to the total number of courtsessions attended by observers

profile proceedings in the case of ex-Presidentof Ukraine Viktor Yanukovych, regarding theevents during the mass protests on the Maidanin 2014, the pre-trial investigation has been go-ing on for more than six years, despite the factthat the Criminal Procedure Code of Ukrainefor this kind of proceedings provides for themaximum period of pre-trial investigation –eighteen months. Consideration of one issuethat concerns a measure of restraint (first itselection, then cancellation, and then an ex-planation of its decision by the court at therequest of prosecutors) has been going on forsix months3.

The case of Vitaly Sobenko and Artur Mel-nik has been at the preparatory stage since2014. Very often hearings cannot take place,for example, due to the absence of partici-pants4. This situation has been observed inother cases5 and may have signs of a delay inthe proceeding. In the case of Ivan Shurman,where the defense lawyer systematically filedpetitions to postpone the hearing due to thefact that she could not attend the hearing, thecourt was forced to involve “public defender”to resolve only one issue – the extension of

3See Monitoring of the case of V.F. Yanukovych (hear-ing 12/22/2020)

4See Monitoring of the case of Vitaly AndreevichSobenko and Artur Vladislavovich Melnikov (hear-ing 01/29/2020)

5See Monitoring of the case of Dmitry Gubin (hearing02/21/2020)

the measure of restraint6. In the trial againstopposition journalist Vasily Muravitsky, thesessions were postponed due to the absence,for unclear reasons, of lawyer S. Novitskaya.Although the right of the accused to a defensewas not violated, since a new lawyer A. Gozhiywas present at the hearings, the considerationof the case was postponed solely for the pur-pose of officially recognizing the terminationof the contract between the journalist and oneof his lawyers, which in itself cannot impedethe consideration of the case on the merits7,8.

In the case of I. Bliznyuk and others, therewas a systematic failure to appear by the vic-tims, the prosecution or witnesses9,10,11. Also,in the same case, and in a number of otherproceedings, delays in the consideration of thecase very often occurred due to the absenceof witnesses or due to the fact that the pros-ecutor did not ensure the appearance of wit-

6See Monitoring of the case of Ivan VladimirovichShurman (hearing 11/24/2020)

7See Monitoring of the case of Vasily Muravitsky(hearing 02/18/2020)

8See Monitoring of the case of Vasily Muravitsky(hearing 03/20/2020)

9See Monitoring of the case of I.A. Bliznyuk, A.O.Golovkin, Yu.M. Khlapovsky (hearings 10/03/2020and 11/03/2020)

10See Monitoring of the case of I.A. Bliznyuk, A.O.Golovkin, Yu.M. Khlapovsky (hearing 07/02/2020)


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nesses12,13,14,15.Once again, it is worth paying attention to

the case of Alexandr Melnik and others, inwhich constant delays occur due to the factthat the panel of judges cannot meet in full.For this reason, the consideration of the case,which has already been heard for six years,does not move at all16.The problem with the slow “progress” of

the case also exists in the proceedings of N.Shtepa. This judicial review is still at the stageof a preparatory hearing (although the indict-ment was filed back in 2014), the judges oftenrefuse to take part in the trial (for example,declare recusal) and the consideration startsfrom the beginning for the fifth time17. It wasalso noted that hearings were scheduled, butdid not take place for various reasons (lawyersor the accused were unable to participate inthe hearings) or took place, but exclusivelyprocedural issues were resolved18,19. A simi-lar situation was observed in the cases of A.Shchegolev)20, N. Shapoval21, I. Bliznyuk andothers22, where only issues of extending themeasure of restraint were considered at courtsessions.Sometimes delays occurred due to the fact

that one of the parties at the hearings was pro-vided with evidence that is not directly related

12See Monitoring of the case of Neli Igorevna Shtepa(hearing 09/18/2020)

13See Monitoring of the case of Vasily Mokrinsky andRoman Frankovsky (hearing 10/13/2020)

14See Monitoring of the case of Anton AlexandrovichRosevtsov and Yaroslav Yuryevich Bozhiy (hearing10/26/2020)

15See Monitoring of the case of M.S. Voitenko, A.D.Plavak, A.P. Kosolapy, R.V. Bogaychuk, V.M.Sidoruk (hearing 11/20/2020)

16See Monitoring of the case of A. Melnik, A. Kryzha-novsky, I. Kunik (hearing 11/19/2020)

17See Monitoring of the case of Nelia Igorevna Shtepa(hearing 08/17/2020)

18See Monitoring of the case of Nelia Igorevna Shtepa(hearings 10/07/2020, 10/16/2020)


20See Monitoring of the case of Alexander Shchegolev(hearing 09/18/2020)

21See Monitoring of the case of N.P. Shapoval (hearing04/27/2020)


to the prosecution and does not contribute inany way to the court in the consideration ofthe case. Observers noted a similar situationin the case of I. Bliznyuk and others23 and inthe case of N. Sorokopud24.It should be noted that the hearings were

postponed for various reasons, incl. and dueto the unpreparedness of the prosecutors orbecause the prosecutors were returned the in-dictment to eliminate inaccuracies25,26,27. Thisnegatively affects the observance of a reason-able time frame for the consideration of thecase.

Also, more than once observers noted a sit-uation when the courts did not consider pro-cedural documents in due time, which alsonegatively affects the observance of the princi-ple of reasonable time limits28. For example,in the well-known case of A. Melnik and oth-ers, where the revision of the rulings on theextension of a measure of restraint in the formof detention was carried out after the end oftheir validity period, that is, after the nextextension of detention by the court of firstinstance29.

Poor organization of the trial is another fac-tor that also violates the principle of reason-ableness of the timing of the trial. For example,in the case of journalist Pavel Volkov, at thebeginning of the court session, the panel ofjudges announced that the consideration ofthe case should be postponed due to the factthat one of the judges went on vacation with-out notifying the defense, although the lawyerhad to travel more than 500 km to take part

23See Monitoring of the case of I. Bliznyuk, A.Golovkin, Yu.M. Khlapovsky (hearing 11/19/2020)

24Monitoring of the case of Nikolai AlexandrovichSorokopud, Nikolai Vladimirovich Omelyanyuk(hearing 12/23/2020)

25See Monitoring of the case of Andrei Tatarintsev(hearing 11/25/2020)

26See Monitoring of the case of Igor AlexandrovichAvramenko (hearing 05/15/2020)

27See Monitoring of the case of Anton AlexandrovichRosevtsov and Yaroslav Yuryevich Bozhiy (hearing10/26/2020)

28See Monitoring of the case of the purchase of dieselfuel of the Joint Stock Company “Ukrainian Rail-way” (hearing 07/27/2020)

29See Monitoring the case of A. Melnik, A. Kryzha-novsky, I. Kunik (hearing 05/21/2020)

13

in the hearing that did not take place30.Another of the problems of the length of

the consideration of the case was the fact thatdue to the lack of judges, they were repeat-edly transferred from one court to another, forexample, this was observed in the cases of N.Shtepa31 and S. Popov32.Based on the above, we can conclude that

one of the main reasons for the violation ofthe principle of reasonable time is the system-atic absence of participants in the proceedings,most often – witnesses, which was noted byobservers in many reports.Reasonableness of the terms of the trial is

one of the most important components of theright to a fair trial guaranteed by paragraph 1of Article 6 of the European Convention. As afundamental requirement for the functioningof the judicial system, it is often addressedto Ukraine in the decisions of the ECtHR(“Vergelsky v. Ukraine”, “Borotyuk v. Ukraine”,“Doroshenko v. Ukraine”, “Yaroshovets and oth-ers v. Ukraine”, “Gavrylyak v. Ukraine” andothers). But, despite the systematically foundviolations of Article 6 of the European Con-vention, the situation does not change, whichindicates the need to once again return to theorigins of the concept of reasonable time limitsand the peculiarities of their application bythe ECtHR.Paragraph 1 of Article 6 of the European

Convention recognizes that every person prose-cuted in a criminal case has the right to receive,within a reasonable time, a final decision onthe justification of the charge against him orher, or rather to ensure that the accused donot remain under the weight of the charge fora long time and that a decision was made onthe well-foundedness of the charge (“Vemkhovv. Germany” § 18, “Giulia Manzoni v. Italy” §25, “Brogan and Others v. The United King-dom” § 65). This means that the period tobe taken into account lasts until the situationof the person concerned ceases to be affected

30See Monitoring the case of journalist Pavel Volkov(hearing 02/25/2020)


32See Monitoring of the case of S.V. Popov (hearing10/06/2020)

by the charges brought against him and theuncertainty about his legal status is removed(“Nakhmanovich v. Russia” § 89). In its case-law, the ECtHR insists on the special duty ofthe domestic courts to ensure that all partiesto the proceedings, especially the judges, dotheir utmost to avoid undue delay in the adju-dication of the case (“McFarlen v. Ireland”, no.§ 121, “Vernillo v. France” § 38). The provi-sions of Article 6 of the European Conventionindicate that accused persons cannot remainin the dark about their fate for too long, sincethis, among other things, makes the personsuffer from a sense of uncertainty about his fu-ture (“Nakhmanovich v. Russia” § 89, “Ivanovv. Ukraine” § 71).

According to the ECtHR, “by requiring theconsideration of cases within a “reasonabletime”, the European Convention emphasizesthe importance of administering justice with-out delays, which may jeopardize efficiency andcredibility (“Vernillo v. France”, § 38). The rea-sonableness of the length of the proceedingsmust be assessed in the light of the circum-stances of the case and taking into accountthe following criteria: the complexity of thecase, the subject of the dispute, the behaviorof the applicant and the relevant state author-ities (“Chiarello v. Germany” § 45, “Vergelskyv. Ukraine” § 116, “Affare Culott v. France”,§ 23, “Koenig v. Germany” § 99, “Smirnovav. Ukraine” § 66, “Borutyuk v. Ukraine” § 61,“Duklos v. France” § 55).

It is necessary to separately note the pecu-liarity of fixing this negative trend. In somecases, a situation is emerging in which a vi-olation of the principle of reasonableness ofthe terms of a trial is a “continuing” viola-tion, i.e., such as occurs in all subsequent hear-

14

ings33,34,35,36,37,38,39,40,41,42. Of course, thisfactor is not the only factor43, but it has asignificant impact on the fact that the trendhas been among the leaders of negative trendsfor the second year. This, on the one hand, in-dicates the existence of a problem that was notresolved during the trials of 2020, and on theother, that this violation is, in part, “passive”i.e., the subjects of the violation do not needto take any action to implement the violation.Moreover, it is more likely that inaction (orinadequacy of the actions taken) takes place,which leads to a violation.

1.2 Inclusion in the evidentiarybase of “doubtful”evidence

Under “doubtful” evidence, the experts of theISHR mean the evidence that, according tothe CPC, can be regarded as inadmissible, forexample, obtained or presented to the court,in violation of the procedural law. Throughout202044 observers more than once noted in theirreports the fact that a number of “doubtful”evidences were attached to the case materials,and evidence that was not directly related tothe prosecution was often used. The experts33See Monitoring the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 06/02/2020)34See Monitoring of the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 07/28/2020)35See Monitoring the case of Andrei Tatarintsev (hear-

ing 08/28/2020)36See Monitoring the case of Igor Gumenyuk and

Sergei Kraynyak (hearing 09/23/2020)37See Monitoring the case of Tyapkin Valentin

Ivanovich (hearing 11/27/2020)38See Monitoring the case of Bliznyuk I.A., Golovkin

A.O., Khlapovsky Yu.M. (hearing 12/02/2020)39See Monitoring of the trial of S. Zinchenko, P. Am-

broskin, A. Marinchenko, S. Tamtura, O. Yani-shevsky (hearing 03/17/2020)


41See Monitoring the case of Aleksandr SergeevichEfremov (hearings 06/16/2020, 06/19/2020)

42See Monitoring of the case of Aleksandr Shchegolev(hearing 06/23/2020)

43Other reasons, with examples, are described in detailabove

44Compared to 2019, the number of such violationshas increased

of the ISHR suggest that the provision of thiskind of evidence to the court can be carriedout with the aim of delaying the proceeding,or as an attempt to maximize the number ofvolumes of the case, complicating it.

During the monitoring of the court sessions,the observers noted that often the court wasprovided with inappropriate evidence, oftenthis was done in violation of certain procedu-ral norms, such as in the civil proceedings of“BIOL” LLC against O. Dunaev, where insteadof the original of the contested contract, thecourt was provided with a copy of the con-tract certified by the court (while the CivilProcedure Code of Ukraine indicates that thecircumstances of the case, which, according tothe law, must be confirmed by certain means ofproof, cannot be confirmed by other means ofproof). However, no documents were providedthat would confirm the words of the represen-tative of O. Dunaev about the authenticity ofthe copy of the agreement45. In the criminalproceedings in the case of the activist of the na-tionalist party VO “Svoboda” Sergei Kraynyak,the court carried out a selective study and theannouncement of four volumes of not certifiedphotocopies of documents, without a prelim-inary resolved issue regarding their additionto the materials of the criminal proceedings.According to the lawyer, the court changed theprocedure and method of examining evidence.The defense insisted that the documents sub-mitted by the prosecutor were falsified, sincethey were not properly drawn up, however,they were accepted by the court46.

In certain proceedings (for the defense side),the situation developed in the opposite way.The court did not take into account the evi-dence of the lawyers (without specifying thereasons) and relied only on the evidence ofthe prosecution. For example, in the case ofA. Melnik and others, the defense providedthe court with evidence of another version ofthe events of the crime (murder, in this case),which contradicts the one provided by the pros-

45See Monitoring of the civil proceeding of “BIOL”LLC against O. Dunaev (hearing 02/25/2020)

46See Monitoring of the case of Igor Gumenyuk andSergei Kraynyak (hearing 09/23/2020)

15

ecution. But the court attached only a smallpart of the evidence that the defense providedto the case materials, arguing that the docu-ments are not proper evidence, that is, thosethat do not relate to this criminal proceeding.In this situation, it is necessary to note the po-sition of the Supreme Court, in its decision of01/21/2020 in case No. 754/17019/17, it is in-dicated that the presence of a different versionof events is the basis for reasonable doubt inthe proof of guilt. The court cannot disregardthat part of the evidence (and the circum-stances established on its basis) only becausethey contradict the prosecution’s version47,48.This example indicates that the principle of“doubtful” evidence can also be used as a toolto prevent the inclusion of alternative (to of-ficial prosecution’s version) versions of eventsin the evidence base.Similar situation was observed in the case

of A. Kitaev, where the defense’s petition fortemporary access to the data of the mobile op-erator about the incoming and outgoing phonecalls of Kitaev and witness Tumanov was re-jected by the court, which motivated its deci-sion by the premature submission, althoughthere is no such concept in the legislation49.In the case of A. Tatarintsev, at one of the

hearings, the court did not make any decisionon the defense’s motion to declare as obviouslyinadmissible a number of evidences from theprosecution, but gave the prosecutor time toestablish the circumstances referred to in thepetition filed50.In the case of A. Melnik, A. Kryzhanov-

sky, I. Kunik, the defenders repeatedly notedcases where the prosecution field evidence, tothe case materials, obtained in violation ofprocedural norms: -a search carried out in vi-olation of the procedure established by theCriminal Procedure Code, during which ma-terial evidence was seized51; -the prosecutor47See Monitoring of the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 06/24/2020)48See. Monitoring of the case of A. Melnik, A. Kry-

zhanovsky, I. Kunik (hearing 07/21/2020)49See Monitoring of the case of Anton Kitaev (hearing

08/19/2020)50See Monitoring of the case of Andrei Tatarintsev

(hearing 08/28/2020)51See. Monitoring the case of A. Melnik, A. Kryzha-

presented to the court material evidence, whichwas “packed” by the Poltava Court of Appeal,despite the fact that the case was not consid-ered by the Poltava Court of Appeal, especiallysince the material evidence in the case was notexamined. The prosecutor was unable to rea-sonably explain the origin of the packagingand the fact that the evidence was sealed bythe appellate court. In the course of the court’sexamination of material evidence, the defensedemanded that the objects be measured, butthe court indicated that they were not expertsand could not take measurements. For thesame purpose, the lawyers filed a motion tosummon the experts to the court, but it wasrefused52; -lawyer R. Lazorenko drew the ob-server’s attention to the fact that some of theevidence that the defense considers importantis not provided to lawyers by the prosecutionfor review and study. Lawyers have repeatedlyfiled motions to oblige the prosecutor’s officeto provide documents for review, but the courtdid not satisfy any of them53; -the prosecu-tor filed a motion to examine the optical disc,which, according to state prosecutors, recordedcars similar to the car of the murdered mayorof Kremenchug Babayev and the VAZ 2108car. But the defense side objected to the ad-mission of this evidence to the case due totheir obvious inadmissibility. The lawyers in-sisted on the unknown source of informationon the disk, as well as the method of obtain-ing information54; -the defense categoricallyobjected to the admission to the case of the ev-idence of the prosecutor related to temporaryaccess to documents, pointing out that theinvestigator received these documents with-out having the authority to do so. Temporaryaccess is always preceded by appropriate per-mission from the investigating judge55; -thedefense argued that some of the decisions of

novsky, I. Kunik (hearing 09/30/2020)52See Monitoring the case of A. Melnik, A. Kryzhanov-

sky, I. Kunik (hearings 08/11/2020; 08/12/2020;08/13/2020)

53See Monitoring the case of A. Melnik, A. Kryzha-novsky, I. Kunik (hearing 09/15/2020)



16

the investigating judges on temporary accessto information about the connections of mo-bile subscribers, the corresponding protocolsand optical discs were not disclosed to the ac-cused and the lawyers. Due to the fact thata protocol was drawn up on their basis andan optical disc was received, all the evidencelisted above is inadmissible. Despite the state-ments of the defense about the impossibilityof further investigation of such documents, thecourt continued to consider the data from theoptical disc. This decision was motivated bythe fact that, although the definitions of theinvestigating judges were not open, studies ofthe protocol and disc are possible, since thelatter were open to the defense56. The aboveexamples make it possible to assess such be-havior of the court as unacceptable and biased.

Also, in the proceedings of A. Tatarintsev57

and E. Sagaidak58 the observers noted that thedefense focused on the fact that such evidenceas the protocol of the arrest of the suspect,which was drawn up in violation of the normsof the Criminal Procedure Code, cannot beconsidered admissible.In the criminal proceedings in the case of

the murder of activist E. Gandzyuk, the de-fense believes that all evidence collected afterNovember 2, 2018 is inadmissible, since theinvestigation was carried out by an inappropri-ate body59. In the same case, the defense notedthat the prosecutor tends to independently es-tablish certain facts in the case, which is adirect violation of the current Criminal Proce-dure Code of Ukraine, according to which thefacts in criminal proceedings are established bya court verdict, and before the verdict is pro-nounced, all data cited by the prosecution areconsidered circumstances that must be provenand verified by the court60.

An interesting situation was observed in the56See Monitoring of the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 05/21/2020)57See Monitoring of the case of A. Tatarintsev (hearing

09/03/2020)58See Monitoring of the case of Evgeny Sagaidak (hear-

ing 12/8/2020)59See Monitoring of the case of Vladislav Manger,

Alexey Levin (hearing 11/03/2020)60See Monitoring of the case of V. Manger, A. Levin

(hearing 12/04/2020)

case of the murder of journalist P. Sheremet,where the prosecutor, when deciding on a mea-sure of restraint, spoke about the examinationof video footage from CCTV cameras, whichestablished the height of killers, and after thedefense began to use this data to confirm theinnocence of the suspects, since the height ofthe suspects differs by about 10 cm, the prose-cutor spoke as follows: it was concluded thatthe height of people cannot be determined atall when walking, and the expert did not deter-mine even approximately the height. Observersof the ISHR focused on the fact that the onlyevidence that the prosecutor operated on wasthis very examination61.While Article 6 of the European Conven-

tion guarantees the right to a fair trial, it doesnot lay down any rules on the admissibility ofevidence as such, which is therefore primarilysubject to regulation under national law. Thequestion that the ECtHR considers it neces-sary to answer is whether the proceedings weregenerally fair, including the way in which theevidence was obtained. This includes consid-ering the possible “illegality” of the way theevidence was obtained and, if it is a violationof another right62, the nature of the violationfound (“PG and JH v. The United Kingdom”,§ 76, “Heglas v. Czech Republic”, §§ 89-92,“Bochan v. Ukraine”, § 78, “Telfner v. Austria”,§ 15).

Certain principles regarding the concept of afair trial derive from the requirement of “equal-ity of arms” in the sense of a “fair balance”between the parties. With respect to litigation,“equality of arms” means a reasonable oppor-tunity given to each party to present its case –including evidence – in conditions that do notplace it at a material disadvantage vis-a-vis itsadversary (“Dombo Beheer BV v. The Nether-lands”, § 33, “Fouche v. France”, § 34, “Avotinsv. Latvia”, § 119).

However, the position of the ECtHR sug-gests that in order to comply with the princi-ple of a fair trial, evidence must be presentedat a public hearing in the presence of the ac-

61See Pre-trial investigation in the case of P. Sheremet(hearings in February 2020)

62according to the European Convention

17

cused for adversarial reasoning. In the eventthat the inability to question or interview wit-nesses is due to their absence, the authoritiesshould make reasonable efforts to ensure theirpresence. Finally, a conviction should not bebased solely or decisively on the testimony ofa witness whom the accused did not have theopportunity to question either during the in-vestigation or in court (“Bonev v. Bulgaria”,§ 43, “Al-Kawaya and Taheri v. The UnitedKingdom”, § 120, “Bochan v. Ukraine”, § 78).

1.3 Incorrect use and/ordisregard of the case-lawof the ECtHR

In 2020, ISHR observers were more likely toencounter misuse and/or disregard of the EC-tHR practice. This trend, recorded back in2018, was not included in the list of the mainnegative trends in the 2019 report, but, unfor-tunately, returned to this list in 2020.

In the case of A. Melnik, A. Kryzhanovsky,I. Kunik, observers have repeatedly noted thecomplete disregard for two decisions of theECtHR specifically in this case. Thus, the EC-tHR, having considered all the available mate-rials, considers that in this case the durationof the pre-trial detention of the applicants wasexcessive, but the judges of the GadyatskiyDistrict Court continue to constantly extendthe measure of restraint for the accused63,64,65.This situation, with deliberate disregard forthe decisions of the ECtHR, is contrary to lawenforcement practice.Also, in this case, it was noted that in the

petition for the extension of the measure ofrestraint, the prosecution incorrectly cited thedecisions of the ECtHR and did not in any wayconnect such citation with its arguments. Forexample, at one of the sessions, the prosecutorreferred to § 58 of the ECtHR Judgment inthe “Bekchiev v. Moldova” case, stating that63See Monitoring of the case of A. Melnik, A. Kryzha-



novsky, I. Kunik (hearing 07/28/2020)

the risk of escape is assessed in the context offactors related to character, morality, place ofresidence, occupation, property status, familyties and all kinds of connections in the country.However, in the same judgment and in thesame paragraph, the ECtHR indicated that theexpectation of a harsh sentence and the weightof evidence may be appropriate, but they arenot decisive, and the possibility of obtainingguarantees can be used to compensate for anyrisk66.During the monitoring of A. Tatarintsev’s

case, it was noted that the court ignored theECtHR practice to which the lawyers referred,namely, when the defense filed a motion tochange the measure of restraint for the accused,the court refused to satisfy it, not taking intoaccount the aforementioned paragraphs of theECtHR decisions67.

Observers of the ISHR have repeatedly facedsimilar situations in the cases of N. Kul-ish68,69,70,71, S. Sorokin and V. Sorokin72,73,I. Popovskaya74, where observers recorded thecomplete disregard of the ECtHR practice, towhich the defense was referring.

Ignoring the practice of the ECtHR wasalso recorded in the cases of Nazar Dubensky,Dmitry Kurylenko and Igor Ignatov.According to Article 46 of the European

Convention, the states that have signed it haveundertaken to comply with the final judgmentsof the ECtHR in any case to which they areparties. According to the Commissioner for66See Monitoring of the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 06/02/2020)67See Monitoring of the case of Andrey Tatarintsev

(hearing 09/03/2020)68See Monitoring of the case of Natalya Igorevna Kul-

ish (hearing 02/17/2020)69See Monitoring of the case of Natalya Igorevna Kul-



ish (hearing 05/21/2020)72See Monitoring of the case of Sergei Vladimirovich

Sorokin, Vladimir Viktorovich Sorokin (hearing04/30/2020)

73See Monitoring of the case of Sergei VladimirovichSorokin, Vladimir Viktorovich Sorokin (hearing06/22/2020)

74See Monitoring of the case of Popovskaya Inna Petro-vna (hearing 06/24/2020)

18

Human Rights of the Council of Europe NilMuijnieks, the credibility and effectiveness ofthe human rights protection system based onthe European Convention is violated when thestate authorities do not fully implement thejudgments of the ECtHR. And the prolongednon-execution of judgments of the ECtHR isa challenge to the authority of the court itselfand, as a result, to the entire legal systembased on the European Convention75.The main task of the compulsory applica-

tion of the practice of the ECtHR is assignedby the Ukrainian state to the national courts(Law of Ukraine “On the use of decisions andthe application of the practice of the EuropeanCourt of Human Rights”), indicating that thecourts are obliged to apply the European Con-vention and the practice of the ECtHR as asource of law when considering cases (Article17).

Despite this, the ECtHR reiterates that it isthe state that has the duty to ensure that thefinal decisions made against its state-ownedor state-controlled bodies, institutions or en-terprises are carried out in accordance withthe specified requirements of the EuropeanConvention. The state is responsible for theimplementation of final decisions if the fac-tors that delay or impede their full and timelyimplementation are within the control of theauthorities (“Smirnov v. Ukraine”, paragraph54).Moreover, in the judgment in the case of

“TOV Basalt-Impex v. Ukraine” (paragraphs22-26), the ECtHR expresses its concern that,despite the clear provisions of Article 17 of theLaw of Ukraine on human rights the SupremeCourt of Ukraine ignored the findings of theECtHR, set out in the decision in another case– “Sokurenko and Strygun v. Ukraine”, whichat the time of the applicant’s case had alreadybeen translated into Ukrainian and publishedin the official legal publication. Thus, the EC-tHR stated that it sees no reasons that wouldjustify the departure of the national court fromthe previous case-law of the ECtHR, when the

75See https://www.coe.int/ru/web/commissioner/-/non-implementation-of-the-court-s-judgments-our-shared-responsibility

factual and legal circumstances are identicalto the circumstances already considered by theECtHR earlier in judgments in other cases.

1.4 Violation of the right todefense

The principle of a fair trial includes, amongother things, the right to defense. This rightis guaranteed both by domestic law and byinternational law. It should be referred to asfundamental right, in particular in criminalproceedings.Observers often noted that the sus-

pects/accused and their defenders were notprovided with case materials for review, whichis a direct violation of the right to defense, forexample, this situation was observed in thecase of the murder of journalist P. Sheremet76.In the case of General of the SBU A. Schegolev,the defense lawyer argued that he could not getacquainted with the documents that were evi-dence of the defendant’s innocence, despite thefact that he had access to obtain state secrets,which he received from the authorized bod-ies77. Also, during the monitoring of the caseof A. Melnik and others, a situation was re-peatedly observed when lawyers filed petitionsand asked the court to oblige the prosecutor’soffice to provide them with a lot of importantevidence for the case, but the court did notsatisfy any of them78.Repeatedly, the court, passed an unmoti-

vated decision, and refused to satisfy variouskinds of motions of the defense, while theprosecution’s motions were accepted. This wasnoted, for example, in the case of A. Kitaev,during the entire trial, the court did not sat-isfy a single motion of the defense, while allthe motions of the prosecution were acceptedby the court79. In the case of A. Melnik, itshould be noted that the violation of the right76See Pre-trial investigation in the Sheremet case

(court hearings in February 2020)77See Monitoring of the case of Alexander Shchegolev

(hearing 08/18/2020)78See Monitoring of the case of A. Melnik, A. Kryzha-

novsky, I. Kunik (hearing 09/15/2020)79See Monitoring of the case of Anton Kitaev (hearing

on 08/19/2020)

19

to defense also took place when the prosecu-tion admitted evidence of unknown origin andto the defense lawyers’ objections regardingtheir inadmissibility, impossibility of investiga-tion due to the fact that they were not opento the defense the panel of judges refused tosatisfy the request without reasoning the de-cision80,81,82. A gross violation in the samecase was noted when the defense wanted toattach to the case file evidence that points toa different version of the events of the murder,different from the one provided by the pros-ecution, but the court did not admit all theevidence to the case because the documentsare not adequate evidence, that is, such that donot relate to this criminal proceeding. Let usremind once again about the Resolution of theSupreme Court of January 21, 2020 in case No.754/17019/17, which states that the existenceof a different version of events is the basis forreasonable doubt in the proof of guilt83,84.In the case of A. Lesik, during the court’s

examination of the video file, it was clearlyaudible how the SBU officers obstructed thedefendant’s attempt to leave the building, be-cause he refused to sign some documents85. Asimilar situation took place in the case of Y.Rossoshanskiy, where during the examinationof the protocol and the video recording of theinterrogation, the defense attorney drew atten-tion to the fact that during this proceduralaction the lawyer of the Center for Free Sec-ondary Legal Aid (who was obliged to cometo defend the suspect) was absent. Accordingto Part 1 of Art. 52 of the Criminal ProcedureCode of Ukraine, the participation of a defenseattorney is mandatory in criminal proceedingsin respect of especially grave crimes. Also, the

80See Monitoring of the case of A. Melnik, A. Kryzha-novsky, I. Kunik (hearings 08/11/2020, 08/12/2020,08/13/2020)




84See Monitoring of the case of A. Melnik, A. Kryzha-novsky, I. Kunik (hearing on 07/21/2020)

85See Monitoring of the case of Andrey Lesik (hearing01/30/2020)

lawyer of Y. Rossoshanskiy pointed out that inthis proceeding, manipulations with the poly-graph were carried out twice, but this infor-mation is absent in the case materials, whichagain violates the right to defense86.

One of the types of violation of the right todefense is the involvement of defense lawyersfrom the Regional Center for Free SecondaryLegal Aid, despite the fact that the ac-cused/suspects had a lawyer under the con-tract. For example, in the case of E. Anisimov,where, due to quarantine measures, his lawyerwas not able to come to another city for a hear-ing, having submitted a request in advance,the court concluded that it was advisable toinvolve a “public defender”, despite the factthat the accused was strongly against suchactions87,88. In the case of A. Filtsev, the ob-servers noted that the court decided to appointa lawyer for Alexander Filtsev from the Centerfor the provision of free secondary legal aid– V. Bashchuk, against the wishes of the ac-cused himself, despite the fact that A. Filtsevalso had contractual defenders who could notarrive from another city to the court due tothe fact that the court notified the lawyers ofthe planned session only three hours beforeits start89. Such actions of the court directlyviolate Art. 59 of the Constitution of Ukraine,which provides that everyone has the right tolegal assistance and to choose a defender ofhis rights.According to Article 6 § 3 (c) of the Euro-

pean Convention, anyone charged with a crim-inal offense has the right to defend himself inperson or through legal assistance of his ownchoosing. The ECtHR insists that the rightof everyone charged with a criminal offenseto the effective defense by a lawyer is one ofthe fundamental characteristics of a fair trial(“Hanzewacki v. Croatia”, § 21). In order for

86See Monitoring of the case of Yuri Rossoshanskiy(hearing 06/03/2020)

87See Monitoring of the case of Anisimov E.A. andothers (hearing 04/16/2020)

88See Monitoring of the case of Anisimov E.,Grechkovsky A., Bondarenko E. (hearing05/18/2020)

89See Monitoring of the case of Alexander Filtsev(hearings 07/22/2020, 07/23/2020)

20

the right to a fair trial to remain sufficiently“practical and effective”, Article 6 § 1 requiresthat access to a lawyer be provided from themoment a suspect is first questioned by thepolice, unless, in the light of the particularcircumstances of each case, compelling reasonsfor restrictions on this right (“Colu v. Turkey”,§ 51, “Dayanan v. Turkey”, §§ 31-32, “Pischal-nikov v. Russia”, § 67). Nevertheless, accordingto the ECtHR, the right to defense includesnot only the right to receive legal assistance,but also the right to be present in person and,if necessary, to effective observation90 of theproceeding. Such rights are implied in the veryconcept of adversarial procedure (“Lagerblomv. Sweden”, § 49).

The ECtHR has repeatedly pointed out inits decisions that the European Conventionprovides for the right of every person chargedwith a criminal offense to an effective defenseof a lawyer, officially appointed if necessary,which is also one of the fundamental charac-teristics of a fair trial (“Galstyan v. Armenia”,§ 89, “Salduz v. Turkey”, § 51, “Krombachv. France”, § 89, “Dayanan v. Turkey”, § 30).Since the European Convention is intended toguarantee not rights that are theoretical or illu-sory, but rights that are practical and effective,the appointment of a defense lawyer shouldensure that the effective assistance he can pro-vide to the accused is guaranteed. Moreover,the European Convention speaks specificallyof “assistance” and not of “appointment”. Itshould be noted that the mere appointment ofa lawyer by the state does not provide effectiveassistance, as a lawyer appointed for the pur-pose of legal assistance may shirk his duties.If the authorities are notified of the situation,they must either replace the defender or forcehim to fulfill his obligations (“Artico v. Italy”,§ 33; “Siirak v. Russia”, § 27).

At the stage of judicial consideration of thecase, a typical violation for Ukraine is thelack of an opportunity for the defense side tofamiliarize themselves with the proceedings,which may significantly violate the right to de-fense and the adversarial principle. The highercourts systematically review the decisions of

90by the accused

the courts on the basis of such problems; nev-ertheless, the issue remains relevant.As stipulated by the ECtHR decisions, in

accordance with the principle of equality ofarms, as one of the features of the broader con-cept of a fair trial, each party should be givena reasonable opportunity to present its casein conditions that do not put it at a disadvan-tage compared to its opponent (“Ruiz-Mateosv. Spain”, § 63). Denying the accused accessto the case materials, especially when his in-terests are not represented by a lawyer, is asignificant violation of the right to a fair trial,due to the violation of the principle of equal-ity of arms and the restriction of the right todefense that it entailed (“Mahfi v. France”, §26; “Fouche v. France”, §§ 27, 34).

The ECtHR recalls that Article 6 paragraph3 (b) of the European Convention also guaran-tees the accused “sufficient time and facilitiesto prepare his defense” and therefore assumesthat the notion of defense on his behalf maycontain everything that is “necessary” to pre-pare for the main hearing (“Galstyan v. Ar-menia”, § 88). The accused must be able toproperly organize his defense, without limitingthe ability to present all relevant defense argu-ments in court and thus influence the outcomeof the trial. In addition, the rights attributableto all who have been charged with a criminaloffense should include the opportunity to fa-miliarize themselves, in order to prepare theirdefense, with the results of the investigationcarried out throughout the proceedings. Theissue of the adequacy of the time and opportu-nity provided to the accused must be assessedin the light of the circumstances of each par-ticular case (“Tarasov v. Ukraine”, § 88).

1.5 Automatic prolongation ofdetention

This violation first manifested itself on a largeenough scale to speak of a negative trend in2020. Observers, independently of each other,recorded it in various trials.In most criminal proceedings, the prosecu-

tion’s justification for the need to extend themeasure of restraint in each petition in a spe-

21

cific case was limited only by the risks pro-vided for in Art. 177 of the Criminal Proce-dure Code of Ukraine. At the same time, newcircumstances, supported by evidence, werenot named. These formal risks include:

1. the risk of escaping from the authoritiesof the pre-trial investigation and/or thecourt;

2. destruction of evidence;

3. illegal influence on the victim, witness,other suspect, accused;

4. illegal influence on an expert, specialistin the same criminal proceedings;

5. impeding criminal proceedings in a differ-ent way;

6. commission of another criminal offense orcontinuation of a criminal offense in whicha person is suspected.

In particular, this was noted by observers inthe case of I. Lozinsky and others, where thesame risks were declared in relation to all theaccused, and there were four of them91,92, alsoin the case of R. Dubinevich93, in the case ofG. Radutny94 and other cases95. In the caseof N. Kulish, the court in its ruling did notname any arguments for extending the periodof detention, but the prosecutor’s motion wasgranted96.The prosecutor’s office often argued its po-

sition solely by the gravity of the charge. Forexample, in the case of V. Tyapkin97, in the91See Monitoring the case of Igor Lozinsky, Evgeny Ko-

shevarov, Vadim Piven, Roman Zatvorsky (hearing04/10/2020)

92See Monitoring of the case of Igor Lozinsky, EvgenyKoshevarov, Vadim Piven, Roman Zatvorsky (hear-ing 05/28/2020)

93See Monitoring of the case of Roman Dubinevich(hearing 05/12/2020)

94See Monitoring of the case of Grigory Radutny,Vitaly Gonchar, Sergei Shmorgun (hearing04/01/2020)

95See Monitoring of the case of S. Kozak, V. Mitkalik,M. Gumenyuk, A. Gurko (hearing 04/24/2020)

96See Monitoring of the case of Natalya Kulish (hear-ing 05/21/2020)

97See Monitoring of the case of Tyapkin V. (hearing04/01/2020)

case of S. Kozak and others, in the case ofI. Bliznyuk and others98. In the case of R.Dubinevich, the court decision, in which themeasure of restraint was extended, used the fol-lowing facts: accusation of an especially gravecrime, the possibility of illegal influence bythe accused on witnesses and victims in thecase. Such arguments were used in the firstcourt decision on the extension of detentionand remained unchanged for one year99.The situation in which the prosecution pe-

titioned for an extension of the measure ofrestraint, while duplicating the previouslynamed risks and not supporting them withnew evidence, was observed in the cases ofA. Volkov100, Yu. Rossoshanskiy101, I. Shur-man102, I. Bliznyuk and others103, and alsorepeatedly noted in the case of V. Tyap-kin104,105.Also, in the case of I. Bliznyuk and oth-

ers, during the consideration of the issue ofextending the measure of restraint, the courtindicated that the actual circumstances of thecrimes incriminated to the accused, which tes-tify to their increased public danger, togetherwith the severity of the possible punishmentand information about their personality, refutethe arguments of the defense on the lack ofevidence and groundlessness of the risks pro-vided for by Part 1 of Art. 177 of the CriminalProcedure Code of Ukraine106.During the monitoring of the case of S.

Atroshchenko and other observers noted thatthe court initiated consideration of the issue of

98See Monitoring of the case of Bliznyuk I., GolovkinA., Khlapovsky Yu. (hearing 07/02/2020)

99See Monitoring of the case of Roman Dubinevich(hearing 12/22/2020)

100See Monitoring of the case of Alexander Volkov(hearing 04/03/2020)

101See Monitoring of the case of Yuri Rossoshanskiy(hearing 10/22/2020)

102See Monitoring of the case of Ivan Shurman (hearing11/03/2020)


104See Monitoring of the case of Valentin Tyapkin (hear-ing 07/16/2020)

105See Monitoring of the case of Valentin Tyapkin (hear-ing 11/27/2020)

106See Monitoring of the case of Bliznyuk I.A., GolovkinA.O., Khlapovsky Yu.M. (hearing 08/10/2020)

22

extending the measures of restraint due to theplanned leave of judges, despite the fact thatat that time the issue of extension was con-sidered only a month ago. The position of thecourt remained unchanged. The court, withoutsubstantiating, referred to the fact that therisks had not disappeared and continued to ex-ist107. Also, the premature filing of a petitionfor an extension of a measure of restraint wasnoted in the case of M. Voitenko and others, inaddition, new circumstances that would havemade it necessary to extend the detention wereabsent108.

In the case of A. Melnik, A. Kryzhanovsky, I.Kunik, the experts of the ISHR noted the factthat the application for an extension of themeasure of restraint was motivated by circum-stances not provided for by law, namely, theprosecutor argued that the position of A. Kry-zhanovsky’s defense had been agreed with theother accused and had signs of “procedural sab-otage”. The court, in turn, did not assess this,which may indicate that the court agree withthe accusation of “procedural sabotage” on thepart of the lawyers. At the same time, there isa well-founded fear that this proceeding doesnot fulfill the task of the criminal proceedingin the context of ensuring the rights, freedomsand legitimate interests of the participants inthe proceeding, including in terms of substanti-ation of the grounds provided for by the CPCfor extending the detention109,110.Within the meaning of Article 5 of the Eu-

ropean Convention, despite the right to libertyand security, a person may be deprived of hisor hers liberty in cases specified by law, incl. inthe case of lawful arrest or detention made forthe purpose of bringing the person in front ofthe competent authority on reasonable suspi-cion of having committed an offense or wherethere are reasonable grounds to believe that it107See Monitoring of the case of Atroshchenko S.

P., Zolotareva A. V., Kobaka I. V. (hearing03/13/2020)

108See Monitoring of the case of Voitenko M.S., PlavakA.D., Kosolapy A.P., Bogaychuk R.V., SidorukV.M. (hearing 11/20/2020)



is necessary to prevent him from committingan offense or to prevent him from abscondingafter it has been committed (Article 5 § 1 (c)).Nevertheless, according to paragraph 3 of thesame article, every detainee or prisoner hasthe right to be released pending trial, subjectto the guarantee of his appearance in court.

The ECtHR, based in its decisions on theEuropean Convention, indicates that in orderfor a deprivation of liberty not to be consideredarbitrary in the meaning of paragraph 1 ofArticle 5, the mere fact that this measure isapplied in accordance with national legislationis not enough, it must be necessary in givencircumstances. And the justification for anyperiod of imprisonment – no matter how shortit is – must be convincingly proven by thestate authorities (“Nikolova v. Bulgaria”, § 58,“Tymoshenko v. Ukraine”, §§ 265-266, “Korbanv. Ukraine”, § 137, “Boychenko v. Moldova”§§ 142-144). The reasons that were considered“relevant” and “sufficient” reasons (other thanreasonable suspicion) in the case-law of theECtHR, included reasons such as the dangerof escape, the danger of pressure on witnessesor the possibility of distortion of evidence, therisk of collusion, the risk of re-committing acrime, the risk of public disorder and the needto protect the prisoner (“Buzadzhi v. Republicof Moldova”, § 88, § 57).

The ECtHR has repeatedly faced a situationwhere the national court in the first order todetain a person pointed out the seriousness ofthe charges against this person and the riskof his evasion from the investigation. In thefuture, prosecutors and courts, extending theperiod of detention, often do not provide rea-sons for their decisions, but only refer to thecompliance of the previously chosen measureof restraint. In its decisions, the ECtHR insiststhat restrictions by the court by a simple state-ment that the previously appointed measureof restraint was correct throughout the entireperiod under review is not enough. Accordingto paragraph 3 of Article 5, after a certain pe-riod of time, the mere existence of reasonablesuspicion ceases to be a basis for deprivation ofliberty and the judicial authorities are obligedto provide other grounds for continued deten-

23

tion. In addition, such grounds must be clearlyindicated by the national courts (“Buzadzhiv. Moldova”, § 122, “Borisenko v. Ukraine”, §50, “Labita v. Italy”, § 153, “Kharchenko v.Ukraine”, §§ 80-81, “Baryshevsky v. Ukraine”§§ 67-68). The risk of an accused abscondingmust be assessed by reference to a number ofother relevant factors that can either confirmthe existence of the risk of escape or make itso insignificant that it cannot justify pre-trialdetention (“Bekchiev v. Moldova” § 58). Since,if the needs of the investigation are mentionedonly in a general and abstract form, they arenot sufficient to justify the continuation of thedetention (“Cloot v. Belgium”, § 44).Longer detention can also be justified on a

case-by-case basis only if there are concreteindications of a genuine need to safeguard theinterests of society, which, despite the pre-sumption of innocence, outweigh the principleof respect for individual freedom (“Kudla v.Poland”, § 114).

The ECtHR also emphasizes that, in accor-dance with paragraph 3 of Article 5 of theEuropean Convention, the authorities, whendeciding whether to release a person or to de-tain him, are obliged to consider alternativemeasures to ensure his appearance in court.Indeed, this provision not only proclaims theright to “trial within a reasonable time or torelease pending trial”, but also states that “re-lease may be conditional on guarantees of ap-pearance in court” (“Yarzinsky v. Poland”, §44).

In addition, according to the ECtHR, ar-rested or detained persons have the right toreview the procedural and substantive condi-tions that are necessary for the “lawfulness”of their deprivation of liberty (from the pointof view of the European Convention). And al-though Article 5 § 4 of the Convention does notoblige the judge considering an appeal againstdetention to consider all the arguments con-tained in the arguments of the person makingthe complaint, its guarantees would be devoidof meaning if the court, relying on national lawand practice, can consider irrelevant or ignorespecific facts referred to by the detainee andwhich may call into question the existence of

conditions necessary for the “lawfulness” of thedeprivation of liberty according to the Euro-pean convention (“Nikolova v. Bulgaria” §§ 58,61).

The lack of proper argumentation for extend-ing the term of detention is a common problemin the entire judicial system of Ukraine. If therisks do continue to exist, the measure of re-straint of the accused should be extended, how-ever, both the accused and the public (whoseinterests are often referred to by the court inits decisions) have the right not only to clearlyunderstand what specific risks are in question,but also to assess the validity of these risks.The issue of extending the measure of restraintshould be considered on the basis of the indi-vidual situation in each case, and they shouldbe reflected in the court decision. However, asa rule, we see only general statements movingfrom case to case, from one court decision toanother court decision. Representatives of theISHR are concerned about the attitude of theprosecutor’s office to the extension of detentionperiods, the prosecution’s petitions often lackreferences to the facts of the case itself, andthe arguments are limited to general wording.

1.6 Other violations

In addition to the tendencies listed above, dur-ing the monitoring period, the ISHR observersalso encountered other violations of the rightto a fair trial. And although the number ofsimilar violations111, recorded by us, does notallow us to speak with confidence about thepresence of trends (except for those indicatedearlier), nevertheless, the total number of viola-tions not included in the list of major negativetrends is almost 30% of the total number ofviolations recorded by observers in 2020.

Among such violations, the most commonwere:

1. Torture and degrading treatment

2. Ignoring court decisions

3. Placing the burden of proof on defense111As well as the total number of cases in which these

violations were recorded

24

4. Pressure on the court

5. Pressure on lawyers

This list includes only those violations thatthe observers have encountered on several oc-casions. For example, cases of ignoring courtdecisions, as well as torture and degrading hu-man dignity treatment took place in more than10% of the monitored proceedings.

If we talk about the cases in which the ob-servers recorded these groups of violations,then torture and degrading human dignitytreatment were observed in the cases of A. Mel-nik and others112,113, N. Kulish114, A. Tatar-intsev115,116,117, V. Tyapkin118, N. Shapo-val119.

Pressure on lawyers was noted in the caseon the purchase of diesel fuel from the JointStock Company “Ukrainian Railways”120.Pressure on the court – in the cases of O.

Tatarov121, P. Poroshenko122, G. Kernes123.Imposition of the burden of proof on defense

– in the cases of A. Chibirdin124, A. Millerand others125, N. Kulish126, V. Manger and A.112See Monitoring of the case of A. Melnik, A. Kryzha-


novsky, I. Kunik (hearing 05/21/20)114See Monitoring of the case of Natalya Kulish (heart-

ing 03/26/2020)115See Monitoring of the case of Andrey Tatarintsev

(hearing 03/20/2020)116See Monitoring of the case of Andrey Tatarintsev

(hearing 04/30/2020)117See Monitoring of the case of Andrey Tatarintsev

(hearing 06/10/2020)118See Monitoring of the case of Tyapkin V.I. (hearing

04/01/2020)119See Monitoring of the case of N. Shapoval (hearing

04/27/2020)120See Monitoring the case on the purchase of diesel

fuel from the Joint Stock Company “UkrainianRailways” (hearing 07/27/2020)

121See Monitoring of the case of Oleg Tatarov (hearing12/28/2020)

122See Monitoring of the case of Petr Poroshenko (hear-ing 07/08/20)

123See Monitoring of the case of G.A. Kernes, V.D.Blinnik, E.N. Smithsky (hearing 02/28/2020)

124See Monitoring of the case of A. Chibirin (hearing01/30/2020)


126See Monitoring the case of Natalya Kulish (hearing03/26/2020)

With violationsWithout violations

64%

36%

Figure 1.1: Percentage of hearings based onviolations of legal proceedings.

Levin127.It is worth noting that these violations were

recorded by the ISHR observers in both 2018and 2019, which may indicate the “stability ofthe use” of such abuses. However, the absenceof the aforementioned violations in the list ofthe main negative trends (see p. 11)128 may in-dicate the presence of positive changes, whichwill be discussed below.

1.7 Positive trends

In addition to negative trends, in the courseof monitoring, the ISHR observers recorded anumber of positive changes.

On the positive side, half129 of the negativetrends identified in 2018 are missing from thelists of major trends for 2019 and 2020. Recallthat these trends include:

1. Blocking the participation of the accusedand witnesses in the trial

2. Placing the burden of proof on defense

3. Pressure on lawyers

4. Pressure on the court

5. Ignoring court decisions127See Monitoring the case of V.N. Manger, A.A. Levin

(hearing 08/28/2020)128Especially those violations that are not included in

the list of major negative trends for the second yearin a row

1295 out of 10

25

Of course, isolated cases of violations fromthe above list are still recorded by observers.However, the number of violations identifiedand the number of cases in which they wereidentified do not allow us to speak about thepresence of negative trends at the level of theentire judicial system. Some trends of pastyears, such as blocking the participation ofaccused and witnesses in the court, pressureon lawyers or on the court, were recorded only1-3 times in the entire 2020.

In 2020, ISHR observers did not encounterthe use of cages for detention of defendantsin the courtroom, this can also be considereda positive change (although the use of glassboxes is still taking place). The refusal of suchmeasures of detention in the courtroom hasbeen observed for the third year in a row.It is worth noting that during the difficult

time of the coronavirus pandemic and relatedquarantine measures, some courts conductedofficial video broadcasts of court hearings toimplement the principles of publicity of thetrial. Often, the courts not only independentlydecided which hearings to broadcast, but alsosatisfied the requests of the ISHR to broad-cast the hearings of interest to observers. Suchmeasures look especially positive against thebackground of the situation in the courts ofsome post-Soviet countries and Western Eu-rope130, where video broadcasts are not carriedout at all or only the sessions of high profiletrials are broadcasted.

1.8 Conclusions

In its annual reports, the International Societyfor Human Rights, in addition to simply record-ing violations, tries to identify their causes, aswell as the reasons for positive changes in thejudicial system of Ukraine. In our opinion, com-pared to 2019, the situation has deteriorated inmany ways. One of the major reasons for thatis the coronavirus pandemic and the introduc-tion of quarantine measures. This factor, firstof all, influenced the violation of the principleof reasonable time limits for legal proceedingsand the automatic extension of the measure130For example, Armenia and France

of restraint. The judicial collegiums could notmeet in full, attorneys and prosecutors wereunable to attend court sessions held in othercities131. At the same time, the courts wereable to extend the measure of restraint with-out gathering the entire collegium, but onlyby the decision of the presiding judge.We have already noted above that some

courts have tried to reduce the negative im-pact of the pandemic on their work. For ex-ample, by broadcasting court hearings, settingup hearings in the format of videoconferences,when the parties were able to participate inthe proceeding remotely. However, it appearsthat the judicial system as a whole has usedquarantine measures as an excuse to reducethe level of publicity of legal proceedings.Unfortunately, the problem of the acute

shortage of judges, which the ISHR wroteabout in the 2019 report, has not yet beenresolved. It is still observed practically allover the country132. Undoubtedly, this circum-stance is one of the factors of numerous vi-olations of the principle of reasonableness ofthe timing of the trial. Judges are physicallyunable to promptly consider incoming cases.An obvious step towards solving this problemis to increase the number of judges or at leastbring the number of acting judges up to thenorm established by law. In our opinion133, theissue of solving this problem today does notdepend on the “technical” readiness of the judi-cial system, but on political factors. The nextround of political struggle prevents overcomingviolations of the principle of reasonableness ofthe timing of the trial.The political factor in the judicial sphere

is present not only in the issue of appointingnew judges. In 2020, an open confrontationbetween the President of Ukraine and the Con-stitutional Court of Ukraine began, after the

131It is not uncommon for the parties to reside in thedifferent city from the one the trial is taking placein

132The experts of the ISHR have repeatedly heardabout the problems with the shortage of actingjudges during the meetings held within the frame-work of the project

133Which was formed after the participation of theISHR experts in a broad discussion of the situation

26

President, by his decree, canceled one of thedecisions of the Constitutional Court. Suchsituations134 indicate that the country has se-rious problems with the implementation of theprinciple of separation of powers and the inde-pendence of the judiciary.Unfortunately, in 2020, the previously out-

lined trend towards an increase in the numberof court sessions at which no violations of theright to a fair trial were detected135 did not134Which also include numerous incidents of a smaller

scale135In 2019, in 40% of hearings attended by ISHR ob-

servers, no violations were recorded136In the report for 2018 the list of negative trends

consisted of 10 items, and in the 2019 report itdecreased to 4

137We are talking about the total number of violationsdetected

receive further development. On the contrary,the situation has worsened, see fig. 1.1.

2020 also became the year when the trendtowards a decrease in the number of majornegative trends136 was replaced by growth.The total number of major negative trendsincreased from 4 to 5.

In conclusion, it should be noted that theemerging picture of the overall deteriorationof the situation is not as unambiguous as itmight seem upon a cursory acquaintance withthe figures obtained in 2020137. In part, thispicture emerges due to the very bad situationthat has developed in just a few cases. Thiswill be discussed in the analysis of statisticaldata.

27

2 Analysis of statistics

In this part of the report, we will acquaintreaders in more detail with the results of thecollection of statistical data, which was carriedout by the ISHR observers during the moni-toring of trials in 2020. All results are basedon data from special questionnaires filled in byobservers after each attended court session.

2.1 The special situation inthe cases of A. Tatarintsevand A. Melnik

Before proceeding to the examination of sta-tistical data, it is necessary to stipulate thesituation that has developed in two criminalproceedings – in the case of the head of the“Visit” TV company Aleksandr Melnik, and inthe case of the Donetsk businessman AndreyTatarintsev. The peculiarity of these proceed-ings is that they account for almost half of theviolations identified by the observers of theISHR in 2020 - 120 violations!

A.Melnik is charged with the murder of themayor of the city of Kremenchuk, as well asthe murder of a local judge. A. Tatarintsev isaccused of creating a terrorist organization.The ISHR monitored these proceedings in

previous years, but such depressing resultswere revealed for the first time since moni-toring the observance of the right to a fairtrial. For example, in 2019, 11 violations wererecorded in the case of A. Melnik1, and in 2020,68 violations of the right to a fair trial wereidentified. A similar situation takes place inthe case of A. Tatarintsev.The specifics of these proceedings suggests

the presence of a “political” (or “elite”2) com-ponent in both cases. Although this specificitymanifests itself in two proceedings in differentways. In the case of Aleksandr Melnik, signifi-cant participation of the regional authoritiesin the judicial proceeding is recorded (up to

1This is still the largest number of violations identifiedby the ISHR observers in one case in 2019

2Talking about the active participation of representa-tives of local political elites in the trial

the official decisions of the local parliament –the Poltava Regional Council, regarding whatis happening in court). In turn, Andrei Tatar-intsev is accused of creating a terrorist orga-nization. This charge is related to the armedconflict in the east of Ukraine. It is also in-cluded in the list of articles of the CriminalCode, charges on which the ISHR traditionallyclassifies in its reports as trials with a politicalcomponent.It was these two cases that led to a signifi-

cant increase in the total number of reportedviolations in 2020. Moreover, the number ofviolations in these proceedings is 5-7 times3 ex-ceeds the number of violations identified in anyother case, which was monitored in 2019-2020.On the one hand, such “anomalous” indica-

tors (in comparison with the data obtainedduring the monitoring of about a hundred tri-als conducted by the ISHR observers in 2019-2020) should certainly become a reason forclose attention from authorities and civil so-ciety, both nationally and internationally. Onthe other hand, the direct inclusion of thesecases in some parts of the statistical analysis(without changing the approaches to the for-mation of graphs and tables) will significantlydistort the overall picture and prevent the iden-tification of potential problems inherent notin individual proceedings, but in the judicialsystem as a whole.

2.2 Publicity of court hearings

From the point of view of exercising the rightto publicity of the trial, the data on the pres-ence of representatives of international orga-nizations, such as the OSCE and the UN, aswell as Ukrainian media and public organiza-tions, are of interest. 16 cases of the presenceof representatives of these institutions at courtsessions were recorded, which is about 10% ofthe total number of monitoring carried out bythe ISHR (see Fig. 2.1). These indicators are

3At least

28

AbsentPresent

90%

10%

Figure 2.1: The presence of international orga-nizations and the media at courthearings.

significantly inferior to the indicators of 20194,however, this situation is most likely causedby quarantine restrictions, and not by a de-crease in the interest of the above institutionsin court hearings.

As in 2019, the ISHR collected informationregarding the publication of the place and timeof the hearings on the official website of thejudicial authority of Ukraine. The monitoringresults showed that only in 2 out of 157 ana-lyzed cases, information about the time of theforthcoming court hearing was not publishedon the website of the judicial authority. Forcomparison, in 2019, 15 times the informationon the time of the hearing was not provided(while the total number of analyzed court ses-sions in 2020 increased).

2.3 Situation with observanceof the right to a fair trialin Ukrainian courts

In 2020, ISHR observers monitored 157 courthearings in 49 courts in 14 regions of Ukraine.Such a scale of observations gives us the oppor-tunity to try to analyze the courts of Ukraine5

4In 2019, 38 cases of the presence of representativesof these institutions at court sessions were recorded,which amounted to about a third of the total num-ber of monitoring carried out by the ISHR

5Only regarding those courts in which the monitoringwas carried out

and make up preliminary rating of courts basedon the number of violations of the right to afair trial recorded in these courts.

Before continuing the discussion of this topic,it should be emphasized that not all violationsidentified by the ISHR observers occur as aresult of the actions (or inaction) of the court!The parties to the proceeding or even thirdparties (for example, the administration of thepre-trial detention center, civil activists, etc.)can also act as the subjects of violations. Ourrating rather points to the “judicial” regions(rather than specific judicial institutions) inwhich violations were recorded.

When compiling the rating, we had to solvethe following issues:

1. How to neutralize the influence of a largenumber of observations in a particularcourt on the total amount of violationsidentified in this court? After all, there isa high probability that the more observa-tions were carried out in a particular court(i.e., the longer the total observation pe-riod), the more violations will be revealed.At the same time, in courts where onlyone session was observed, the likelihoodof detecting a large number of violationsdecreases.

2. How correct is it to compare in the samerating a court in which only one observa-tion was carried out with a court in which,for example, 17 observations were carriedout6?

The answer to the first question was theuse of the arithmetic mean of violations persession in each particular court. Thus, we wereable to significantly reduce the overall spec-trum of violations in the courts. Instead of ahuge spectrum from 0 to 68 (as it would beif the total number of violations identified ineach court for 2020 was indicated), we got aspectrum from 0 to 4.5. In our opinion, such aratio of numbers shows the general picture ofobservations more correctly.To address the second issue, we refused to

compile a single rating of 49 courts, and di-6Largest number of observations conducted by ISHRin one court

29

Violation of the principle of reasonable terms of the trial 36%Inclusion in the evidentiary base of “doubtful” evidence 21%Automatic prolongation of detention 18%Incorrect use and/or disregard of the case-law of the ECtHR 17%Violation of the right to defense 16%Ignoring court decisions 13%Torture and degrading treatment 11%Other 11%Placing the burden of proof on defense 7%Pressure on the court 2%Pressure on lawyers 1%Blocking the participation of the accused and witnesses in the trial 0%

Table 2.1: The presence of the specified category of violations in relation to the total numberof monitored hearings.

vided it into 4 groups, depending on the num-ber of observations carried out in each court.Thus, we got the following groups:

Group “A”: courts in which a single observa-tion was carried out – 23 courts;

Group “B”: courts in which 2 to 4 observa-tions were carried out – 17 courts;

Group “C”: courts in which 5 to 9 observa-tions were carried out – 4 courts;

Group “D”: courts in which 10 or more obser-vations were carried out – 5 courts.

Now, having explained our position regard-ing the formation of the “rating”, let us considerthe results obtained. In the group “A” , therange of violations ranged from 0 to 2. Noviolations were recorded in four courts:

1. Bogunsky District Court of the city ofZhitomir;

2. Lvovsky Regional Administrative Court;

3. Solomensky District Court of Kiev;

4. Khersonsky Court of Appeal.

The most violations (2 violations each) wererecorded in four courts:

1. Artyomovskiy city district court ofDonetsk region;

2. Zaporozhsky Court of Appeal;

3. Lubensky city district court of Poltavaregion;

4. Suvorovsky District Court of Odessa.

In the group “B” , the range of violationsranged from 0 to 1.5. Not a single violation wasrecorded in only one court, and 0.5 violationswere recorded in three more courts:

1. Shevchenkovsky District Court of Za-porozhye – 0 violations;

2. Zhytomyrsky District Court of ZhytomyrRegion – 0.5 violations;

3. Kievsky Court of Appeal – 0.5 violations;

4. Poltavsky Court of Appeal – 0.5 viola-tions.

Most violations (1.5 violations each) wererecorded in three courts:

1. Kovelsky City District Court of the VolynRegion;

2. Leninsky District Court of the ZaporozhyeRegion;

3. Kharkovsky Court of Appeal.

In the group “C” , the range of violationsranged from 1.2 to 1.57 violations per hearing.Since there are only 4 courts in this group, wewill indicate all of them:

30

1. Dneprovsky District Court of Kiev – 1.2violations;

2. Pechersky District Court of Kiev – 1.4violations;

3. Supreme Anti-Corruption Court ofUkraine – 1.5 violations;

4. Zheleznodorozhny District Court of Lvov– 1.57 violations.

In the group “D” , the range of violationsranged from 0.9 to 4.5 violations per hearing.Since there are only 5 courts in this group, wewill indicate all of them:

1. Shevchenkovsky District Court of Kiev –0.9 violations;

2. Lutsky city district court of the Volynregion – 1,0 violations;

3. Ordzhonekidzovsky District Court of thecity of Kharkov – 1.0 violations;

4. Gadyatsky district court of Poltava region– 4 violations;

5. Kuibyshevsky District Court of the Za-porozhye Region – 4.5 violations.

Research in this direction is only at the ini-tial stage, but the practical application of sucha rating is very obvious – it, for example, willallow to concentrate the efforts of observersand other interested institutions on those “judi-cial regions” in which human rights violationsoccur most often.

2.4 Court hearings

As in 20197, we have prepared a graph ofthe “Stages of consideration of the case” (seeFig. 2.2) indicating the type of court sessionsthat were monitored. Traditionally, in the totalmass of court sessions attended by the ISHRobservers in 2020, there were a large numberof preparatory sessions (27%). The number ofhearings held on the merits was 72%. Compar-ing the results with the data of previous years,

7See. “Report Right to a fair trial in Ukraine. 2019”.

Preparatory27%

In essence72%

Appeal1.3%

Figure 2.2: Stages of consideration of the case.

we see that in 2020 the situation has changedslightly.The number of preparatory hearings at-

tended by observers increased compared to2019 (it was 20%) and almost equaled the fig-ures for 2018 (it was 30%). The number ofobservations of hearings held in essence, re-mains unchanged for the second year in a row(in 2019 it was also 72%, and in 2018 – 64%).Such situation occurred because in 2020 the ob-servers of the ISHR were less likely to monitorthe appeal sessions.It’s interesting to see the “performance” of

all this mass of hearings. During the year, ourobservers tracked what specifically the courtsessions were devoted to. As it turned out, only39 sessions were devoted to the study of thecase materials (for example, this is only 35%of all sessions8 held on the merits). Witnessesand victims were questioned only at 10 sessions(9% of all sessions held on the merits).

The most “popular topic” during the courthearings was the consideration of the questionof a measure of restraint for the accused (elec-tion of a measure of restraint or its extension).69 court sessions were entirely devoted only toquestions of measures of restraint. This, for ex-ample, is 44% of all hearings (including thoseheld on the merits, preparatory and appeal).In total, the issue of measures of restraint wasconsidered at 74 hearings, i.e. only at 5 sessions(among those at which a measure of restraint

8Of the total number of hearings that were monitored

31

was considered) other than the issue of a mea-sure of restraint was considered.What was the most popular measure of re-

straint? During the monitoring of the courtsessions, the observers recorded9:

1. Detention in custody – 98 times;

2. Night house arrest – 15 times;

3. Personal obligation – 11 times;

4. 24-hour house arrest – 6 times;

5. Bail – 1 time;

6. No measure of restraint – 41 times.

During the monitoring period, the observersof the ISHR recorded changes in the measureof restraint only 8 times.The above figures may indicate that the

courts are much more likely to devote time toconsideration of measures of restraint ratherthan studying the case materials and interro-gating witnesses and victims. This, with a highdegree of probability, is one of the reasons forthe large number of violations of the principleof reasonable time limits. As already indicatedin the first section of the report, violation ofthe principle of reasonable trial time is themost frequent violation recorded by the ISHRmonitors.

2.5 Correlation of the numberof detected violations withincriminated crimes

As in 2019, the statistical material collectedduring the monitoring of 2020 allows onceagain to check the widespread thesis that incases with a “political component” more of-ten10 violations of the right to a fair trial occur.Unlike media or political statements, often ofa subjective nature, the numbers of violationsrecorded, the numbers of specific incriminatedarticles, etc. allow to get a fairly objectivepicture.

9The measure of restraint at the time of the courtsession

10In comparison with other criminal proceedings.

In our analysis, we divide all cases moni-tored into conditionally “political” and “other”.In our opinion, the most objective way forthis is to group the cases depending on thearticle of the Criminal Code in the officialcharge11. With this approach, cases involvingaccusations of crimes against the foundationsof national security of Ukraine, public secu-rity and/or crimes against peace, security ofhumanity and international law12, can be clas-sified as “politically motivated”. During themonitoring we faced the following accusationsfrom this group:

art. 109 of the Criminal Code actionsaimed at the violent change or overthrowof the constitutional order or the seizureof state power;

art. 110 of the Criminal Codeencroachment on the territorial in-tegrity and inviolability of Ukraine;

art. 111 of the Criminal Code high treason;

art. 113 of the Criminal Code sabotage;

art. 161 of the Criminal Code violation ofthe equality of citizens depending on theirrace, nationality, religious beliefs, disabil-ity and other grounds;

art. 255 of the Criminal Code the creationof a criminal organization;

art. 258 of the Criminal Code terrorist act;

art. 258-3 of the Criminal Code the cre-ation of a terrorist group or terroristorganization;

art. 258-5 of the Criminal Code financingof terrorism;

art. 263 of the Criminal Code illegal han-dling of weapons, ammunition orexplosives;

art. 340 of the Criminal Code illegal ob-struction of the organization or holding

11Which provides clarifying information regarding im-puted acts

12We use the terminology of the CC sections

32

0

50

100

150

200

Political cases Other

Violation

s

(a) the total number of violations in each of theproceeding types.

Political casesOther

1.10 viol.hear.

1.07 viol.hear.

(b) average number of violations per hearing.

Figure 2.3: Distribution of violations by type (political / other) litigation.

of meetings, rallies, processions anddemonstrations;

art. 341 of the Criminal Code seizure ofstate or public buildings or structures;

art. 263 of the Criminal Code illegal han-dling of weapons, ammunition orexplosives;

art. 365 of the Criminal Code abuse ofpower or official powers by a lawenforcement officer;

art. 366 of the Criminal Code serviceforgery;

art. 437 of the Criminal Code planning,preparation, unleashing and conductingan aggressive war;

art. 438 of the Criminal Code violation ofthe laws and customs of war.

As a rule, accusations from this group aresomehow connected with the events in the Eastof Ukraine, Crimea, or the confrontation onthe Maidan in the winter of 2013-2014.

The rest of the charges were included in thesecond group of “other” cases.

It is important to note that some of thecases combine both charges from the “political”list and articles from the second group. Weclassified them as proceedings with a “politi-cal component”. In order to make the overallpicture of the investigated proceedings clearer,we have prepared a table in which the chargesand the number of violations recorded in eachcase are indicated (see table 2.6). “Politicalproceedings” are marked with an asterisk (*)in the table.Having this data, we were able to prepare

two graphs: the first one, which displays thetotal number of violations in each of the twogroups of criminal proceedings; the second isthe average number of violations per hearingin “political” and “other” proceedings (see fig.2.3b). The second graph is needed to check ifthe results were influenced by some “anoma-lous” isolated cases (specific trials with a largenumber of violations) or the fact that we paidcloser attention to some specific cases (or agroup of cases).As the graphs show, despite the fact that

the total number of violations detected in “po-litical cases” is less than in “other”, the averagenumber of violations per hearing, on the other

33

hand, is slightly higher in “political cases” thanin “other”. The difference in the indicators ofthe two graphs is explained by the fact that in2020 the number of “other” cases monitored,significantly exceeded the number of “politicalcases” (13 cases versus 59 cases).

The results of the analysis of judicial moni-toring show that, firstly, “political cases” stillcannot be called “rare” or “isolated cases”. Sec-ondly, the number of violations in “politicalcases” still exceeds the number of violationsin other proceedings. Although the data ob-tained in 2020 indicates that this “excess” isnegligible.

2.6 Equality of the parties

An important component of a fair trial is re-spect for the principle of equality of arms. Inorder to assess the situation in the trials, whichwere monitored by the ISHR, we analyzed the“attitude” of the courts towards the partiesto the proceeding using the example of thecourt’s rulings on the satisfaction or refusal tosatisfy the petitions of the parties. As a result,two graphs were prepared (see Fig. 2.4).A total of 195 petitions were submitted by

the parties. According to the results obtained,a little more than a third of the petitions of thedefense (35%), recorded by the observers of theISHR, were satisfied by the court. While 89%of the petitions from the prosecutor’s officewere satisfied.

These data indicate that during the trial,the prosecution is approximately two and ahalf times more likely to receive a satisfactorycourt decision on their motions. Such a gapmay indicate that there is a problem with theimplementation of the principle of equality ofarms in the courts of Ukraine. Moreover, inthe 2019 report of the ISHR, when analyzingthe ratio of satisfied requests for admission ofnew evidence, the gap between the satisfiedrequests of the defense and the prosecutionwas much smaller (only one and a half times:46% versus 67%).

Considering the data collected by the ISHRin 2018, 2019 and 202013, it can be assumed13For all three years of observations, the prosecution’s

that the defense and the prosecution are noton an equal footing when the courts considerthe parties’ motions.

Nevertheless, this ratio does not apply to allforms of interaction of courts with the partiesto the proceeding. For example, during the ad-mission of new evidence, the courts refused thedefense (a total of 10 attempts to add evidencewere recorded) and the prosecution (a total of17 attempts to add evidence were recorded)an equal number of times - 2 times. Although,the ratio is still in favor of the prosecution: 2out of 10 versus 2 out of 17.

2.7 Proceedings imbalance

In order to clearly show the presence of animbalance in violations in litigation, we will usea criterion established in statistical analysis:the Lorentz curve.To do this, we will sort all hearings accord-

ing to the number of violations in them andconstruct a Lorentz curve. We will display it,along with the neutral line, in Fig. 2.5.This curve is usually used to display the

imbalance in the income of the population.For example, the more the Lorentz curve ofthe income of the population deviates from theneutral line, the greater the imbalance of thosevery incomes, in which case it is said that asmall part of the population concentrates mostof the money. In the ideally uniform case ofincome distribution, when everyone has thesame income, the Lorentz curve coincides withthe neutral line. So, in our case – the morethe violation Lorentz curve deviates from theneutral line, the more unevenly the violationsare distributed in hearings. This unevennessmay be due to both the greater “bias” of thecourts towards certain types of cases, and thetemporary unevenness of violations. Tempo-rary unevenness in the same case, means thatviolations are distributed unevenly across ses-sions.

Numerically, this unevenness is expressed bythe Gini coefficient G, which is nothing morethan the ratio of the area between the Lorentz

motions were satisfied much more often than thedefense motions

34

Defense

No65%

Yes35%

Prosecution

No11%

Yes89%

Figure 2.4: Ratio of approved petitions

0

50

100

150

200

0 20 40 60 80 100 120 140

Mon

itored

violations

Monitored hearings

Lorenz curve of violationsNeutral line

G = 0.49

Figure 2.5: Lorenz curve of violations in hearings for 2020.

curve and the neutral line (the shaded areain Fig. 2.5) to the total area of the trianglecomposed of the neutral line and the edgesof the graph. In the “ideal” case of a uniformdistribution of violations between sessions, theLorentz curve would coincide with the neutralline. Thus, the Gini coefficient of G would be0. Conversely, if absolutely all violations wereconcentrated in one single hearing, the Ginicoefficient G would be approximately equal toone. In our case, we have G = 0.49, which isa fairly large value. For comparison, the samevalue of the coefficient can be obtained if 50%of violations were concentrated in one percent

of hearings.In this context, it should be noted that the

approach of the Lorentz curve to the neutralline will not at all indicate that there are noviolations. It will only state that the courtsare equally bad/good in conducting hearings.

2.8 Relationship between thecharge and the number ofviolations in the trial

In 2020, we continued to research to whatextent each of the articles of the CriminalCode is related to the frequency of violations

35

of the right to a fair trial. Back in 2019, ISHRexperts developed a special algorithm. Thepurpose of such a tool is to identify potentially“unfair” lawsuits as objectively as possible (ifthe articles of accusation in the proceedings inwhich violations occur most often are known)and more effectively direct efforts to preventviolations of the right to a fair trial.

The addition of the data collected in 2020 tothe results of 2019 allows us to take the nextstep in the development of the algorithm, sincethe accuracy of the results obtained dependson the scope of litigation (the more trials, themore accurate the result).

What is our method? Each proceeding oftenincludes different articles of accusation (see,for example, table 2.5). It is impossible todirectly determine which accusation (article ofthe Criminal Code) most of all influences thedeviation of court hearings from proceduralnorms14. However, assigning to each articleof the Criminal Code s a certain coefficientof violations Xs, we can compose a system ofequations. To do this, we assign to each caseDi a set of articles of the Criminal Code Si

that appear in it. Summing up for each caseall the weights of the articles passing throughit, we get the following system:

D1 =∑s∈S1

Xs

D2 =∑s∈S2

Xs

. . .

Di =∑s∈Si

Xs

. . .

In the general case, such systems do nothave exact solutions. However, assuming thatno article can have a negative15 coefficient,that is, Xs ≥ 0, we can find a solution thatwill give us the smallest error. Thus, we isolatethe influence of each individual article on the14The “norm” is a fair trial, in which there are no

violations15Not to be confused with a “negative” influence on

the course of the hearing! In this case, a negativecoefficient means a decrease in the number of vio-lations

course of court hearings. The results of apply-ing this methodology to the monitoring dataof 2019 and 2020 are shown in Table 2.3.This year, for the first time, we had the

opportunity really analyze the operation ofthe algorithm16. To do this, we compared thedata for 2019 (tab. 2.4) with data for 2019–2020 (tab. 2.3). But before proceeding to theanalysis, we note that over the past year thealgorithm has been optimized. If in 2019 the re-sulting coefficient was calculated from the abso-lute number of violations in each case, now thenecessary coefficients are normalized accordingto the number of hearings in which they wererecorded. Thus, possible deviations caused byincreased attention of the observers to someproceedings are leveled. The table with datafor 2019 differs from the similar table givenin the 2019 report, as it has been recalculatedtaking into account the above change.Firstly, by the end of 2020, the number of

articles for which we have data increased from3717 to 61. This not only expands the rangeof studied articles of the Criminal Code, butalso has a positive effect on the calculation ofthe coefficient of each article, since the samearticles appear in different cases and thus “in-teract” with other articles.

Secondly, an increase in the number of cases,articles and violations identified will stabilizethe entire rating. This can be seen from thedecrease in the spread of the violation rate: ifin 2019 its spectrum covered values from 0 to5, then in 2020 it decreased and now coversvalues from 0 to 3.73.

Now let’s consider the dynamics of changesin the rating of articles18. Many of the articlesthat were in the first lines of the ranking in2019 fell significantly lower. This is primarilydue to the fact that in 2019, many of thesearticles appeared in only one observed case,and by the end of 2020, the number of ob-served cases with charges under these articles

16Since 2019 was the first year of such a study, itwas not possible to compare the results with theprevious data. We could only make theoretical as-sumptions.

17Number of articles in 201918The place that each article occupied in the rating

(table) in 2019 and now

36

increased, and these articles took a place inthe ranking more consistent with their realsituation. This happened, for example, withArt. 190. In 2019, it was in first place (witha coefficient of 5), but after the number ofcases in which there is a charge under Art. 190increased from 1 to 5, the article dropped to6th place (with a coefficient of 1.31).Even for those articles that did not appear

in new cases and were present only in one trial,there has been a change in the coefficient since2019. For example, this situation has developedwith Art. 260 in case No. 93. This is due to thefact that other articles in this case (Articles110 and 263) were encountered in new cases(which were monitored in 2020) and a changein their coefficient resulted in a change in thecoefficient of Art. 260.

All this indicates that the article rating itselfis dynamic, i.e. one that is constantly changingas new data arrives. While the 2020 changesmay indicate that including enough data willlead to some kind of equilibrium, where thefluctuations in the violation rate of each articlewill not be as significant.

With regard to the applied use of the algo-rithm, at this stage, it can be assumed that ifthe coefficient of violations of an article of theCriminal Code exceeds 2 in one (or several)cases with charges under this article, theremay be a large deviation from the norm, i.e.there are a large number of violations. For ex-ample, Art. 437 occurs only in case №№ 83 –56 violations were recorded in this case overtwo years of observation. It ranks second interms of the number of violations of all casesmonitored19.The algorithm is still under development

and we hope that in 2021 we will be able toinvolve representatives of the scientific commu-nity and the judicial sphere in this work. Thisstudy is primarily aimed at developing a toolthat allows, for example, to direct the effortsof the monitoring specifically to cases with anincreased “potential for violations”.

19For a better understanding of the situation in thecase, which is in third place, there are a total of 13violations

2.9 Conclusions

The use of methods of statistics and mathe-matical analysis finds its application in sucha field as litigation. They allow to check and,in certain cases, confirm logical conclusions,guesses and predict the further development ofthe situation with the help of objective inputs,which are data obtained by the observers ofthe ISHR during the monitoring of trials. Itseems that this approach contributes to a moreobjective analysis of the situation (for bothobservers and participants in the trial). At aminimum, it provides an opportunity to raisea number of questions and, subsequently, canfacilitate the process of strategy developmentand decision-making by the participants in theproceeding and the court.ISHR experts continue to use and develop

these methods when analyzing the results ofmonitoring the observance of the right to afair trial in 2021. Such efforts will make itpossible to more accurately identify the ex-isting negative trends, to model the ways oftheir development, to establish the scale ofdamage inflicted on the judicial system and tocontribute to the development of preventivemeasures.

37

Case Articles violationshearings Case Articles violations

hearings

83* 258-3, 437, 438 4.5 57 121, 365 153 115, 377 3.94 58* 110, 111, 161, 258-3 19 115 2 62 185 112 307 2 64 289 118* 258, 263, 342 2 67 187, 289 133 307, 309, 317 2 68 191 1

44 191, 209, 366 2 69 NA 160 ГИ 2 70 187 181 115, 190, 357, 358 2 71 115, 189, 263, 289 184 369 2 77* 191, 255, 258-3, 258-5, 366 192 187 2 78 186 194 115 2 80 368 1

42 149 1.83 85 187, 253, 263, 353 188 289 1.67 87 206-2, 358, 366 140 364 1.5 97 115 148 191, 366 1.5 3 115, 121, 340, 365 0.7576 187 1.5 10* 109, 115, 121, 340, 365 0.7579 187 1.33 72 115 0.75

7 121, 146, 189, 255, 263 1.29 5 115, 189, 191, 209, 255, 263,263-1, 307

0.67

50 121 1.25 96* 110, 258-3 0.571 366 1 25* 110, 111, 258-3, 341 0.56 122, 189, 194, 263 1 36 115 0.513* 115, 127, 146, 255, 340 1 37 186, 190, 199 0.514* 110, 258-3 1 89 146, 190 0.5

17* 263 1 90 286 0.520 115, 194, 289 1 19 115 021 115 1 23 121 022 115 1 28 ГИ 027 191, 209 1 29 115, 187, 309 030 190, 209, 364-1 1 35* 110, 113, 258, 258-3, 263 0

31 127, 129, 146 1 39* 147, 258, 263, 348 041 368-2 1 49 289 043 286 1 56 115 046 342, 345 1 66 345 051* 111 1 82 115 055 191, 209, 358, 368, 369 1 98 307, 309 0

Table 2.2: Trials for 2020, incriminated crimes (articles of the Criminal Code) and the nor-malized number of violations, “political” (See signs of “political” trials on page 32)proceedings marked with an asterisk.

38

Article Xs, coeff. violations Article Xs Article Xs Article Xs

437 3.73 307 0.53 258-3 0 253 0377 2.82 263 0.51 438 0 209 0286 1.83 127 0.5 427 0 206-2 0364 1.5 121 0.49 407 0 199 0317 1.47 109 0.48 366-1 0 189 0190 1.31 128 0.37 365 0 161 0149 1.3 115 0.33 364-1 0 147 0342 1.27 113 0.32 358 0 146 0260 1.24 110 0.26 357 0 125 0366 1.17 191 0.25 353 0369 1.1 258 0.17 348 0187 1.01 ГИ 0.17 345 0111 1.01 194 0.1 343 0NA 1 129 0.1 341 0368-2 1 186 0.09 340 0185 1 122 0.06 309 0289 0.56 258-5 0.02 263-1 0368 0.55 112 0.01 255 0

Table 2.3: Coefficient of the number of violations in accordance with the article of CriminalCode, 2019-2020.

Article Xs, coeff. violations Article Xs Article Xs Article Xs

190 5 109 0.69 437 0 187 0286 4 149 0.5 407 0 161 0438 2.2 258-5 0.35 366-1 0 125 0113 1.58 258 0.34 365 0 115 0342 1.5 146 0.33 357 0 112 0260 1.42 127 0.33 345 0377 1.38 263 0.31 343 0111 1.07 128 0.3 340 0368 1 110 0.27 258-3 0186 1 121 0.14 255 0191 0.9 ГИ 0 189 0

Table 2.4: Coefficient of the number of violations in accordance with the article of the CriminalCode, 2019, normalization by hearings.

39

Table 2.5: Cases, incriminated crimes (articles of the Criminal Code), and the normalizednumber of violations. “Political” (see signs of “political” trials on page. 32) cases aremarked with an asterisk (*).

Case Articles viol.hear. Case Articles viol.

hear.

2 187, 190 5 64 289 126 286 4 65 258, 258-5, 263 183* 258-3, 437, 438 3.73 67 187, 289 152* 111, 263 3.33 68 191 153 115, 377 3.15 69 NA 115* 109, 110, 111, 128, 263 3 70 187 1

9 115 2 71 115, 189, 263, 289 112 307 2 74* 110, 111 118* 258, 263, 342 2 75* 109, 112, 258, 258-3, 263 124* 111 2 78 186 132* 109, 110, 111, 161, 263 2 80 368 133 307, 309, 317 2 81 115, 190, 357, 358 1

44 191, 209, 366 2 85 187, 253, 263, 353 163* 110, 111 2 86 258, 263 184 369 2 87 206-2, 358, 366 192 187 2 97 115 193* 110, 260, 263 2 72 115 0.7594 115 2 5 115, 189, 191, 209, 255, 263,

263-1, 3070.67

88 289 1.67 6 122, 189, 194, 263 0.6716 342, 345 1.5 10* 109, 115, 121, 340, 365 0.6740 364 1.5 91* 111, 263 0.6748 191, 366 1.5 31 127, 129, 146 0.676 187 1.5 96* 110, 258-3 0.5773* 109, 112, 258, 258-3, 263 1.33 25* 110, 111, 258-3, 341 0.5

79 187 1.33 36 115 0.542 149 1.3 37 186, 190, 199 0.57 121, 146, 189, 255, 263 1.29 47* 111 0.535* 110, 113, 258, 258-3, 263 1.25 60 ГИ 0.550 121 1.25 89 146, 190 0.577* 191, 255, 258-3, 258-5, 366 1.14 90 286 0.5

1 366 1 58* 110, 111, 161, 258-3 0.48 368 1 3 115, 121, 340, 365 0.3611* 111, 128, 407 1 4 127 0.3313* 115, 127, 146, 255, 340 1 19 115 014* 110, 258-3 1 23 121 017* 263 1 28 ГИ 0

20 115, 194, 289 1 29 115, 187, 309 021 115 1 34 187 022 115 1 38 115, 189 027 191, 209 1 39* 147, 258, 263, 348 030 190, 209, 364-1 1 45 125, 343, 357 0

40

41 368-2 1 49 289 0

43 286 1 56 115 046 342, 345 1 59 187 051* 111 1 61 115 054* 109 1 66 345 055 191, 209, 358, 368, 369 1 82 115 057 121, 365 1 95 ГИ 0

62 185 1 98 307, 309 0

Table 2.6: Cases, incriminated crimes (articles of the Criminal Code), and the total number ofviolations. “Political” (see signs of “political” trials on page. 32) cases are markedwith an asterisk (*).

Case Articles Viol. Case Articles Viol.

2 187, 190 5 64 289 126 286 4 65 258, 258-5, 263 183* 258-3, 437, 438 56 67 187, 289 252* 111, 263 10 68 191 153 115, 377 82 69 NA 115* 109, 110, 111, 128, 263 3 70 187 19 115 2 71 115, 189, 263, 289 1

12 307 2 74* 110, 111 218* 258, 263, 342 2 75* 109, 112, 258, 258-3, 263 124* 111 2 78 186 332* 109, 110, 111, 161, 263 2 80 368 133 307, 309, 317 2 81 115, 190, 357, 358 144 191, 209, 366 2 85 187, 253, 263, 353 163* 110, 111 10 86 258, 263 1

84 369 2 87 206-2, 358, 366 192 187 2 97 115 393* 110, 260, 263 2 72 115 394 115 2 5 115, 189, 191, 209, 255, 263,

263-1, 3072

88 289 5 6 122, 189, 194, 263 216 342, 345 3 10* 109, 115, 121, 340, 365 640 364 3 91* 111, 263 2

48 191, 366 3 31 127, 129, 146 376 187 3 96* 110, 258-3 473* 109, 112, 258, 258-3, 263 4 25* 110, 111, 258-3, 341 179 187 4 36 115 142 149 13 37 186, 190, 199 17 121, 146, 189, 255, 263 9 47* 111 135* 110, 113, 258, 258-3, 263 5 60 ГИ 2

50 121 5 89 146, 190 177* 191, 255, 258-3, 258-5, 366 8 90 286 11 366 1 58* 110, 111, 161, 258-3 6

41

8 368 1 3 115, 121, 340, 365 411* 111, 128, 407 1 4 127 113* 115, 127, 146, 255, 340 1 19 115 014* 110, 258-3 5 23 121 0

17* 263 2 28 ГИ 020 115, 194, 289 1 29 115, 187, 309 021 115 2 34 187 022 115 3 38 115, 189 027 191, 209 1 39* 147, 258, 263, 348 030 190, 209, 364-1 1 45 125, 343, 357 041 368-2 1 49 289 0

43 286 1 56 115 046 342, 345 1 59 187 051* 111 1 61 115 054* 109 1 66 345 055 191, 209, 358, 368, 369 1 82 115 057 121, 365 1 95 ГИ 062 185 1 98 307, 309 0

42

3 Reports of the monitoring of courtsessions in 2020

The third part of the report includes the textsof reports prepared by ISHR experts during2020. This information makes it possible totrack the development of the judicial processin each particular case, to understand hownegative trends were formed, to see whetheror not the participants in the trial tried toprevent their formation.Trials are presented in alphabetical order,

and reports on specific court sessions are pre-sented chronologically.

3.1 The trial of EvgenyAnisimov and others

Monitoring of the case of Anisimov E.A.and others (session 04.16.2020)

On April 16, 2020, in the Zavodskoy DistrictCourt of Zaporozhye, an open court session washeld on charges of Evgeny Alexandrovich Anisi-mov, a Ukrainian businessman, of creating acriminal organization, extortion with threatsof violence, illegal possession of weapons and anumber of other articles of the Criminal Code.

In connection with the introduction of quar-antine on the territory of Ukraine, ISHR ob-servers monitored the observance of the rightto a fair trial using the official online broadcaston the judicial authority’s website.The course of the hearing. At the prepara-

tory hearing the defender of the accused -Krivko Yu.M. failed to appear (as it becameclear from the broadcast), having sent by maila request to postpone the hearing of the crimi-nal proceedings in connection with quarantineand the inability to appear at the hearing fromthe Kiev region.The lawyer of one of the victims, A. Arte-

mov considered it appropriate to raise the is-sue of appointing a new defense counsel tothe accused Anisimov Evgeny from amongthe lawyers of the Regional Center for FreeSecondary Legal Assistance. The prosecutor,

the victims and their representatives also sup-ported the idea of attracting another defender.The accused himself objected to the appli-

cation. Having heard the opinion of the par-ticipants in the proceeding, having examinedthe materials of the criminal proceedings, thecourt came to the following conclusion: counselof the accused, Krivko Yu.M., repeatedly failedto appear at the preparatory hearing and livesin the Kiev region, in connection with the in-troduction of quarantine on the territory ofUkraine, one of the measures to prevent andspread the coronavirus in Ukraine is the closureof passenger traffic between cities; there is alikelihood of non-arrival of counsel for the nextpreparatory hearing. The court also empha-sized that at the last court session the accusedE. Anisimov informed the court that beforethe start of the preparatory court session hewould conclude an agreement with anothercounsel who would defend him, but the newdefender did not appear at the preparatorycourt hearing.

In accordance with Part 1 of Art. 49 of theCode of Criminal Procedure of Ukraine, a pros-ecutor or a court is required to ensure theparticipation of a defense counsel in criminalproceedings in cases where, in accordance withthe requirements of Art. 52 of the Code ofCriminal Procedure of Ukraine, the participa-tion of a defense counsel is mandatory, andthe accused did not attract a defense counsel.According to Part 1 of Art. 52 of the Code

of Criminal Procedure of Ukraine, the partic-ipation of a defense counsel is mandatory incriminal proceedings in relation to particularlyserious crimes.Considering the prosecutor’s request for a

lawyer for the defense, the court took intoaccount the circumstances of the case, in par-ticular, the increased public danger of crimi-nal offenses and the significant public outcry,the mandatory participation of the defenseattorney in criminal proceedings in relationto particularly serious crimes, and concluded

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that it is advisable to bring a defense attorneyin criminal production for the purpose of thedefense.

In accordance with the requirements of Part2 of Art. 49 of the Code of Criminal Procedureof Ukraine, the court in the deliberation roomissued a ruling to appoint a lawyer to E.A.Anisimov and to ensure his arrival at 10:30am, 05/07/2020 in the Zavodsky district courtof the city of Zaporozhye to provide protectionas intended.

However, Article 6 of the Convention for theProtection of Human Rights and Fundamen-tal Freedoms (hereinafter referred to as theConvention) recognizes that everyone chargedwith a criminal offense has at least the rightto defend himself in person or through legalassistance of his own choosing.The relevant provisions are guaranteed by

Article 59 of the Constitution of Ukraine:“Everyone has the right to legal assistance. . . Everyone is free to choose a defender oftheir rights.”The ECtHR reiterates that, although it is

not absolute, the right of everyone chargedwith a criminal offense to the effective assis-tance of a lawyer is one of the main features ofa fair trial (“Krombach v. France”). A personaccused of committing a criminal offense whodoes not wish to defend himself on his ownshould be able to resort to free legal assistance(“Hanzevacki v. Croatia”).

The principle of “right to defense” is in linewith international human rights standards,which underlie the principle of a fair trial, themain purpose of which is to protect the ac-cused from pressure from the authorities. Italso aims to prevent miscarriages of justiceand to fulfill the objectives of Article 6 of theConvention, especially the equality of partiesto the investigation or prosecution and the ac-cused (“Salduz v. Turkey”, “Bykov v. Russia”,“Pishchalnikov v. Russia”).

The second question raised by the courtwas concerning the criminal proceedings ofAndrei Anatolyevich Grechkovsky and ElenaVasilievna Bondarenko on charges of extortionas part of an organized group, grievous bod-ily harm and drug possession. The case is at

the stage of preparatory proceedings. An issueof combining the above criminal proceedingsand criminal proceedings on charges of EvgenyAnisimov needs to be resolved. A measure ofrestraint to the accused Grechkovsky Andreiand Bondarenko Elena was not select.The prosecutor requested a decision at the

discretion of the court. All the accused and thedefenders of the accused objected to combiningthese criminal proceedings. Representatives ofthe victims Gladky D.V., Soloviev V.M., Arte-mov A.I. supported the opinion of the prose-cutor. The victims themselves did not objectto the unification of criminal proceedings.

Having heard the opinion of the participantsin the trial, having examined the materialsof the criminal proceedings, given that thecharges brought by the accused in the crimi-nal proceedings for a number of episodes areidentical in essence, the same victims and wit-nesses participate in both trials, the panel ofjudges concluded that it would be expedientto combine criminal proceedings on charges ofAnisimov E., Grechkovsky A. and BondarenkoE. in one proceeding with the aim of a full,comprehensive and objective consideration ofcriminal proceedings.ISHR would like to note that this criminal

proceeding has been in the court of first in-stance since April 08, 2019, but due to theself-recusation of judges who participated inthe pre-trial investigation stage and the inabil-ity to assemble a panel of judges in full force,it was transferred from the Ordzhonikidze dis-trict court of Zaporozhye to the ZhovtnevyDistrict Court of Zaporozhye, and from Febru-ary 17, 2020 the criminal proceedings againstEvgeny Anisimov were submitted to the Za-vodskoy District Court of Zaporozhye.

In addition, in this session, quarantinenorms were observed by all participants in thetrial, except for the accused Anisimov Evgeny,who was without a protective mask.

Monitoring the case of Anisimov E.A.,Grechkovsky A.A., Bondarenko E.V.(hearing on May 29, 2020)

On May 29, 2020, in the Zavodskoy DistrictCourt of Zaporozhye, an open court session

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was held in a resonant criminal case on chargesof: Anisimov E.A., a well-known business-man in Zaporozhye, in creating a criminalorganization, extortion with threats of vio-lence, and illegal possession of weapons anda number of other articles of the CriminalCode, Grechkovsky A.A. in attempted mur-der from hooligan motives, intentional murderfrom hooligan motives, extortion committedby prior conspiracy by a group of people, illegalsale of narcotic drugs, psychotropic substancesor their analogues, Bondarenko E.V. accusedof extortion committed by an organized group.

In connection with the operation of the quar-antine regime on the territory of Ukraine, mon-itoring of the observance of the right to a fairtrial and other rights of the accused underthe Convention for the Protection of HumanRights and Fundamental Freedoms was carriedout by the ISHR observer on the official onlinebroadcast of the session, which was conductedon the website of the Judicial Authority ofUkraine.The course of the hearing. The lawyer of

the accused E. Anisimov, Krivko Yu.M., wasfinally able to arrive at the hearing, althoughMorgun A.E., appointed by the court from thecenter of free legal assistance also attendedand formally continued to serve as the lawyerof the accused E. Anisimov.Also, instead of the prosecutor Bychkov

V.A., who previously participated in the caseof the journalist Pavel Volkov (previously mon-itored by the ISHR), another prosecutor of theZaporozhye regional prosecutor’s office, Ko-rkh D.A., immediately appeared that he waspart of the group of prosecutors in the caseand from that moment it will be he who willrepresent the prosecution in this case.The first procedural action of a lawyer

Krivko Yu.M. was an attempt to file a motionto challenge the prosecutor, filed in advanceby the accused E. Anisimov. As the petitionconcerned the challenge of the prosecutor V.Bychkov, who was absent from the hearing,having consulted on the spot, the court de-cided that this challenge would be consideredif and when the prosecutor V. Bychkov himselfappeared at the hearing.

After that, the accused E. Anisimov accusedthe court of “draining” [verbatim] informationabout the petition filed by him to challengethe prosecutor’s office and left the room in thepre-trial detention center, from which he par-ticipated in the hearing in the form of a videocommunication session, showing disrespect forthe court.

In this regard, the prosecutor demanded thatthe court apply the norms of article 330 of theCode of Criminal Procedure of Ukraine to theaccused E. Anisimov, according to which, ifthe accused violates the order in the courtroomor does not obey the orders of the presidingjudge, the court can remove the accused fromthe courtroom temporarily or until the end ofthe trial .

The lawyers of the other accused noted thatthe prosecutor incorrectly pointed out the pro-visions of the article, since in this case the crim-inal proceeding provides for an official warningto the accused, and in case of repeated viola-tion, the court can already remove the offenderfrom the courtroom.

Presiding judge Marchenko N.V. announceda technical break so that the employees ofthe pre-trial detention center would return E.Anisimov to the room, from where the videocall session was held. E. Anisimov during thisbreak returned to this room. Even the courtclerk had to participate in persuading the ac-cused not to leave the room in the future,and to declare all his claims and petitions di-rectly to the court collegiums. After whichJudge Marchenko issued an official warning toE. Anisimov that if he still leaves the room,the court will remove him from the hearing, inaccordance with the provisions of Article 330of the Code of Criminal Procedure. To whichthe accused stated that he refused to take partin the hearing, and the lawyer Krivko Yu.M.announced the challenge of the panel of judges.

According to the lawyer, the court, combin-ing the case of E. Anisimov and the case of A.Grechkovsky and E. Bondarenko in one pro-ceeding, moreover, in that hearing where he,the defense attorney, could not attend becauseof quarantine, violated the accused’s right todefense.

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It should be noted that the proper exerciseof the right to defense in criminal proceed-ings requires the application of the practiceof the European Court of Human Rights, inaccordance with the legal position of which,in particular, the decisions of the EuropeanCourt in the case of “Nechiporuk and Jonkalov. Ukraine”, the right of each accused to effec-tive defense, provided by counsel . . . is one ofthe main features of a fair trial. ” The judg-ment of the European Court in “Crombachv. France” states that “although the right ofevery person accused of a criminal offense toeffective defense by a lawyer is not absolute, itis one of the main grounds for a fair trial”.

The prosecutor objected to the lawyer’s mo-tion that the motion to challenge the panel ofjudges was an abuse of the rights of the lawyerand the accused. The prosecutor also said thatsuch actions aimed, in his opinion, to delaythe proceeding, violate the rights of victims inthis case.

Having returned from the deliberation room,the court announced the ruling on the refusalto challenge the judicial board, while referringto the norms of Articles 75, 76 of the Code ofCriminal Procedure of Ukraine, according towhich the lawyer Krivko Yu.M. did not citethe grounds for challenge, which are indicatedin the articles of the code, and the argumentsof his application contain only the grounds forappealing the decisions and the court verdict.The court continued the hearing, while the

prosecutor and the lawyer asked the court toconsider, first of all, petitions for measures ofrestraint for the accused.Prosecutor Korkh D.A., read out a request

for an extension of the measure of restraint inthe form of detention for E. Anisimov, as wellas for A. Grechkovsky and E. Bondarenko - inthe form of a round-the-clock house arrest.The court heard the opinions of lawyers

who insisted that, under the charges in thesame case, their clients A. Grechkovsky andE. Bondarenko had already applied a mea-sure of restraint in the form of detention andeach of them spent several years in a pre-trial detention center (and with taking intoaccount the “Savchenko law”, the period of

stay in the pre-trial detention center is con-sidered to be doubled), at the moment, theyare employed, successfully socialized, while notviolating their procedural duties and require-ments of the court. Having clarified the opin-ions of all participants in the proceeding, thecourt retired to the deliberation room.After discussion, the court adopted a deci-

sion to satisfy the prosecutor’s application forthe extension of detention without assigningbail to the accused E. Anisimov for 60 days,until July 27, 2020; refuse to satisfy the re-quest for a measure of restraint in the form ofround-the-clock house arrest for the accusedA. Grechkovsky and E. Bondarenko.

At this hearing, which lasted a total of morethan five hours, ended.

It also remains unclear whether the need forparticipation in this case by the lawyer A.E.Morgun, appointed by the court to E. Anisi-mov from the center for free secondary legalassistance (despite the fact that the court rul-ing of April 2, 2020 states that such a lawyeris involved in one procedural action - consid-eration of the prosecutor’s application for anextension of the measure of restraint to E.Anisimov). According to Ukrainian law, theparticipation of a “state” lawyer together witha lawyer under the contract is not providedfor by agreement. The International Societyfor Human Rights already faced a similar vi-olation in the case of V. Yanukovych, whenthe board of the Obolonsky district court inKiev decided to appoint a public defender asthe sixth in a group of five lawyers under thecontract.

The case law of the European Court of Hu-man Rights draws attention to the fact thatthe right to choose a lawyer is not absolute.Avoiding interruptions or rescheduled courthearings is in the interest of justice, which jus-tifies the appointment of a free defense counselcontrary to the defendant’s wishes (“Karpyukand Others v. Ukraine”). In this regard, vi-olations of paragraph 1 and paragraphs “C”of paragraph 3 of Art. 6 of the Convention,in connection with the appointment of a freedefense counsel to the applicant, the ISHRdid not see. In the case of “Lagerblom v. Swe-

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den”, the European Court of Justice indicatedthat the accused’s right to counsel “of his ownchoosing” is limited in a certain way when itcomes to free legal aid. When appointing a de-fense attorney, the courts, although they musttake into account the defendant’s desire, canact against such a desire if there are relevantand sufficient reasons to believe that the inter-ests of justice require this.” A similar decisionwas made in the case of “Dvorski v. Croatia”,where it was also noted that, theoretically, ifa suspect receives the assistance of a quali-fied defense attorney, bound by standards ofprofessional ethics, instead of another defenseattorney whom he would prefer to appoint, thisalone is not enough, in order to conclude thatthe entire trial was generally unfair, with theproviso that there was no evidence of obviousincompetence or bias. ”Nevertheless, if in this way one could try

to justify the involvement of a “state” lawyerat the last court session, where there was nodefense attorney under the contract, despitethe protests of the accused, the participation ofa lawyer from the secondary legal aid center isnot determined by the practice of the ECtHRor national legislation. In addition, these courtactions can be perceived as a violation of theright to a defense and a fair trial, guaranteed byArticle 6 of the Convention for the Protectionof Human Rights and Fundamental Freedoms.

Monitoring the cases of E. Anisimov, A.Grechkovsky, E. Bondarenko (hearing onMay 18, 2020)

OnMay 18, 2020, the Zavodskoy District Courtof Zaporozhye, in an open hearing, contin-ued to consider the criminal case on chargesof: Anisimov Evgeny Aleksandrovich, a well-known Ukrainian businessman in creating acriminal organization, extortion against Za-porozhye businessmen with threats of violenceand a number of other articles of CriminalCode, Bondarenko Elena Vasilievna in extor-tion committed by an organized group, as wellas Andrei Anatolyevich Grechkovsky - in inten-tional murder related to the activities of theabove organized group, and other crimes. Thedecision to combine the proceedings against

E. Anisimov, as well as A. Grechkovsky andE. Bondarenko was made by the court at thehearing on April 16 (report for 04/16/2020).

In connection with the operation of the quar-antine regime on the territory of Ukraine, mon-itoring of the observance of the right to a fairtrial and other rights of participants in the pro-ceedings provided for by the Convention forthe Protection of Human Rights and Funda-mental Freedoms was carried out by the ISHRobserver using the official online broadcast ofthe hearing on the website of the Judicial Au-thority of Ukraine.The course of the session. At this hearing

the lawyer of the accused E. Anisimov - KrivkoYu.M. once again could not come. At the sametime, the lawyer Krivko Yu.M. notified thecourt in writing that due to quarantine oper-ating throughout Ukraine, he was unable toget to the court in the city of Zaporozhye andasked to postpone the hearing.Earlier, the court issued a ruling (on

05/07/2020) and ordered the Regional Cen-ter for the provision of free secondary legalassistance to appoint a defender from the cen-ter of free legal aid to defend the accused E.Anisimov, and to ensure his appearance atthe hearing on 05/18/2020 in the ZavodskyDistrict Court of Zaporozhye.

The lawyer Morgun A.E., appointed by theCenter for the provision of free legal assistance,appeared at the hearing. The accused E. Anisi-mov himself took part from the pre-trial de-tention center in a video conference mode.

The session began by considering the appli-cations of the participants in the proceeding.The first to consider the petition of the lawyerof one of the victims for holding hearings inclosed court. Having interviewed all the par-ticipants, the court decided to postpone thesolution of this issue until a decision is madeon the fact of the appointment to the consid-eration of the case.

Then the court went on to consider the appli-cation for recognition as a victim - according toa statement from one of the individuals claim-ing to have suffered from the activities of E.Anisimov in Zaporozhye. But the prosecutor V.Bychkov did not support this petition, arguing

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that he was not aware of the investigation ofthis episode.At that moment, accused E. Anisimov

turned to the court via video link. At first,the court did not give him the opportunity toread out the application, but, having conferredon the spot, court gave him the floor.The essence of the petition of E. Anisimov

was that he refuses to take part in the trialwithout his lawyer Krivko Yu.M., and so farhe cannot take part in court hearings becauseof the quarantine announced by resolution ofthe Cabinet of Ministers of Ukraine No. 211 of11 March 2020 “On preventing the spread ofthe COVID-19 coronavirus in Ukraine” (withthe subsequent extension of the quarantineperiod), since the lawyer lives in the Kievskyregion and is unable to come, on this basis E.Anisimov insists on reschedule the hearing.

Also, the accused E. Anisimov categoricallydisagrees that the court, contrary to his wishesand the fact that Anisimov has already con-cluded a legal assistance agreement with hislawyer, appointed him a free lawyer from thecenter of free legal assistance. He refers to thefact that the lawyer appointed by the courtdid not familiarize himself with the materialsof the criminal case, and the accused cannotcoordinate and determine the procedure andmethod of defense with him, being guided bythe norms of part 1 of article 47 of the Crim-inal Procedure Code of Ukraine, accordingto which the defender is obliged to use themethods of protection provided for Code andlaws, in order to ensure compliance with therights, freedoms and legitimate interests of theaccused.

At the same time, he referred to the norms ofthe Constitution of Ukraine, the Code of Crim-inal Procedure of the Law on Free Legal Aid,according to which he has the right to choosehis own defense counsel, and the provision offree secondary legal assistance is terminatedif the person uses the services of another de-fense counsel or involves another lawyer in thecase. The accused himself attracted a lawyerKrivko Yu.M. for his defense and insists thatthis lawyer defend him in this proceeding, andrefuses to participate in hearings without him.

Also, the accused asked the court to ap-ply the rule of part 1 of Article 324 of theCode of Criminal Procedure of Ukraine, ac-cording to which, if the lawyer did not arrivein the hearing, in which the participation ofthe lawyer is mandatory, the court postponesthe hearing and determines the date of the newsession to enable the lawyer Krivko Yu.M. toappear in court in the city of Zaporozhye. Hav-ing submitted a petition, E. Anisimov statedthat without a lawyer Krivko Yu.M. he will nolonger answer any court questions, however,the court tried to continue the hearing andconsider the petitions of other participants inthe proceeding.

After that, the accused E. Anisimov left theroom in the pre-trial detention center, fromwhich the video conference was held with thecourt room and returned only to participatein the consideration of the postponement ofthe hearing.Despite the objections of some of the vic-

tims and their lawyers, who insisted on thecontinuation of the hearing, the court, havingconferred on the spot, decided to postpone theconsideration of the case until May 29, 2020.

The court also announced that the petitionof the prosecutor to extend the measure ofrestraint to the accused E. Anisimov, in theform of detention, will be considered on May29, 2020.

The ISHR observer considers it necessaryto note that according to the case law of theEuropean Court of Human Rights, appointinga lawyer from a legal aid center instead of alawyer with whom the accused has enteredinto an agreement on legal assistance, is aviolation of the right to a fair trial and theright to defense, guaranteed by Article 6 ofthe Convention for the Protection of HumanRights and Fundamental Freedoms.

Thus, in a judgment of the Grand Chamberof the European Court of Human Rights in thecase of “Dvorski v. Croatia”, the following isnoted: “. . . Theoretically, if a suspect receivesthe assistance of a qualified defense attorney,bound by professional ethics standards, insteadof another defense attorney whom he wouldprefer to appoint, then this alone is not enough

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to conclude that the whole trial was unfair,with the proviso that there was no evidencesheer incompetence or bias. . . ”

The International Society for Human Rightshas repeatedly faced an attempt to attract“state” defenders not so much to ensure theright to defense of the accused, but rather toprevent a delay in the judicial review of thecase (for example, the case of V. Yanukovich,the case of V. Muravitsky). Nevertheless, sucha goal, in the opinion of the ISHR, cannot beconsidered justified if it jeopardizes one of themain components of the right to a fair trial- the right of a person to defend himself inperson or through legal assistance of his ownchoosing (Article 6 of the European Conven-tion on Human Rights).Thus, the court’s decision to postpone the

consideration of the case due to the inabilityof the lawyer to appear at the hearing forobjective reasons cannot be considered onethat delays the process of the consideration ofthe case.Given the gravity of the crimes of which

the three accused in this criminal process arecharged, as well as the public outcry of the case,the International Society for Human Rightswill continue to monitor this case.

3.2 The trial of SergeyAtroshchenko and others

Monitoring of criminal proceedings ofAtroshchenko S.P., Zolotarev A.V., KobakI.V. (session 03.13.20)

On March 13, 2020, a hearing was held in theMoscow District Court of Kharkov in case No.643/13126/18 on charges of Sergey PavlovichAtroshchenko (part 4 of article 189, part 2 ofarticle 15, part 2 of article 28, part 2 Article194, Part 2 Article 28, Part 2 Article 194, Part2 Article 15, Part 3 Article 28, Part 2 Article189, Part 3 Article 28, Part 2 Art. 122, part 1of article 263 of the Criminal Code of Ukraine),Artem Vladimirovich Zolotarev (part 2 of ar-ticle 15, part 3 of article 28, part 2 of article184, part 3 of article 28, part 2 of article .122,part 1 of article 263 of the Criminal Code of

Ukraine), Kobak Ivan Vladimirovich (part 2of article 15, part 3 of article 28, part 2 of ar-ticle 184, part 3 of article 28, part 2 of article122 Criminal Code of Ukraine). This case waschosen by the International Society for HumanRights due to the complication of the processof monitoring the observance of the right to afair trial during the quarantine period.The indictment has arrived at the Moscow

District Court of Kharkov on September 14,2018.

On March 13, 2020, it was planned to inves-tigate the case file and interrogate witnesses.However, during the trial, the prosecutor re-fused several witnesses and promised to en-sure the presence of another witness at thenext hearing. In addition, the prosecutor filedseveral documentary evidence, which were at-tached to the case file.Also, at this session, the panel of judges

decided to consider extending the measure ofrestraint by the accused. The initiator of theconsideration of the issue was the court itselfdue to the planned vacation of judges. However,it should be noted that the issue of extensionwas considered only a month ago - on February11, 2020, and the terms of the measure ofrestraint were not yet coming to an end.Since the parties were not ready to con-

sider the issue of the measure of restraint, theprosecutor limited his position to the follow-ing phrase: “Risks have not disappeared andcontinue to exist”, without revealing and sub-stantiating the risks themselves.

The defense has outlined its position againstthe extension of detention with the followingarguments: - the issue cannot be consideredwithout the filing of a petition by the prosecu-tor and, accordingly, its delivery to the defense;- the court extends the terms referring to thesame circumstances (there were 12 extensionsof the terms of detention); - the issue of mea-sures of restraint was not considered separatelyfor each of the accused.

The International Society for Human Rightsnotes that according to article 331 of the Crim-inal Code, the court has the right to initiateconsideration of the advisability of extendingthe measure of restraint in the form of de-

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tention until the expiration of the previouslyextended line. But, firstly, the period of deten-tion has not yet expired, and, secondly, thecourt must adopt a reasoned determinationbased on the results of the review. An excep-tional measure of restraint, such as detention,in accordance with the provisions of Ukrainianlaw (Article 183 of the Criminal Code) canbe applied only if the prosecutor proves thatnone of the milder measures of restraint canbe sufficient. A full video broadcast of the ses-sion, analyzed by the ISHR observer, confirmsthe fact that the formal requirements of thecriminal proceeding were not met.

The European Court of Human Rights notesthat the domestic courts must first ensure thatin a particular case the pretrial detention ofthe accused does not exceed a reasonable time.To do this, they must, taking due accountof the principles of the presumption of inno-cence, investigate all circumstances of the case,which can confirm or refute the existence of asocial need that justifies deviations from therequirement to respect individual freedom andindicate this in their decisions on the extensionof detention. The question of whether therehas been a violation of paragraph 3 of Art. 5for the protection of human rights and fun-damental freedoms (hereinafter - the Conven-tion), the Court must decide, relying mainlyon the grounds given in these decisions (“I.A.v. France”, paragraph 102).

According to paragraph 3 of Art. 5 of theConvention after a certain period of time, themere existence of reasonable suspicion doesnot justify the deprivation of liberty, and thecourts must give other reasons for the exten-sion of detention (“Borisenko v. Ukraine”, para.50). Moreover, these grounds must be clearlyindicated by the national courts (“Eloev v.Ukraine” para. 60, “Kharchenko v. Ukraine”para. 80).The ISHR often found a violation of para-

graph 3 of Art. 5 of the Convention in caseswhere national courts continued to be detained,referring mainly to the gravity of the chargesand using template language, without evenconsidering specific facts or the possibility ofalternative measures (“Kharchenko v. Ukraine”,

paragraphs 80-81; “Tretyakov v. Ukraine” para.59).

The existence of a reasonable suspicion ofa crime committed by a detained person is aprerequisite for the legality of her continueddetention, but after the lapse of time such asuspicion will not be sufficient to justify pro-longed detention. The court never attemptedto transfer this concept into a clearly definednumber of days, weeks, months or years, orat different times depending on the gravity ofthe crime. Once “reasonable suspicion” is nolonger sufficient, the court must establish thatthe other grounds given by the courts continueto justify the person’s deprivation of liberty(“Maggie and Others v. The United Kingdom”,paras. 88-89).

The Court also recalls the immutability ofthe grounds for suspicion. The fact that thearrested person has committed an offense isa sine qua non condition in order for his con-tinued detention to be considered legal, butafter a while this condition ceases to be suf-ficient. Then the Court must establish othergrounds on which the decisions of the judi-ciary are based, continue to justify the depri-vation of liberty. If these grounds turn out tobe “relevant” and “sufficient”, then the Courtwill ascertain whether the competent nationalauthorities found “special good faith” in theconduct of the proceedings (“Labita v. Italy”,paragraph 153).

As a result of the judicial review, the Courtdecided to extend the terms of detention foranother 60 days.

Representatives of ISHR are concernedabout this situation. The period of detention inthis case was automatically extended, withoutthe request of the prosecutor and the consider-ation of the risks themselves during the trial,without discussion of the parties.

In addition, we came to the conclusion thatin 2020, part of the monitoring should be car-ried out in cases that are “not popular” amongthe media and international organizations, andare not “political”. Since they cannot be ig-nored.

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Monitoring the case of Atroshchenko S.P.,Zolotarev A.V., Kobak I.V.(hearing04/29/2020)

Monitoring the case of Atroshchenko S.P.,Zolotarev A.V., Kobak I.V. On April 29, 2020,a hearing was held in the Moscow DistrictCourt of Kharkov in case No. 643/13126/18on charges of Atroshchenko Sergey Pavlovich,Zolotarev Artem Vladimirovich, Kobak IvanVladimirovich.

The defendants are suspected of organizingexplosions and arson of the pharmacy chains“911” and “Wholesale prices pharmacy” inKharkov. The indictment entered the MoscowDistrict Court of Kharkov on September 14,2018.

During the trial, the prosecutor attachedsome evidence to the case file.

In fact, the whole court session was reducedto the fact that the prosecutor read out thenames of the attached documents. After that,the lawyers and the accused expressed theirposition regarding the evidence.Acts of the Ministry of Justice of Ukraine,

recommendations of the UN Monitoring Mis-sion for Human Rights focus on the need toestablish close cooperation with the judiciaryon the possibility of holding court hearingsmainly in the form of video-conference.At the hearing on April 29 there were a

panel of judges, a prosecutor, three lawyers,a representative of the victim, three accusedand a convoy. In the current situation, whenCOVID-19 cases are recorded in the pre-trialdetention center, only video conferences canensure the safety of individuals.As provided for by Art. 336 of the Code

of Criminal Procedure of Ukraine, judicialproceedings may be carried out by video-conference during broadcasting from anotherpremises, including those located outside thecourthouse (remote judicial proceedings), inthe event of: 1) the impossibility of direct par-ticipation of a participant in criminal proceed-ings in hearing for health reasons or other validreasons; 2) the need to ensure the safety ofpersons; 3) the interrogation of a minor wit-ness or a victim; 4) the need for such measuresto ensure the speed of judicial proceedings; 5)

the presence of other grounds determined bythe court sufficient. The court decides on theimplementation of remote judicial proceedingson its own initiative or at the request of a partyor other participant in the criminal proceed-ings. If the party to the criminal proceedingsor the victim objects to the implementation ofthe remote trial, the court can decide on itsimplementation only by a reasoned determina-tion, justifying the decision. The court doesnot have the right to decide on the implemen-tation of remote trial, in which the accused isoutside the courthouse, if he objects to this.

We do not know whether the issue of holdinga hearing in the video-conference mode wasraised. However, on the example of this case,the International Society for Human Rights fo-cuses on the fact that the safety of the accusedand the situation in the pre-trial detentioncenter in many respects depends on the posi-tion of the court regarding the holding of courthearings by videoconference. And in today’sconditions, the petition of a party to criminalproceedings is not necessary for this. The courtcan initiate such a regime on its own, becausehuman life and health are the highest value.

This proceeding was chosen by the Interna-tional Society for Human Rights in connectionwith the complication of the process of moni-toring compliance with the right to a fair trialduring the quarantine period. The next hear-ing will be held on May 17, 2020.

Monitoring of criminal proceedingsAtroshchenko S.P., Zolotarev A.V., KobakI.V. (06/01/2020)

On June 1, 2020, a hearing in case No.643/13126/18 was held in the Moskovsky Dis-trict Court of Kharkov on the charges of SergeiPavlovich Atroshchenko, Artem VladimirovichZolotarev, Ivan Vladimirovich Kobak. The ac-cused are suspected of organizing the bombingsand arson of the “911” and “Wholesale Prices”pharmacy chains in Kharkov.Monitoring of criminal proceedings

Atroshchenko S.P., Zolotarev A.V., KobakI.V. is carried out, in connection with thequarantine, by watching video broadcasts onthe website of the Judicial Power of Ukraine.

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During the trial, the prosecutor continuedto attach evidence to the case file.As a reminder, in the report of the ISHR

dated 03.13.2020, we focused on the problem ofautomatic prolongation of detention in case No.643/13126/18. At the court session on March13, 2020, the panel of judges itself initiatedthe consideration of this issue and, as a result,the terms were extended.

One of the defenders - Stavrov S.Y. filed anappeal against the court’s decision to extendthe terms of detention in relation to his clientS.P. Atroshchenko. However, the KharkovskyCourt of Appeal, by its decision of 05.12.2020,rejected the complaint, arguing the refusal asfollows: taking into account the factual circum-stances of the criminal proceedings, the illegalactions that are incriminated to AtroshchenkoS.P., committed according to the version of thepreliminary investigation body, which the pros-ecutor considers proven, the accused took bydamaging and destroying property on a largescale, out of mercenary motives, organized bya group of persons, according to a preliminaryconspiracy, by means of an explosion, that is,in a generally dangerous way, with the use ofRGD-5 fragmentation grenades in a numberof episodes, and therefore, in the opinion ofthe panel of judges, there is a public interestin this criminal proceeding, which is the needto protect high standards of protection of therights and interests of both society and vic-tims. At the same time, it should be borne inmind that it is precisely because of the publicdanger of such actions that there are objec-tive reasons to believe that the accused maybe hiding from law enforcement agencies andthe court, which, in turn, will lead to a viola-tion of reasonable terms of the trial, as wellas to improper observance by the parties oftheir procedural rights and responsibilities. Insuch circumstances, the panel of judges didnot agree with the appellate arguments of thedefense about the absence or loss of relevanceof the risks that existed at the time of the se-lection of the measure of restraint in the formof detention, since the risk is an event that islikely to occur if there are certain grounds.Also, on 07/05/2020, the Moskovskiy Dis-

trict Court of Kharkov once again extendedthe measure of restraint for the accused inthe form of detention. In addition, the courtdrew attention to the failure to fulfill the obli-gations imposed on the prosecutor. “. . . Thecourt draws attention to the fact that the obli-gation to prove the circumstances providedfor by Article 91 of the Code of Criminal Pro-cedure of Ukraine is assigned in this case tothe prosecutor, however, the prosecution didnot take measures for the purpose of a prompttrial and examination of the available evidence,which leads to repeated interruptions in courthearings and a violation of the principle ofadherence to reasonable time limits. In suchcircumstances, given the fact that the case hasbeen pending at the Moskovsky District Courtof Kharkov for a long time, the defendants arebeing held in custody, and the examinationof the evidence continues in violation of thereasonable time requirements, the court con-siders it expedient to ensure that the partiesto the criminal proceedings comply with theserequirements, to oblige the prosecution partyuntil May 21, 2020 to submit evidence to thecourt on the said criminal proceedings andto ensure the appearance of the prosecutionwitness at the hearing.

In the absence of a court decision dated05/21/2020, it can be concluded that, proba-bly, on 05/21/2020, the court session did nottake place. And on 06/01/2020, the prosecutoradded all the remaining evidence. However,the prosecution asked the court to allow timeto prepare for the examination of the audioevidence (the court did not have the necessarytechnical devices for the demonstration).

The indictment was received by the Moscov-sky District Court of Kharkov on September14, 2018. Thus, the case is being consideredin court for a year and 7 months and, as thecourt indicated, the stage of the examinationof evidence continues in violation of the re-quirements of reasonable time.

In its jurisprudence, the ECtHR insistentlydraws the attention of national courts “to aspecial duty to ensure that all parties involvedin the proceedings do their utmost to avoidundue delay in the consideration of the case”

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(“Vernillo v. France”). The provisions of Arti-cle 6 of the European Convention on HumanRights indicate that the accused cannot re-main in the dark about their fate for too long(“Nakhmanovich v. Russia”, para. 89, “Ivanovv. Ukraine”, para. 71).

According to the ECtHR, “by requiring theconsideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delays,which could jeopardize its effectiveness andcredibility” (“Vernillo v. France”, para. 38).

3.3 The trial of IgorAvramenko

Monitoring of criminal proceedings ofAvramenko Igor Aleksandrovich (hearing05/15/2020)

Monitoring of criminal proceedings ofAvramenko Igor Aleksandrovich (hearing05/15/2020) On May 15, 2020, a hearing washeld in the Zheltovodsky city court of theDnipropetrovsky region on charges of IgorAleksandrovich Avramenko in committinga criminal offense under Article 366 of theCriminal Code of Ukraine (official forgery).The indictment was submitted to the courton August 30, 2018. The International Societyfor Human Rights has decided to monitor theobservance of the right to a fair trial in thisproceeding (in the video broadcast mode) dueto the complexity of the work of the ISHRobservers during the quarantine period.On November 1, 2018, the indictment was

returned to the prosecutor by court order onthe basis that it did not meet the requirementsof the content and form, namely, the prosecutordid not give the circumstances of the injuryto the victim. A request for the return of theindictment was filed by the defense.In the appeal against the court decision on

the return of the indictment, the prosecutorindicated that the crime under Part 1 of Art.366 of the Criminal Code of Ukraine has aformal composition and provides for criminalprosecution without socially dangerous conse-quences, however, subject to the requirements

of Article 55 of the Code of Criminal Pro-cedure of Ukraine, a crime does not excludethe presence in such proceedings of a personwho may be harmed, including moral. So, ac-cording to the prosecutor, the indictment doesnot contain any contradictions regarding thecircumstances of the proceedings.As a result of consideration of the appeal

of the prosecutor, the court decision to re-turn the indictment was canceled. Later, arequest for the return of the indictment wasfiled by the victim, who indicated that theindictment, which is the result of a prelimi-nary investigation, was not set forth in full,it did not indicate all the components of theact to be established and proved at the hear-ing, in particular, the type and the amount ofdamage that was caused to him. The victim’srequest was granted by the Zheltovodsky CityCourt. Thus, the indictment was re-returned.But the prosecutor again filed an appeal andthe Dnipropetrovsky Court of Appeal over-turns the decision of the trial court.At this hearing (May 15, 2020), the court

did not begin consideration of the case, since:1. the victim did not appear at the hearing(although according to the court, he was dulynotified of the hearing); 2. the new prosecutorrequested time to familiarize himself with thecase file. The prosecutor, who previously rep-resented the prosecution, was dismissed fromthe prosecution. According to the new repre-sentative of the prosecution, he became awareof his participation in the case the day beforethe court hearing after the end of the workingday.

The defense did not object to the provisionof time to the prosecutor and his request wasgranted. The trial was adjourned.According to the observations of the repre-

sentatives of the ISHR, staff changes in theprosecutor’s office may adversely affect thereasonable time for considering cases through-out Ukraine. Judges spoke about this nega-tive trend at a regional working meeting inKharkov. Court hearings must be postponeddue to the failure of the prosecutors to appear.The reason for this was the certification pro-cedure of prosecutors of regional prosecutor’s

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offices. The ISHR will continue to monitor thisnegative trend.

In addition, it should be noted that the in-dictment in this case was submitted to theZheltovodsky city court of the Dnipropetro-vsky region on August 30, 2018. Thus, for ayear and 8 months now, the case has not beenheard. Two consecutive returns of the indict-ment at the initiative of the defense and thevictim significantly affected the time frame forthe consideration of the case. The last decisionof the court of appeal on the annulment of thedecision of the court of first instance to returnthe indictment to the prosecutor was madeon October 4, 2019. And only on January 17,2020, the next hearing was scheduled, which,as can be understood from the lack of courtdecisions, did not take place. And on May 15,2020, for the above reasons, the case cannotbe heard again.

Regarding this issue, Art. 6 of the EuropeanConvention on Human Rights recognizes theright of every person prosecuted in a crimi-nal case to receive a final decision within areasonable time on the validity of a chargeagainst him, more precisely, the achievementthat the accused did not remain for a longtime under the weight of the charge and that adecision was made on the validity of the charge(“Vemkhov v. Germany”, para. 18, “Julia Man-zoni v. Italy”, para. 25, “Brogan and others v.United Kingdom” para. 65).

Case law of the ECtHR aggressively drawsthe attention of national courts “to a specialduty to ensure that all parties involved in thetrial do everything in their power to avoidunjustified delay in the consideration of thecase” (“Vernillo v. France”). The provisionsof Article 6 of the European Convention onHuman Rights indicate that accused personscannot remain in ignorance for too long abouttheir fate (“Nakhmanovich v. Russia”, para. 89,“Ivanov v. Ukraine”, para. 71).

3.4 The civil proceedings ofLLC “BIOL”

Monitoring civil proceedings of LLC “BIOL”v. O. Dunaev (hearing 02/11/2020)

On February 11, 2020, the Zaporizhzhya Courtof Appeal heard civil proceedings on the ap-peal of the “BIOL” Limited Liability Companyagainst the decision of the Melitopol City Dis-trict Court of the Zaporizhzhya Region of De-cember 13, 2019 in the case on the claim ofO. Dunaev to LLC “BIOL” on debt collectionunder a lease agreement.We remind you that at the moment, the

Melitopol City Court is considering severallawsuits with the participants in this proceed-ing, including the lawsuit of O. Dunaev againstO. Shostak on the division of the “BIOL” plantlocated on the territory of Ukraine, and thelawsuit of O. Shostak against O. Dunaev onthe return of funds paid.

Consideration of this proceeding began witha statement of the attorney of the “BIOL” forattaching documents to the case file: copiesof “BIOL’s” statements regarding the commis-sion of criminal offenses, as well as letters fromthe National Police of Ukraine to commence apre-trial investigation on the grounds of crimi-nal offenses and extracts from the register ofpre-trial investigations for three criminal pro-ceedings. This petition was submitted withthe argument that the original of the contractappears in this case, which was not signed bythe director of the “BIOL” LLC and that itbecame known at the time of the hearing onDecember 29, 2019 when it was considered inthe court of first instance. Subsequently, thedirector of LLC “BIOL” initiated the submis-sion of applications to the Main InvestigationDepartment of the National Police of Ukraineon the grounds of criminal offenses under Art.15, 190, 358 of the Criminal Code of Ukraine- fraud, forgery of documents. The court de-cided to attach the documents to the case fileand study them simultaneously with other ev-idence in the deliberation room.

Due to the fact that in the court of first in-stance a copy ofthe lease agreement was addedto the case file, in which there are a number of

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disagreements with the lease agreement, whichwas signed by the director of “BIOL” LLC, therepresentative of “BIOL” LLC submitted thefollowing petition for the appointment of judi-cial handwriting and technical examinationsto clarify the originality of the signature in theLease Agreement in the column “Director of‘BIOL’ LLC – O. Shostak or another person”,as well as the validity of the seal of “BIOL”LLC.When considering the application for ex-

amination, the Court took into account thatthe consideration of this application dependsdirectly on whether it sees the original leaseagreements or not. And also, given that atthis stage the fact of the existence of the non-residential premises lease agreement itself isdisputed, court suggested that both partiesprovide the original non-residential premiseslease agreements and postpone the hearing toFebruary 25, 2020.

Monitoring civil proceedings LLC “BIOL” v.O. Dunaev (hearing 02/25/2020)

On February 25, 2020, the Zaporozhsky Courtof Appeal heard civil proceedings on the ap-peal of the LLC “BIOL” against the decision ofthe Melitopolsky City District Court of the Za-porozhsky Region of December 13, 2019 in thecase on the claim of O. Dunaev. to LLC “BIOL”on debt collection under a lease agreement.

We remind you that at the last hearing, theCourt invited both parties to provide the orig-inals of the lease of non-residential premises,since at this stage the fact of the existenceof the lease of non-residential premises wasdisputed, but none of the parties at the hear-ing on 02.25.20 provided the original of theagreement.Representatives of LLC “BIOL” said that

their original lease agreement was providedto the investigator of the National Police ofUkraine for judicial handwriting and techni-cal examination of the signature in the LeaseAgreement in the column “Director of BIOLLLC - O. Shostak or another person” and thevalidity of the seal of LLC “BIOL”, as evidencedby extracts from the Register.The representative of Dunaev, for his part,

stated that his client was abroad Ukraine anduntil the last moment he had sought the oppor-tunity to provide the original of the Agreement,again repeating that their original had beenprovided in the court of first instance and acopy was made from it, which was certifiedby the court and is in the case file. But nota single document confirming the words ofthe lawyer, including correspondence with theclient was not provided, which was emphasizedby the representative of LLC “BIOL” MalikAnastasia.

She also informed the court that the plain-tiff’s side had provided the original and a copyof the lease of non-residential premises at thatvery court session in which she was absent fora good reason. It should be noted that the ob-server of the International Society for HumanRights attended the hearing. The procedure forproviding the original contract and its assur-ance by the court was assessed by the objectiveobserver as such, which raises doubts aboutcompliance with the necessary procedural pro-visions of the Criminal Code and internationallaw (the situation was described in more detailin previous reports).

The representative of LLC “BIOL” made anoral request for the court to make a decisionto request the original lease of non-residentialpremises from O. Dunaev, to which the courtasked why the investigator did not withdrawthe lease agreement from O. Dunaev for thenecessary examination and dismissed this ap-plication. Which also casts doubt on the im-partiality of the court and its desire to studythe case file in detail, since at the first hearingthe court considered that the existence of leaseagreements was necessary.

Having read the appeals of both parties, af-ter hearing the explanations, arguments andreasoning of both parties, the court consid-ered them insufficiently reasoned and left thedecision of the trial court unchanged.In the case of “Bochan v. Ukraine”, the ap-

plicant complained that, when considering hercomplaint, the Supreme Court “lost sight ofsome important aspects of the case, in particu-lar the question of the authenticity of the maindocumentary evidence on which the decisions

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of the national courts were based” (paragraph29), that The Court has found a violation ofArticle 6 of the ECHR, namely the right to afair trial.

3.5 The trial of Igor Bliznyukand others

Monitoring of criminal proceedings ofBliznyuk I.A., Golovkin A.O., KhlapovskyYu.M. (sessions 03.10.2020 and03.11.2020)

On March 10, 2020, a hearing was held inthe Ordzhonikidze district court of Kharkovin the case No. 644/192/18 on charges ofI.A. Bliznyuk, A.O. Golovkin, and Yu.M.Khlapovsky (part 1 of Article 255, part 4 ofarticle 28, part 3 of article 146, part 4 of article28, part 4 of article 189, part 1 of article 263of the Criminal Code of Ukraine).The indictment was filed with the Or-

dzhonikidze District Court of Kharkov on Jan-uary 11, 2018. Thus, criminal proceedings havebeen heard for more than two years and are atthe stage of investigation of evidence. Judgesand lawyers drew attention to the systematicfailure to appear of victims and the prosecu-tor. Due to such non-appearance, hearings areadjourned.

Art. 6 of the Convention for the Protectionof Human Rights and Fundamental Freedoms(hereinafter - the Convention) recognizes theright of every person prosecuted in a crimi-nal case to receive a final decision within areasonable time on the validity of a chargeagainst him, more precisely, the achievementthat the accused did not remain for a longtime under the weight of the charge and that adecision was made on the validity of the charge(“Vemkhov v. Germany”, para. 18, “Julia Man-zoni v. Italy”, para. 25, “Brogan and othersv. United Kingdom” p. 65). The provisions ofArticle 6 of the European Convention on Hu-man Rights also indicate that accused personscannot remain in ignorance for too long abouttheir fate (“Nakhmanovich v. Russia”, para. 89,“Ivanov v. Ukraine”, para. 71).

However, the courts are deprived of the op-

portunity to consider cases within a reasonabletime if one of the parties (in this case it is theprosecution) systematically ignores its obliga-tions and does not appear at court hearings.On March 10, the panel of judges consid-

ered a request for an extension of the mea-sure of restraint for Bliznyuk I.A. (round-the-clock house arrest), Khlapovsky Yu.M. (deten-tion), Golovkina A.O. (detention). And thenext day - March 11, 2020, the court rulingon the extension of measures of restraint bythe accused was announced: Khlapovsky Yu.M.and Golovkin A.O. the period of detention wasextended, however, for I. Bliznyuk the measureof restraint was changed from round-the-clockhouse arrest to partial house arrest (with theright to leave housing during a certain periodof the day). Such changes are justified by thepresence of a serious illness of the accused(hepatitis) and the need for adequate treat-ment. The International Society for HumanRights draws attention to the fact that theECtHR has repeatedly insisted that the state[represented by the judiciary] should ensurethat the person is not subjected to disastersand hardships whose intensity exceeds the in-evitable level of suffering inherent in detention(“Krivolapov v. Ukraine”). Thus, the court’sdecision to change the measure of restraint inconnection with the need for treatment is a pos-itive fact in light of the allocation by the ISHRof the negative trend of “torture and degradingtreatment” (Report for 2019), including thefailure to provide persons in custody with thenecessary medical care.In addition, it should be noted that dur-

ing the trial the defendants were next to thedefenders and not in the glass boxes, whichis also positive in the aspect of Art. 3 of theConvention.

Monitoring of criminal proceedings oncharges against Bliznyuk I.A., GolovkinA.O., Khlapovsky Y.M. (July 2, 2020)

On July 2, 2020, in the OrdzhonikidzenskyDistrict Court of Kharkov, a hearing was heldin case No. 644/192/18 on charges of I.A.Bliznyuk, A.O. Golovkin, Y.M. Khlapovskyin abductions and extortion by an organized

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group of persons, as well as other criminal of-fenses (under Part 1 of Art. 255, Part 4 of Art.28, Part 3 of Art. 146, Part 4 of Art. 28, Part 4of Art. 189, Part 1 of Art.263 of the CriminalCode of Ukraine).

The majority of the victims were absent atthe hearing and no witnesses appeared. Thedefendants took part via videoconference. Inthis composition, the panel of judges, afterlistening to the opinion of the parties, decidedto consider the issue of extending or changingthe measure of restraint for the accused, andpostponing the examination of the evidence.

The prosecutor applied for an extensionof the detention of Khlapovskiy Y.M. andGolovkin A.O., as well as the extension ofthe night house arrest for Bliznyuk I.A. Thepetition was motivated by the severity of thecharges, as well as by the fact that the accusedmay abscond from justice.

The defendants’ lawyer objected to this re-quest. In particular, he pointed out that thegravity of the charge cannot be the main rea-son for extending the detention. The defenseattorney also referred to the groundlessness ofthe charges.

The ECtHR has repeatedly noted that thegravity of the charge cannot in itself justifylong periods of detention (“Ecius v. Lithua-nia”).

The ECtHR also often found a violationof paragraph 3 of Article 5 of the Conven-tion in cases where domestic courts contin-ued detention, referring mainly to the grav-ity of the charges and using formulaic lan-guage, without even considering specific factsor the possibility of applying alternative mea-sures (“Kharchenko v. Ukraine”, paras. 80-81;“Tretyakov v. Ukraine”, para. 59).

The court, after consulting, decided to sat-isfy the prosecutor’s request. The next courthearing is scheduled for August 10, 2020. TheInternational Society for Human Rights willcontinue to monitor this case.

Monitoring of criminal proceedings ofBliznyuk I.A., Golovkin A.O., KhlapovskiyY.M. (hearing 08.10.2020)

On August 10, 2020, in the Ordzhonikidze Dis-trict Court of Kharkov, a hearing was heldin case No. 644/192/18 on charges of I.A.Bliznyuk, A.O. Golovkin, Y.M. Khlapovsky.They are accused of committing crimes underpart 1 of Art. 255, part 4 of Art. 28, part 3of Art. 146, part 4 of Art. 28, part 4 of Art.189, part 1 of Art. 263 of the Criminal Codeof Ukraine.At the hearing, the issue of extending or

changing the measure of restraint for the ac-cused was considered.This is the third hearing in case No.

644/192/18, which is monitored by a repre-sentative of the ISHR for the observance ofthe right to a fair trial. At each of the sessions,the issue of extending the measure of restraintwas raised, but there is no progress in theconsideration of the case in essence, and thestudy of evidence. If we analyze all the courtdecisions taken by the court in the case thisyear, it can be stated that they concerned onlythe extension of the measure of restraint forthe accused (not counting the court decisionof May 7, 2020 on ensuring the safety of thevictim in the form of personal protection).

Recall that the indictment was received bythe Ordzhonikidze District Court of Kharkovon January 11, 2018. Thus, in the case ofBliznyuk I.A., Golovkin A.O., KhlapovskyY.M. there is a negative tendency towardsviolation of reasonable terms of the criminalprocedure.Article 6 of the Convention for the Protec-

tion of Human Rights and Fundamental Free-doms recognizes for every person prosecutedin a criminal case, the right to receive, withina reasonable time, a final decision on the va-lidity of the charges against him, or rather toensure that the accused do not remain for along time under the weight of the charges andthat a decision be made on the validity of thecharge (“Wemkhov v. Germany” § 18, “GiuliaManzoni v. Italy” § 25, “Brogan and Others v.United Kingdom” § 65).The ECtHR reminds that the accused in

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criminal proceedings should have the right tohave the proceedings in his case carried outwith particular care, especially in the case ofany restriction of freedom for the period un-til the end of the proceedings. Article 6 ofthe ECHR requires courts to use all availableprocedural means to establish the guilt or in-nocence of a person without undue delay. Thisrequirement is intended to ensure the earliestelimination of uncertainty regarding the legalfate of the accused, who remains in a stateof uncertainty throughout the entire periodof proceedings, despite the fact that the pro-ceedings are ongoing or have been suspended(“Doroshenko v. Ukraine”, § 41).

The prosecutor applied for an extensionof the detention of Khlapovskiy Y.M. andGolovkin A.O., as well as the extension ofpartial house arrest for Bliznyuk I.A. The peti-tion is motivated by the fact that the risks, onthe basis of which the defendants were chosenmeasures of restraint, continue to exist.The defendants’ lawyers objected. The de-

fenders pointed to the declarative nature ofthe prosecutor’s statements, as well as the lackof argumentation of the risks.The judges, after a break, decided to grant

the prosecution’s motion. The court pointedout that the factual circumstances of thecrimes incriminated by the accused, which tes-tify to their increased social danger, togetherwith the severity of the possible punishmentand information about their personality. Allthese refute the arguments of the defense aboutthe lack of evidence and groundlessness of therisks provided for in Part 1 of Art. 177 of theCriminal Procedure Code of Ukraine.It should be noted that Khlapovsky and

Golovkin have been in custody for over 3 years.The ECtHR recognizes that the existence

of a reasonable suspicion of a serious crimecommitted by the accused may initially jus-tify detention. However, the Court has repeat-edly noted that the gravity of the charge can-not by itself justify long periods of detention(“Borotyuk v. Ukraine”, § 61).

According to paragraph 3 of Art. 5 after acertain time has elapsed, the mere existence ofreasonable suspicion ceases to be a basis for de-

privation of liberty and the judicial authoritiesare required to provide other grounds for con-tinued detention. Moreover, such grounds mustbe clearly indicated by the national courts(“Kharchenko v. Ukraine”, § 80).

Monitoring of the criminal proceeding ofBliznyuk I.A., Golovkin A.O., KhlapovskyYu.M. (10.15.2020)

On October 15, 2020, the Ordzhonikidze Dis-trict Court of Kharkov held a hearing in caseNo. 644/192/18 on charges of I.A. Bliznyuk,A.O. Golovkin, Yu.M. Khlapovsky. (part 1 ofarticle 255, part 4 of article 28, part 3 of article146, part 4 of article 28, part 4 of article 189,part 1 of article 263 of the Criminal Code ofUkraine). According to information publishedin the media, the defendants were engaged inillegal actions such as torture, extortion, etc.

The court session was held with the partici-pation of the prosecutor, the accused and theirdefenders. The victims and their representa-tives did not appear at the hearing. Despitethis, the parties considered it possible to holdthe hearing without them.

Written evidence was examined at this hear-ing. At the beginning of the hearing, a discus-sion arose about the protocol of presentationfor identification, which indicated that the wit-ness identified the accused from photographs,but earlier, during interrogation in the trial,he indicated the opposite. The prosecutor an-nounced her intention to file a motion to re-examine the witness. The defense expressedthe opinion that before being interrogated incourt, the witness took an oath and in thecourtroom none of the parties exerted pres-sure on him, and at the stage of the pre-trialinvestigation the possibility of pressure fromthe investigator is not excluded. Therefore,the testimony of a witness in court has moreweight than the protocol of presentation foridentification.

Also, at the hearing, the prosecutor filed asdocuments the decisions on the appointmentof examinations in the specified criminal pro-ceedings and the protocols of taking samplesfor examinations. The prosecutor motivatedher decision by the fact that these documents

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prove the legality of conducting expert exami-nations in criminal proceedings and the admis-sibility of the expert’s conclusions. The panelof judges drew the attention of the prosecutionto the fact that these documents do not provethe circumstances and facts specified in theindictment, and the defense does not disputethe legality of the examination. The lawyersand the defendants confirmed that they had nodoubts about the observance of the procedurefor conducting expert examinations.Also, the prosecutor submitted an expert

opinion that it was Golovkin A.O. who usedthe car. The defense stated that it does notdispute this circumstance. The court notedthat the inclusion of the mentioned expertopinion is meaningless, since this circumstanceis not disputed by any of the parties.

It can be assumed that the provision of thiskind of evidence to the court has the goal ofeither delaying the proceeding, or maximizingthe number of volumes of the case, complicat-ing it.It should be noted that the indict-

ment against Bliznyuk I.A., Golovkin A.O.,Khlapovsky Yu.M. entered the OrdzhonikidzeDistrict Court of Kharkov on January 11, 2018.Thus, the trial in this criminal proceeding lastsalmost 3 years. Court sessions are scheduledonce a month (summarized information). Thiscase has been monitored since March 2020. Infact, all court sessions are devoted to the issueof extending the terms of a measure of restraintfor the accused, but in fact the case is not con-sidered. Back in the report for March 11, 2020,the representative of the ISHR indicated thatthe case was at the stage of examining theevidence. And only today, October 15, 2020,the participants in the proceeding began tostudy the evidence. This is a positive dynamicin the case, but it cannot neutralize previousnegative trends in the aspect of the implemen-tation of the requirement to consider the casewithin a reasonable time.

Art. 6 of the Convention for the Protectionof Human Rights and Fundamental Freedomsrecognizes for every person prosecuted in acriminal case the right to receive, within areasonable time, a final decision on the valid-

ity of the charge against him, or rather, theachievement of ensuring that the accused donot remain for a long time under the weightof the charge and that a decision is made onthe validity of the charge (“Vemkhov v. Ger-many”, paragraph 18, “Julia Manzoni v. Italy”,paragraph 25, “Brogan and Others v. UnitedKingdom” paragraph 65).

In its judgments, the ECtHR indicates thatthe accused in criminal proceedings shouldhave the right to have the proceedings in hiscase carried out with special care, especiallyin the case of any restriction of freedom for aperiod until the end of the proceedings. Article6 of the ECHR requires courts to use all avail-able procedural means to establish the guiltor innocence of a person without delay. Thisrequirement is intended to ensure the earliestelimination of uncertainty regarding the legalfate of the accused, who remains in a stateof uncertainty throughout the entire periodof proceedings, despite the fact that the pro-ceedings are ongoing or have been suspended(“Doroshenko v. Ukraine”, paragraph 41).

The positive thing during the trial was thatthe defendants were next to the defense lawyerduring the trial, and not in the glass boxes. Itis worth noting that the courts more often areobserving the implementation of the right ofthe accused to effective legal assistance andsatisfy the request of the accused to be seatednext to a lawyer.

Monitoring of criminal proceedings of I.A.Bliznyuk, A.O. Golovkin, Yu.M.Khlapovsky (hearing on 11/19/2020)

On November 19, 2020, in the OrdzhonikidzeDistrict Court of Kharkov, a hearing was heldin case No. 644/192/18 on charges of I.A.Bliznyuk, A.O. Golovkin, Yu.M. Khlapovsky,who are accused of abducting people, crueltorture, they were engaged in extortion (part1 of article 255, part 3 of article 146, part 4 ofarticle 189, part 1 of article 263 of the CriminalCode of Ukraine).The court session began with an examina-

tion of the video recordings of the investigativeexperiments.

Then they moved on to the study of written

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evidence. As written evidence, the prosecutorsubmitted a decision to appoint a group ofprosecutors. To which the defense side askedthe prosecutor a question: what confirms suchevidence?In the last report on the case of I.

A. Bliznyuk, A.O. Golovkin, and Yu. M.Khlapovsky, the observer drew attention tothe fact that the prosecutor haphazardly andunreasonably submits evidence. For example,at the hearing on October 15, 2020, an ex-pert opinion was submitted that it was A.O.Golovkin who used his car. The defense sidestated that it does not dispute this circum-stance. The court noted that the inclusion ofthe expert opinion was meaningless, since thiscircumstance was not disputed by any of theparties.The judges of the Ordzhonikidze District

Court of Kharkov drew attention to the factthat in criminal proceedings evidence must beexamined to confirm or refute the accusation.The accused have been in custody for morethan three years, while the prosecutor submitsevidence devoid of meaning.

Thus, the prosecutor, according to the court,piles up the case with unnecessary evidence.

The ECtHR often considered cases of viola-tion of reasonable time limits in cases againstUkraine and indicated that those accused incriminal proceedings should have the right tohave the proceedings in their case carried outwith particular care, especially in the case ofany restriction of freedom for a period untilthe end of the proceedings (“Doroshenko v.Ukraine ”, para. 41).

The International Society for Human Rightsbelieves that special care in the case of I.A.Bliznyuk, A.O. Golovkin, Yu.M. Khlapovskyshould be manifested in the balance and rea-sonableness of the procedural actions of theprosecutor.The provisions of Art. 6 of the European

Convention on Human Rights indicate thataccused persons cannot remain in uncertainabout their fate for too long (“Nakhmanovichv. Russia”, para. 89, “Ivanov v. Ukraine”, para.71).

According to the ECtHR, “by requiring the

consideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delay,which may jeopardize its effectiveness and cred-ibility” (“Vernillo v. France”, para. 38).

In the case of I.A. Bliznyuk, A.O. Golovkinand Yu.M. Khlapovsky for the second sessionin a row, the prosecutor proposes to exam-ine evidence that does not help the court inmoving forward in the consideration of thecase. Such actions have a negative impact onthe time frame for the consideration of thecase and jeopardize the effectiveness of justice.Judges explain to the prosecutor the norms ofthe criminal procedural legislation, strive toconsider the case in accordance with the stan-dards of the Convention on reasonable timelimits.

Monitoring of the case of I.A. Bliznyuk,A.O. Golovkin, Yu.M. Khlapovsky (hearingof December 2, 2020)

On December 2, 2020, the Ordzhonikidze Dis-trict Court of Kharkov, continued to considerin open court remotely by videoconference(with broadcast from the Brovary City DistrictCourt of the Kiev Region, the State Institu-tion “Kharkov Detention Center” and from theworkplace of lawyer A.A. Pryadko) the case oncharges of I.A. Bliznyuk, A.O. Golovkin, Yu.M.Khlapovsky. They are charged with Part 1 ofArt. 255, Part 3 of Art. 146, Part 4 of Art.189, Part 1 of Art. 263 of the Criminal Codeof Ukraine - creation of a criminal organiza-tion, kidnapping, extortion, illegal handling ofweapons.

At the beginning of the hearing, the victimA.M. Pokroeva filed a petition to ensure herparticipation and lawyer A.A. Pryadko in hear-ings by videoconference from the workplace ofher lawyer due to the fact that she is afraidof contracting coronavirus. A.O. Golovkin andYu.M. Khlapovsky objected to this petition,explaining that the more participants are con-nected, the more the program slows down. Nev-ertheless, the court granted the petition and alittle later the lawyer got involved.At this hearing, the court continued to ex-

amine the evidence of the prosecution.

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The morning before the hearing the pros-ecutor said that she was ill, but she had allthe documents that need to be presented tothe court for admission to the evidence andthe other prosecutors did not have a physicalopportunity to get them.Also, on December 4, the term of the mea-

sure of restraint for the accused expired andit was necessary to decide the expediency ofextending the measure of restraint for A.O.Golovkin. and Yu.M. Khlapovsky in the formof detention and I.A. Bliznyuk - in the formof overnight house arrest.

The prosecutor referred to the risks that areprovided for in paragraphs 1,3,5 of Art. 177of the Criminal Procedure Code of Ukraine,namely the risk that the accused will hide fromthe court, unlawfully influence witnesses or vic-tims, as well as that they may commit anothercriminal offense, which, in his words, do not de-crease, do not cease to exist and in connectionwith this it is necessary to extend both mea-sures of restraint: Golovkin and Khlapovskiy- detention, Bliznyuk - night house arrest. Inresponse, the judge demanded that the pros-ecutor justify the above risks. To which theprosecutor replied that A.O. Golovkin, realiz-ing that he had committed an especially gravecrime, for which more than 10 years of im-prisonment were provided, could hide from thecourt both within Ukraine and abroad. Regard-ing the pressure on other participants in theproceeding, he said that this is confirmed bythe testimony of victims and witnesses. Sinceduring the commission of the crime, violencewas used - the victims are worried about theirhealth, which indicates the existence of risksof the influence of the accused on the victims.He said the same about the other defendants.According to the defense lawyer of the ac-

cused, the prosecutors are extending the termsof detention only for one reason - because ofthe inability of the prosecution to support theprosecution. He also drew attention to the factthat the hearing was never disrupted becauseof the defense. As for the risks, he stated thatthey were unfounded and asked the court torefuse to satisfy the prosecutor’s motion.

The ISHR experts note the existence in the

Ukrainian criminal proceedings of a negativetrend in the form of automatic prolongation ofa measure of restraint in the form of detention,that is, an extension without sufficient grounds,evidence and confirmation by the prosecutionof the existence of risks of non-fulfillment bythe accused of their procedural obligations.The grounds given in applications for the ex-tension / amendment of a measure of restraintoften remain practically similar to each otherfor a long time and are clearly insufficient tomeet the requirements of paragraph 3 of Art.5 of the Convention (the right to trial withina reasonable time or to release pending trial).It should be recalled that the European

Court of Human Rights in its decisions in-dicates that the competent domestic authori-ties are obliged to provide relevant and suffi-cient reasons for both the appointment and theextension of the period of pretrial detention(“Buzadzhi v. Republic of Moldova”, para. 58).

Also, according to the established case-lawof the European Court, the presumption underArticle 5 of the Convention speaks in favor ofthe release of the accused pending trial. Asstated in paragraph 4 of the judgment of theEuropean Court in the case “Neumeister v.Austria”, the second part of paragraph 3 of Art.5 of the Convention does not give the judicialauthorities the choice between bringing theaccused to trial within a reasonable time orhis temporary release pending trial. Until thedefendant is convicted, he must be presumedinnocent, and the purpose of the Conventionprovision under consideration is essentially todemand his temporary release from custodyas soon as the extension of detention ceases tobe reasonable (“Bykov v. Russia”, para. 61).

In the case of I.A. Bliznyuk, A.O. Golovkin,Yu.M. Khlapovsky, the prosecutor once againstated the same risks as before, without sub-stantiating why over time they did not losetheir relevance and did not prove their realexistence. In addition, a witness took part inthe hearing via video link, who expressed hisopinion on the prosecutor’s motion, fully sup-porting the opinion of the defense.

A.O. Golovkin, once again drew the court’sattention to the fact that for three years none

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of the risks from the prosecutor’s request toextend the measure of restraint had changed.Yu.M. Khlapovsky and I.A. Bliznyuk also sup-ported him.

The court announced a decision on the issueof extending measures of restraint for each ofthe accused on December 03, 2020. Based onthe texts of the definitions, the prosecutor’srequests were satisfied and the duration ofthe measures of restraint was extended until02/01/2021.

3.6 The trial of AlexanderChibirdin

Monitoring the trial of A. Chibirdin (courthearing of January 30, 2019)

On January 30, in the Suvorovsky DistrictCourt of Odessa, a hearing was held in thecase of the lawyer Alexander Chibirdin, whois charged with part 2, 4 of Art. 187 (robberycommitted by prior conspiracy by a group ofpersons aimed at seizing property on a largeor especially large scale), part 4 of Art. 190(fraud) of the Criminal Code of Ukraine.

It turned out that the court assigned A.Chibirdin a bail in the amount of more thanUAH 700,000 (the amount exceeds the limitforeseen by the sanction of the norms ofthe Criminal Code of Ukraine), the bar self-government body (NAAU) managed to collectthe necessary money and A. Chibirdin left thepre-trial detention center before the new year.At this hearing, a number of motions from

the defense were examined. So, the lawyersfiled a statement on the challenge of the judgemotivating it by the statement that at theprevious hearing the representative judge V.Poznyak read out the operative part of thecourt decision, which was not executed in writ-ing and was not signed by the panel members,which, according to the lawyer, is confirmedby the audio recording of the court session.Among other things, the absence of signaturesof the whole board is confirmed by the reportof the auto distribution, according to whichone of the members of the board was not partof it on the day of the court hearing. In other

words, the decision was made by an incompe-tent court, that is, a court created not by law.“Law”, within the meaning of Article 6 § 1 ofthe Convention, includes legislation governingthe establishment and competence of the ju-diciary (“Lavents v. Latvia”, p. 114; “Richertv. Poland”, p. 41; “Jorgic v. Germany”, p. 64),as well as any other provision of the nationallegislation that, if violated, will make it ille-gal for one or more judges to participate inthe proceedings (“Gorgiladze v. Georgia”, p.68; “Panjikidze and others v. Georgia”, p. 104).The expression “created by law” covers notonly the legal basis of the very existence of the“court”, but also the implementation by the“court” of specific rules that govern its activi-ties (“Gorgiladze v. Georgia”, p. 68), and thedetermination of the composition of the courtin each case (“Posokhov v. Russia”, p. 39).For example, in paragraph 115 of the

“Lavents v. Latvia” case, the ECtHR decidedthat the composition of the court did not com-ply with the law, as two judges, in accordancewith the law, could not participate in the con-sideration of the case.

Further, the lawyers challenged Judge Shko-rupeev, arguing that he was not a memberof the board (see above). It is worth notingthat after the challenge was announced, JudgeShkorupeev did not behave in his inherent re-strained manner. So, the judge emotionallyasked the lawyers not about the reason for thechallenge, but about whether they appealedthe court decision, which they consider framedwith procedural violations. Note that the issuewas definitely inappropriate, since the decisionreferred to is not subject to appeal.

The court did not satisfy both petitions. TheISHR experts are not clear on the motivationof the court in making these decisions, sinceonly the operative part was read.

The accused himself filed two petitions: thefirst about returning a certificate of the rightto practice law and the second about the possi-bility of traveling to Kiev in order to stay witha child while he is undergoing medical treat-ment. These two applications were granted bythe court.

The prosecution petitioned for an extension

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of the measure of restraint to all the accused(although A. Chibirdin was bailed out, thereare defendants in the proceedings who are stillin jail today). We emphasize that the petition,which concerned the extension of the measureof restraint in the form of detention in cus-tody, completely duplicated the one that theISHR observer heard at the previous session.This fact is cause for concern, since the pros-ecution does not support its petitions withany evidence at all, but simply copies therisks foreseen by the norms of the Code ofCriminal Procedure of Ukraine. At the sametime, the defense side in its counterargumentscites a number of significant circumstancesthat cannot fail to incline the court to decideto change the measure of restraint, for example,the fact that some of the accused, including A.Chibirdin, are free and do not violate the obli-gations assigned to them, although earlier theprosecution duplicated an allegedly substan-tial list of risks on them. In general, the ISHRobserver had the impression that it was notthe prosecution that proved the guilt of theaccused, but the defense proved the innocence,which directly contradicts the presumption ofinnocence. In “Telfner v. Austria”, p. 15, theECtHR concluded that the presumption of in-nocence is violated if the burden of proof onthe part of the prosecution is transferred tothe defense.

Once again, we want to express our concernthat the presiding judge already considers thedefendants in this case guilty and that hiscolleagues are not taking any measures whendeciding on the challenge of this judge. “Thefact that judges are involved in deciding onthe challenge of one of their colleagues cancreate problems if they themselves constitutethe object of such a challenge. However, thecircumstances of this case must be taken intoaccount.” (“Debled v. Belgium”, p. 37).

Recall that during an interview with theHigher Qualification Commission of Judges, V.Poznyak spoke in the affirmative form aboutthe guilt of A. Chibirdin in the crimes he wascharged with. This indicates a clear biasedattitude of the judge to the accused and iscertainly a violation of the presumption of in-

nocence. For a trial to be considered fair, itis important that the judge is impartial andacts within the framework of the law. ISHRexperts fully support the opinion of the EC-tHR on this issue, namely, “Every judge withrespect to whose impartiality there are legit-imate doubts must leave the composition ofthe court hearing the case.” (“Housechildt v.Denmark” p. 48; Torger Torgerson v. Icelandp. 51).

3.7 The trial of VladimirDovgalyuk

Monitoring the case of Vladimir Dovgalyuk(session 01/14/20)

01/14/2020 in the Bogunsky district court ofZhitomir, a hearing was held in the case ofVladimir Dovgalyuk, accused of the murder ofthe Zhytomyr businessman A. Zhadko, whichoccurred on July 11, 2014 (paragraph 7 ofpart 2 of article 115 of the Criminal Code ofUkraine).Hearing progress. One of the victims did

not appear at the hearing, having previouslywarned the court about poor health. By agree-ment of the participants in the trial, the sessionwas held in his absence.

The court examined the evidence filed by theprosecution. The first to consider the findingsof a forensic psychological examination, drawnup in 2015. The examination was carried outbased on a video recording of the interroga-tion of V. Dovgalyuk as a witness. After theexamination, the experts should have seen thevideo on which it was conducted. The defenseobjected to the study of this disc and fileda motion declaring the evidence inadmissibleand terminating its investigation. Accordingto paragraph 1 of Part 3 of Article 87 of theCode of Criminal Procedure, the testimonyof the suspect (accused) given by him in theprocedural status of a witness is unacceptableevidence. The representative of the victims ob-jected to the defense’s request and explained tothe court that the prosecution is also againstthe court accepting the testimony of the sus-pect as a witness in the video, but asks to

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investigate what the expert examined, namelythe behavior of the witness.The court retired to the deliberation room,

after which it ruled to refuse to satisfy therequest of the defense. The reason was thatduring the examination of the conclusion ofthe examination data, the appendix of whichis a video disc, the participants in the courtproceedings did not submit applications forthe recognition of the conclusions of the ex-amination as obviously inadmissible evidence.Due to the fact that the conclusion of the ex-amination has already been investigated, inthe court’s opinion, there are no grounds torecognize the video disc as an integral part ofthe evidence, obviously inadmissible.The defense filed a new petition - to recog-

nize the entire forensic psychological examina-tion as unacceptable evidence. Since the diskwith the video recording of the interrogation ofthe witness is unacceptable evidence and thesource of the conclusion of the examination.The court retired to the deliberation room,

after which it issued a ruling: the motion of thedefense to satisfy and recognize the forensicpsychological examination as obviously inad-missible evidence. In this regard, it was de-cided to stop the study of this disk. Further,the court continued to investigate the evidenceof the prosecution, namely the video record-ings of surveillance cameras and the responseof the Andrushev Observatory to a requestregarding the time of dusk. The defense didnot object to the examination of this evidence.

During the monitoring of the trial, no viola-tions were recorded.

3.8 The trial of NazarDubensky

Monitoring of the case of Nazar Dubensky(hearing on 08.19.2020)

On August 19, 2020, the Horodotskiy Dis-trict Court of the Lvov Region consideredthe case in criminal proceedings number12013150270000066 on charges of Nazar Vasi-lyevich Dubensky in the commission of: pre-meditated murder, that is, in the commission

of a crime under Article 115, Part 1 of theCriminal Code of Ukraine; illegal seizure of avehicle, that is, in the commission of a crimeunder Article 289, Part 1 of the Criminal Codeof Ukraine; deliberate destruction or damageto property, committed by arson, explosionor other socially dangerous means, or causingproperty damage on an especially large scale,or resulted in the death of people or othergrave consequences, that is, in the commissionof a crime under Article 194, Part 2 of theCriminal Code of Ukraine.Criminal proceedings on charges of N.V.

Dubensky considered single-handedly by judgePeretyatko O.V. The International Society forHuman Rights is starting to monitor this case.

The course of the hearing. Prosecutor A. Be-gun, in a petition of 08.14.2020, and at thehearing, asked to extend the accused’s deten-tion period for 60 days, without determiningthe amount of bail, arguing that the electedfor Dubensky N.V. measure of restraint in theform of detention ends on 08.23.2020, and therisks established by the investigating judgewhen choosing a measure of restraint duringthe pre-trial investigation did not disappear.In addition, the prosecutor noted that Duben-sky N.V. is accused of committing a criminaloffense, which is particularly serious and forwhich punishment is imprisonment for a termof seven to fifteen years. The evidence thatgives grounds to suspect him of committing acrime, according to the prosecutor, is weighty,admissible and obtained in accordance withthe procedure established by the Criminal Pro-cedure Code of Ukraine.

As the European Court has repeatedly notedin its decisions, raising the issue of extendinga measure of restraint should include not onlythe risks that existed at the time of the selec-tion of the measure of restraint, but also newrisks that may affect in any way the circum-stances referred to by the prosecutor (“Buryagav. Ukraine” para. 69). The ECtHR has oftenfound a violation of paragraph 3 of Article 5 ofthe Convention in cases where domestic courtscontinued detention, relying mainly on thegravity of the charges and using formulaic lan-guage, without even considering specific facts

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or the possibility of applying alternative mea-sures (“Kharchenko v. Ukraine”, paras. 80-81;“Tretyakov v. Ukraine” para. 59).

According to the information provided tothe court by the prosecution, Dubensky H.V.is not married, has no children, has no parents,does not work, his age and state of health al-lows to apply to him a measure of restraintrelated to imprisonment. In addition, the ac-cused fled from the scene of the crime, hid thetraces of the crime by destroying material evi-dence, is aware of the possible punishment ifhe is found guilty, therefore, he can hide fromthe pre-trial investigation authorities and thecourt, unlawfully influence victims, witnessesby persuasion and intimidation, can persuadethem to change the testimony they provide,otherwise hinder the trial of criminal proceed-ings. The prosecutor also noted that the sus-picion, in his opinion, is justified.The defendant’s lawyer A.A. Shnitsar ob-

jected to the prosecutor’s petition, arguingmainly by the fact that such a petition was un-founded, not supported by the evidence speci-fied in Article 177 of the Criminal ProcedureCode of Ukraine. According to the defense, theaccusation of a particularly grave crime is notgrounds for detention, in addition, not a singlepiece of evidence in support of the guilt of N.V.Dubensky in the commission of the incrimi-nated crimes, the prosecution has not beenindicated in the petition. The lawyer asked tochoose a measure of restraint not related todetention.The accused Dubensky N.V. speaking in

support of the position of his defender, heindicated that he has a permanent place of res-idence, lives with his parents. He noted thatthere was no evidence confirming his guilt inthe case, and asked to apply to him a mea-sure of restraint not related to imprisonment,namely house arrest or bail.

The injured Pak V.D. and his representativeVasilkevich V.M. asked to satisfy the prosecu-tor’s motion.Having heard the prosecutor, defense coun-

sel, the accused, the victim and his represen-tative, having studied the petition, the courtdecided to continue the measure of restraint in

the form of detention for up to 60 days withoutdetermining the amount of bail.

3.9 The trial of RomanDubinevich

Monitoring of the criminal proceedings ofRoman Anatolyevich Dubinevich05/12/2020

On May 12, 2020, the Lutsky City Court of theVolynsky Region heard a case on charges ofRoman Dubinevich of committing a crime un-der Part 1 of Article 115 of the Criminal Codeof Ukraine - intentional murder. The Interna-tional Society for Human Rights has decidedto monitor this proceeding via videoconferencedue to the difficulty of having a direct presenceof observers at court hearings during a stateof emergency (related to quarantine).The course of the hearing. The accused

stated that the prosecutor systematically indi-cates in the procedural documents that he [theaccused] refuses to get acquainted with them.However, this is not true. In this regard, thecourt drew the attention of the parties to theprosecution and made a remark to the prose-cutor, obliging them to continue to take actionto ensure the reality of such an acquaintance.

At the hearing, the prosecutor’s request foran extension of the terms of detention was ex-amined. As a result of its consideration, the ap-plication of the prosecutor was granted, sinceDubinevich R.A. accused of committing a par-ticularly serious crime, as well as to preventthe possibility of hiding from the court, thecommission of other criminal offenses, illegalinfluence on victims and witnesses. Accordingto the court, the extension of the measure ofrestraint in the form of the detention of theaccused is justified, since this is demanded bythe real interest of society, which, despite thepresumption of innocence, prevails over theinterest of ensuring the right to freedom.It should be noted that the indictment en-

tered the court on December 12, 2019, thatis, 5 months ago. From that moment, the casewas not actually considered. But the terms ofdetention are systematically extended.

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According to paragraph 3 of Article 5 of theConvention after a certain period of time, itis just the existence of a reasonable suspicionthat does not justify the deprivation of liberty,and the courts should give other reasons for theextension of detention (“Borisenko v. Ukraine”,para. 50). Moreover, these grounds must beclearly indicated by the national courts (“Eloevv. Ukraine”, para. 60, “Kharchenko v. Ukraine”,para. 80).

The European Court of Human Rights (here-inafter - the Court) often found a violation ofparagraph 3 of Article 5 of the Convention incases where the national courts continued to bedetained, referring mainly to the gravity of thecharges and using template language, withouteven considering specific facts or the possibil-ity of alternative measures (“Kharchenko v.Ukraine”, paras 80-81; “Tretyakov v. Ukraine”,para. 59).The existence of a reasonable suspicion of

a crime committed by a detained person isan indispensable condition for the legality ofcontinued detention, but after the lapse of timesuch a suspicion will not be sufficient to justifyprolonged detention. The court never tried totranslate this concept into a clearly definednumber of days, weeks, months or years, or atdifferent times depending on the severity ofthe crime. Once “smart suspicion” is no longersufficient, the court must establish that theother grounds given by the courts continueto justify the person’s deprivation of liberty(“Maggie and Others v. The United Kingdom”,paras. 88-89).The Court also recalls the immutability of

the grounds for suspicion. That an arrestedperson has committed an offense is a “sine quanon” condition in order for his continued deten-tion to be considered legal, but after a whilethis condition is no longer sufficient. Then theCourt must establish that the other groundson which the decisions of the judiciary arebased continue to justify the deprivation of lib-erty. If these grounds turn out to be “relevant”and “sufficient”, then the Court will ascertainwhether the competent national authoritiesfound “special good faith” in the conduct ofthe proceedings (“Labita v. Italy”, para. 153).

The ISHR draws attention to the lack ofadequate reasoning for extending detention.This is a common problem of the entire ju-dicial system of Ukraine. If the risks do con-tinue to exist, the measure of restraint shouldbe extended, however, both the accused andthe public (whose interests the court outlinedin determination) have the right not only toclearly understand what specific risks are in-volved, but also the validity of these risks. Theissue of extending the measure of restraintshould be considered on the basis of the indi-vidual data of each case, and they should bereflected in the court decision. However, wesee only general statements, passing from caseto case, from one court decision to anothercourt decision. Representatives of the ISHRare concerned about the attitude of prosecu-tors towards extending detention. As a rule,in the petitions there are no references to thefacts of the case itself, the argument is reducedto general statements. This state of affairs vi-olates the principle of legal certainty, since itis difficult for the defense to bring counter-arguments to non-existent arguments of theprosecution. And this, in turn, puts the burdenof proof (on the groundlessness of the measureof restraint) on the accused and his lawyers.

Monitoring of criminal proceedingsDubinevich Roman Anatolyevich(December 22, 2020)

12/22/2020 in the Lutsk City District Courtof the Volyn region with the participation ofa panel of judges Y.D.Artysh, O.A.Kalkova,V.M.Pokidyuk a court hearing was held incase No. 154/3660/19 on charges of R.A. Du-binevich accused of the commission of a crim-inal offense under Part 1 of Art. 115 of theCriminal Code of Ukraine - “premeditated mur-der”.

Another prosecutor, who is a member of thegroup of prosecutors in this case, Polishchuk,arrived at the hearing. The prosecutor indi-cated that he was partially familiar with thecase materials. Also, at this hearing there wasa change from the side of the defense. Thelawyer, who previously represented the inter-ests of the accused, asked the court to suspend

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his powers. Instead, the defense will be pro-vided by lawyer E.V. Kovalenko on the basisof an agreement on the provision of legal as-sistance. The defendant did not object to thereplacement of his lawyer.

The prosecution filed a petition for extensionof measure of restraint for Dubinevich in theform of detention for a period of 60 days andindicated that the risks under Art. 177 of theCode of Criminal Procedure of Ukraine, whichwere previously the basis for the applicationof an exceptional measure of restraint in theform of detention, have not diminished. Theprosecutor noted that R.A.Dubinevich can alsoput pressure on witnesses and the victim.

The accused completely objected to the pros-ecutor’s request. Lawyer Kovalenko also sup-ported the position of her client. In her opinion,the risk of influencing witnesses is not relevant,since the overwhelming majority of witnesseshave already been questioned by the court.The lawyer petitioned to change the measureof restraint to round-the-clock house arrest.Moreover, in her opinion, there is a delay inthe case, due to the frequent replacement ofthe leading prosecutor in the case and the un-preparedness of the prosecution for the trial.Having evaluated the motions, the court

ruled to satisfy the petition of the prosecutionin full, extending the period of detention by60 days. In turn, the court argued its positionby the fact that the accused had committed aparticularly grave criminal offense; in order toprevent the commission of new crimes, illegalinfluence on the witnesses in the case and thevictim, there is a need to extend the measureof restraint for the defendant. In addition, thecourt referred to the practice of the ECtHRin the part that the existence of grounds forkeeping the accused in custody should be as-sessed in each case, taking into account itsspecific features. Continued detention can bea justified measure in a particular case only ifthere are clear indications that it is requiredby the real public interest, which, despite thepresumption of innocence, outweighs the inter-ests of securing the right to liberty (“Ecius v.Lithuania”, para. 93).The observer of the ISHR notes the fact

that the extension of the terms of detentionin the case of R.A. Dubinevich may becomeautomatic over time. For the first time by theLutsk City District Court of the Volyn Region,the term of detention R.A.Dubinevich was ex-tended on December 16, 2019, which meansthat the accused has been in custody for morethan one year, awaiting a court decision onunchanging risks.The European Court of Human Rights ar-

gues that national courts must first and fore-most ensure that, in a particular case, thedetention of an accused does not exceed a rea-sonable time. To do this, they must, taking dueaccount of the principle of the presumption ofinnocence, examine all the circumstances ofthe case that may confirm or deny the exis-tence of a public need that justifies deviationsfrom the requirement to respect individual lib-erty, and indicate this in their decisions toextend the term of detention (“IA v. France”,para. 102).

Having studied all the decisions of the LutskCity District Court of the Volyn Region on theextension of the term of detention in relationto the defendant, the ISHR draws attentionto the fact that the national court did notchange the rationale for the need to extendthe term of detention from the moment of thefirst decision. Such actions may contradict thepractice of the ECtHR.According to paragraph 3 of Art. 5 of the

ECHR, after a certain period of time, the mereexistence of a reasonable suspicion ceases tobe a basis for deprivation of liberty and thejudicial authorities are obliged to provide othergrounds for continued detention. In addition,such grounds must be clearly indicated by thenational courts (“Kharchenko v. Ukraine”, para.80).In the case of R.A. Dubinevich the deci-

sion of the national court was based on thefollowing facts: R.A.Dubinevich is accused ofcommitting an especially grave crime, on hispart there may be unlawful influences on wit-nesses in the case and victims. Such argumentsformed the basis of the first decisions of the na-tional court to extend the period of detentionand have remained unchanged for one year.

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The European Court of Human Rights hasoften found a violation of paragraph 3 of Art.5 of the Convention in cases where domesticcourts continued detention, relying mainly onthe gravity of the charges and using formulaiclanguage, without even considering specificfacts or the possibility of applying alternativemeasures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”, para. 59).In addition, the ISHR experts draw atten-

tion to the frequent replacement of the leadprosecutor in this case. As the lawyer Ko-valenko pointed out, the frequent replacementof the leading prosecutor in the case and thelack of preparation for the court session, as anexample, of the prosecutor Polishchuk, indi-cates a delay in the proceeding. This, in turn,testifies to the unprofessional performance oftheir obligations by the prosecution.It should be noted that two judges of the

collegium, the secretary of the court and theprosecutor did not comply with the rules ofquarantine restrictions, namely, they attendedthe entire session without protective equip-ment (masks), endangering their health andthe health of others.

3.10 The claim of Iosif Dudich

Monitoring of administrative proceedingsin the claim of Dudich Iosif Vasilievich(hearing on 10.09.2020)

On October 9, 2020, a hearing was held in theLvov District Administrative Court, in whichthe administrative claim of Dudich Iosif Vasi-lyevich against the Executive Committee ofthe Lvov City Council with the participationof a third party who does not declare inde-pendent claims on the subject of the disputeon the side of the defendant, Lvov communalenterprise “Zeleny Gorod”, was considered, inwhich the plaintiff requested to declare ille-gal and cancel the decision of the ExecutiveCommittee of the Lvov City Council dated07.12.2018 No. 1343 “On the approval of ur-ban planning conditions and restrictions forthe design of a construction object for con-struction of the Lvov communal enterprise”

Zeleny Gorod “of a mechanical and biologicalcomplex for reloading and processing of solidhousehold waste on the Plastovaya street, 13”.The plaintiff and his representative, repre-

sentatives of the defendant and a representa-tive of a third party appeared at the hearing.The court session began with the fact that

the plaintiff’s representative filed an applica-tion for the removal of the presiding judge. Thepetition is motivated by the fact that since2011 judge A.M. Sasevich has been on the listof persons who wish to receive housing (apart-ment) in ownership. According to paragraph2 part “A” of Art. 30 of the Law of Ukraine“On Local Self-Government” to the jurisdictionof the executive bodies of village, city coun-cils include the registration of citizens who, inaccordance with the legislation, need to im-prove their living conditions; distribution andprovision in accordance with the legislationof housing belonging to communal property.Accordingly, judge A.M. Sasevich is in the pro-cess of waiting to receive housing from a partyto the case. On this basis, the plaintiff’s rep-resentative came to the conclusion that thepresiding judge is directly interested in theoutcome of the case. The defendant’s repre-sentatives objected to the satisfaction of thejudge’s challenge, since the plaintiff had missedthe deadline for filing such an application. Also,the representative of the defendant noted thatthis is already the 6th application for disquali-fication of judges filed by the plaintiff in thisproceeding.

According to the established practice of theECtHR, the existence of impartiality shouldbe determined for the purposes of paragraph1 of Art. 6 of the Convention using subjectiveand objective criteria. A subjective criterionis used to assess the personal conviction andbehavior of a particular judge, that is, whetherthe judge showed bias or impartiality in thiscase. According to the objective criterion, it isdetermined, among other aspects, whether thecourt, as such, and its composition ensuredthat there was no doubt about its impartiality.In each individual case, it should be deter-mined whether the relationship under consid-eration is of a nature and degree that indicates

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that the court is not impartial.The personal impartiality of the court is

presumed until evidence to the contrary ispresented (“Mironenko and Martynenko v.Ukraine”, paras. 66, 67).The court dismissed the plaintiff’s appli-

cation for challenge, stating that it is basedon groundless assumptions about the possibledependence of a judge on the Lvov City Coun-cil, the executive committee of the Lvov CityCouncil and its officials.In his opening remarks, the representative

of the plaintiff stated that the placement ofa mechanical and biological complex for thetransshipment and processing of solid house-hold waste in the city of Lvov in the immediatevicinity of residential buildings violates con-struction standards, the requirements of legis-lation in the field of urban planning and in thefield of environmental safety, creates an uncon-ditional threat to life and health for residentsof this district and Lvov in general, in whichthere are no conditions for the construction ofsuch a complex.The defendant draws attention to the fact

that the State Sanitary Rules for Planning andDevelopment of Settlements provide for theestablishment of a standard for incinerationand waste processing plants of a sanitary pro-tection zone 500 m from residential buildings,which in this case is more than twice exceeded(the nearest residential building is located at adistance of 1050 m). In addition, GOS B.2.2.-12: 2019 allows the placement of objects forsorting and recycling of household waste inindustrial and communal-warehouse areas ofthe city, and other requirements of buildingcodes are subject to unconditional consider-ation during design, survey and constructionwork.

Lvov communal enterprise “Zeleny Gorod”notes that the applicant complied with all therequirements regarding the procedure for ob-taining town-planning conditions and restric-tions, the absence of grounds for refusing toprovide and approve them, as determined bylaw. The third party also emphasizes that inreality there are no confirmed violations of therights, freedoms or interests of the person who

filed a lawsuit, and he is not a party to legalrelations related to the issuance and approvalof urban planning conditions and restrictions.According to the third party, Iosif Vasilyevichdid not provide a proper and reasonable justifi-cation for the connection between the decisionmade and the possible violation of his rightsand did not confirm this in the proceedingwith proper and admissible evidence.

After examining the evidence and arguing,the court retired to the deliberation room topass a decision.

In its decision, the court indicated that theissues of environmental safety as a universalcategory and the right to a safe environmentviolated by the plaintiff are, of course, impor-tant and extremely serious, which requires abalanced and reasonable approach to its solu-tion on the part of all participants in the case.At the same time, “speculation” on this topicwithout proper motivation and confirmationof claims, without their coordination with therequirements of the current legislation (whichmanifested itself during this trial) is doubtful,given the public interest. The Court notes thatthe principle of proportionality should alsobe taken into account in resolving such dis-putes, since the common interest of the city’scommunity also lies in efficient and modernwaste management, thus meeting the neces-sary needs of the city and not only eliminatingcertain individual inconveniences. Moreover,it is obligatory for the plaintiff to prove theactual violation of his rights and interests as aprerequisite for applying for judicial protection.Bringing them the corresponding shortcomingsand inconsistencies of the contested actions ordecisions with the current legislation, as wellas determining effective ways to restore theirrights or protect their interests, would makeit possible to balance these circumstances andmake not only a legal, but also a fair decisionon the merits of the dispute. However, theplaintiff did not respect such basic principles.The ECtHR has repeatedly pointed out in

its decisions that neither Article 8 nor anyother provisions of the Convention guaranteethe right to protect the natural ecological envi-ronment as such. Also, no question will arise if

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the harm is insignificant compared to the envi-ronmental hazard inherent in life in every mod-ern city. However, there may be a well-foundedcomplaint under Article 8 where the environ-mental hazard reaches such a serious level thatit significantly hinders the applicant’s abilityto use his home, private or family life. Theassessment of such a minimum level is relativeand depends on all the circumstances of thecase, such as the intensity and duration of theharmful effect and its physical or psychologicalimpact on human health or quality of life (“Du-betskaya and Others v. Ukraine”, para. 105,“Grimkovskaya v. Ukraine”, para. 58), whichundoubtedly should be taken into account bythe court in this case when making a decision.Lvov Regional Administrative Court re-

jected Iosif Dudich’s claim.

3.11 The trial of AlexandrEfremov

Monitoring the trial of Alexandr Efremov(sessions 06.16.2020 and 06.19.2020)

On June 16, 2020, in the Starobelsky DistrictCourt of the Lugansky Region, the case ofAlexander Efremov was considered. The panelcomposed of judges: A.A. Pelikh, A.V. Tkach,I.V. Kudryavtsev. The case was selected formonitoring as one of the possible for consid-eration through the broadcast of the courtsessions on the website of the Judiciary ofUkraine.At the end of July 2014, the General Pros-

ecutor’s Office of Ukraine opened a criminalcase against the member of the parliament ofUkraine, the leader of the Party of Regionsfaction, Alexandr Efremov. The deputy is ac-cused of abuse of power. Presumably, Efremovput pressure on officials of the State Enterprise“Luganskugol” during the procedure for pur-chasing services for the installation of miningequipment and low-voltage equipment, as aresult, the enterprise entered into agreementswith economic entities controlled by Efremovat three times higher prices, which entailedgrave consequences for the interests of thestate. Preliminary qualification of a criminal

offense - Part 2 of Article 364 of the CriminalCode of Ukraine.

On February 14, 2015, Efremov was detainedin Kiev by the General Prosecutor’s Officeand the Secret service (SBU). On February 16,the Pechersky District Court of Kiev arrestedEfremov for two months, and the next day hewas released on bail after posting a bail of 3.6million hryvnias.On February 18, new charges were filed

accusing Efremov of financing terrorism. OnFebruary 25, the Pechersky Court decided toelect for Efremov a measure of restraint in theform of a bail of 60 thousand hryvnias - 50minimum wages.On October 20, 2015, the General Prosecu-

tor’s Office of Ukraine submitted the indict-ment against Alexandr Efremov to the court.On November 4, the electronic bracelet wasremoved from Efremov in connection with theexpiration of the arrest period on November1. On November 30, the Pechersky DistrictCourt of Kiev returned the indictment to theGeneral Prosecutor’s Office of Ukraine in thecase against Alexandr Efremov.

In March 2016, the General Prosecutor’s Of-fice of Ukraine closed the criminal proceedingsagainst Alexandr Efremov, opened on suspi-cion of inciting ethnic hatred (due to the lackof corpus delicti in his actions under Part 3 ofArticle 161 of the Criminal Code of Ukraine).

On July 30, 2016, the politician was detainedfor the second time on behalf of the Prosecu-tor General Yuriy Lutsenko “on suspicion ofencroachment on the territorial integrity andinviolability of Ukraine”. Efremov was detainedat the Boryspol airport while trying to fly toVienna (Austria). On August 1, the Pecher-sky District Court of Kiev decided to arrestEfremov for 2 months.

The indictment was received by the Starobel-sky District Court of the Lugansky Region onJanuary 11, 2017. For a long time, the districtcourt extended the measure of restraint - deten-tion. The detention was contested in the Courtof Appeal, but by decisions of 03/01/2017,06/18/2018, 10/17/2018, the appeal proceed-ings were denied. However, the Kiev Court ofAppeal (decision of 08.22.2019) changed the

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measure of restraint in the form of detentionto round-the-clock house arrest.

And later, on September 18, 2019, the mea-sure of restraint was changed from house arrestto personal obligation.There is a tendency in the case of a grad-

ual reduction of the measure of restraint. Thelonger the case is considered, the softer themeasure of restraint. Which is in line with thecase law of the European Court of HumanRights.However, as indicated, the indictment en-

tered the court on January 11, 2017. Thus, thecase has been heard for more than 3 years.Article 6 of the Convention recognizes for

every person prosecuted in a criminal case, theright to receive, within a reasonable time, afinal decision on the justification of the chargesagainst him, or rather to ensure that the ac-cused do not remain for a long time under theweight of the charge and that a decision on thejustification is made (“Vemkhov v. Germany”,para. 18, “Giulia Manzoni v. Italy”, para. 25,“Brogan and Others v. the United Kingdom”,para. 65).On June 16, 2020, the defendant’s lawyers

reiterated their petition for temporary accessto documents, namely, temporary access toinformation (materials of other criminal pro-ceedings) contained in the Department of Or-ganizational Support of the Unified Register ofPre-trial Investigations and Information andAnalytical Work of the Office of the Prosecu-tor General (Head of Department - Bakai I.I.).Such a petition has already been submittedand was satisfied by a court decision of March12, 2020. However, according to the lawyers, allthe necessary materials were not provided forthe execution of the court decision. In addition,a petition was filed for the joint considerationof individual applications for access to suchinformation (consolidation of applications).The prosecutor needed to get acquainted

with the petitions. The hearing was postponedto June 19, 2020.On June 19, 2020, the consideration of the

case continued. Bakai I.I. was summoned tocourt but did not appear and it was decided toconsider the applications without her presence.

The lawyers indicated that having receivedinformation about other criminal proceedings“. . . from which these criminal proceedingsgrew”, the court will see profanity and arti-ficial creation of risks that were the basis ofthe court’s decision on detention.In addition, the defenders indicated that

for six months Bakai I.I. in all possible waysprevents the execution of court decisions ontemporary access to things and documents.The materials are not provided in full.

Criminal proceedings have been opened re-garding I. I. Bakai.As a result of consideration, the petitions

were granted.

3.12 The trial of VladimirEvstigneev

Monitoring of the case of VladimirEvstigneev (hearing of September 25,2020)

On September 25, 2020, a hearing on the caseof Vladimir Evstigneev was held in the Ko-rolevsky District Court of Zhitomir. He is ac-cused of committing a criminal offense underPart 2 of Art. 121 of the Criminal Code ofUkraine, namely - infliction of willful grievousinjuries that led to death.On the evening of March 21, 2020, V.

Evstigneev, due to hostile relations, had a ver-bal conflict with his son, Andrey Evstigneev,and Vladimir, being in a state of alcoholicintoxication, stabbed his son with a severe de-gree of blows from which A. Evstigneev died.The accused partially admits his guilt.

Session progress:After clarifying all the orga-nizational issues, the prosecutor read out theindictment.

It is worth paying attention to the fact thatthe victim Alla Chervinskaya did not appearat the hearing, without warning the court inadvance, and, according to the accused, for thisreason it was impossible to hold the hearing,since she must also testify.In this context, it is necessary to take into

account the practice of the ECtHR, whichindicates that the personal presence of the

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parties is necessary: a) to obtain evidence fromthem, if they are witnesses of important eventsin the case (“Kovalev v. Russia”, paras. 30-38);b) in order to enable the judge to come to aconclusion about the identity of the applicants,their abilities, etc. (“Shtukaturov v. Russia”,paras. 69-76).The ECtHR also notes that a person is re-

quired to report his physical or other disabilityto the court in order to be able to ensure his[person’s] effective participation in the process(“Timergaliev v. Russia”, paras. 50-60).

It should be noted that the InternationalSociety for Human Rights is constantly ob-serves the lack of sufficient number of judgesin courts. In this regard, failure to appear incourt without prior notification of the courtor without a motion to consider the case inabsence may be regarded as contempt of thecourt.

As a result, due to the failure of the victimand witnesses to appear, the court announceda break in the hearing until October 29, 2020.

The International Society for Human Rightsis grateful to the Korolevsky District Courtfor the fact that, during the difficult period ofquarantine restrictions, it provided an oppor-tunity for our observer to be directly present atthe court session to monitor compliance withthe right to a fair trial. This allows us to notethe openness of the court and the observanceof the principle of publicity at a time whenmany courts significantly limit this principle.

3.13 The trial of AlexandrFiltsev

Monitoring of the Alexandr Filtsev case(sessions July 22-23, 2020)

On July 22, 2020, the Khersonsky Court ofAppeal was supposed to consider the complaintof A. Filtsev’s lawyers against the decision ofthe Leninsky District Court of Nikolaev toextend the measure of restraint in the form ofdetention for 60 days.Alexandr Filtsev is accused of committing

criminal offenses under Articles 146 (illegalimprisonment or abduction of a person by an

organized group or one that entailed graveconsequences) and 190 (large-scale fraud) ofthe Criminal Code of Ukraine.Based on the appeal, the Leninsky District

Court notified the lawyers too late about thescheduled meeting (at 11:30 am, despite thefact that the hearing was supposed to takeplace at 2:30 pm the same day), on that dayone of the defenders was on sick leave. Dueto the physical impossibility of arriving at thehearing in Nikolaev from Kiev in 3 hours, thelawyers petitioned to postpone the hearing.However, the court did not take into accountthat it was through its [court’s] fault that thelawyers could not arrive at the hearing on time,which is also confirmed by the dissenting opin-ion of the judge of the Leninsky District Courtof Nikolaev (from 07.04.20), who in the docu-ment indicated the following: “In violation ofPart 1 of Article 323 and Part 1 of Article 324of the Code of Criminal Procedure of Ukraine,the court did not postpone the trial on July 4,2020 in connection with the non-arrival of theaccused O.M. Chaika, his defender Y.V. Timo-shin, defenders A.L. Boryak and O.A Garnik”[translation by author].In this regard, the Leninsky District Court

decided to appoint a lawyer for Alexandr Filt-sev from the Center for Free Secondary LegalAid - V. Bashchuk, against the wishes of theaccused himself. When considering the appeal,the accused stated that he had said more thanonce that he had lawyers under the contractand he was against the participation of the ap-pointed lawyer. In addition, after the hearing,V. Bashchuk, in explanation of her participa-tion, which did not comply with the principlesof the criminal proceedings, confirmed that shehad violated the rules of advocate ethics, sinceshe did not contact A. Filtsev’s lawyers, didnot agree with them on her legal position, didnot get acquainted with the case and was un-able to provide legal assistance to the accused.

In this case, with the available documentaryevidence (dissenting opinion of the judge, ex-planations of lawyer V. Bashchuk, statementof the accused and his lawyers), the Interna-tional Society for Human Rights believes thatthere was a violation of A. Filtsev’s right to

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defense.The right to freely choose one’s defense coun-

sel is enshrined in article 14 (3) (d) of theInternational Covenant on Civil and Politi-cal Rights, article 6 (3) (c) of the EuropeanConvention for the Protection of Rights andFundamental Freedoms, as well as at the na-tional level - article 59 of the Constitution ofUkraine. Of course, the right to choose a de-fense lawyer is not absolute and can be limitedunder certain conditions, but only within theframework of the principle of fair trial. Theappointment of a defense lawyer by the courtcan be used in the interests of justice, in or-der to avoid pauses or interruptions in theproceedings. At the same time, “the state can-not be held responsible for every mistake ofthe lawyer appointed to provide assistance. . . ”,but the competent authorities must interveneif the mistake of the appointed lawyer is obvi-ous or is drawn to their attention in anotherway (ECtHR case “Croissant v. Germany”). Inthis case, the fact of violation of the right todefense of A. Filtsev when considering an ap-plication for the extension of an exceptionalmeasure of restraint in the form of detentionfor the appeal instance seems obvious, since itcontradicts national law as well.The 2019 report of the ISHR on the obser-

vance of the right to a fair trial in Ukraineemphasizes that “the introduction of state pro-tection without quality support only for thepurpose of ensuring formal compliance withthe norms cannot be considered as ensuringthe realization of the right to defense”. Theright of a person charged with a criminal of-fense to an effective defense of a lawyer is oneof the main foundations of a fair trial (ECtHRcase “Crombie v. France”).

The course of the hearing. On July 22, 2020,consideration of the appeal was to begin. Thetrial was to be held via videoconference withfour contacts: the collegium of the court (theKhersonsky Court of Appeal), the prosecu-tor, lawyers (from the courts in Nikolaev andthe Kiev region, respectively), as well as theaccused himself at the conference from thepre-trial detention center. The ISHR observerhad to wait about an hour while waiting for a

high-quality connection, after which it turnedout that the prosecutor did not appear in thecourt in the city of Nikolaev from which he wassupposed to take part in the hearing, withoutnotifying either this court or the Khersonskyappeal court about his absence and the reason.In connection with the failure of the pros-

ecutor to appear, it was decided to postponethe hearing to 10:30 am the next day with arepeated notification of the prosecutor.

It should also be noted that the judges weredissatisfied with the behavior of the prosecutor,since due to the lack of judges in the criminalchamber of the Kherson Court of Appeal, theyare very busy, and such a failure to appear byone of the parties without warning takes uptime that they could devote to this or anothercase.

The course of the hearing. On July 23, 2020,for a long time, the court again tried to es-tablish communication between the partici-pants in the court session. In the opinion ofthe collegium, the poor technical support isa consequence of the substantial debt of theState Judicial Administration to Ukrtelecom(a provider of Internet services for the judi-cial system). After the connection was estab-lished, the court returned to considering thecomplaint.Nevertheless, the observer points out that

the periodically deteriorating communicationcould have prevented the collegium from re-ceiving a high-quality speech of the lawyers,since more than once the defense lawyers hadto stop, repeat partially what was already said,and the court was distracted by technical is-sues. The Collegium heard the arguments of A.Filtsev’s defenders and the accused himself, aswell as the prosecutor, who asked the court torefuse to satisfy the appeal, but did not givea single argument refuting the validity of thelawyers’ appeal against the extension of themeasure of restraint.As a result, the court of appeal concluded

that the “interests of justice” provided for theneed to involve a “state” lawyer in decidingthe issue of extending the measure of restraint.Based on the text of the ruling, the court ofsecond instance, first of all, took into account

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not the violation of one of the most importantprinciples of the criminal trial - the right todefense, but the very need to extend the mea-sure of restraint, based on the case materials,which were transferred by the LeningradskyDistrict Court. In this regard, the questionarises what is prevailing in the criminal pro-ceeding: the right to defense or the “interestsof justice”, and to what extent the interests ofthe accused can be limited in order to complywith the procedural “interests of justice”.

It should also be noted that in connectionwith quarantine measures, the KhersonskyCourt of Appeal restricts the participation ofpublic at hearings. In particular, the motherof the accused A. Filtsev was unable to at-tend both sessions. The presiding judge V.Zaichenko and the press secretary of the courtI. Legkikh expressed their regret at the need tocomply with such measures and assured thatsuch restrictions are solely due to quarantineand after its ending, everyone will be able toattend open court hearings. The InternationalSociety for Human Rights is grateful for theopportunity for the personal presence of anofficial observer during the trial.

3.14 The trial of Dmitry Gubin

Monitoring the case of Dmitry Gubin(session 02.21.2020)

On February 21, 2020, a hearing of caseNo. 645/1034/19 was supposed to be heldon charges of Dmitry Markovich Gubin un-der Part 1 of Art. 263 of the Criminal Codeof Ukraine. However, the hearing was againrescheduled. The representative of the Interna-tional Society for Human Rights considers theproblem of the adjournment of court hearingsin this case systematic. This time, the reasonwas the failure of the prosecutor to appear.

Art. 6 of the Convention for the Protectionof Human Rights and Fundamental Freedoms(hereinafter - the Convention) recognizes theright of every person prosecuted in a criminalcase to receive a final decision within a reason-able time on the validity of the charge againsthim, or rather to ensure that the person does

not remain for a long time under the weight ofthe charge and that a decision is made on thevalidity of the charge (“Vemkhov v. Germany”,para. 18, “Julia Manzoni v. Italy”, para. 25,“Brogan and others v. the United Kingdom”,para. 65).

The provisions of Article 6 of the Conventionon Human Rights indicate that accused per-sons cannot remain too ignorant of their fate(“Nakhmanovich v. Russia”, para. 89, “Ivanovv. Ukraine”, para. 71).

Also, in the opinion of the ECtHR “whendemanding consideration of cases within a ‘rea-sonable time’, the Convention emphasizes theimportance of administering justice withoutdelay, which could jeopardize its effectivenessand credibility” (“Vernillo v. France”, para. 38).In this case, not only the effectiveness of

justice is at stake, but also the safety of theaccused. On February 20, 2020, the day beforethe court hearing, a pogrom was committedin the apartment where Dmitry Gubin lives.This fact was discovered by the accused himselfwhen he returned home.

According to the accused, having comehome, he found several unknown persons inhis dwelling. On his own, Dmitry Gubin couldnot get into his apartment, since the door waslocked from the inside. It was possible to en-ter inside only with the help of a locksmith.At that time, the attackers managed to leavethe house through the window. Things belong-ing to Dmitry Markovich and his wife werescattered throughout the apartment.

It is also worth noting that on the eve of theprevious court session, which was supposedto be held on January 20, 2020, unidentifiedpersons outlined the door of his apartmentwith paint.

3.15 The trial of IgorGumenyuk

Monitoring of the case of Igor Gumenyukand Sergei Kraynyak (hearing on 23.09.20)

On September 23, 2020, in the ShevchenkovskyDistrict Court of the city of Kiev, a courthearing was held online in the case of the

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activist of the nationalist party “Svoboda”Sergei Kraynyak, who is accused of commit-ting crimes under Part 3 of Art. 258 of theCriminal Code of Ukraine (committing a ter-rorist act leading to the death of a person) andex-fighter of the “Sich” battalion of the Min-istry of Internal Affairs Igor Gumenyuk, who isaccused of committing crimes under Part 3 ofArt. 258, part 1 of Art. 263, part 2 of Art. 342of the Criminal Code of Ukraine (committinga terrorist act leading to the death of a person;illegal handling of weapons, ammunition or ex-plosives; resistance to a law enforcement officerin the performance of his official duties).On August 31, 2015, the parliament of

Ukraine in the first reading by 265 votes ap-proved the presidential bill on amendmentsto the Constitution of the country regardingthe decentralization of power. After that, un-der the parliament building, clashes betweenprotesters against voting for this bill beganwith law enforcement officers. As a result ofa grenade thrown at law enforcement offi-cers, four soldiers of the National Guard werekilled, more than 140 law enforcement officersand civilians, including media representatives,were injured. According to investigators, I. Gu-menyuk threw a grenade, and S. Kraynyak lita smoke bomb to help I. Gumenyuk carry outan explosion near the Parliament and hide.

The session on September 23 began with thefact that the defense attorney challenged thejudge on the grounds that, in his opinion, thecourt violated the general principles of criminalproceedings adversarial nature and equality ofparties. In particular, at the last court hearingin this case, namely on September 17, 2020,the court carried out a selective study and theannouncement of four volumes of uncertifiedphotocopies of documents, without a previ-ously resolved issue regarding their edition tothe materials of criminal proceedings. Accord-ing to the lawyer, the court changed the pro-cedure and way of examining evidence. Theseactions, according to the defense, indicate aviolation of the principles of objectivity andimpartiality and undermine public confidencein the court.

It should be noted that the case is considered

by a panel of the court with the participationof a jury. The defense also stated that theexamination of the evidence without commentsfrom the jury also confirms that they have lostobjective signs of impartiality and that thejury is under the influence of the judge.

The court left the lawyer’s application with-out consideration, emphasizing that the de-fense was abusing the right to challenge, thusdelaying the trial.As a result, the lawyer Sviridovskiy A.A.

also announced the challenge of the court, dueto the fact that the court, in his opinion, byits actions violates the right of the accused toa fair trial. The lawyer emphasized the factthat the accused Gumenyuk I.V. for more than5 years has been in custody, not being ableto be directly in court and to participate inthe examination of the evidence presented bythe prosecutor and to express his opinion onthis matter (the observer of the ISHR notesthat at this session both accused were person-ally present in court). Like the petition of thelawyer Sviridovsky, the application for the dis-qualification of the lawyer Zarutsky was alsoleft by the court without consideration, for thesame reasons.

The International Society for Human Rightsnotes that, considering the ECtHR decisionin the case “Vernillo v. France”, all parties in-volved in the proceedings must do their utmostto avoid undue delay in the proceedings. Thus,when identifying those guilty of delaying theproceeding, it is necessary to analyze the de-gree of involvement of the participants in theproceeding and the efforts they make to pre-vent unnecessary delay in the consideration ofthe case. That can be done later by monitoringthis proceeding.In addition, the defense insisted that the

documents submitted by the prosecutor werefalsified, since they were presented in an im-properly executed form, but at the same time,they were accepted by the court (in the deci-sion of the Supreme Court of May 8, 2019 incase No. 160/7887/18, the position regardingthe compulsory certification of copies of pro-cedural documents in accordance with the Na-tional Standard of Ukraine DSTU 4163-2003

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“Unified system of organizational and adminis-trative documentation” is set forth).

After that, the investigation of the evidencein this case began.The prosecutor, in turn, stated that he did

not see any violations of the law in this courtproceeding, and therefore, continued to pro-vide written evidence to the court and askedto attach them to the materials of the courtproceeding.The defense side filed a petition for the ap-

pointment of a technical examination of thedocuments provided by the prosecutor, includ-ing documents submitted at the last courtsession (September 17, 2020). After consultingon the spot, the court decided to reject thispetition.

The International Society for Human Rightswill continue to monitor this case in order toestablish the details of this proceeding anddetermine whether there have been violationsin the observance of the right to a fair trial.However, it should be noted that, starting

in 2018, the court decided to hold the pro-ceedings behind closed doors at the request ofthe victims, due to the presence of aggressiveactivists at the court sessions. But, given thepublic outcry, the court decided to conductonline broadcasts of the sessions on the officialwebsite of the Judicial Power of Ukraine.

3.16 The trial of AnatolyHranovskiy

Monitoring the case of Anatoly Hranovskiy(session 02.11.2020)

On February 11, 2020, in the ZhytomyrskyDistrict Court, a preparatory hearing was heldin the case of A. Hranovsky, accused of violat-ing traffic safety rules or operating vehicles bypersons driving vehicles that caused the deathof several persons (part 3 of article 286 of theCriminal Code of Ukraine). At the time of thetrial, the accused was in custody.In the indictment, the investigation estab-

lished that: On September 22, 2019 A. Hra-novsky, driving a technically sound road trainas part of a specialized cargo truck with a tank

semi-trailer, exceeding the safe speed, movedalong the right lane of the Kiev-Chop road inthe direction of Zhytomyr. Incorrectly assess-ing the traffic situation, having the technicalability to prevent collisions from the momentof detecting an obstacle to traffic, he hit a rearleft side of the bus, which, being parked, wasnot moving on the right side of the road andpartially the right lane of the roadway in thedirection of traffic to the city of Zhitomir.

As a result of the accident, nine passengersof the bus received serious bodily injuries, asa result of which they died. In addition eightpeople received moderate injuries.A brief chronology of the case. On Septem-

ber 24, 2019, at a public hearing in the Ko-rolevsky district court of Zhytomir, at the re-quest of the prosecution, a measure of restraintin the form of 60-day detention was chosen forthe suspect. The suspect in the court sessionconfirmed his involvement in the accident, as aresult of which people were killed and injured,pleaded guilty to the incident, but asked to ap-ply measures of restraint in the form of housearrest, which he was denied.

According to the principles of territorial ju-risdiction (part 1 of article 32 of the Codeof Criminal Procedure of Ukraine), consider-ation of this proceedings was transferred tothe Novograd-Volynsky district court of theZhytomyr region. Then, at the request of theprosecutor, the Zhytomyr Court of Appeal “inorder to ensure the speed, efficiency of criminalproceedings and the observance of reasonabletime limits for the consideration of proceed-ings” decided to transfer the specified criminalproceedings to the Zhytomyr District Court ofthe Zhytomyr Region.

The course of the proceedings. On February11, 2020, a preparatory hearing in the casetook place in the Zhytomyr District Court. Atthe beginning of the court session, the courtexamined applications for recognition of per-sons as victims in this case. The judge alsodrew attention to the fact that persons whohave not received moderate bodily injuries can-not act as victims, but only in the status ofcivil plaintiffs. The trial was attended by threerepresentatives of the victims.

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The prosecutor filed an application to chal-lenge one of the defenders - S. Egorov. He alsoacted as a representative of the civil defendantin this case - LLC “Petrov Logistic.”In his statement, the prosecutor indicated

that during the pre-trial investigation, the vic-tims filed civil claims against the “Petrov Logis-tic”, which is the employer of the accused, forcompensation for moral and material damage.The CPC of Ukraine contains requirements,one of which is the right to a fair trial and ef-fective legal defense of the accused. Accordingto Art. 78 of the Code of Criminal Procedureof Ukraine, a defender and representative can-not be a person who takes part in criminalproceedings as a civil defendant. In part 2 ofthis article, it is stipulated that a person can-not be a defender and representative if in thisproceeding he gives legal assistance to a per-son whose interests contradict the interests ofthe person who requested legal assistance. Theprosecutor focused the court’s attention on thefact that if lawyer Egorov has two proceduralstatuses at the same time, this can be per-ceived as a violation of the right to defense ofA. Hranovsky and the interests of the accusedand civil defendant may compete. The prose-cutor also noted that since the lawyer Egorovprimarily acquired the status of the defenderof the accused, he should satisfy the challengeas a participant in the criminal proceedings asa representative of the civil defendant.Lawyer Egorov pointed out that his posi-

tion regarding the representation of interestsof “Petrov Logistic” is fully consistent withhis client and does not contradict the inter-ests of “Petrov Logistic”. The defendant alsosupported the position of his counsel.The court found that in this criminal pro-

ceeding damages can be recovered from boththe accused and the civil defendant as the em-ployer. Moreover, according to part 1 of article1191 of the Civil Code of Ukraine, in the pres-ence of fault of the person who caused thedamage, the person who is responsible for thedamage acquires the right of the return claim(recourse) in respect of the guilty person in theamount of the compensation paid.

In view of the foregoing, the court concluded

that the interests of “Petrov Logistic” maybe contrary to the interests of the accused interms of his established guilt with the possibil-ity of further submission of regressive claims,which, in turn, in accordance with the provi-sions of the Code of Criminal Procedure ofUkraine excludes the participation of lawyerEgorov in this case at the same time as counseland representative of a civil defendant. Thecourt granted the prosecutor’s application todismiss Egorov as a representative of the civildefendant, and thus the civil defendant willhave to look for a new representative.After the court decision was announced,

lawyer Egorov suggested that the court post-pone the preparatory hearing in order to en-able the civil defendant to ensure the presenceof another representative at the hearing.The judge drew attention to the fact that

according to Art. 6 of the European Conven-tion for the Protection of Human Rights, thecase must be examined in accordance withthe principle of reasonable time. As the mea-sure of restraint in the form of detention wasapplied to the accused and according to thepresumption of innocence, he is innocent untilthe conviction has come into force, the courtconsiders it necessary to consider such casesin the first place.

Monitoring the case of Anatoly Hranovskiy(session 03.03.2020)

March 3, 2020 in the Zhytomyr District Court,a preparatory hearing was held in the caseof Hranovskiy A. accused of violating trafficsafety rules or using vehicles by persons drivingvehicles that resulted in the deaths of severalpersons (part 3 of article 286 of the CriminalCode of Ukraine). At the time of the trial, theaccused was in custody.The course of the hearing. The trial was

attended by another prosecutor from a groupof prosecutors in this investigation. Due to theabsence of a civil defendant, the prosecutorasked the court to postpone the preparatoryhearing. However, the prosecution requesteda review of the application for the continueddetention of the accused, as the period of de-tention expires before the agreed date of the

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next trial. The lawyer supported the positionof the prosecutor regarding the adjournment ofthe court session, since in his opinion it wouldbe inappropriate to continue the considerationof the case without a civil defendant.The prosecutor believes that they have all

reasonable risks regarding the extension of themeasure of restraint to the accused. Justifyinghis claim by the fact that there are a largenumber of victims who are currently not ques-tioned, the trial has not begun, and no indict-ment has been announced. Evidence has notbeen investigated, and the accused, if not heldin custody, may affect the change in evidence.In addition, there are risks to hide from thecourt and the defendant’s failure to appear atcourt hearings, which will impede the consider-ation of this criminal proceeding. The victimsand their representatives also supported theprosecutor’s request.

In the process of considering the applicationfor an extension of the measure of restraint inthe form of detention, the defense said thatthe risks indicated by the prosecutor are notenough to extend the exceptional measure ofrestraint to A. Hranovskiy.

As the European Court has repeatedly notedin its decisions, when raising the question ofextending a measure of restraint, not only therisks that existed at the time the measure ofrestraint was assigned should be given, butalso new risks that could affect in any way thecircumstances referred to by the prosecutor.Since the victims were questioned during thepre-trial investigation, their testimonies wererecorded and can no longer be changed, andthe accused cannot influence the evidence ei-ther, the lawyer believes that the prosecutor’srequest is not substantiated.In addition, the lawyer stated that the ac-

cused has strong social ties, a permanent placeof work and residence in Ukraine. Therefore,the defender petitioned for a more lenient mea-sure of restraint in the form of house arrestusing an electronic means of control.The observer of the International Society

for Human Rights considers it necessary tonote an exceptionally attentive approach toresolving the issue of choosing a measure of re-

straint in relation to A. Khranovsky. The judgeasked the prosecutor to clarify the risk of in-fluence on the victims and witnesses indicatedby him and indicated that: “We have almost30 witnesses and one accused, is he a criminalboss?”, also asked about the composition ofthe accused’s family, his place of residence andwork, specified whether he has dependents andwhether he was previously convicted.

After deliberation in the deliberation room,the court ruled. According to Article 183 of theCode of Criminal Procedure of Ukraine, de-tention is an exceptional measure of restraint,which is applied only if the prosecutor provesthat a milder measure of restraint cannot pre-vent the risks provided for in Article 177 ofthe Code of Criminal Procedure. The courtfound the arguments of the prosecutor regard-ing the influence of the accused on the victimsand witnesses unfounded. Also, the prosecutorcited the risks of distorting the evidence ofthe prosecution, but the evidence of the pros-ecution is retained by the prosecution, whichexcludes the possibility of influencing them.

The only risk that the court considered justi-fied is the risk of hiding from the trial. This riskis justified by the severity of the punishmentthat threatens the accused, the lack of depen-dents, and the presence of a passport that hasnot been handed over. Also, the civil defendantin this criminal proceeding is his employer andmay be an interested party. Given the above,as well as a significant public interest, thepossibility of considering the proceedings inthis case within a reasonable time, the courtconsiders that none of the milder measures ofrestraint can exclude possible risks with a highdegree of probability and justify the furtherdetention of the accused. The court extendedto the accused A. Hranovskiy a measure ofrestraint in the form of detention for 60 daysuntil May 1, 2020.

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3.17 The trial of Igor Ignatov

Monitoring of the case of Igor Ignatov andDmitry Glazunov (session 28.09.2020)

On September 28, 2020, the Supreme Anti-Corruption Court of Ukraine held an onlinebroadcast of the case in criminal proceedingsNo. 1 / 991/112/19 on charges of the ex-director of the enterprise SE “Ukrhimtransam-miak” Dmitry Glazunov and ex-director ofPJSC “Infrastructure of public keys” Igor Igna-tov of committing crimes under Part 5 of Art.191, part 3 of Art. 209 of the Criminal Codeof Ukraine, namely: appropriation, waste ofproperty or taking possession of it by abuseof official position on an especially large scale;legalization (laundering) of property obtainedby criminal means on an especially large scale.Recall that on September 8, 2017, detec-

tives of the National Anti-Corruption Bureaudetained three people on suspicion of seiz-ing and legalizing more than 40 million UAHof funds from the state enterprise “Ukrhim-transammiak”.Course of the session: the court session be-

gan with the continuation of the examinationof evidence in the case, in particular, docu-ments related to the rights to an invention asan object of intellectual property. The prosecu-tor began describing a new volume of evidencein the case.Lawyer T.V. Batyus filed an objection re-

garding the way of examining evidence in thistrial, drawing attention to Art. 32 of the Codeof Criminal Procedure of Ukraine, namely thefact that the examination of evidence in thecase must be carried out directly by the court,which, in her opinion, is to determine the mean-ing of these documents for the case, and not tocite documents, which, according to her, theprosecutor was doing.

Clause 18 of the Resolution of the SupremeCourt of Ukraine of January 21, 2016 in caseNo. 5-249x16, the court notes that the imme-diacy of the examination of evidence meansthe law’s requirement to the court to investi-gate all evidence collected in a specific criminalproceeding by interrogating the accused, vic-tims, witnesses, an expert, considering physical

evidence, announcement of documents, repro-duction of sound recordings, video recordings,and the like. This is the basis of criminal pro-ceedings, which is important for a completeclarification of the circumstances of criminalproceedings and its objective decision. Immedi-acy of perception of evidence allows the courtto properly examine and verify them (botheach piece of evidence separately and in con-junction with other evidence), evaluate themaccording to the criteria defined in part 1 of Ar-ticle 94 of the CCP, and form a complete andobjective picture of the actual circumstancesof a particular criminal proceeding.In addition, information about the phone

calls of the accused D.F. Glazunov, which werecontained on the disk in electronic form werestudied, in order to clarify his connection withthe accused I.V. Ignatov.

The defense stated that the fact of establish-ing a telephone connection between the twoaccused establishes only the very fact of theexistence of this connection, but in no way isproof of their joint criminal activity.

When forming the evidence base, the Euro-pean Court does not prohibit the use of dataobtained in the course of operational-searchactivities. But the national legislator, accord-ing to the ECtHR, must provide in the mannerprescribed by law for the procedure for suchactivities: collecting the necessary information,using such information as evidence, as wellas monitoring such activity (“Ramanauskas v.Lithuania”).

3.18 The trial of Igor Kachur

Monitoring of the case of Igor PavlovichKachur (hearing on 07.09.20)

On July 9, 2020, a hearing was held in thePechersky District Court of the city of Kievin the case of Igor Kachur, a deputy of the Ta-lalaevsky District Council of the ChernigovskyRegion of the 7th convocation, who is accusedof committing a criminal offense under Part 4of Article 190 (fraud committed in especiallylarge size), part 2 of article 364-1 (abuse ofpower), part 1 of article 209 (legalization (laun-

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dering) of proceeds from crime) of the CriminalCode of Ukraine.

Due to quarantine restrictions, the observerof the International Society for Human Rightswas not allowed directly into the courtroom,but the lawyer of the accused, Vitaly Gribovod,provided the ISHR with all the materials ofthe hearing, including the audio recording.

At this hearing, a petition for the applicationof a measure of restraint in the form of housearrest was considered.In his petition, prosecutor Berezhnik sub-

stantiated the need to apply this measure ofrestraint with the risks provided for in paras.1 and 4 of Article 177 of the Criminal Pro-cedure Code of Ukraine, namely: 1) ensuringthat the suspect performs the procedural du-ties assigned to him; 2) prevention of illegalinfluence on witnesses, another suspect, in thesame criminal case; 3) prevention of attemptsto hide from the bodies of preliminary investi-gation and the court.The European Court of Human Rights in

such cases shall designate that the arrest or de-tention of a person is lawful if it is carried outin order to bring the person before the com-petent law enforcement agency on reasonablesuspicion of committing an offense, or wherethere is reason to believe that it is necessaryto prevent him from committing an offense orto prevent him from fleeing after having doneso.

The ECtHR also recalls that in accordancewith para. 3 of Article 5 of the Convention forthe Protection of Human Rights and Funda-mental Freedoms, the existence of reasonablesuspicion cannot be a justification for pre-trialdetention and must be supported by additionalgrounds (“Stvrteski v. Slovakia”).According to the lawyer, the accusation is

based on unfounded suspicions, so he asks thecourt to decide on the refusal to apply the mea-sure of restraint, referring also to the state ofhealth of his client and his need for treatment.The accused upheld the lawyer’s motion.

It should be noted that the ECtHR paysspecial attention to the presence or absence ofrelevant and sufficient grounds for imprisoninga suspect, both in the form of preliminary de-

tention and house arrest (“Korban v. Ukraine”;“Navalny v. Russia”).

Justifications that, in accordance with thecase law of the ECtHR, are considered “ap-propriate” and “sufficient” arguments (otherthan reasonable suspicion) include: the riskof escaping from the investigation, the risk ofputting pressure on witnesses or falsificationof evidence, the risk of collusion, the risk ofre-committing a crime, the risk of disruptingpublic order, and the need to protect the de-tainee (“Buzadzhi v. Republic of Moldova”).These risks must be properly justified, and theauthorities’ justification for this cannot be ab-stract, general, or stereotyped (“Merabishviliv. Georgia”).

3.19 The trial of PetrKarpenko

Monitoring of criminal proceedings of PetrKarpenko (hearing 10/12/2020)

On October 12, 2020, the Khersonsky Courtof Appeal was supposed to hear the appealof the accused P.P. Karpenko and his lawyerY.S. Kletsko against the decision of the No-vokakhovsky city court of the Kherson regiondated July 27, 2020 to extend the accused’sdetention period. P.P. Karpenko is chargedunder Part 2 of Article 15, clause 6, Part 2 ofArticle 115, Part 4 of Article 187, Part 1 ofArticle 309 of the Criminal Code of Ukraine(attempted murder out of selfish motives, rob-bery and illegal production, manufacture, ac-quisition, storage, transportation or shipmentof narcotic drugs, psychotropic substances ortheir analogues without the purpose of sale).

The consideration of the appeal did not takeplace because the accused asked the court toreplace his defense counsel. He noted that thecurrent defender “. . . does not defend him incourt, does not defend his rights.”

The prosecutor indicated that the refusal ofa defense attorney or his replacement shouldtake place exclusively in the presence of a de-fense attorney after providing an opportunityfor confidential communication (Part 2 of Ar-ticle 54 of the Criminal Procedure Code of

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Ukraine).In the Resolution of the Cassation Criminal

Court as part of the Supreme Court of June7, 2018 in case No. 714/266/16-k it is indi-cated that, within the meaning of Part 1 ofArticle 412 of the Criminal Procedure Code ofUkraine restricting the right of the accused tofree choice of defense counsel is a significantviolation of the requirements of the criminalprocedural law and the basis for canceling thecourt decision.

On the other hand, it should be noted that inthe case of P.P. Karpenko it is not the first timea defender has been replaced. On November7, 2019, the accused filed a petition to replacethe defender appointed to him by the regionalcenter for the provision of free secondary legalaid I.A. Zabolotny, to another free defenselawyer, arguing that his position with a lawyerin the implementation of defense is different,the accused does not agree with the opinion ofthe defense lawyer regarding the recognitionof certain evidence in the case as inadmissible,and therefore he asks the court to accept hisrefusal from this defense lawyer. The refusalwas accepted by the court.

At the hearing on April 17, 2020, the ac-cused again submits a petition to replace thedefender appointed by the regional center forthe provision of free secondary legal aid withanother, arguing that his positions with lawyerV. A. Bordun on the implementation of thedefense is different, and also believes that thelawyer unprofessionally fulfills her duties, inparticular, she does not submit applicationsthat, in his opinion, should be made. The defen-dant’s defense lawyer V.A. Bordun supportedthe defendant’s petition, and also asked to re-place his defender with another, referring tothe fact that there are contradictions betweenher and the accused regarding the position onthe defense line. The defendant’s petition wasgranted.And again, at the hearing on 06.02.2020,

the accused filed a motion to replace the thirddefender, Y.S. Kletsko, to another free lawyer,since he wants to have another defense lawyerin connection with the improper performanceof his duties by a lawyer who is currently de-

fending him in the aforementioned criminalproceedings. However, this time the court offirst instance denied the accused and indicatedthat P.P. Karpenko did not explain what ex-actly he sees as the improper execution bylawyer Y.S. Kletsko, who provides free sec-ondary legal aid, of his duties.Now the accused raises the question of re-

placing the lawyer Y.S. Kletsko in the court ofappeal, thus hindering the consideration of theappeal against the court’s decision to extendthe period of detention within a reasonabletime.

The European Court of Human Rights (here-inafter - the ECtHR) stated: Article 6 para.3 (c) (Art. 6-3-c) gives the right “to everyonecharged with a criminal offense” to be pro-tected by a lawyer of his choice (“Pakelli v.Germany”, Para. 31). The case of “Croissantv. Germany” provides that, despite the im-portance of a relationship of trust betweena lawyer and a client, the right of “everyonecharged with a criminal offense” to be pro-tected by a lawyer of his choice cannot beconsidered absolute. It is necessarily subjectto certain restrictions when it comes to freelegal aid, as well as where exactly the courtsmust decide whether the interests of justicerequire the accused to be defended by theirappointed lawyer. When appointing defensecounsel, the national courts must take intoaccount the wishes of the accused. However,they may reject these wishes when there isappropriate and sufficient reason to believethat it is necessary in the interests of justice.(Paragraph 29).

Likewise, article 6, paragraph 3 (c), cannotbe interpreted as securing the right to substi-tute public defender (“Lagerblom v. Sweden”,paragraph 55).

Without questioning the decision of the firstinstance court, representatives of the ISHRare concerned about how national courts areinterpreting the ECtHR practice. Thus, theNovokakhovsky City Court of the KhersonRegion, in a judgment of June 1, 2020, statedthat “. . . taking into account the decisions inthe cases ‘Campbell and Fell v. The UnitedKingdom’, ‘Krempovskaya v. Lithuania’, the

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ECtHR concluded that only those applicantswho themselves have the means to pay fora defense lawyer, have the right to choose adefense lawyer of their choice”.

However, having studied the original texts ofthe decisions “Campbell and Fell v. The UnitedKingdom”, “Krempovskaya v. Lithuania”, wedid not find such categorical positions. More-over, the ISHR considers that such a wordingmay violate the right of “everyone charged witha criminal offense” to be protected by a lawyerof his choice.

Each case of filing an application to replacea lawyer is unique and should be examined forthe proper performance of the lawyer’s duties.For example, in the case of “Artico v. Italy”(paragraph 33), the ECtHR found a violationof Article 6 para. 3 (c) of the Convention,as the applicant never used the services of alawyer. From the very beginning, the lawyerstated that he could not act. He referred, first,to the existence of other obligations, and thento the state of his health. In this case, theapplication of the accused should be consideredwith special care, because we are talking aboutthe inaction of a lawyer and the impossibilityof exercising the right to legal assistance.

3.20 The trial of GennadyKernes and others

Monitoring of the case of Kernes G.A.,Blinnik V.D., Smithsky E.N. (session01/31/20)

On January 31, the Poltava Court of Appealheld a regular court hearing on the case of aUkrainian politician, a mayor of the city ofKharkov, Gennady Kernes, accused of illegal,by prior conspiracy by a group of people, im-prisonment of two people with torture, as wellas with the threat of murder.

In connection with the reform of the prosecu-tion authorities, some changes occurred in thecomposition of the participants: the prosecu-tion was represented at the hearing by the pros-ecutors of the Office of the Prosecutor GeneralB. Berkut and Volonin V. To confirm the au-thority, the court was given the decision of the

First Deputy Prosecutor General of Ukraine tochange the group of prosecutors. The defensemade a statement about the impossibility ofthe participation of these prosecutors, since inArticle 3 of the Criminal Procedure Code ofUkraine it is determined that the head of theprosecutor’s office is the Prosecutor General ofUkraine, the head of the regional prosecutor’soffice and their first deputies and deputy, whoact within their authority.Moreover, as the lawyer of the accused

Kernes claimed, in accordance with paragraph1.2 of the Order of the Office of the Attor-ney General No. 367 of 12/28/2019, the firstdeputy does not have the authority to changethe group of prosecutors. Thus, according tothe defense, prosecutors Berkut B. and VoloninV. do not have enough authority to representthe public prosecution at this hearing.The court continued consideration of the

appeal with the participation of state prose-cutors, considering that the grounds for theirauthority were sufficient.At the hearing, the appeal was considered

in essence. Since the prosecution has alreadysubmitted the arguments of its appeal, thecourt session began with the announcement ofthe objection of the defense.

The essence of the stated objections was asfollows.The court of first instance ruled that it

closed the proceedings in connection with therefusal of state charges. The Kievsky districtcourt made this conclusion, since the prose-cution did not appear at 7 consecutive courthearings. A group of prosecutors consisted of19 prosecutors from the General Prosecutor’sOffice of Ukraine. To confirm the validity ofthe reasons for the inability to attend courthearings, only 2 sick leave certificates weresubmitted. At the time of the impugned deci-sion, the judicial review lasted for more than3 years.

The prolonged absence of prosecutors atcourt hearings, given the mandatory appear-ance of them, in the opinion of the defense isa violation of the right to a fair trial.

It should be noted that the ECtHR assessesthe reasonableness of the length of the trial in

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accordance with the circumstances of the caseand taking into account the criteria establishedin its case law, in particular the complexityof the case, the applicant’s conduct and theconduct of the competent authorities (“Keilov. France”).

The International Society for Human Rightsdoes not undertake to evaluate the decisionof the court of first instance, however, it con-siders that the behavior of the prosecution inthis criminal proceeding in the Kievsky districtcourt of Poltava directly contradicts the ob-jectives of the criminal proceedings, primarilyin terms of ensuring a full and speedy judi-cial review (Article 2 CPC). In addition, ac-cording to Article 3 of the Code of CriminalProcedure, the prosecutor’s office, supportinga public prosecution, must prove the prosecu-tion before the court in order to ensure thecriminal liability of the person who committedthe criminal offense. In fact, none of the 19prosecutors (included in the group) appearedat 7 consecutive court hearings, which was re-garded by the court as the prosecutor’s refusalfrom the charge.It should be noted that the prosecutor’s

office is a government body that has the abilityto directly influence the opening of criminalproceedings, including with regard to judgesand to exercise procedural supervision. Thus,the system of interaction between the judiciaryand the prosecutor’s office has the prerequisitesnot only of procedural influence, but also ofpossible pressure on the court.So, on August 10, 2018, on the day the im-

pugned decision was made to close the Kernesproceedings, at a briefing, representatives ofthe Prosecutor General’s Office of Ukraine an-nounced the opening of criminal proceedingsagainst Judge Antonov under Art. 375 of theCriminal Code of Ukraine, which provides forliability for a deliberately unlawful sentence,decision or determination. The prosecution in-dicated that the court, having closed the pro-ceedings, deprived them of the right to speakin the debate. In addition, the court was notrequested to refuse the charge.The Poltava Court of Appeal upheld the

complaint of the prosecutor. The case against

the accused Kernes G.A., Blinnik V.D., Smit-sky E.N. sent to the trial court for a new con-sideration.

Monitoring of the case of Kernes G.A.,Blinnik V.D., Smitsky E.N. (hearing02/28/20)

On February 28, in the Kievsky district courtof Poltava, a regular court session was heldon the case of a Ukrainian politician, a Mayorof the city of Kharkov, Gennady AdolfovichKernes, on charges of illegal deprivation ofliberty of two people by a group of people, byprior conspiracy to use torture, as well as withthe threat of murder.On this day, a preparatory hearing was

scheduled for the case.The defendants E. Smitsky and V. Blinnik

appeared in court. Accused Gennady Kernesdid not arrive at the hearing, citing poor health.The defendants did not appear at the hearing,in connection with which they asked to post-pone the consideration of the case.

The court granted the petition of the defenseand rescheduled the hearing until March 20,2020.

Recall that earlier this case was already con-sidered by one of the judges of the KievskyDistrict Court of Poltava - A. Antonov, whoon August 10, 2018 issued a decision to closethe proceedings due to the repeated failure ofthe prosecution to appear at court hearings.Which, subsequently, led to statements by thehighest authorities on the opening of criminalproceedings against a judge and his subsequentdismissal.

In this regard, the International Society forHuman Rights considers it necessary to payincreased attention to this case from interna-tional public institutions, since it suggests thepossibility of repeated abuse by the prosecu-tor’s office of their rights and powers, as wellas psychological pressure on the board of thecourt. The European Court of Human Rightsin the case of “SOVTRANSAVTO v. Ukraine”notes that the Ukrainian authorities, actingat the highest level, repeatedly intervened inthe proceedings. Regardless of the reasons putforward by the Government to justify such in-

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terventions, the Court considers that, in viewof their content and the manner in which theywere made, they were “ipso facto” incompati-ble with the concept of an “independent andimpartial court” within the meaning of Article6 § 1 of the Convention.

ECtHR sees no reason to speculate on whateffect such interventions could have had on thecourse of the proceedings in question, but con-siders that in the circumstances of the presentcase the applicant company’s concerns aboutthe independence and impartiality of the tri-bunals were not unfounded. On the part of theexecutive branch of the state, such interven-tions, however, indicate a lack of respect forthe judicial office itself.

3.21 The trial of Anton Kitaev

Monitoring of the Anton Kitaev case(hearing on 08.19.20)

On August 19, in the Lubensky district courtof the Poltava region, a trial was held in thecase of Anton Kitaev, who is accused of illegalsale of drugs and organizing a place for druguse.It should be noted that the report was pre-

pared by the observer of the International So-ciety for Human Rights from audio recordingprovided by the lawyer.According to the defense lawyer V. Gri-

bovod, during the entire trial, the court did notsatisfy a single petition of the defense, while allthe petitions of the prosecution were acceptedby the court.

Even at the preparatory session, the defenseasked to broadcast the trial on the website ofthe Judiciary of Ukraine. The court rejectedthis request, stating that the case was ordinary.In subsequent court hearings, the defense

also filed motions, which were refused.In particular, from the first hearing, the

lawyer argued not only about the presence ofprovocation (incitement) on the part of theinvestigative bodies, but also the possible fal-sification of materials.The ECtHR has repeatedly insisted on the

duty of the court to check the facts related to

a possible provocation from the moment thedefense declared about possible incitement.The ECtHR judgment “Ramanauskis v.

Lithuania” states that “the court, in order to es-tablish whether A.Z. and V.S. performed only‘passive investigation of illegal activities’, musttake into account that there is no evidencein the case confirming that the applicant hadpreviously committed crimes, including thoserelated to corruption; according to the record-ings of telephone conversations, the applicantmet A.Z. on several occasions at the initiativeof the latter (this fact, obviously, refutes thearguments presented by the Government thatthe law enforcement bodies never put pressureon the applicant or resorted to threats). On thecontrary, through contacts established at theinitiative of A.Z. and V.S., the law enforcementauthorities clearly persuaded the applicant tocommit illegal actions, although, apart fromrumors, there was no objective evidence to sug-gest that the applicant was engaged in illegalactivities.”These considerations are sufficient to sub-

stantiate the conclusion that the actions oflaw enforcement officers went beyond the lim-its of a passive investigation of existing illegalactivities.

As the applicant’s submissions were not en-tirely unfounded, it was the prosecutor’s officewho had to prove that there was no incite-ment. In the absence of such evidence, thedomestic courts were obliged to analyze thecircumstances of the case and take appropriatesteps to establish the truth, as well as to findout whether there was incitement. If this factwas proved, they had to act in accordance withthe provisions of the Convention. However, theauthorities denied that they had been incitedby the police and the court did not take anysteps to verify the applicant’s submissions. Inparticular, the court did not even try to findout the role of each of the main characters, forexample, the reasons for the personal initiativeof A.Z. appeal to the applicant, despite thefact that the latter’s conviction was based onevidence obtained as a result of the incitementhe complained about.

In this case, the Lubensky the court not only

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did not begin the verification of the facts indi-cated by the defense, but also, in the opinionof the lawyer, essentially interfered with theadversarial nature.The defense, in order to confirm the facts

of incitement and actions on the part of lawenforcement agencies, applied for temporaryaccess to the data of the mobile operator aboutthe incoming and outgoing phone calls of Ki-taev. According to the defense lawyer, the casefile contains only information about severalcalls for almost 9 months of the investigation,although according to the defense, the witnesscalled A. Kitaev almost every day. This in-dicates that the pre-trial investigation bodyselectively provided the court with evidence,although it was obliged to provide everything.The court rejected the defense motion, mo-

tivating it with the premature filing, althoughthe criminal procedural legislation does notcontain such grounds.At the hearing, prosecution witness Tu-

manov, who carried out the procurement, wasquestioned. The information about the witnesshas been changed and contains state secrets.Thus, the judge had to have access to statesecrets.In view of these circumstances, the prose-

cution filed a motion to interrogate Tumanovoutside the courtroom with a change in voiceand personal data. And the defense lawyerdemanded that the Lubensky court establishhis identity before questioning the witness, asindicated in Article 352 of the Criminal Pro-cedure Code of Ukraine (according to part 1of Article 352 of the Criminal Procedure Codeof Ukraine, before interrogating a witness, thepresiding judge establishes information abouthis identity and clarifies the relationship be-tween the witness and the accused and thevictim).

However, the court decided to interrogateTumanov from the premises of the PoltavaCourt of Appeal. According to the lawyer,such a situation may entail the impossibility ofproperly assessing the testimony of the mainwitness in the case.

In connection with the above circumstances,the defense declared the disqualification of the

judge of the Lubensky court Datsenko V.N.In §§66-70 of the “Mironenko and Marty-

nenko v. Ukraine” case, the ECtHR indicatedthat, in accordance with the Court’s constantcase-law, the existence of impartiality for thepurposes of Article 6 § 1 must be determined inaccordance with a subjective factor, in whichthe personal beliefs and behavior of a particu-lar judges, that is, whether the judge had anypersonal bias or prejudice in the case; and inaccordance with an objective test, that is, byestablishing whether the tribunal itself, and,inter alia, its composition, offered sufficientsafeguards to rule out any legitimate doubtsabout its impartiality.

As far as the subjective factor is concerned,the judge’s personal impartiality should beassumed until proven otherwise.On the objective side, it is necessary to de-

termine whether, in addition to the judge’sbehavior, there are established facts that mayraise doubts about his impartiality. This meansthat in deciding whether there is a legitimatereason to fear that a particular judge does nothave impartiality in a given case, the positionof the person concerned is important but notdecisive. The decisive factor is whether thesefears can be considered objectively justified.In this respect, even appearances can have

a certain meaning, or, in other words, “justicemust not only be done, it must also be seen.”What is at stake is the credibility that thecourts in a democratic society must inspire inthe public.The court refused to satisfy the request

for recusal and interrogated witness Tumanovwithout establishing his identity before theinterrogation.

3.22 The trial of MarinaKovtun

Monitoring the case of Marina Kovtun(01.22.2020)

01/22/2020 in the Kharkov Court of Appeal,a hearing was held on the complaint of M.Kovtun against the decision of the Kiev districtcourt in Kharkov, by the verdict of which she

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was found guilty of criminal offenses underpart 1 of article 263, part 5 of article 27, part2 Article 258 of the Criminal Code of Ukraine.On the totality of crimes, she was sentencedto 11 years in prison with confiscation of allproperty.The hearing was attended by the prosecu-

tor, defense, assistant defense, observers, secre-tary and the panel of judges ( Lyushnya A.I.,Savchenko I.S. and Yakovleva V.S.).

The presiding judge stated that the judge V.Yakovleva already participated in this criminalproceeding during the pre-trial investigation,considering the appeal of the lawyer ShadrinA.E. to the decision of the investigating judgeon the extension of the terms of detention.Therefore, according to Article 76 of the CCPof Ukraine, Judge Yakovleva V.S. does nothave the right to take part in the consider-ation of this case. On this basis, the judgerecused herself. The prosecutor and the de-fense did not object to self-recusation. Thecourt, having conferred, decided to satisfy thestatement of self-recusation and set a new datefor the hearing on 02.20.2020.Cases, which are characterized by a long

period of their consideration in the courts offirst instance, and, most often, by long periodsof detention in custody, always go through thestage of self-recusal of judges on appeal.In such situations, it is important to keep

in mind the reasonable time frames for con-sidering the case. According to the ECtHR,“requiring a hearing within a ‘reasonable time’,the Convention for the Protection of HumanRights emphasizes the importance of admin-istering justice without delay, which couldjeopardize its effectiveness and credibility”(“Vernillo v. France”). Marina Kovtun has beenin custody for more than five years.Representatives of the ISHR continue to

monitor the case of Marina Kovtun and hopethat the consideration of the case in the appealwill not be delayed, as happened earlier inother proceedings. For example, in the caseof Mehti Logunov, the consideration of theappeal against the verdict was postponed formore than a year due to the lack of judges,and later because the court hall was not ready

to hear such case.

Monitoring the case of MarinaAnatolyevna Kovtun (02.20.2020)

02/20/2020 a hearing was held in theKharkovsky Court of Appeal in the case ofMarina Kovtun, who was convicted of crimi-nal offenses under part 1 of article 263, part 5of article 27, part 2 of article 258 of the Crimi-nal Code of Ukraine by decision of the Kievskydistrict court in Kharkov. For the totality ofcrimes, she was sentenced to 11 years in prisonwith confiscation of all property.

The session was attended by the prosecu-tor, the defense, observers, the secretary andthe panel of judges in full force, namely - A.Lyushnya, I. Savchenko. and M. Savenko.

The presiding judge found that Kovtun Ma-rina was not delivered to the courtroom. Thejudge also stated that, according to a reportfrom a state institution, the Kharkov De-tention Center, Marina Kovtun was sent toBuchatsky correctional colony No. 85 for medi-cal treatment. Later, a message also came fromthe detention center that the accused wouldnot be brought to the Kharkovsky Court ofAppeal on January 22, 2020, since she was ina penal colony. However, the message from thepenitentiary facility dated January 23, 2020indicates that the accused, after undergoingtreatment on December 28, 2019, was trans-ferred to a pre-trial detention center. In turn,according to the statement of the Kharkov re-mand prison as of January 28, 2020, KovtunMarina was not returned to the pre-trial deten-tion center and her whereabouts are currentlyunknown.

Also, the Kharkov Court of Appeal receiveda letter in electronic form from the accused, inwhich she indicates that she is in the LPR (un-controlled by the government part of EasternUkraine) and requests the criminal proceedingsin her case to be closed.

In accordance with the information provided,the prosecutor filed a request for instructionsto the pre-trial investigation authorities to es-tablish the location of the accused, in accor-dance with Art. 333 CCP of Ukraine. Thelawyer supported the petition and, as a result,

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the court decided to instruct the pre-trial in-vestigation authorities to establish the locationof the accused before 04.16.2020 and deliverher to the hearing.

3.23 The trial of Sergey Kozak

Monitoring of criminal proceedings ofKozak S.S., Mitkalik V.A., GumenyukM.D., Gurko A.F. (hearing 04.24.20)

On April 24, 2020, a hearing was held incase No. 157/146/18 on charges of SergeiStepanovich Kozak (part 2 of article 199, part2 of article 186, part 1, 2 of article 190 of theCriminal Code) in the Lutsk City Court of theVolynsky Region Ukraine), Gurko AlexanderFedorovich (under part 2 of article 199, part 2of article 186, part 2 of article 190 of the Crim-inal Code of Ukraine), Mitkalik Vitaliy Ana-tolyevich and Gumenyuk Maria Dmitrievna(according to part 2 of article 199 of the Crim-inal Code of Ukraine). The indictment wasfiled to the court on February 20, 2018.During the trial, the court and the partici-

pants watched the video provided by the prose-cutor. As a result of the review, it was attachedto the case file.It is worth noting that on March 23, 2020,

the accused Alexander Gurko (who is in cus-tody) and Maria Gumenyuk (under house ar-rest) were extended the terms of measures of re-straint. The judgment was reasoned as follows:given the fact that Gurko A.F. accused of com-mitting several, including serious crimes, andM. Gumenyuk accused of committing a crime,which also belongs to the category of seriouscrimes, in order to ensure the proper conductof the accused during the judicial investiga-tion, the court concluded that the prosecutor’smotions on both defendants must be satisfied.Thus, the court extended the measure of re-straint to the accused Gurko Alexander in theform of detention by 60 days, with the possi-bility of making a bail of 80,000 hryvnias, andfor the accused Gumenyuk Maria the courtelected the measure of restraint in the form ofa night house arrest for a period of 2 months,with the possibility of leaving her place of res-

idence during working hours, i.e. from 08:00a.m. to 8:00 p.m. daily.

However, upon reviewing the texts of thecourt rulings by the observer of the ISHR, itturned out that they did not mention the riskson the basis of which the terms of the measuresof restraint were extended. The court referredsolely to the gravity of the crimes.

The European Court of Human Rights hasoften found a violation of Art. 5 of the Con-vention in cases where the national courtscontinued to detention, referring mainly tothe gravity of the charges and using templatelanguage, without even considering specificfacts or the possibility of alternative mea-sures (“Kharchenko v. Ukraine”, paras. 80-81;“Tretyakov v. Ukraine” para. 59). Also, in thecase of “Rudenko v. Ukraine” (para. 66), whenextending the terms of detention, the domesticcourts mainly referred to the gravity of thecharges against him and the likely risk thathe would evade the investigation, not properlyassessing no other circumstances of his par-ticular case, and the Court considers that thegrounds for this content were not “relevant andsufficient” and found a violation of Article 3 §3 5 of the Convention. From this it follows thatin the issue of extending measures of restraint,Alexander Gurko and Maria Gumenyuk couldhave committed a violation of Article 5 ofthe ECtHR. The International Society for Hu-man Rights has repeatedly noted the need toargue for the reasons for the extension of mea-sures of restraint by the court, especially theexceptional measure of restraint - detention.Automatic (without specifying and justifyingthe risks stipulated by the CPC) extension ofthe measure of restraint is one of the mostcommon trends in violation of the right to afair trial in Ukraine. And the random selectionof cases for monitoring from video broadcasts(published on the official website of the judi-ciary of Ukraine), due to the limited ability ofobservers to personally attend court hearings,only confirms the magnitude of this problem.

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Monitoring of criminal proceedings of S.S.Kozak, V.A. Mitkalik, M.D. Gumenyuk,A.F. Gurko (hearing 06/01/2020)

On June 1, 2020, the Lutsk City District Courtof the Volynsky Region continued the hear-ing of case No. 157/146/18 on charges of S.S.Kozak under Part 2 of Art. 199, part 2 of Art.186, part 1, 2 art. 190 of the Criminal Code ofUkraine, A.F. Gurko under Part 2 of Art. 199,part 2 of Art. 186, part 2 of Art. 190 of theCriminal Code of Ukraine, V.A. Mitkalik andM.D. Gumenyuk under Part 2 of Art. 199 ofthe Criminal Code of Ukraine.

The monitoring of the court session wascarried out through video broadcasting of thecourt session on the website of the Judiciaryof Ukraine.

The broadcast began half an hour before thestart of the trial itself. From the very begin-ning, one of the accused - Vitaly AnatolyevichMitkalik behaved aggressively towards every-one present in the courtroom. The reason forthis behavior has not been established.

The convoy and the lawyer took all possi-ble measures to calm him down. Several timesthey brought him water; the lawyer gave him asedative. Later, a conflict arose between Mitka-lik V.A. and Gurko A. F. In the glass boxthey started a fight. The convoy had to force-fully separate the accused and take out V.A.Mitkalik from the courtroom. All half an hourbefore the start of the court session, the ac-cused shouted, used obscene language, beatand kicked the walls of the glass box.

This behavior, among other things, lead toa delay in the consideration of criminal pro-ceedings. And not only for Mitkalik, but alsofor the other accused. The hearing on June 01,2020 was supposed to be a continuation of thejudicial debate.

A.F. Gurko filed a motion to postpone thehearing, while S.S. Kozak objected to grantingthe petition. As a result, the consideration ofthe case was postponed to June 12, 2020 (11:30am).

3.24 The trial of LeonidKozhara

Monitoring trial in the case of LeonidKozhara (court hearings of March 26-27)

March 26-27, court hearings were held in theShevchenkovsky court of Kiev to select a mea-sure of restraint to former Foreign MinisterLeonid Kozhara, who is suspected of the mur-der of Sergey Staritsky (former head of theUkrainian television station “Inter”).

The course of the pre-trial investigation. Thepreliminary version of the police was suicide.According to investigators, the shot was firedat the suspect’s house with a pistol registeredon him. Further, as agreed with the prose-cutor’s office, the criminal proceedings werere-qualified from suicide to intentional murder- part 1 of article 115 of the Criminal Code ofUkraine. On March 25, L. Kozhara was givena notice of suspicion of intentional murder ofS. Staritsky.

In connection with the introduction of quar-antine on the territory of Ukraine, ISHR ob-servers monitored court hearing using the offi-cial online broadcast on the judicial authority’swebsite.

At the beginning of the trial, the suspect’slawyers petitioned for the hearing to be heldbehind closed doors, since the case has a sig-nificant public outcry, and information thatshould not be distributed throughout the coun-try will be announced during the hearing. Pros-ecutors supported the defense. The court par-tially granted the request and decided to con-duct a closed-door interrogation of witnesses.Before hearing the prosecution’s request for ameasure of restraint in the form of detention,the defense of L. Kozhara provided the courtwith information that could positively charac-terize the suspect, namely, the lawyers listedall the professional merits of their client, toldabout his family and parents who are on hiscare, and also noted that immediately afterthe death of S. Staritsky their client canceledall his working trips abroad, tried in every pos-sible way to facilitate the investigation of thecase, and also notified pre-trial investigationof his whereabouts.

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In addition, lawyers noted that the wife ofthe victim tried to file an application for acriminal offense, which described the mecha-nism of the crime, but the investigators refusedto accept it. The rhetoric of the defense wasto show their client in the best possible lightand to apply for a measure of restraint againsthim in the form of a personal obligation. Afterthe lawyers spoke, the prosecution read outits request for a measure of restraint in theform of detention. The prosecutor substanti-ated the need to apply an exceptional measureof restraint with the following risks:

1. Risk of hiding from pre-trial investigationbodies and the court. Prosecutors justified thatby the fact that L. Kozhara is suspected ofcommitting a particularly serious crime, whichmeans that it is likely that he will try to avoidpunishment by any means. ISHR experts haverepeatedly emphasized that the gravity of thealleged crime and the severity of the possiblepunishment alone cannot justify the risk ofescape. The prosecution should also refer toother evidence that could confirm the existenceof the above risk. The ECtHR has taken asimilar position in many of its decisions. So, inthe case of “Panchenko v. Russia”, paragraph106, the ECtHR emphasized that the risk ofescape should not be assessed only on the basisof the severity of the punishment that mayfollow. It should be determined taking intoaccount a number of other relevant factorsthat can either confirm that there is a dangerof escape, or show that it is too small andthere is no need for pre-trial detention.

2. Risk of unlawful pressure on victims andwitnesses. In order to justify this risk, prosecu-tors requested the interrogation of one of thevictims, since the latter wanted to talk aboutattempts of pressure on him from the suspect.It should be noted that the court did not grantthis motion.3. The risk in other ways impedes the pre-

trial investigation. The prosecutors justifiedthis risk by the fact that the suspect commit-ted acts to conceal the allegedly committedcrime, initiating the appearance of committingsuicide by the victims. Note that the prosecu-tion did not provide evidence for this, although

the danger that the suspect would interferewith the proper conduct of the pre-trial investi-gation cannot be assessed abstractly but mustbe supported by factual evidence (“Bekchievv. Moldova”, para. 59).

The suspect’s lawyers noted that they con-sider the suspicion unfounded and the risksreferred to by the prosecutor unconfirmed. Inaddition, the defense claimed that their clientcould only hold the weapon but could notshoot. Arguing their words, the lawyers re-ferred to 4 examinations, confirming, in theiropinion, that Leonid Kozhara did not shoot apistol.The court granted the prosecution’s peti-

tion, having decided to detain the suspect inthe courtroom, nevertheless establishing thepossibility of release on bail in the amountof about 14.1 million hryvnias, although theprosecutor’s office requested the arrest of theex-minister without bail.

If Leonid Kozhara makes a bail, then he willbe obliged not to leave the place of residence,to appear at the request of the prosecutor orinvestigator, and to surrender documents fortraveling abroad.

3.25 The trial of MaksimKrivosh

Monitoring of the Maksim Krivosh case(hearing on July 23, 2020)

On July 23, 2020, in the Lutsky City Dis-trict Court of the Volynsky Region, a casewas considered in criminal proceedings num-ber 12020030000000540 on the suspicion ofMaxim Stepanovich Krivosh of committing: •taking and keeping persons as hostages withthe threat of exterminating people, incl. in re-lation to a minor, that is, in the commission ofa crime under Article 147, Part 2 of the Crim-inal Code of Ukraine; • a terrorist act, that is,the use of weapons and the commission of anexplosion, which created a danger to humanlife and health, with the aim of violating publicsafety, intimidating the population, influenc-ing the commission of actions by governmentofficials and drawing public attention to his

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political views, as well as the threat of com-mitting these actions for the same purposes,that is, in the commission of a crime underArticle 258, Part 1 of the Criminal Code ofUkraine; • encroachment on the life of a lawenforcement officer in connection with the per-formance of his official duties, that is, in thecommission of a crime under Article 348 of theCriminal Code of Ukraine; • illegal possessionof firearms and explosives, that is, in the com-mission of a crime under Article 263, part 1 ofthe Criminal Code of Ukraine.Criminal proceedings on charges of M.S.

Krivosh considered by the investigating judgeof the Lutsky city district court of the Volynskyregion Sivchuk A.S. The International Societyfor Human Rights is starting to monitor thiscase.

The course of the hearing. The senior inves-tigator for the Internal Affairs Directorate ofthe Ukrainian secret service (SBU) applied tothe Lutsky City District Court of the VolynskyRegion with a petition (agreed with the pros-ecutor in criminal proceedings - the DeputyProsecutor of the Volynsky Region A.Y. Se-menuk) on the application of a measure ofrestraint in the form of detention for a periodof 60, arguing that the latter is suspected ofcommitting crimes, which, according to Article12 of the Criminal Code of Ukraine belong, inparticular, to the category of grave and espe-cially grave crimes, does not work, does nothave an official source of income, as well as apermanent place of residence. Moreover, inves-tigator I.P. Lyashuk referred to the presence ofrisks provided for by Article 177 of the Crimi-nal Procedure Code of Ukraine, namely, thatbeing at large, a suspect can hide from the pre-trial investigation authorities and the court,illegally influence victims, witnesses, expertsin criminal proceedings, interfere with criminalproceedings in any other way, commit othercriminal offenses.Prosecutors O.S. Kostyuk and V.M.

Starchuk fully supported the petition andasked the court to fully satisfy it. Theprosecution noted that the crimes of whichM.S. Krivosh is suspected were committedwith the use of violence and the threat of its

use against a significant number of victims,including law enforcement officers, usingweapons, ammunition, explosive devices andsubstances.The suspect Maksim Krivosh at the court

session refused to express his position regard-ing the stated petition of the investigator. Hislawyer, S.A. Timozhinsky asked the court torule a legal procedural decision and asked totake into account the fact that the risks indi-cated in the investigator’s petition are subjec-tive. The defense lawyer asked to pay specialattention to the strong social ties of the sus-pect, namely, the presence of a wife and aminor son, who is in his custody.

According to the lawyer, in the petition forthe selection of a measure of restraint, theinvestigator mainly refers to the gravity of thecharge.

The International Society for Human Rightsdraws attention to the fact that the ECtHR inits decisions expressed its disagreement withthe fact that the judicial authorities often re-fer to the likelihood that a severe punishmentmay be imposed on the applicant, given thegravity of the crimes of which he was accused,thereby turning attention that the severity ofthe charge alone cannot justify long periodsof detention. . . (“Moskalenko v. Ukraine” para.36). Nevertheless, the severity of the chargesbrought and the risk of evasion from the inves-tigation may be grounds for issuing a decisionon the selection of a measure of restraint forthe first time (“Buryaga v. Ukraine”). The mereexistence of a reasonable suspicion that thedetained person has committed a crime is acondition sine qua non for the legality of thedetention (“Klyakhin v. Russia”).

The ECtHR reiterates that any deprivationof liberty, other than compliance with one ofthe exceptions specified in subparagraphs (a) -(f) of paragraph 1 of Article 5 of the Conven-tion, must also be “lawful” if the “lawfulness”of the detention and, in particular, compliance“The order established by law” are in ques-tion, the Convention, in fact, refers to nationallegislation and establishes the obligation to en-sure compliance with its substantive and pro-cedural rules (judgment in the cases “Erkalo

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v. The Netherlands”, para. 52, “Baranovskiy v.Poland”, para. 50).

In assessing the lawfulness of the detention,the Court must also find out whether the do-mestic law itself is in line with the Conventionand, in particular, with the general principlesset out in the Convention or arising from it.“The quality of the law” means that when na-tional legislation permits deprivation of liberty,it must be sufficiently accessible, clear and pre-dictable in its application to avoid any riskof arbitrariness. The Convention’s standard of“legality” requires that all legislation be formu-lated with sufficient clarity to enable a person,if necessary, through the provision of appropri-ate advice in the appropriate circumstances, toforesee the consequences that a particular ac-tion might have. When it comes to deprivationof liberty, it is important that national legisla-tion clearly defines the conditions of detention(“Del Rio Prada v. Spain”, para. 125).

The European Court of Human Rights ar-gues that the requirement of legality cannotbe enforced solely by compliance with nationallaw, which itself must comply with the Con-vention (“Plesho v. Hungary”, para. 57), sothat deprivation of liberty can be generallylawful from the point of view of domestic law,but, arbitrary, based on the content of theConvention, thereby violating its provisions.

It follows from this that the court’s decisionto take into custody or to extend the periodof detention will be justified not only if it isin accordance with national legislation, butalso taken into account the provisions of theConvention and the decisions of the EuropeanCourt.

The court, having consulted, decided to sat-isfy the investigator’s petition, to apply tothe suspect M.S. Krivosh measure of restraintin the form of detention for a period of 60days, the period of which is calculated fromthe moment of actual detention from 9:30 pm07/21/2020 to 09/18/2020 inclusive, withoutdetermining the amount of the bail.

3.26 The trial of KonstantinKulik

Monitoring of the trial in the case of theprosecutor Konstantin Kulik (court hearing04/02/2020)

On April 2, 2020, a preparatory hearing washeld in the Supreme Anti-Corruption Court inthe case of the prosecutor Konstantin Kulik,who is charged with illegal enrichment underpart 2 of article 368-2 of the Criminal Code ofUkraine.On October 7, 2016, National Anti-

Corruption Bureau’s (NABU) detectives com-pleted a pre-trial investigation in criminal pro-ceedings on the fact of illegal enrichment (part2 of article 368-2 of the Criminal Code ofUkraine) by Konstantin Kulik. According toNABU, from 2011 to 2015, while serving in theprosecution authorities, Kulik made a profitof more than 1 million 670 thousand hryvnias.In addition, during the same period, Kulik’sexpenses exceeded his income by 2.6 millionhryvnias and amounted to about 3.4 millionhryvnias. The case was sent to the Goloseevskycourt of Kiev. In the spring of 2019, prosecu-tors filed a motion to close the criminal pro-ceedings, substantiating it with the fact thatthe Constitutional Court of Ukraine, on theproposal of 59 members of the Parliament, byits decision of January 29, 2019 declared part2 of article 368-2 unconstitutional (recall thatKulik was charged with this article), prose-cutors referred to paragraph 4 of Part 1 ofArt. 284 of the Code of Criminal Procedure ofUkraine, according to which criminal proceed-ings should be closed in the event of the entryinto force of a law which abolished criminalliability for an act committed by a person. TheGoloseevsky court did not approve the applica-tion, since the Code of Criminal Procedure ofUkraine does not give it the authority to closecriminal proceedings at the stage of judicial re-view on the basis of this circumstance. So, thecase in the Goloseevsky court “was motionless”until the beginning of 2020. In other words,for almost a year the district court consideredcriminal proceedings on which the decision isobviously clear - an acquittal, since it is not

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possible to accuse a person according to anarticle recognized as unconstitutional. ISHRexperts express their concern about this fact,since national courts are extremely overloaded,by opening the judicial authority’s website, youcan see that many court hearings are sched-uled for 2021-2022. The court does not havethe opportunity to study dozens of volumesof case materials, to hold court hearings onlybecause the legislator has not thought out themechanism for closing criminal proceedings onthe basis of a decision of the ConstitutionalCourt at the stage of judicial consideration.In the case of Kulik, it was possible to

get out of the vicious circle formed in con-nection with a conflict in national legislation.On September 5, 2019, the Supreme Anti-Corruption Court (HACC) began its work, un-der whose jurisdiction all corruption offensesfall, in particular, the Kulik case. The HACCreviews cases from the very first stage, thatis, from the preparatory hearing (at which thecourt has the right to decide on the closure ofthe criminal proceedings). According to the re-port on the auto-distribution of cases betweenjudges, on January 17, 2020, a board was de-termined in the HACC to consider the case ofK. Kulik.So, on April 2, during a preparatory hear-

ing, the prosecutor filed a motion to close thecriminal proceedings, citing the unconstitu-tionality of the article imputed to the accused.The defense supported this request, in addi-tion, it filed its request to cancel the arrests ofthe bank accounts of the accused. The courtgranted all the applications submitted and, byits decision, closed the criminal proceedings.ISHR experts would like to express their

concern about the situation for several reasons.Firstly, once again, the ISHR in the pro-

cess of its monitoring faces significant gaps innational legislation: the lack of a mechanismfor closing criminal proceedings at the stageof judicial review due to the recognition of anorm as unconstitutional. Earlier, we notedthe unresolved issue at the legislative level ofthe exchange within the “Normandy format”(the case of ex-Berkut officers) and the use ofthe agreement on the provision of international

legal assistance in criminal cases in the case ofV. Yanukovych.

Secondly, the closure of the criminal pro-ceedings with reference to Clause 4, Part 1,Article 284 of the Criminal Code of Ukraineis doubtful, since it refers to the entry intoforce of the law, which repeals criminal liabil-ity, and not the decision of the ConstitutionalCourt. The latter is a body of constitutionaljurisdiction and ensures the supremacy of theConstitution of Ukraine but does not issuelaws. The legislative function is entrusted tothe Verkhovna Rada (Parliament) of Ukraine,which means that the decision of the Constitu-tional Court does not fall under clause 4 part 1of article 284 of the Criminal Code of Ukraine.Consequently, the legislator needs to resolvethis issue by making appropriate amendmentsto the Code of Criminal Procedure of Ukraineand provide the courts with the opportunity tooperate using the rules that govern a particularlegal fact, rather than confuse the courts due tolegislative gaps. Note that only the substantivelaw norms are not retroactive, this principledoes not apply to procedural legislation. Thatconfirms the case-law of the ECtHR. Thus,the Court found that the rules on retroactiveeffect of the law only apply to provisions defin-ing crimes and the corresponding punishments.As a general rule, they are not applicable toprocedural legislation, the direct applicationof which in accordance with the principle oftempus regit actum (the duration of the law)seems appropriate to the Court (“Skoppola v.Italy” No. 2, paragraph 110).

3.27 The trial of KulishNatalya

Monitoring the case of Kulish Natalya(hearing 02/04/2020)

02/04/2020, in the Zaliznychny District Courtof the city of Lvov, a criminal case was exam-ined in case number 12019140000000394 oncharges of Natalya Kulish in an attempt tosell her minor daughter to the Czech Republicfor sexual slavery (under part 3 of article 149of the Criminal Code of Ukraine).

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Criminal proceedings on charges of Kulish N.considered collectively. The board is composedof three judges A. Kirilyuk, N. Rumilova, A.Liush. The court hearing in this case was sched-uled for 4 pm. However, it began at 4:25 pmin connection with the lateness of the lawyerof the accused Kulish N. - Savaydy M.During the hearing, Natalia Kulish filed a

motion to replace the lawyer due to the factthat, in her opinion, the lawyer Savaida M.defended her improperly. According to the ac-cused, the lawyer did not provide her with acopy of the case file, did not arrive at meetingsin the remand prison, and did not discuss withher the legal position of the defense line.

The court granted the request of the accusedKulish N. and in this regard, adjourned thehearing to 02.17.2020 at 11 am.The European Court considered a similar

situation when the applicant in the “Zagorod-niy v. Ukraine” case claimed that the activitiesof the lawyers appointed in his case had beenineffective. In the context of the decision inthis case, the ECtHR noted that although theright of every person accused of a criminaloffense to effective defense by a lawyer is notabsolute, it is one of the main foundations ofa fair trial. A person against whom criminalcharges have been brought forward and whodoes not wish to defend himself in person mustbe able to avail himself of legal assistance ofhis own choosing.

The fact that for some time the accused, inher opinion, was provided with improper assis-tance from a lawyer, may indicate a violationof one of the basic principles of a fair trial -the right to defense.A fair trial is the procedural right of every

person whose rights are violated, not recog-nized or contested. The essence of this rightis that, firstly, it is a right to protect otherrights, and secondly, this right has its own self-sufficient value, as an integral element of therule of law.

In particular, in the case of “Chutura v. Croa-tia”, the ECtHR concluded that the right to afair trial was violated because the lawyer tookpart in the case as a passive observer, therebynot providing effective legal representation, in

violation of the Convention.

Monitoring the case of Kulish Natalya(session 02.17.2020)

02/17/2020, in the Zaliznychny District Courtof the city of Lvov, the case was examined incriminal proceedings No. 12019140000000394on charges of Natalya Kulish in attempting tosell her minor daughter to the Czech Republicfor sexual slavery (under part 3 of article 149of the Criminal Code of Ukraine).Criminal proceedings on charges of Kulish

N.I. considered collectively, composed of threejudges: Kirilyuk A.I., Rumilova N.M., LiushA.I. The trial in this case was scheduled for11:00 am but began with a delay of 45 minutes.

In connection with the petition of the ac-cused stated at the last court hearing, KulishN.I. (to replace the lawyer and provide herwith another lawyer), the lawyer from the Cen-ter for Free Legal Assistance Sidoruk Elenaarrived at the hearing.As the term of detention of the accused

expires on 02.24.2020, the prosecutor S. Krish-tanovich filed a motion to extend the measureof restraint in the form of detention for 60days with the possibility to make a bail in theamount of UAH 192,000. He stated that therisks provided for by Art. 177 of the Code ofCriminal Procedure of Ukraine (which werethe basis during the application of the measureof restraint) did not decrease, but the groundsfor application with respect to the accused Kul-ish N.I. a milder measure of restraint, otherthan detention, has not been established.The lawyer of the accused objected to the

application, citing the lack of substantial ev-idence of the risks under Art. 177 Code ofCriminal Procedure of Ukraine. The defensestressed that the accused has extenuating cir-cumstances such as strong social ties, namelythe presence of three children, two of whomare minors, requested the court not to applyto the accused measure of restraint related torestriction of freedom. According to the lawyer,the prosecutor, when applying for an extensionof the measure of restraint, refers only to onereason - the gravity of the charge.This corresponds to paragraph 3 of Art. 5

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of the Convention for the Protection of Hu-man Rights and Fundamental Freedoms (here-inafter - the Convention), according to which,after a certain period of time, it is just theexistence of reasonable suspicion that does notjustify deprivation of liberty and the courtsshould give other reasons for the extension ofdetention (decision in the cases of “Borisenkov. Ukraine”, “Yablonsky v. Poland”). Moreover,these grounds must be clearly indicated by thenational courts (“Eloev v. Ukraine”, paragraph60, “Kharchenko v. Ukraine”). However, thecourt granted the prosecutor’s request, extend-ing the detention for 60 days with the possi-bility of making a bail, which was originallyestablished.Even though the ECtHR considers it unac-

ceptable that the domestic courts consider itpossible to authorize detention without giv-ing any reason for such decisions, this wasnot taken into account. The Court also notesthat, having examined the relevant specificfacts and motivated certain decisions solely bythe gravity of the charges, the domestic courtshave repeatedly extended their detention ongrounds that cannot be considered “sufficient”.Furthermore, in one of its decisions the citycourt did not invoke these or other specificcircumstances in order to explain the impossi-bility of choosing alternative measures insteadof detention, as required by Article 5 § 3 ofthe Convention. When extending the period ofdetention, the court should not rely solely onthe gravity of the charge. It must also justifythe impossibility of applying other measures(“Osipenko v. Ukraine”).

Monitoring the case of Kulish Natalya(session 03/06/2020)

On March 6, 2020, in the Zaliznychny DistrictCourt of the city of Lvov, a criminal case No.12019140000000394 was examined on chargesof Natalya Kulish in attempting to sell her mi-nor daughter to the Czech Republic for sexualslavery (under part 3 of article 149 of the Crim-inal Code of Ukraine). Criminal proceedingson charges of Kulish N.I. considered collec-tively, composed of three judges: Kirilyuk A.I.,Rumilova N.M., Liush A.I. The International

Society for Human Rights continues to monitorthis case.

The hearing was scheduled for 11:00 am butstarted at 11:55. The day before the hearing,the prosecutor S. Krishtanovich filed a mo-tion to postpone consideration of the case inconnection with the passage of re-certification.The presiding judge Kirilluk A. submitted

the petition of the prosecutor for discussion,as well as to clarify the attitude of the partici-pants in the case to this petition. The lawyerSidoruk E.O., as well as the accused KulishN.I. herself, did not object to the satisfactionof the prosecutor’s request.

The court decided to grant the motion andadjourned the hearing to 03/26/2020.It should be noted that the accused Kulish

N. has been in custody since 06/13/2019. Andfrom her words, during a long stay in custody,her health condition deteriorated significantly.

As follows from the case law of the ECtHR,the conditions of detention can be recognizedas degrading and violating Article 3 of theEuropean Convention on Human Rights (here-inafter - the Convention), if the state of healthof the accused has worsened significantly dur-ing his detention. In particular, the EuropeanCourt notes such factors as overpopulation andunsanitary conditions in the cells and theirnegative impact on the health and well-beingof persons detained for a long time (“Kalash-nikov v. Russia”, “Florea v. Romania”). KulishN.I. also complained about the presence of theabove factors in the issue of deterioration ofhealth.In addition, the International Society for

Human Rights considers it important to notethat in the criminal proceedings against N.Kulish the court did not consider a measureof restraint other than an exceptional one -detention. This is also regarded by the EC-tHR as a violation of Article 5 § 3 of theConvention in cases where it is a long termof detention, and the domestic courts justifythe extension of the terms of detention onthe same grounds throughout the entire pe-riod of detention, or do not substantiate at all(“Baryshevsky v. Ukraine”, para. 69, “Eloev v.Ukraine”, para. 60, “Kharchenko v. Ukraine”,

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para. 80, “Gerashchenko v. Ukraine”), and alsodo not consider the issue of applying an alter-native measure of restraint (“Baryshevsky v.Ukraine” p. 51; 64).

Monitoring the case of Kulish Natalya(session 03/26/2020)

On March 26, 2020, in the Zaliznychny Dis-trict Court of the city of Lviv, the casewas examined in criminal proceedings No.12019140000000394 on charges of Natalya Kul-ish in an attempt to sell her minor daughter tothe Czech Republic for sexual slavery (underpart 3 of article 149 of the Criminal Code ofUkraine). Criminal proceedings on charges ofKulish N.I. considered collectively, composedof three judges: Kirilyuk A.I., Rumilova N.M.,Liush A.I. The trial in this case was sched-uled for 11:00 am, and began 50 minutes late.The International Society for Human Rightscontinues to monitor this case.The course of the hearing. Lawyer Sidoruk

E.O. filed a petition for the possibility of herclient taking a seat on a bench near a lawyerdue to the fact that the glass box in which theaccused is located interferes with the imple-mentation of appropriate defense. The accusedN. Kulish supported the lawyer’s request, andstated that she was hard of hearing both thecourt and the participants in the trial.One of the panel judges, Judge N. M. Ru-

milova, made a remark to the lawyer, askingwhy such a request was not submitted by theaccused herself, since she is an adult capableperson and is able to independently make sucha request. In response, the lawyer emphasizedthat she is the defender of the accused KulishN.I. and uses the rights provided for in Part4 of Art. 46 Code of Criminal Procedure ofUkraine.The prosecutor did not object to the sat-

isfaction of the request made by the defensecounsel. The court asked the head of the escortservice whether it is possible to ensure thatthe accused is on a bench near a lawyer. Theconvoy, referring to the “Instructions on theorganization of the escort and detention in thecourts of the accused (defendants) convicted atthe request of the courts”, stated that such an

action is not provided. As a result, the courtrefused to satisfy the lawyer’s request. TheInternational Society for Human Rights hasrepeatedly pointed out that the placement ofthe defendant in a separate box may affectthe quality of the defense provided (case of aBerkut, A. Melnik and others, etc.). In addi-tion, in paragraph 149 of the case “YaroslavBelousov v. Russia”, the ECtHR noted thatrestrictive measures in the courtroom couldaffect the fairness of the hearing guaranteedby Article 6 of the Convention.

Attorney Sidoruk E.O. filed a motion tochange the measure of restraint to a milderone, in the form of round-the-clock house ar-rest. According to the lawyer, the risks referredto by the prosecution when choosing a measureof restraint were no longer relevant. She alsoemphasized that there are circumstances that,in her opinion, were not taken into accountby the court, namely: the strength of the ac-cused’s social ties, detention for 9 months, thepresence of a young daughter and minor son.In addition, one of the risks identified in the pe-tition of the prosecutor for the extension of themeasure of restraint in the form of detentionis the risk of absconding from the court, todayis not relevant due to the introduction of anemergency in the country during which thereis no interregional and international transportconnection to in accordance with the Resolu-tion of the Cabinet of Ministers of Ukraine“On the extension of quarantine” of March 25,2020.

A similar situation was analyzed by the EC-tHR in a complaint No. 38717/04 dated Oc-tober 14, 2010 in the case of “Khairedinovv. Ukraine”. In paragraph 29 of the decision,the Court stated that the fact that “. . . at thetime of the applicant’s detention he was abouttwenty years old, he had no criminal recordand had a permanent place of residence, where,as confirmed by the local authorities, he hadgood established social ties ”was not taken intoaccount by the domestic courts when they de-cided to detain the applicant. Furthermore,in assessing the identity of the applicant, thedomestic courts decided to refer exclusively tonegative characteristics and did not take into

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account the positive ones. In the present case,the Court found the applicant’s complaint well-founded and decided in his favor.

In addition to the petition of the lawyer re-garding the presence of his client nearby, thecourt examined the petitions of the partiesregarding the measure of restraint. Accordingto the lawyer, court hearings are appointedonly with the aim of extending the measureof restraint in the form of detention, since thecriminal case itself is essentially not consid-ered.Natalya Kulish’s lawyer asked the court to

change the measure of restraint to round-the-clock house arrest, appealing to the decisionsof the European Court, which indicated thatafter some time the mere existence of a rea-sonable suspicion ceases to be the basis fordetention (for example, the case of “Yablonskyv. Poland”). The accused herself supported therequest of her lawyer. And she said that sheneeded to have a surgery on her leg, whichis impossible to do in the detention center;they cannot provide appropriate medical as-sistance, they do not provide medicine. Whilein custody, the defendant’s health condition,she said, had deteriorated significantly. In themedical unit of the pre-trial detention center,the diagnosis was established: chronic gastritis,theodral gastric reflex.Judge Liush A.I. from the panel of judges

asked the accused: is she pregnant? KulishN.I. answered that she was pregnant at thetime of the election of a measure of restraint.During her stay in the pre-trial detention cen-ter, she lost a child. In addition, the accusedKulish claims that there have been no com-plaints about her behavior during her stay inthe remand prison.The prosecutor objected to the request of

the defense and requested the court to extendthe detention for 60 days, referring to the riskprovided for in paragraph 3 of part 1 of Art.177 Code of Criminal Procedure of Ukraine: itis illegal to influence a victim, witness, othersuspect, accused, expert, specialist in the samecriminal proceedings. It should be noted thatthe victim in this case is the minor daughterof the accused, whose mother is accused of

trying to sell her into sexual slavery in an-other country. The prosecution also noted theincreased public danger of the alleged crime,which is also confirmed by the Council of Eu-rope Convention on the Protection of Childrenagainst Sexual Exploitation and Sexual Abuse,the Council of Europe Convention on Actionagainst Trafficking in Human Beings, ratifiedby Ukraine.According to the prosecutor, at this stage

of the criminal proceedings it is impossible tochange the measure of restraint due to the factthat during the investigation of evidence themeasure of restraint in the form of detentionshould be applied, which makes it impossibleto influence witnesses.Nevertheless, the International Society for

Human Rights, realizing that in each case theissue of detention should be studied individ-ually, recalls the importance of justifying theneed to extend an exceptional measure of re-straint.

The court, having conferred, decided to sat-isfy the prosecutor’s application by extendingthe detention for 60 days with the possibility ofmaking a bail which was originally established.

Monitoring the case of Kulish NatalyaIgorevna (hearing on 05/21/2020)

On May 21, 2020, in the Zaliznychny Dis-trict Court of the city of Lvov, the casewas examined in criminal proceedings No.12019140000000394 on charges of Natalya Kul-ish in an attempt to sell her minor daughterto the Czech Republic for sexual slavery (un-der part 3 of article 149 of the Criminal Codeof Ukraine). Criminal proceedings on chargesof Kulish N.I. was considered solely by JudgeRumilova N.M. The court hearing in this casewas scheduled for 11:00 am and began 40 min-utes late. The International Society for HumanRights continues to monitor this case.

The course of the hearing. As the accused’sdetention expire on 23 May 2020, the pros-ecutor Krishtanovich S. S. filed a motion toextend the measure of restraint in the form ofdetention for 60 days with the possibility ofmaking a bail in the amount of UAH 192,000.He argued the application by the fact that the

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risks under Art. 177 Code of Criminal Proce-dure of Ukraine, which were the basis at thetime of applying the measure of restraint, didnot decrease, but the grounds for applicationin relation to the accused Kulish N.I. a mildermeasure of restraint, other than detention, hasnot been established.The accused’s lawyer, Sidoruk E.O., ob-

jected to the application, noting that the prose-cutor’s application did not contain substantialevidence of the risks under Art. 177 Code ofCriminal Procedure of Ukraine. The accusedherself supported the request of her counsel.According to Sidoruk E.O., the prosecutor,stating a request for an extension of the mea-sure of restraint, refers only to one reason -the gravity of the charge.Analyzing the petition of the prosecution,

ISHR focuses on paragraph 3 of Art. 5 ofthe Convention for the Protection of Hu-man Rights and Fundamental Freedoms (here-inafter referred to as the Convention), accord-ing to which, after a certain period of time, themere existence of reasonable suspicion does notjustify deprivation of liberty and the courtsshould give other reasons for the extension ofdetention (judgment in the case of “Borisenkov. Ukraine”, “Yablonsky v. Poland”). More-over, these grounds should be clearly indicatedby the national courts (“Eloev v. Ukraine”,“Kharchenko v. Ukraine”). And the fact thatthe court granted the prosecutor’s request thatdoes not meet the requirements of the Code ofCriminal Procedure by extending detention for60 days may indicate a problem of automaticextension of detention.

According to the defense, court hearings areappointed only with the aim of extending themeasure of restraint in the form of detention,since the criminal case itself is not, in fact,considered. The court in its ruling did notstate any arguments for extending the periodof detention. In addition, after receiving thetext of the decision, the lawyer noted that itdid not correspond to the course of the trial.The International Society for Human Rightsexpresses its concern regarding the legality andfairness of such a court decision.

In its decisions, the European Court of Hu-

man Rights notes that although the nationalcourt has a certain margin of appreciationwith regard to the choice of arguments in aparticular case and the adoption of evidence insupport of the parties’ positions, the authorityis obliged to justify its actions by providingreasons for its decisions (“Suominen v. Fin-land”).

Monitoring of the case of Natalya IgorevnaKulish (hearing on July 16, 2020)

On July 16, 2020, the Zaliznychny Dis-trict Court of the city of Lvov consideredthe case in criminal proceedings number12019140000000394 on charges of Natalya Kul-ish in an attempt to sell her underage daughterto the Czech Republic into sexual slavery (un-der Part 3 of Article 149 of the Criminal Codeof Ukraine). Criminal proceedings on chargesof N.I. Kulish considered single-handedly byjudge N.M. Rumilova. The International So-ciety for Human Rights continues to monitorthis case.The course of the hearing. Prosecutor S.S.

Krishtanovich filed a petition to extend themeasure of restraint in the form of detentionfor a period of 60 days with the possibility ofa bail in the amount of 192,000 UAH. He ar-gued that the risks provided for by Article 177of the Criminal Procedure Code of Ukraine,which were the basis during the application ofthe measure of restraint, did not diminish, butthe grounds for the application of N.I. Kul-ish against the accused. no milder measure ofrestraint other than detention has been estab-lished. The prosecutor noted that accordingto the certificate provided by the head of themedical unit of the pre-trial detention center,the state of health of Kulish N.I. assessed assatisfactory.The defendant’s lawyer - Sidoruk E.O. ob-

jected to the stated petition, arguing that therewas no substantial evidence of the existence ofrisks under Article 177 of the Criminal Proce-dure Code of Ukraine. The accused N. Kulishhas been in custody for over a year, which,in his opinion, is contrary to Article 197 ofthe Criminal Procedure Code of Ukraine. Ex-perts from the International Society for Human

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Rights are concerned about this situation.The defense referred to the case law of the

ECtHR, according to which, after a certain pe-riod of time, the mere existence of reasonablesuspicion does not justify the deprivation of lib-erty, and the courts must give other grounds forextending the detention (judgment in the case“Borisenko v. Ukraine”, “Yablonsky v. Poland”).Moreover, these grounds must be clearly in-dicated by the national courts (“Eloyev v.Ukraine”, “Kharchenko v. Ukraine”).

According to the lawyer, the state of healthof the accused is constantly deteriorating, newdiseases have begun to develop. The lawyernoted that N. Kulish needs surgery on her leg.According to the defense lawyer, court ses-

sions are scheduled only for the purpose ofextending the measure of restraint in the formof detention, since the criminal case itself isessentially not considered. She also stressedthat there are circumstances that, in her opin-ion, were not taken into account by the court,namely: the strength of the social connectionsof the accused - the presence of a minor daugh-ter and a minor son.Natalya Kulish’s lawyer asked the court to

grant her petition to change the measure ofrestraint to round-the-clock house arrest. Theaccused herself supported the petition andstated that with regard to the risk of hidingfrom the preliminary investigation and / orthe court, she has nowhere to run and she willnot harm herself or her family. During her stayin custody, the state of health of the accused,according to her, has deteriorated significantlydue to unsanitary conditions, since they aretaken to the shower once every two or eventhree weeks.

As follows from the case law of the ECtHR,conditions of detention can be deemed to de-grade human dignity and violate Article 3 ofthe European Convention on Human Rights,if during the time of detention, the state ofhealth of the accused has significantly deteri-orated. In particular, the Court notes factorssuch as overcrowding and unsanitary condi-tions in cells and their negative impact on thehealth and well-being of persons in detentionfor a long time (“Kalashnikov v. Russia”, “Flo-

rea v. Romania”). Kulish N.I. also complainedabout the presence of the above factors in thematter of deteriorating well-being.

The court, after consulting, decided to grantthe lawyer’s petition, changing the measureof restraint from detention to round-the-clockhouse arrest for a period of 60 days.

3.28 The trial of DmitryKurylenko

Monitoring of the case of DmitryKurylenko (hearing 09.09.2020)

09/09/2020, the Collegium of Judges of theCriminal Chamber of the Lvov Court of Ap-peal considered the case in criminal proceed-ings number 12020140000000490 on chargesof Dmitry Pavlovich Kurylenko in violation ofroad safety rules or the operation of transportby a person driving a vehicle, which resultedin the death of several persons, that is, in thecommission a crime under Article 286 Part 3of the Criminal Code of Ukraine.Criminal proceedings on charges of D.P.

Kurylenko was considered collegially in thecomposition of three judges: V.Y. Golovatiy,I.P. Gutsal, T.M. Urdyuk. The InternationalSociety for Human Rights is starting to moni-tor this case.The course of the hearing. Defender of the

accused D.P. Kurylenko - Ikavy M.R. filed anappeal against the decision of the investigatingjudge of the Galitsky District Court of the cityof Lvov dated 08.20.2020 on the extension ofthe period of detention in criminal proceed-ings. By this decision, the investigating judgegranted the petition of the investigator of theMain Directorate of the National Police in theLvov region Stepanenko Y.M. and extendedthe term of the measure of restraint in theform of detention for 60 days to the suspectuntil 10.18.2020, with the determination of abail in the amount of UAH 168, 160.In the reasons for the decision, the inves-

tigating judge referred to the fact that D.P.Kurylenko is suspected of committing a seri-ous crime, as a result of which three peopledied, and therefore the risks of non-fulfillment

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by Dmitry Kurylenko of his procedural obli-gations under Art. 177 of the Criminal Proce-dure Code of Ukraine continue to exist. How-ever, the court in its decision did not indicatethe reasons for the impossibility of applyinga milder measure of restraint not related todetention.The ECtHR has often found a violation

of paragraph 3 of Art. 5 of the Conven-tion in cases where domestic courts contin-ued detention, relying mainly on the grav-ity of the charges and using formulaic lan-guage, without even considering specific factsor the possibility of applying alternative mea-sures (“Kharchenko v. Ukraine”, paras 80-81;“Tretyakov v. Ukraine” para. 59).

Defender Ikavyi M.R. in his appeal asked tochange the decision of the investigating judgein terms of the size of the bail and determineit in the amount of UAH 42,040. The lawyerdrew attention to the fact that the judge of theGalitsky District Court did not take into ac-count that the suspect had not been previouslyprosecuted, had committed a crime throughnegligence, and was himself a disabled. Healso has a dependent mother – also a disabledperson and a grandmother; positively charac-terized, has a permanent place of residence.The lawyer also pointed out that the amountof the bail determined by the investigatingjudge was too high. The investigating judge,in his opinion, did not take into account theincome statement of the suspect, according towhich his income for six months is 9,828 UAH.

Prosecutor A. Voitsenko objected to the ap-peal and asked the court to leave the decisionof the investigating judge of the Galitskiy Dis-trict Court of the city of Lvov dated 08.20.2020unchanged. Motivating by the fact that D.P.Kurylenko is reasonably suspected of havingcommitted a crime, and the risk that the sus-pect may try to hide from the preliminaryinvestigation and / or court continues to exist.

However, in the case “Panchenko v. Russia”paragraph 106, the ECtHR highlighted thatthe risk of escape should not be assessed solelyon the basis of the severity of the punishmentthat may follow. It should be determined tak-ing into account a number of other relevant

factors, which can either confirm that there isa danger of escape or show that it is too smalland there is no need for preliminary detention.The prosecutor could not give such reasons.

In addition, for this criminal proceeding, itis still necessary to complete the transport-traceological and auto-technical examination,forensic medical examination, it may take along time to get results of this examinations.

The court, after consulting, decided to refuseto satisfy the appeal of the defender M.R.Ikavy, leaving the decision of the investigatingjudge of the Galitskiy District Court of Lvovdated 08.20.2020 unchanged.

3.29 The trial of Andrei Lesik

Monitoring the case on charges of AndreiLesik (01/30/2020)

01/30/2020 in the Dzerzhinsky district court ofthe city of Kharkov, a hearing was held in thecase of Andrei Lesik, who is accused of resistinga law enforcement officer in the performanceof his official duties, as well as intentionallycausing bodily harm to him in connection withthe officer’s official duties (part 2 of article 342,Part 2 of Art. 345 of the CC of Ukraine).

The judge announced the next stage of thetrial, the study of video materials from CDdiscs that were added to the case file.

A short audio recording of a telephone con-versation of the accused when exiting the build-ing of the Ukrainian Security Service (SBU)was studied. In this audio recording, you canhear the accused trying to leave the buildingto meet his lawyer, and the SBU officers some-how prevent this. On the record you can hearA. Lesik shouting more than once that he goesto the lawyer, asks that he be released and nottouched. As the accused himself said, he ar-rived at the SBU on the recommendation of alawyer to familiarize himself with the prosecu-tion, after which the SBU officers “insistently”asked him to sign some documents and did notallow him to go to the lawyer, which contra-dicts Part 3 of Art. 6 of the Convention. AfterA. Lesik on the recommendation of a lawyer,refused to sign anything, a fight began and he

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was taken by ambulance to the hospital.The European Court of Human Rights notes

the importance of the investigative stage inpreparing for the trial of a criminal case, sincethe evidence obtained at this stage determinesthe framework within which the charge will beconsidered in a court case (“Kahn v. Austria”).At this stage of the proceedings, the accusedis often in a particularly vulnerable position,the effect of which is enhanced by the fact thatcriminal law, especially the provisions govern-ing the collection and use of evidence, is be-coming more complicated. In most cases, sucha special vulnerability can be properly com-pensated only by the help of a lawyer, whosetask is, in particular, to ensure that the rightsof the accused are respected. In fact, this rightimplies that the party to the criminal case,when trying to prove its version against the ac-cused, cannot use the evidence obtained usingmethods of coercion or harassment contraryto the will of the accused (“Jaloh v. Germany”,“Kola v. Turkey”).

Ensuring speedy access to a lawyer is one ofthe procedural guarantees to which the Courtpays particular attention when examining theissue of whether the very essence of the ap-plicant’s right not to incriminate himself wasundermined during the proceedings (“Jaloh v.Germany” (paragraph 101)).The prosecutor stated that this record has

no evidentiary properties, since it is impossibleto establish on the record whether the voiceon the audio belongs exactly to the accused.The prosecutor also indicated that the timewhen the record was made is unknown.

Then another video from the hospital itselfwas watched, namely at the entrance to theroom of A. Lesik. This video recorded how SBUofficers tried to get into the accused’s room,which Lesik’s acquaintances prevented. Hiswife and father were recorded on the video andthe stampede is seen, screams are heard thatthe victim does not have a lawyer, requests foridentification, etc. During the stampede, thesituation escalates, SBU officers begin to raisetheir voices in response to some actions of the“defenders”, after which they break througha crowd of people into the room, where the

victim was provided with medical care. Theprosecutor, commenting on this video file, saidthat there were no facts recorded on the videothat would confirm or refute the actions al-legedly incriminated to Lesik. The prosecutionargues that the actions of law enforcement wereabsolutely legal, as the officers came to deliverthe summons to Andrei Lesik and behavedcorrectly.

Further, the lawyer made an assumptionthat the SBU officers could have received dam-ages that were established by the examinationduring the stampede itself and stated that sucha possibility, in principle, was not checked bythe investigation. In accordance with the caselaw of the European Court, if the violationof the right to life or physical integrity wasnot caused deliberately, the positive obligationto create an “effective judicial system” doesnot necessarily require criminal proceedingsin each case and can be respected by civil,administrative or even disciplinary remedies.

However, the minimum requirement for sucha system is that the persons responsible for theinvestigation should be independent of those in-volved in the events that are being investigated.This refers to hierarchical or institutional in-dependence, as well as practical independence(“Sergey Shevchenko v. Ukraine”).

Accordingly, the system that is required byArt. 2 of the Convention should provide for anindependent and impartial investigation thatmeets certain minimum standards of effective-ness. Thus, the competent authorities mustact with due persistence and, on their owninitiative, initiate proceedings that can, firstly,establish the circumstances in which the eventoccurred and the shortcomings of the system;secondly, to establish which of the represen-tatives of state bodies were involved in theincident (“Sergey Shevchenko v. Ukraine”).

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3.30 The trial of Igor Lozinskyand others

Monitoring of the case of Lozinsky IgorNikolaevich, Koshevarov EvgenyVasilievich, Piven Vadim Stepanovich,Zatvorsky Roman Bogdanovich (session on04.10.2020)

04/10/2020, in the Lychakivsky district courtof the city of Lviv, the case was examined incriminal proceedings No. 12018140000000196on charges: 1. Lozinsky Igor Nikolaevich inincitement to commit a crime under Part 5of Art. 191 of the Criminal Code of Ukraine(the appropriation, embezzlement of propertyor the seizure of it by abuse of official positionwere committed in especially large amounts orby an organized group); as well as in officialforgery (part 1 of article 366 of the Crimi-nal Code) committed by a group of personsby prior conspiracy; 2. Koshevarov EvgenyVasilievich and Piven Vadim Stepanovich incommitting crimes under Part 5 of Art. 191and part 1 of the article 366 of the CriminalCode of Ukraine; 3. Zatvorsky Roman Bog-danovich committing a crime, under Part 1Article 366 of the Criminal Code of Ukraine.

The criminal proceedings are examined col-lectively, composed of three judges: Nor N.V.,Gritsko G.G., Strepko N.L. The InternationalSociety for Human Rights begins monitoringthis case.The course of the hearing. At the hearing

on April 10 the prosecutor Krishtanovich S.S.filed a motion to extend to the accused PivenVadim Stepanovich a measure of restraint inthe form of a house arrest at night from 00:00to 06:00 am, with the assignment of the dutiesstipulated by the Code of Criminal Procedure:to arrive at the court and to the prosecutorupon request, to deposit his passport (pass-ports) for traveling abroad, other documentsgiving the right to leave Ukraine and enterUkraine, not to leave the place of residenceat a time determined by the court, to refrainfrom communicating with witnesses in crimi-nal proceedings. The prosecutor arguing thatthe accused could try to hide from the court,illegally influence witnesses, commit another

criminal offense, or continue to engage in crim-inal activities, asked the court to grant hisrequest.

According to the lawyer Ivanov O.A., by ex-tending the measure of restraint to V. Piven,the court will violate Article 5 of the Con-vention on Human Rights and FundamentalFreedoms.It should be noted that in the case of

“Navalny v. Russia”, the applicant complainedof house arrest, because this type of measure ofrestraint was unnecessary and masterful. TheECtHR emphasized that the national court didnot show any signs that the accused intendedto evade the investigation; on the contrary, hewas present at all the necessary investigativeactions.It is important to note that the prosecu-

tor’s petition did not indicate any new circum-stances for extending the measure of restraintto the accused Piven V. S. The risks to whichthe prosecutor refers were based solely on hisassumptions.ISHR experts have repeatedly focused on

the fact that the severity of the alleged crimeand the severity of the possible punishmentcannot justify the risk of escape or hiding fromjustice.

The prosecutor also filed a motion to extendthe measure of restraint of Yevgeny VasilyevichKoshevarov. Considering that E. Koshevarovis on bail, the prosecution requested an ex-tension of the following duties: to arrive atthe court and to the prosecutor upon request,to deposit his passport (s) with the relevantstate authorities for travel abroad, other doc-uments giving the right to leave Ukraine andenter Ukraine, not leave the city of Lviv with-out the permission of the prosecutor or thecourt, refrain from communicating with wit-nesses in criminal proceedings, other employeesof the Sambir communal enterprise “United”,officials of the Sambir city council and the De-partment of Development and Operation ofHousing and Public Utilities LOGA, motivat-ing such request by the same risks as in thefirst application.In respect of I. Lozinsky a similar request

was made (in the form of a personal obliga-

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tion).It should be noted that in this criminal pro-

ceeding the prosecutor submits a request foran extension of the measure of restraint inrespect of the three accused, citing the samerisks. However, the prosecution asks the courtto apply different measures of restraint to eachaccused. The danger that the accused will cre-ate obstacles to the proper conduct of the trialcannot be assessed abstractly, but must besupported by factual evidence (“Bekchiev v.Moldova”, para. 59).

The defense objected to satisfying the pros-ecutor’s motives, arguing that the prosecutordid not take sufficient risks to consider thatthe accused would hide from the court andput pressure on witnesses, and asked the courtto choose milder measures of restraint for theaccused in the form of a personal obligationbased on case law of the ECtHR. The defen-dants Lozinsky I.N., Koshevarov E.V., PivenV.S. also supported the opinion of their de-fenders.Despite the arguments of the lawyers, the

prosecutor’s requests were granted.

Monitoring of the case of Lozinsky IgorNikolaevich, Koshevarov EvgenyVasilievich, Piven Vadim Stepanovich,Zatvorsky Roman Bogdanovich (heartingon 05/28/2020)

On May 28, 2020, in the Lychakovsky dis-trict court of the city of Lvov, the casewas examined in criminal proceedings No.12018140000000196 on the charge of: 1. Lozin-sky Igor Nikolaevich in incitement to commit acrime under Part 5 of Art. 191 of the CriminalCode of Ukraine (the appropriation, embez-zlement of property or the seizure of it byabuse of official position were committed inespecially large amounts or by an organizedgroup); as well as in official forgery (part 1 ofarticle 366 of the Criminal Code) committedby a group of persons by prior conspiracy; 2.Koshevarov Evgeny Vasilievich, Piven VadimStepanovich in committing crimes under Part5 of Art. 191 and part 1 of the article 366 ofthe Criminal Code of Ukraine. 3. ZatvorskyRoman Bogdanovich in committing a crime

under Part 1 of Art. 366 of the Criminal Codeof Ukraine. 4. Piven Vadim Stepanovich incommitting crimes under Part 5 of Art. 191and part 3 of article 28, part 1, article 366 ofthe Criminal Code of Ukraine.

The criminal proceedings are examined col-lectively by three judges: Nor N. V., GritskoG. G., Strepko N. L. The International Societyfor Human Rights continues to monitor thiscase.

The course of the hearing. At the hearing theprosecutor Krishtanovich S.S. filed a motion toextend the accused Piven Vadim Stepanovicha measure of restraint in the form of house ar-rest at night from 00:00 to 06:00 am, with theassignment of duties stipulated by the normsof the criminal proceeding. On the groundsthat the accused could try to escape from thecourt, illegally influence witnesses, commit an-other criminal offense, or continue to engage incriminal activity, he asked the court to granthis request.

It is important to note that the prosecutor’srequest did not indicate any new circumstancesfor extending the measure of restraint to theaccused Piven V. S. The risks to which theprosecutor referred were not justified, but wereformulated only as assumptions. In the EC-tHR judgment in the case of “Nikolova v. Bul-garia (No.2)”, the applicant complained thatthe preventive detention and her house arrestwere unfounded and their duration was unrea-sonable. On this occasion, the ECtHR notedthat “. . . the continued existence of a reason-able suspicion that the person arrested hascommitted an offense is a sine qua non condi-tion for the lawfulness of prolonged detention,but over time it is no longer sufficient.” More-over, in such cases, the ECtHR insists thatthe court must establish whether in the futuresuch deprivation of liberty was justified byother grounds given by the judicial authorities.And whether such grounds were “appropriate”and “sufficient” (paras. 152, 153 of “Labitha v.Italy”).

The lawyer of the accused Piven V.S. - Mit-sik A.V. objected to the petition of the prosecu-tor and verbally petitioned to change the mea-sure of restraint from house arrest at night to

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a personal obligation. According to the lawyer,imprisonment in the form of house arrest vio-lates constitutional human rights. In addition,in his opinion, in the application of the prosecu-tor for the extension of the measure of restraintto V. Piven in the form of house arrest therewere no justifications.

The prosecutor also filed a motion to extendthe measure of restraint in the form of a pledgeto Yevgeny Vasilievich Koshevarov, with theassignment of the duties stipulated by the crim-inal proceeding, motivating it with the samerisks as in the first motion. The prosecutor’s pe-tition did not indicate any new circumstancesfor extending the measure of restraint to theaccused E. Koshevarov, and it is also impor-tant to highlight the fact that the risks referredto by the prosecutor were not supported byevidence or otherwise justified. Thus, the In-ternational Society for Human Rights believesthat in this case there may be a problem ofshifting the burden of proof to lawyers. It isimportant to note that shifting the burden ofproof from the prosecution to the defense isan absolute violation of the presumption ofinnocence (“Telfner v. Austria”, para. 15).In respect of I. Lozinsky a similar request

was made (in the form of a personal obliga-tion).

It should be noted that in this criminal pro-ceeding the prosecutor submits a request toextend the measure of restraint in respect ofthe three accused, citing the same risks. How-ever, the prosecution asks the court to applydifferent measures of restraint to each accused.Although the danger that the accused will in-terfere with the proper conduct of the trialcannot be assessed abstractly, but must besupported by factual evidence (“Bekchiev v.Moldova”, para. 59), in the present case, theprosecutor did not substantiate any of the mo-tions, thus it was abstractly, by internal con-viction or for some other reason not obviousto the observer of the ISHR, that made thedistinction between the accused.The defense objected to the satisfaction of

the prosecutor’s requests and requested thecourt to mitigate the measures of restraint forthe accused on a personal obligation, based on

the case law of the ECtHR. The defendantsLozinsky I.N., Koshevarov E.V., Piven V.S.also supported the opinion of their defenders.The court rejected the request of the pros-

ecutor to extend the measure of restraint inthe form of house arrest to Piven V.S., havinggranted the request of the lawyer Mitsik A.V.and replaced the accused Piven V.S. measureof restraint from house arrest to a personal obli-gation. But, at the same time, court grantedthe prosecutor’s motion to extend the previ-ously selected measures of restraint againstother defendants - Lozinsky I.N. and Koshe-varov E.V.

3.31 The trial of BogdanMaistruk

Monitoring of the criminal case of BogdanMaistruk (session 01.24.2020)

On January 24, 2020, at 10:00 a.m., a hear-ing was held in the Sykhovsky District Courtof the city of Lvov on suspicion of MaistrukBogdan, born on August 5, 1997, in commit-ting a criminal offense under Part 2 of Art.15 h.2st.289 of the Criminal Code of Ukraine.Judge Borochok M.V., prosecutor KrasnitskyI.Ya., accused Maystruk B.A., defense counselBurdin S.M., victim Galkin A.A. were present.Two witnesses were questioned: Dmitry N.I.,Gentosh A.V.Maystruk Bogdan is suspected of commit-

ting a crime under Part 2 of Article 289 of theCriminal Code of Ukraine - unlawful seizureof a vehicle, committed repeatedly or by priorconspiracy by a group of persons, or with vio-lence not dangerous to the life or health of thevictim, or with the threat of such violence orcommitted with penetration into a residenceor other storage, or if it caused significant ma-terial damage.On July 2, 2019 at about 11pm Maystruk

Bogdan, being on the 150 Zelenaya street, withthe use of violence that is not dangerous tothe life or health of the victim, illegally tookpossession of a Honda scooter, but was de-tained, and for reasons beyond his control didnot bring its criminal intent to the end.

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During the interrogation in court, witnessDmitry Nazar, born on 02.07.1998, who is afriend of the victim Alexander Galkin, testifiedthat the accused Maystruk B.A., together withtwo unknown persons, approached him anddemanded that he give him a scooter whichbelongs to the victim, and upon hearing the re-fusal inflicted light bodily harm on the witnessand took possession of the scooter.

Witness Gentosh Anna, born on 12.06.2000,who is the cousin of the victim A.Galkin, notedthat she saw three unknown persons drivingthe victim’s scooter along Zelenaya Street, andafter that she called Galkin Alexander andreported what she saw.During the court session, the prosecutor of

the Sikhovsky department of the Lvov localprosecutor’s office No. 1, Ivan Krasnitsky, fileda motion to bring witness Voyovich V.M.When considering criminal proceedings No.

12019140070001693 of July 2, 2019, on suspi-cion of Maistruk Bogdan in committing a crim-inal offense under Part 2 of Art. 15 h.2st.289of the Criminal Code of Ukraine, in our opin-ion, and in the opinion of the lawyer BurdinSergey no violations (including human rightsviolations) were found.

3.32 The trial of VladislavManger and others

Monitoring of the case of V.N. Manger,A.A. Levin (hearing 08.28.2020)

On 08.28.2020, in the Dniprovsky districtcourt of the city of Kiev, a case was consid-ered in criminal proceedings number 1-kp /755/1325/20 on charges of the chairman of theKherson regional council Vladislav NikolaevichManger and ex-assistant to the deputy of theKherson regional council Levin Alexey Alek-seevich, in the commission of crimes providedfor by part 3 of article 27, part 2 of article28, part 2 of article 121 of the Criminal Codeof Ukraine, namely, in organizing the commis-sion of intentional grievous bodily harm by agroup of persons by prior conspiracy in a man-ner that has the character of special torment,which entailed the death of the victim, civil

society activist Ekaterina Gandzyuk.It should be noted that since 2018, five crim-

inal proceedings have been opened in this caseconcerning the murder of the activist. In par-ticular, on October 30, 2019, the General Pros-ecutor’s Office transferred to the UkrainianSecret Service (SBU) the criminal proceedingson the negligence of the police officers whoinitially investigated this case.The course of the court session: The repre-

sentative of the victims - lawyer Zakrevskaya,as well as the victims themselves did not ap-pear in the courtroom, but submitted an appli-cation to hold the court session without theirparticipation and asked to take into accountthe support of the claim, and in their furtherabsence, continue the consideration of the casewithout their participation in compliance rea-sonable time frame. Defenders Strigin M.A.and Kozakevich S.V. also did not appear atthe hearing having previously submitted a pe-tition, and instead of the lawyer Dunaev, thelawyer Murashkina was involved.

Despite the fact that earlier (on August 20,2020) the court ruled to detain both of theaccused, at the request of their lawyers, atthe time of the trial they were next to theirdefenders, and not in a glass box.The course of the court session: the de-

fenders, referring to exceptional circumstances,made a motion to transfer the case to anothercourt due to the fact that most of the witnessesin the case are in another city. To which thecourt determined that the decision on deter-mining the jurisdiction in this case had alreadybeen made by the decision of the SupremeCourt dated 08/04/2020, drawing attentionalso to the fact that the witnesses are partici-pants in criminal proceedings (and not judicialones, as the lawyers referred to). This decisionof the court is motivated by the fact that theplace of committing the crime incriminated tothe organizers in this criminal proceeding is anunidentified place where the accused commit-ted actions containing signs of corpus delictiunder Part 3 of Article 27 and the correspond-ing part of Article 121 of the Criminal Codeof Ukraine. In addition, from the contents ofthe indictment, it was established that the pre-

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trial investigation of this crime was carried outby the investigation department of the MainDirectorate of the SBU in Kiev and the Kievregion, the location of which is an adminis-trative building at 3A Askoldov street, Kiev(Pechersky district). Taking into account theprovisions of Part 1 of Article 32 of the Crimi-nal Procedure Code of Ukraine, the groundsprovided for in paragraph 1 of Part 1 of Arti-cle 34 of the Code of Criminal Procedure ofUkraine for transferring criminal proceedingsfrom one court to another within the jurisdic-tion of various courts of appeal have not beenestablished.

Thus, the court put up for discussion the re-quest of the defense to decide the issue of sum-moning witnesses before the announcement ofthe indictment.

The prosecutor opposed the granting of thispetition, saying that the law does not obligeto determine a specific list of witnesses in thepreliminary trial and added that the interro-gation of witnesses should take place at thestage of examining the evidence.

The court refused to satisfy the request, con-sidering it unfounded.The defense also asked to summon about

a hundred witnesses to the court for interro-gation in this case, to which the prosecutorobjected, arguing that some of them were notdirectly related to the circumstances of thecase, and this, in his opinion, testifies to thedeliberate delay in the trial by the defenders.Note that Article 6 § 3 of the Convention

on Human Rights protects the accused froma hasty trial (“Crocher and Moller v. Switzer-land”). While it is important to conduct legalproceedings within a reasonable time frame,this should not be done at the expense of theprocedural rights of one of the parties (“OAOOil Company Yukos v. Russia”).The lawyers have repeatedly drawn atten-

tion to the fact that in this court session it isthe defense side who must prove the innocenceof their clients, which, in principle, is not theirprocedural duties, and the prosecution has nodirect evidence against the accused.

The jurisprudence of the European Court ofHuman Rights suggests that the principle of

the presumption of innocence requires, interalia, that, in the performance of their duties,judges do not prejudice that the accused hascommitted a relevant offense; the burden ofproof lies with the prosecution and any doubtis interpreted in favor of the accused. In orderfor the accused to properly prepare and presenthis defense, the prosecution must inform him ofthe initiation of legal proceedings against him,as well as provide evidence sufficient to convicthim (“Barbera, Messegi and Jabardo v. Spain”;“Janosevich v. Sweden”). The presumption ofinnocence is violated when the burden of proofis shifted from the prosecution to the defense(“Telfner v. Austria”).

After reading the indictment, the accusedthemselves did not fully understand theessence of the accusation, in particular, thenature, motives and reasons for the accusationbrought against them, therefore, the lawyerof the accused Munger V.N., Shadrin A.S.,filed a request for a written clarification of theessence of the charge, in particular the wayand method the accused Munger contacted theaccused Levin (since in the indictment, accord-ing to the defenders, this was not stated).The court, referring to Article 291 of the

Code of Criminal Procedure and the fact thatat this stage the court is obliged to clarifythe charge only in the form in which it ispresented in the indictment, did not considerthis petition, but several times orally explainedto each accused the indictment.During the court hearing, the petition to

change the measure of restraint against theaccused V.N. Manger was also considered (bailinstead of detention) in connection with theemergence of new circumstances of the case,namely, the beginning of the electoral processand the desire of the accused to participate inlocal elections.

The prosecutor opposed the granting of thepetition, saying that the beginning of the elec-toral process did not fall under the categoryof new circumstances of the case, because theaccused had known this information earlier.

Having listened to the opinion of the partic-ipants in the proceedings, the court decidedto leave this petition without consideration.

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The European Court of Human Rights reit-erates that the question of whether a person’sdetention was justified or not cannot be as-sessed abstractly. The question of whether theaccused should be kept in custody must beassessed on the basis of the facts of each par-ticular case and in accordance with its specificcharacteristics (“Idalov v. Russia”).

Also, in this court session, a civil claim wasfiled by one of the representatives of the vic-tims, for the recovery of 23 million hryvnia infavor of the victims and a repeated petition forthe seizure of the property, since the petitionfiled earlier was partially fulfilled. Considera-tion of these applications will take place at thenext court session.

Monitoring of criminal proceedings V.N.Manger, A.A. Levin (hearing 10/15/2020)

10/15/2020, in the Dniprovsky District Courtof the city of Kiev, a hearing of case No.757/31502/20 was held on charges of the chair-man of the Kherson Regional Council VladislavNikolaevich Manger and the ex-assistant of thedeputy of the Kherson Regional Council AlexeiAlekseevich Levin in committing crimes underPart 3 of Article 27, Part 2 of article 28, Part 2of article 121 of the Criminal Code of Ukraine,namely, in organizing and committing, by priorconspiracy, by a group of persons intentionallygrievous bodily harm in a manner that has thenature of special torment, which entailed thedeath of the victim - Kherson activist Ekate-rina Gandzyuk.

It should be noted that, since 2018, five crim-inal proceedings have been opened regardingthe murder of an activist. In particular, onOctober 30, 2019, the General Prosecutor’sOffice transferred to the Ukrainian SecurityService (SBU) the criminal proceedings on thenegligence of the police officers, who initiallyinvestigated this case.As a reminder, the observer of the Interna-

tional Society for Human Rights has alreadymonitored this case on 08.28.2020.

The course of the court session: the represen-tative of the victim, lawyer E.A. Zakrevskayaand the victims themselves did not appear atthe court session (as well as at the hearing on

08/28/2020), having previously submitted apetition to consider the case without their par-ticipation; in addition, the lawyers S.V. Koza-kevich and I.S. Mokin also did not appear. Theparticipants in the court proceedings did notobject to the consideration of the case withoutvictims, lawyers and one prosecutor. Thus, thecourt decided to continue the consideration ofthe case.The hearing began with the submission by

the defense of a petition to attach to the casefile two sheets of paper with correspondence be-tween the accused A.A. Levin and witness IgorPavlovsky, which, according to the lawyers, isimportant for this court proceeding.

The prosecutor asked to refuse to grant therequest, noting that it is not known when andunder what circumstances this correspondencewas carried out. Moreover, at the previouscourt session (September 18, 2020), where thewitness was questioned, the defense had theopportunity to ask the necessary questions tothe witness to substantiate their position incourt. The prosecutor also noted that personalcorrespondence is confidential information andthe witness during interrogation did not givehis permission to disclose it in court.The representative of the victim supported

the position of the prosecutor. The court, re-ferring to Art. 162 of the Criminal ProcedureCode of Ukraine, refused to satisfy the request.In addition, the lawyer A.S. Shadrin filed

two applications to clarify the court decisionsof September 18, 2020 and September 25, 2020,namely, whether these decisions are subjectto appeal. The prosecutor objected, sayingthat there were no well-reasoned grounds forconsidering this petition as such. The courtrejected these requests.Also, the defender D.O. Ilchenko filed two

petitions to provide lawyers with temporaryaccess to documents, namely, to the medicalhistory and medical card of K.V. Gandzyuk(asked to carry out the seizure provided for inArticle 165 of the Criminal Procedure Code ofUkraine). The court granted the request.

The prosecutor also petitioned for an exten-sion of the term of detention of the accused.The lawyers of the accused V.N. Manger filed

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a motion to change the measure of restraint,and lawyer A.S. Shadrin asked the court tochange the measure of restraint in the form ofdetention into house arrest, and lawyer D.O.Ilchenko asked to apply a bail in the amountof UAH 1152600. No such request was filed byattorney A.A. Levin.The prosecutor substantiated the necessity

of using detention on the following circum-stances: • ensuring that the suspect performsthe procedural duties assigned to him; • pre-vention of illegal influence on witnesses andthe second suspect in the same criminal case;• preventing attempts to hide from the bodiesof the preliminary investigation and the court.In particular, according to the prosecu-

tor, the defense, as well as the accused V.N.Munger tried to put pressure on the witnessIgor Pavlovsky in the matter of granting hisconsent to disclose information about personalcorrespondence, information about which thelawyers sought to attach to the case file at thishearing. The prosecution also stressed thatthe accused, while under investigation, hadrepeatedly left the country. This, according tothe prosecutor, confirms the real existence ofthese risks. Therefore, the prosecutor askedthe court to extend the accused’s detentionperiod by 60 days without determining theamount of bail.The defendant’s lawyer, denying the words

of the prosecutor, pointed out that all the risksnamed by the prosecution are not relevant. Tothe prosecutor’s remark about the defendant’sdeparture abroad, the lawyer replied, quot-ing: “he always returned.” Also, according tothe lawyer, the accused V.N. Manger conscien-tiously observed the measure of restraint in theform of detention, he did not exert pressureon any witnesses. In addition, the witnesseswere questioned at the last court hearing.

The European Court of Human Rightspoints out that at the initial stages of theinvestigation, the possibility of obstruction ofjustice by the accused justifies the detentionof such an accused. However, once evidence iscollected, this rationale becomes less convinc-ing. In particular, as regards the possibility ofputting pressure on witnesses, the Court reiter-

ates that the domestic courts must show thatduring the relevant period of the applicant’sdetention there was and continued to be a sub-stantial risk of intimidation of witnesses; it isnot enough to rely only on some abstract pos-sibility, not supported by any evidence. Thecourt must also analyze pertinent factors, suchas progress in the investigation or proceedings,the applicant’s personality, his behavior beforeand after arrest, and any other specific factorsto justify the risks that he might abuse thereturned freedom by acting in for the purposeof falsifying or destroying evidence, or puttingpressure on victims (§88 “Sokurenko v. RussianFederation”).

The Court recognizes that, in cases involvingmultiple accused, the risk that a prisoner, ifreleased, may put pressure on witnesses or oth-erwise obstruct the proceedings is often quitehigh. All of these factors may justify a rela-tively long period of detention. However, theydo not give the authorities unlimited powers toextend this measure of restraint. The fact thata person is accused of a criminal conspiracy isnot in itself sufficient to justify long periodsof detention, his personal circumstances andbehavior must always be taken into account(§ 53 “Sizov v. Russia”).

Moreover, the lawyer drew attention to thefact that in the previous decision on the selec-tion of a measure of restraint two months ago,the court did not analyze other circumstancesthat need to be investigated when choosingsuch a measure of restraint and which are in-dicated in Art. 178 of the Criminal Proce-dure Code of Ukraine. As the lawyer indicated,when on February 11, 2019, the accused V.N.Munger was charged with Part 2 of Article 115of the Criminal Code of Ukraine and the courtwas considering a bail. But despite this, in thecurrent situation, when the accused is chargedwith Part 3 of Article 27, Part 2 of Article 28,Part 2 of Article 121 of the Criminal Code, thecourt determined a measure of restraint in theform of detention.

The ECtHR has repeatedly pointed out that,although the severity of a possible sentence isan important component in assessing the riskof escape or committing new offenses on the

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part of the accused, the need to extend theperiod of application of a measure of restraintin the form of detention cannot be assessedonly from an abstract point of view, takinginto account only the severity of the charges(§ 51 “Kolunov v. the Russian Federation”).

It should also be noted that the defenseside, as at the last court session on 08.28.2020,drew the court’s attention to the fact that theaccused V.N. Manger wants to participate inlocal elections, and his detention may deprivehim of this right.

The court, after consulting, made a decisionto reject two petitions of the defense to changethe measure of restraint in respect of the ac-cused V.N. Manger and grant the prosecutor’srequest for an extension of the detention ofboth accused.

Monitoring of criminal proceedings ofManger Vladislav Nikolaevich and LevinAlexey Alekseevich (hearing 11.03.2020)

On 11.03.2020, in the Dniprovsk district courtof the city of Kiev, a hearing of case No.757/31502/20 was held on charges of the chair-man of the Kherson regional council MangerV.N. and the ex-assistant of the member ofthe Kherson regional council Levin A.A. incommitting crimes under Part 3 of Article 27;Part 2 of Article 28; Part 2 of Article 121 ofthe Criminal Code of Ukraine, namely, in orga-nizing the commission of intentional grievousbodily harm by a group of persons by priorconspiracy in a manner that has the characterof special torment, which entailed the deathof the victim, a Kherson activist Gandzyuk E.It should be noted that, starting in 2018,

five criminal proceedings were opened in thiscase concerning the murder of the activist. Inparticular, on October 30, 2019, the Prosecu-tor General’s Office transferred to the SecurityService of Ukraine (SBU) the criminal proceed-ings on the negligence of the police officers,who initially investigated this case.

Recall that the observer of the InternationalSociety for Human Rights has already moni-tored this case - on 08.28.2020 and 10.15.2020.The course of the court session: the court

continued to examine the materials of the pro-

ceedings. In particular, at the last court ses-sion on October 15, 2020, the court grantedthe motion of the lawyer Ilchenko D. for accessto documents, namely, to the medical historyand medical card of Gandzyuk E. But, as itturned out, the medical history of GandzyukE. was never returned to the hospital after aforensic medical examination, a letter was sentby the hospital administration regarding thissituation. In the opinion of the defense, theprosecution must find these documents, sinceit was the prosecution that did not return thedocuments to the hospital, thereby failing tocomply with the court’s decision.

It should also be noted that during the trial,the defendants were sited next to their defend-ers, and not in the glass box.The European Court of Human Rights has

found that, while the placement of defendantsbehind glass partitions or in glass booths doesnot in itself imply an element of humiliationsufficient to achieve a minimum level of sever-ity, this level can be achieved if the circum-stances of detention (in a “cage”), taken as awhole, will cause suffering or hardship that ex-ceeds the inevitable level of suffering inherentin detention (“Yaroslav Belousov v. Russia”,para. 125).It is worth paying attention to the positive

trend of finding the accused during court hear-ings next to a lawyer, and not in a glass box.This is also confirmed by the report of theISHR in the case of Tuman I. dated July 23,2020.

Thus, in our opinion, the judges successfullyimplement the above aspect of the applicationof Art. 3 of the European Convention andrecognize that the presence of an accused ina glass box in some cases may have signs of aviolation of the right to defense and degradingtreatment.

Examining the decision of the First DeputyProsecutor General Storozhuk D. dated11.02.2018 on the transfer of this case to theSBU, the defense side objected to the relevanceand reasoning of the decision, emphasizingthat the only reason for transferring the casefrom one pre-trial investigation authority toanother is the ineffectiveness of such authority.

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The prosecutor indicated completely differentgrounds for the transfer of the case, therefore,according to the defense, from the moment thecase was transferred to the SBU authorities,it can be considered that the investigation isbeing carried out by an inappropriate pre-trialinvestigation authority. It also follows that allthe evidence collected in this case after Novem-ber 2, 2018 is inadmissible.

With regard to the inadmissibility of evi-dence, the ECtHR has indicated that it is notthe Court’s task to determine, in principle,whether certain types of evidence, for exam-ple, evidence obtained illegally from the pointof view of national law, can be admissible or,indeed, whether the applicant was guilty ornot. The question to be answered is whetherthe proceedings were generally fair, includinghow the evidence was obtained. This impliesa determination of the “illegality” in questionand, if it is a violation of another Conventionright, the nature of the violation found (“PGand JH v. The United Kingdom”, para. 76;“Heglas v. Czech Republic”, paras. 89-92).

In addition, the defense referred to clause6 of Section II of the Order of the GeneralProsecutor’s Office of Ukraine dated March 28,2019 No. 51 “On Approval of the Procedurefor Organizing the Activities of Prosecutorsand Investigators of the Prosecutor’s Officein Criminal Proceedings”, which specifies thecriteria for ordering the pre-trial investigationto another body of pre-trial investigation, inparticular, the removal of the investigator fromthe pre-trial investigation and the appointmentof another investigator (Article 39 of the Crim-inal Procedure Code of Ukraine). In the eventof an ineffective pre-trial investigation (Article36 of the Criminal Procedure Code of Ukraine),the assignment of a pre-trial investigation toanother pre-trial investigation body is carriedout in accordance with the requirements of thelaw, taking into account the following crite-ria: - the fulfillment of the tasks of criminalproceedings has not been ensured; - the gen-eral principles of criminal proceedings havebeen violated, which has negatively affectedor may affect the validity, comprehensivenessand completeness in criminal proceedings; -

the low quality of the procedural activitiesof the investigator (investigation team), as aresult of which the obtained results of suchactivities do not correspond to reasonably per-missible results that should have been andobjectively could have been achieved duringthis time, given the complexity and specificsof the criminal investigation.

The representatives of the victims objectedto the statement by the defense. They indi-cated that the court had case materials con-firming the ineffectiveness of the police workat that time in this case.

In addition, other documents were examined:regarding the separation into a new criminalproceeding, the implementation of the investi-gation in this proceeding as a whole, as well asthe reality / unreality of threats coming to wit-nesses and victims from the accused, accordingto their own statements.

Monitoring of criminal proceedings of V.N.Manger, A.A. Levin (hearing 12.04.2020)

12/04/2020, in the Dniprovsky District Courtof the city of Kiev, a hearing of case No.757/31502/20 was held on charges of the chair-man of the Kherson Regional Council VladislavNikolaevich Manger and the ex-assistant of thedeputy of the Kherson Regional Council Alek-sey Alekseevich Levin, of committing crimesunder Part 3 of Article 27; Part 2 of Article 28;Part 2 of Article 121 of the Criminal Code ofUkraine, namely, in organizing the infliction ofintentional grievous bodily harm by a group ofpersons by prior conspiracy in a manner thathas the character of special torment, whichentailed the death of the victim - Khersonactivist Ekaterina Gandzyuk.

It should be noted that since 2018, five crim-inal proceedings have been opened in this caseconcerning the murder of the activist. In par-ticular, on October 30, 2019, the ProsecutorGeneral’s Office transferred to the Security Ser-vice of Ukraine (SBU) the criminal proceedingson the negligence of the police officers, whoinitially investigated this case.

Recall that the observer of the InternationalSociety for Human Rights has already mon-itored this case on 08/28/2020, 10/15/2020

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and 11/03/2020.The court session began with consideration

of the motions of the prosecution and the de-fense.

The prosecutor filed a motion to extend thedetention of both accused. Regarding the ex-istence of risks of non-fulfillment by the ac-cused of their procedural duties, the prosecutornoted that there was a risk on the part of V.N.Manger to hide from law enforcement agencies,since the accused, while still under investiga-tion, repeatedly left the country. In turn, theaccused A.A. Levin was previously convictedof an intentional violent crime, in addition,according to the prosecutor, he maintains con-tact with a group of persons who were also in-volved in similar crimes. These circumstances,according to the prosecution, may indicate thepossibility of a second crime.The prosecution also stated that there is a

threat of influencing the witnesses by the ac-cused in this criminal proceeding. Informationabout the existence of such a threat and, inparticular, the fact that witness Igor Pavlovskyhas repeatedly changed his testimony in court,according to the prosecution, is the result ofpressure on the witness. The prosecutor hasalready expressed this position in his petitionof 10/15/2020.Moreover, according to the prosecutor, at

the last court session on 12.03.2020, it was es-tablished that the accused V.N. Manger paidmoney in the amount of 4 thousand dollarsto the currently convicted S. Torbin for caus-ing bodily harm to Ekaterina Gandzyuk. Thedefense side noted that the prosecutor has atendency to independently establish certainfacts in the case, which is a direct violationof the current Criminal Procedure Code ofUkraine, which says that the facts in criminalproceedings are established by a court verdict,and before the verdict is pronounced, all infor-mation given by the prosecution is consideredcircumstances, which must be proven and ver-ified by the court.The European Court of Human Rights in

such cases states that the risk of putting pres-sure on witnesses can be taken into account atthe initial stages of the proceedings (“Yarzinski

v. Poland”, para. 43). However, over time, theinterests of the investigation become insuffi-cient to keep the suspect in custody: in thenormal course of events, the perceived risksdiminish as the investigation, evidence is takenand checks are carried out (“Cluth v. Belgium”,para. 44).

The prosecutor also referred to the decisionsmade by the appellate court in favor of theprosecution on the measure of restraint, andthe fact that the accused had repeatedly failedto appear at the hearing, although notificationswere sent to them in advance and in accordancewith the law.

Given the existence of these risks, as well asthe severity of the crime in which V.N. Mangerand A.A. Levin are accused, the prosecutorasked the court to extend the terms of deten-tion for both accused. Representatives of thevictims E.A. Zakrevskaya and A.S. Veretilniksupported the prosecutor’s motion and askedto satisfy it.

On this point, it should be noted that everytime it found a violation of Paragraph 3 of Ar-ticle 5 of the Convention, the ECtHR noted theweakness of the arguments of the courts thatauthorized the applicant’s detention. Fromcase to case, the Court has pointed out thefollowing main deficiencies in the courts’ rea-soning: reliance on the gravity of the chargesbrought as the primary source in order tojustify the risk of the applicant abscondingfrom justice; reference to the applicant’s for-eign passport, financial resources and the factthat his alleged accomplices are on the run, asgrounds for assuming that the applicant willfollow suit; the suspicion, in the absence of anevidentiary basis, that the applicant will tryto influence witnesses or use his obstacles inthe authorities to administer justice, as well asrefusal to scrutinize the possibility of applyinganother, less strict, measure of restraint, suchas bail”(“Dirdizov v. Russia”, para. 108).In turn, the lawyers of the accused A.A.

Levin asked the court to refuse the prosecutor’spetition and change the measure of restraintfrom detention to a milder one, the lawyers ofthe accused V.N. Manger – to change the mea-sure to bail. At the same time, the defenders

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drew the court’s attention to the principle of areasonable time frame for the consideration ofthe case and asked for the petitions for eachaccused to be considered separately.In the opinion of the defense, all the the-

ses about the existence of risks cited by theprosecutor are distorted in their wording andcompletely unfounded by proper evidence, andare based only on assumptions and the subjec-tive opinion of the prosecutor. As for travelingabroad, lawyers do not cease to insist thattheir clients, absolutely legally, temporarilyleft the territory of Ukraine, without havingany criminal intentions.In addition, the defense parties stated that

they had doubts about the objectivity of thetestimonies provided by the witnesses, whichat one time speak of pressure being exerted onthem, and at the same time are at large with-out taking any measures to ensure their safety.This, in turn, in the opinion of the defenders,raises the question of the real existence forsuch witnesses of any threat from the accused.Therefore, the defense asked to re-interrogatethese witnesses in order to clarify their testi-mony again.The court, having consulted on the spot,

decided to refuse to satisfy the petition of thelawyer A.S. Shadrin on the re-interrogation ofa number of witnesses due to the fact that thegrounds named by the lawyer (“wants to heartheir testimony without representatives of theSBU”) for the implementation of this procedu-ral action do not comply with Article 352 ofthe Criminal Procedure Code of Ukraine.The defense also substantiated its petition

to change the measure of restraint by positivecharacteristics and behavior of the accusedduring criminal proceedings, their compliancewith the proceeding, respect for the court andother factors. The lawyers of the accused A.A.Levin also asked the court to take into accounthis state of health (heart disease), the need forobservation by a doctor, and the impossibil-ity of the pre-trial detention center to ensurethe frequency of such observations due to theclosed nature of such an institution. The de-fense also drew attention to the fact that thedefendant was not given the opportunity to

test for Covid-19, while he and his defenderssuspected he had such a disease. Thus, ac-cording to the lawyer, the employees of thepre-trial detention center endangered not onlyA.A. Levin, but also other accused who are inthe same cell with him.Thus, there is a negative trend in the is-

sue of providing timely and adequate medicalassistance to the accused in custody, for ex-ample, in the case of Andrey Tatarintsev, whohas not been provided with medical assistancefor years, despite diabetes mellitus, or in thecase of A. Melnik and others, where the ac-cused also need regular inpatient and outpa-tient treatment (monitoring of these cases hasbeen carried out for a long time by the ob-servers of the International Society for HumanRights).According to Article 199 of the Criminal

Procedure Code of Ukraine, a petition for anextension of the period of detention, in ad-dition to the information specified in Article184 of this Code, must contain: a statementof the circumstances indicating that the re-ported risk has not diminished or that newrisks have emerged that justify the detentionof the person.According to the observer of the ISHR, at

this hearing, both the defense and the prose-cution expressed almost identical argumentsabout changing the measure of restraint of theaccused by what they voiced on 10.15.2020.The only, but no less important circumstancewas named the state of health of the accusedA.A. Levin. However, it should be noted thatthe defense did not ask for a medical examina-tion for the accused to confirm the seriousnessof the disease.The European Court of Human Rights has

frequently found a violation of paragraph 3 ofArticle 5 of the Convention in cases againstUkraine on the ground that, even with respectto long periods of detention, the domesticcourts relied on the same set of grounds (ifany) in all cases of relevant detention guarded.A similar violation can be observed in the caseof A. Melnik and others.The court decided to refuse to satisfy the

defense’s petition to change the measure of

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restraint and satisfy the prosecutor’s requestto extend the detention for both accused toadditional 60 days.Also, the defense side filed two petitions

for attaching the ruling of the Kiev Court ofAppeal of 10.15.2020 and the decisions of theECtHR to the case file, both of which weresatisfied.

3.33 The trial of AleksanderMelnik and others

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (session 01/21/20)

On January 21, a regular court session washeld in the Gadyatsky District Court of thePoltava Region in the case of the head of the“Visit” television company Alexander Melnik,who is one of the three accused (together withA. Kryzhanovsky, I. Kunik) in the murder ofthe mayor of Kremenchug A. Babayev andJudge of the Kremenchug court A. Lobodenko.

At this hearing, the evidence of the prosecu-tion was investigated, namely the video of theinvestigative experiment with the participationof the former accused I. Pasichny, who had pre-viously made a deal with the prosecutor andplead guilty.Earlier on June 12, 2019, the Gadyatskiy

District Court of the Poltava region approveda visit of the prosecutor with the accused I. Pa-sichny in the Poltava Penitentiary Institution.This petition was not submitted for discus-sion by the participants in the trial, despitethe fact that on the same day the proceedingswere held.

On the basis of the sanction authorized bythe court, the prosecutor visited the accusedI. Pasichny in the pre-trial detention centerwithout the participation of a defense coun-sel, despite the requirement of the CriminalCode on the mandatory participation of a de-fense counsel in proceedings for particularlycomplex crimes (Articles 52, 53 of the Crimi-nal Code). The accused himself also confirmedthat the meeting took place without the par-ticipation of a lawyer. In addition, the meeting,which is a procedural action, was not recorded.

07/13/2019, the court allowed the prosecu-tion to conduct additional investigative actionswith the participation of I. Pasichny, who, inhis sixth year in custody, declared his desire toconclude a guilty plea agreement. Due to thelack of documentary recording of the meetingand the absence of a lawyer, the other threedefendants and their lawyers think that theprosecutor could put pressure on I. Pasichny.

At this session, the defense also stated thatthe prosecutor Savchuk visited another ac-cused, A. Kryzhanovsky in the Poltava pre-trial detention center. And again, the com-munication took place without a lawyer andwithout procedural fixation. On this fact, thedefense side challenged the prosecutor Savchuk.The court postponed consideration of the ap-plication for challenge because of the failureto appear at the hearing of the prosecutorSavchuk.According to Part 1 of Art. 52 of the Code

of Criminal Procedure of Ukraine, the partic-ipation of a defender is mandatory in crimi-nal proceedings regarding particularly seriouscrimes.Earlier in the court hearings, the accused

already complained to the court that duringthe technical breaks on the days of the sessions,the prosecutor Savchuk tried to communicateinformally with the accused, waiting for oneof them near the toilet. The International So-ciety for Human Rights is concerned aboutthis way of obtaining evidence and agreementsfrom the prosecution. We hope that the courtwill pay attention to this feature of the proce-dural actions in terms of its admissibility andlegality.

During the trial, the petitions of the partieswere not announced.

The defense repeatedly, before this court ses-sion, drew the court’s attention to the lack ofmedical treatment for the accused. It should benoted that all defendants have been in custodysince September 2014. Over more than fiveyears of detention, the health of the accusedhas deteriorated significantly.Lawyers expressed concern about the posi-

tion of the court regarding the petitions of theaccused to provide inpatient treatment. De-

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spite the fact that the court had previouslyreceived the conclusions of the forensic medicalexamination indicating the need for in-patienttreatment for A. Melnik and out-patient treat-ment for A. Kryzhanovsky, the court just redi-rects these requests to the Poltava pre-trialdetention center.The defense has repeatedly insisted on the

necessary inpatient treatment of the accusedwho is in custody for more than 5 years. Theneed for inpatient treatment is also indicatedby the conclusions of the forensic medical ex-amination.The European Court of Human Rights in

its decision “Khamatov v. Azerbaijan” statedthat the mere fact that the applicant was ex-amined by a doctor and prescribed a certainform of treatment cannot automatically leadto the conclusion that the medical assistancewas adequate. The authorities had to ensurethat the applicant not only visited the doctorand that his complaints were heard, but alsothat the necessary conditions were created forthe actual implementation of the prescribedtreatment.Thus, the experts of the ISHR see insuf-

ficient court attention on solving the healthproblems of the accused.In addition to the indicated problems, A.

Melnik’s lawyer drew the attention of the ISHRobserver to the problem of retiring a pensionfor his client. A.Melnik, as previously indicatedin the ISHR reports, is a participant in the liq-uidation of the Chernobyl accident of category1, as a result of which he received disabilityof group 2. Half a year ago, he received a let-ter from the pension fund (PF) at his homeaddress about the possibility of transition tothe Chernobyl disability pension. Given thefact that the accused himself is in the Poltavapre-trial detention center, he filed a statementstating that he was unable to arrive at the PFdepartment. And he asked for the opportunityon his behalf by proxy to draw up papers byhis wife or lawyer.

Nevertheless, in response to the appeal of A.Melnik regarding the recalculation of pensions,the PF responded that it was necessary for himto come personally to the department of the

pension fund. By the decision of the Gadyatskydistrict court, in response to the request of A.Melnik, it was decided to send materials to themanagement of the pre-trial detention centerin order to ensure the possibility of a personalvisit to the PF. Despite this, for several monthsnow, according to the lawyer, no action hasbeen taken.The ISHR insists that social protection, in-

cluding for persons with disabilities, shouldbe an important component of public policy.The restriction of the rights and freedoms ofpersons in custody should be carried out ex-clusively to the extent that is unavoidable ifa person is held in custody. In a decision inthe “Kalashnikov v. Russia” case, the ECtHRnoted that the well-being of persons in cus-tody should be adequately guaranteed by thestate, taking into account the requirements ofthe deprivation of liberty. Considering the factthat a person’s detention does not deprive himof the right to social security, the inability toprovide him with the opportunity to reissue adisability pension cannot be considered as suchthat meets the requirements of the EuropeanConvention.At the hearing on January 23, the court

considered the application for changing themeasure of restraint for A. Melnik and decidedto refuse to satisfy it. Considering the fact thatthe court announced only the operative partof the ruling, ISHR will continue to clarify thedetails of this hearing.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing 02.12.20)

On February 11-13, hearings were held in theGadyatsky District Court of the Poltava Re-gion in the case of the head of the “Visit” tele-vision company Alexander Melnik, who is oneof the three accused (together with A. Kry-zhanovsky and I. Kunik) in the murder of themayor of Kremenchug A. Babayev and judge ofthe Kremenchug court A. Lobodenko. All threesessions were devoted to the consideration ofthe prosecutor’s applications for an extensionof the measure of restraint by the accusedand the defense’s applications for changing themeasure of restraint.

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As in previous petitions, the prosecutionrefers to the following circumstances:

1) The severity of the possible punishment inthe form of life imprisonment, the prosecutorconsiders the basis that the accused can hidefrom the court.However, the European Court of Human

Rights admits that suspicion of serious crimesmay initially justify detention. At the initialstage of the proceedings, the need to ensurethe proper conduct of the investigation andto prevent the escape or re-commission of theoffense may justify detention. However, despitethe fact that the severity of the sentence isan important element in assessing the risk ofescaping or reoffending, the Court recalls thatthe gravity of the charges alone cannot justifythe lengthy pre-trial detention (paragraph 102,ECtHR judgment “Panchenko v. Russia”).As regards to the risk of escape, the Court

recalls that such a danger cannot be measuredsolely on the basis of the severity of the sen-tence faced by the defendant (paragraph 106,Decisions of the ECtHR “Panchenko v. Rus-sia”).2) Pressure on victims and witnesses. In

paragraph 73 of the ECtHR judgment “Lyu-bimenko v. Russia,” the Court accepts thatthe authorities could reasonably believe thatthe risk of pressure on witnesses and jurorswas present initially. However, the Court is notconvinced that this basis alone could justifythe entire five-year period of the applicant’sdetention. Indeed, the domestic courts referredto the risk of obstructing the trial in a shortform, without indicating any aspect of the ap-plicant’s nature or behavior, in support of hisconclusion that he would likely resort to intim-idation. In the Court’s view, such a generallyformulated risk cannot justify the applicant’sdetention for more than five years. The do-mestic courts did not take into account thefact that this basis inevitably became less andless relevant over time. The court is not con-vinced that throughout the entire period ofthe applicant’s detention there were substan-tial grounds for fear that he would interferewith witnesses or jurors or otherwise impedethe examination of the case, and, of course,

not to outweigh the applicant’s right to havea trial within a reasonable time or to releasehim pending trial.3) The impossibility of applying a milder

measure of restraint is motivated by the factthat there is no control over the communica-tion of the accused at the place of residence,there is no full control in the days of courthearings due to imperfect electronic controls.

It should be noted that during the consider-ation of the application of methods to ensurecriminal proceedings, the parties must submitto the court evidence of the circumstances towhich they refer (part 5 of article 132 of theCriminal Procedure Code of Ukraine). At thesame time, the prosecutor limited himself onlyto formal descriptions of possible violations bythe accused, not referring to specific evidence.In the application for the extension of the

measure of restraint, the prosecution foundit possible to refer to the case of the ECtHR“Labita v. Italy”, where in paragraph 152 itis stated that in accordance with the judi-cial practice of the Court, the question of thereasonableness of the term of imprisonmentcannot be assessed in abstracto. The reason-ableness of the accused’s detention must bedetermined in each case, depending on theparticulars of the case. Prolonged detentionmay be justified if there are specific indicatorsof the urgency of the public interest, which,despite the presumption of innocence, prevailover respect for individual freedom.The first for national judicial authorities

is the obligation to ensure that the pre-trialdetention of the accused does not exceed areasonable time. To do this, they are obligedto consider all the facts for and against theexistence of a genuine public interest, takingdue account of the presumption of innocence,not applying the rule on respect for individualfreedom, and to state all these factors in adecision that refuses the applicant’s release. Itis on the basis of these arguments for mak-ing a decision and the facts mentioned by theapplicant in his complaints that the Court iscalled upon to decide whether there has beena violation of Article 5 § 3 of the Convention(§ 152 “Labita v. Italy”).

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It should be noted that already in the next §153 of the ECtHR case of “Labita v Italy”, it isstated that the persistence of a reasonable sus-picion that the arrested person has committeda crime is the (most important) sine qua noncondition for the legality of a lasting conclu-sion, but after a lapse of time insufficient. Insuch cases, the Court must establish whetherthe judicial authorities provided the basis forthe continued deprivation of liberty. Wheresuch grounds were “relevant” and “sufficient”,the Court must also find out that the nationalauthorities demonstrated “special diligence” inconducting the investigation and considerationof the case.

For reference: in this case (“Labita v. Italy”),the accused stayed in custody for 2 years and7 months.

In paragraphs 163, 164 of the decision in thecase of the ECtHR “Labita v. Italy”, the Courtnotes that the grounds for the relevant deci-sions were reasonable, at least in the beginning,although they were general in nature. The au-thorities referred to the prisoners as a wholeand only abstractly mentioned the essence ofthe alleged crime. They did not point out anyfactors demonstrating that the risks to whichthey referred exist and did not establish thatthe applicant, who had not previously beenprosecuted and whose role in the organizationof the mafia type was allegedly insignificant(the prosecutor requested 3-year sentence inthis case) was a danger. The fact that thecharges against the applicant were based onevidence, which over time became weaker andnot stronger, was not taken into account.The Court considers that the grounds indi-

cated in the contested decisions are not suf-ficient to justify the applicant’s preliminarydetention for 2 years and 7 months. Recall thatthe defendants A. Melnik, A. Kryzhanovsky, I.Kunik have been in custody for more than 5.5years.

The defense in the petition for changing themeasure of restraint to Melnik, indicated thefollowing circumstances:

1) Melnik is a participant in the liquidationof the Chernobyl accident, as a result of whichhe is a disabled person of group 2, has heart

disease.2) Detention for more than 5 years is a vio-

lation of reasonable time limits. In paragraph9 of the case of the ECtHR “Levchenko andOthers v. Ukraine” (which, as mentioned ear-lier, includes the case of one of the previouslyaccused - “I. Pasichny v. Ukraine”), the courtexamined all available materials and consid-ers that in this case the length of pre-trialdetention was excessive. Due to the fact thatthe case of the ECtHR “Levchenko v. Ukraine”is being considered in relation to the previ-ously accused I. Pasichny (according to hisstatement), the fact that the court completelydisregarded the requirements of this case is ofdeep concern to the International Society forHuman Rights.3) The formal nature of the prosecutor’s

request for an extension of the measure ofrestraint. Risks are not confirmed by actualcircumstances.4) Further extension of custody makes it

impossible to exercise the right to retirementbenefits. In accordance with Art. 10 of theConvention on the Rights of Persons with Dis-abilities, the participating States reaffirm theinalienable right of everyone to life and takeall necessary measures to ensure its effectiveimplementation by persons with disabilities onan equal basis with others.At the same time, the participating States

recognize that persons with disabilities havethe right to the highest attainable standardof health without discrimination on the basisof disability. Participating States shall take allappropriate measures to ensure access by per-sons with disabilities to gender-sensitive healthservices, including rehabilitation for health rea-sons (Article 25 of the Convention).

The defense appealed to the court (Novem-ber 4, 2019, December 17, 2019) to ensurethat it is possible to exercise the right to re-tirement benefits by organizing a personal pres-ence in the pension fund to arrange a pensionfor A. Melnik. According to the statement ofthe lawyers, the court, having not examinedthe applications on the merits, redirected themto the pre-trial detention center.

Moreover, in accordance with Art. 42 of the

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Code of Criminal Procedure of Ukraine, theaccused has the right to file motions, and inaccordance with Art. 350 of the Code of Crim-inal Procedure of Ukraine, the court decideson the fact of considering the application.5) Torture. The defense claims that the

transportation of the defendants has signsof torture, since the distance from the cityof Poltava to Gadyach is 116 kilometers oneway in extremely uncomfortable conditions.On days of court hearings, the accused aredeprived of walks in the fresh air, and oftenbreakfast.In paragraph 108 of the “Yakovenko v.

Ukraine” case, the court stated the following:with regard to the transport of prisoners, theECtHR considered that individual compart-ments with an area of 0.4, 0.5 or even 0.8square meters are not suitable for transportinga person, no matter how short the duration.Based on the results of the consideration

of the petitions, the court ruled to extendthe measure of restraint for the accused for aperiod of 60 days.It should also be noted that the Interna-

tional Society for Human Rights, in advance,requested the court to broadcast the courthearing on February 13, 2020 on the portalof the Judicial Authority of Ukraine. Unfor-tunately, the court was not able to broadcast“because of the consideration of the prosecu-tor’s request for an extension of the measureof restraint”. We do not quite understand thiswording, however, the ISHR will re-send a let-ter to the Gadyatskiy District Court for videobroadcasting when considering the extensionof the measure of restraint for the accused. Wehope that such cases do not tend to limit thepublicity of the trial.

MMonitoring of the case of AlexanderKryzhanovsky and Alexander Melnik(hearing on 02.06.20)

On February 6, 2020, the Kharkov Court of Ap-peal heard criminal proceeding on the appealof A. Kryzhanovsky and A. Melnik against thedecisions of the Gadyatsky District Court ofthe Poltava Region, which extended their termof detention.

Alexander Kryzhanovsky and AlexanderMelnik are charged with the murder of themayor of Kremenchug A. Babaev and the judgeof the Kremenchug court A. Lobodenko. Theterm of detention of the accused exceeds 5years. The ISHR has been monitoring thislawsuit since 2017 and more than once foundviolations of the European Convention. A de-tailed report on violations in this case can befound on the official website of the ISHR.For convenience, we will break this report

into two parts. The first will be devoted tothe consideration of the appeal of A. Kryzha-novsky, and the second - to the appeal of A.Melnik.1. A. Kryzhanovsky indicated that he had

been in a pre-trial detention center for 65months and the extension of his detention wasautomatic.According to paragraph 3 of Art. 5 of

the Convention for the Protection of Hu-man Rights and Fundamental Freedoms (here-inafter referred to as the Convention) af-ter a certain period of time, it is just theexistence of reasonable suspicion that doesnot justify deprivation of liberty, and thecourts must give other reasons for the exten-sion of detention (Judgment in the case of“Borisenko v. Ukraine”, para. 50). Moreover,these grounds must be clearly indicated by thenational courts (“Eloev v. Ukraine”, para. 60,“Kharchenko v. Ukraine”, para. 80).

The European Court of Human Rights (here-inafter referred to as the Court) often founda violation of Art. 5 of the Convention incases where national courts continued the de-tention of the defendant, referring mainly tothe gravity of the charges and using templatelanguage, without even considering specificfacts or the possibility of alternative mea-sures (“Kharchenko v. Ukraine”, paras. 80-81;“Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion ofa crime committed by a detained person is aprerequisite for the legality of its continueddetention, but after the lapse of time such asuspicion will not be enough to justify pro-longed detention. The Court never attemptedto translate this concept into a clearly defined

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number of days, weeks, months or years, orat different times depending on the gravity ofthe crime. Once “smart suspicion” is no longersufficient, the court must establish that theother grounds given by the courts continueto justify the person’s deprivation of liberty(“Maggie and Others v. The United Kingdom”,paras. 88-89).The Court also recalls the immutability of

the grounds for suspicion. The fact that thearrested person has committed an offense is asine qua non condition for his continued deten-tion to be considered legal, but after a whilethis condition is no longer sufficient. Then theCourt must establish that the other groundson which the decisions of the judiciary arebased continue to justify the deprivation of lib-erty. If these grounds turn out to be “relevant”and “sufficient”, then the Court will ascertainwhether the competent national authoritiesfound “special good faith” in the conduct ofthe proceedings (“Labita v. Italy”, para. 153).In addition, the accused indicated that the

appealed court decision had lost its force, sincethe period of detention was extended untilDecember 22, 2019. And today is February 6,2020.

Attorney of A. Kryzhanovsky stated thatfor reasons independent of the district courtand the court of appeal the question could notbe considered, since this is no longer relevant.The second lawyer drew attention to the needto close the appeal proceedings based on ex-haustion of the action by the appealed courtdecision.

As a result of the judicial review, the appealwas rejected.

The impossibility of timely consideration ofthe case arose due to the lack of judges. Atthe first automated formation of the college ofjudges, the lawyer of the accused stated aboutthe challenge of the judge Grishin P.V. Asa result, while the composition of the judgeswas being re-determined, the relevance of theconsideration of the appeal was lost. However,such a situation, in the opinion of the Inter-national Society for Human Rights, restrictsperson’s right of access to a court. A personhas the right not only to initiate proceedings,

but also the right to count on the solution ofhis question.2. When considering the appeal of A. Mel-

nik, the lawyer stated about the challenge ofJudge S. Shchabelnikov since he had alreadyrecused himself and this issue had already beenresolved by previous decisions. As a result, theapplication was granted. The automated sys-tem will form a panel of judges for the thirdtime. However, this is not necessary. Indeed,the next decision to refuse to satisfy the appealbecause its consideration is no longer relevantdoes not affect the right of A. Melnik andother accused to consider the case within areasonable time.It should also be noted that on February

12, 2020, the Gadyatskiy District Court isonce again considering the issue of extend-ing the measure of restraint for A. Melnik, A.Krizhanovsky and another accused in this case,I. Kunik. Thus, given the automatic extensionof the measure of restraint for the accused, thenew court ruling on the extension of detentionwill be the second one that was scheduled forconsideration by the Kharkov Court of Appeal.That even more calls into question the realiza-tion of the right to appeal the court ruling onthe appointment or extension of a measure ofrestraint.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (session 03.11.20)

On March 11, a regular court session was heldin the Gadyatsky District Court of the PoltavaRegion in the case of the head of the “Visit”television company Alexander Melnik, who isone of the three accused (together with A.Kryzhanovsky, I. Kunik) in the murder of themayor of Kremenchug A. Babayev and Judgeof the Kremenchug court A. Lobodenko.At the hearing, the court continued the

study of written evidence.In addition, for March 11 was scheduled

consideration of appeals against the decisionsof the Gadyatskiy court in the Kharkov Courtof Appeal to extend the measure of restraint tothe accused A. Kryzhanovsky and A. Melnik.During the judicial review, the court an-

nounced a break for the defense of Melnik and

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Kryzhanovsky to participate in the considera-tion of appeals in the video conference mode.Lawyers, during the consideration of appeals,filed applications to challenge the board ofthe court, which were denied. Subsequently,appeals against the decisions of the Gady-atsky District Court of December 17, 2019were examined on the merits. The measure ofrestraint, by this definition was extended until02/14/2020. Thus, as of the time of consid-eration of the appeal, the determination hasexpired long ago (the determination to applythe measure of restraint expires after the ex-piration of the determination (Article 203 ofthe Code of Criminal Procedure of Ukraine).

ISHR experts have already repeatedlypointed out the ineffectiveness of appeal mech-anisms for determination in resonant cases.Firstly, after many years of judicial review inthe region, it is difficult to form a panel in thecourt of appeal. The vast majority of judgesof the Poltava Court of Appeal in one way oranother took part in this case. Thus, judgesrecuse themselves, after which the SupremeCourt determines jurisdiction in another re-gion. During this time, the definition expires.Secondly, in other cases, for example, in thecase of Alexander Chibirdin, the ISHR hasalready faced a situation where the appellatecourt officially, because of congestion, orderedthe consideration of the appeal to extend themeasure of restraint in the form of detentionafter it has lost its validity period. In fact, theaccused in such cases are deprived of the oppor-tunity to exercise the right of appeal againstdetention and this is happening systematically.This situation is of particular concern to theInternational Society for Human Rights for thereason that observers often state that thereis insufficient (according to the criminal pro-cedure) justification by the prosecutor of theneed for an exceptional measure of restraint,or even file a petition without justifying therisks provided for in the Criminal ProcedureCode.

The Kharkov Court of Appeal once againdismissed the appeal, because the validity ofthe decision of the Gadyatskiy court has beenexhausted.

After the break, the Gadiaksky court re-sumed the hearing and continued to examinethe evidence in the case.

The prosecutor read out a request for addingan optical disk with a recording of the testi-mony of the accused I. Kunyk obtained at thepre-trial investigation stage.The defense categorically objected to the

satisfaction of the petition of the prosecution,indicating that in accordance with part 4 ofart. 95 of the Code of Criminal Procedure ofUkraine, the court can substantiate its findingsonly on the evidence that it directly perceivedduring the trial. The court does not have theright to substantiate its decisions with evidencethat was given to the investigator, prosecutor,or refer to them (part 4 of article 95 of theCode of Criminal Procedure of Ukraine).

The European Court of Human Rights notesthat although Article 6 of the ECHR guar-antees the right to a fair trial, it does notestablish any rules for the admissibility of ev-idence as such, which is primarily a regula-tory issue in accordance with national law(“Schenck v. Switzerland”, para. 46). Conse-quently, the Court should not determine inprinciple whether specific types of evidencecould be admissible, including the testimony ofthe absentee accused, or whether the applicantwas guilty or not. The question that needsto be answered is whether the proceedingsas a whole, including the method of obtain-ing evidence, were fair (“Lutsenko v. Ukraine”,paragraph 42).

The Court has previously found that in caseswhere the domestic judicial authorities are con-fronted with several conflicting versions of thetruth proposed by the same person, their fi-nal preference for the statement made to theinvestigating authorities over the statementmade in open court does not raise the issue inaccordance with the Convention, where thispreference is justified and the statement it-self was given at the person’s own will. Onthe other hand, the credibility of evidencewill be undermined if it is obtained in vio-lation of the right to silence and privilegesagainst self-incrimination. In particular, theright not to incriminate oneself implies that

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the criminal prosecution seeks to prove its caseagainst the accused, without resorting to evi-dence obtained using methods of coercion orharassment, contrary to the will of the accused.Where doubts arise as to the reliability of a par-ticular source of evidence, the need to confirmthis with evidence from other sources is corre-spondingly higher (paragraph 49 “Lutsenko v.Ukraine”).The panel of judges, having consulted on

the spot, decided to attach the evidence to thecase, and give an assessment to them in thedeliberation room during the sentencing.


On March 12, in the Gadyatsky District Courtof the Poltava Region, a regular court sessionwas held in the case of the head of the “Visit”television company Alexander Melnik, whois one of the three accused (together with A.Kryzhanovsky, I. Kunik) in the case of the mur-der of the mayor of Kremenchug A. Babayevand Judges of the Kremenchug court A. Lobo-denko.The court session, at which the prosecutor

continued to read out the written evidence,was held by video conference with the accusedKryzhanovsky and Kunik.

The prosecutor filed a petition for the studyof an optical disc, on which, according to stateprosecutors, car similar to the car of the mur-dered mayor Kremenchug Babaev and a VAZ2108 were recorded.

The defense objected to the evidence beingattached to the case in view of its apparentinadmissibility. First of all, lawyers insisted onthe unknown source of information on disk,as well as the method of obtaining informa-tion. Also, the defense claims that the discinspection protocol was falsified. In the pro-tocol, as witness, citizen Fedorov is indicated.The defense provided explanations and a re-port that Fedorov did not live and never livedat the address indicated in the protocol. In thelawsuits of the same case in the Kobelyatskycourt, earlier it was not possible to find thespecified witness for the interrogation.

The case law of the European Court of Hu-man Rights in determining the term “fair trial”requires consideration of whether the defenserights are respected. In particular, it is neces-sary to verify whether the defense was giventhe opportunity to challenge the authenticityof the evidence and object to its use. In addi-tion, in the opinion of the ECtHR, it is nec-essary to take into account the quality of theevidence, including the question of whether itsreliability or the accuracy of the circumstancesin which it was obtained is called into question.The burden of proof lies with the prosecution,and any doubt should be of benefit to theaccused (paragraph 57, “Jean v. Ukraine”).The Gadyatsky court granted the prosecu-

tor’s request and attached the protocol withan optical disk.It should be noted that the defense has re-

peatedly pointed out the lack of motivationfor such court rulings.The European Court of Human Rights in

§§ 59.60.61 of “Jean v. Ukraine”, emphasizesthat the Convention is not intended to guaran-tee rights that are theoretical or illusory, butrights that are practical and effective. This isespecially true for the guarantees enshrinedin article 6, given the important place thata right to a fair trial in a democratic societytakes with all the guarantees provided for inthis article. For the right to a fair trial to re-main sufficiently “practical and effective”, Ar-ticle 6, paragraph 1, shall be interpreted inthe light of the preamble to the Convention,which, inter alia, proclaims the rule of law thecommon heritage of the Contracting States.Therefore, no provision of domestic law shouldbe interpreted and applied in a manner that isincompatible with the obligations of the stateunder the Convention.In addition, in accordance with the estab-

lished case-law of the Court, the right to afair trial cannot be considered effective if therequests and observations of the parties arenot really “heard”, that is, duly examined bythe court.Finally, in accordance with the Court’s es-

tablished case-law, reflecting the principle ofthe proper administration of justice, the de-

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cisions of the courts must duly indicate thereasons on which they are based. The Court,in particular, ruled that, ignoring the specific,relevant and important arguments of the de-fense, the domestic courts are not fulfillingtheir obligations under Article 6 § 1 of theConvention.


On April 8, a regular court session was held inthe Gadyatsky District Court of the PoltavaRegion in the case of the head of the “Visit”television company Alexander Melnik, who isone of the three accused (together with A.Kryzhanovsky, I. Kunik) in the murder of themayor of Kremenchug A. Babayev and Judgeof the Kremenchug court A. Lobodenko.At this hearing, the prosecutor’s applica-

tions for extending the detention of the accusedMelnik and Kryzhanovsky were considered. Re-call that the accused Alexander Melnik (likeA. Kryzhanovsky and I. Kunik) has been de-tained since September 2014, which amountsto a prison term of more than 5.5 years. Andonly in the Gadyatskiy district court the casehas been considered for almost 2 years.

The International Society for Human Rightshas been monitoring this case since 2017. Thegroup of observers is most concerned about vio-lations related to the lack of adequate medicalassistance to the accused, ignoring the decisionon this proceeding and the general practice ofthe ECtHR, etc. The ISHR paid particularattention to the automatic extension of themeasure of restraint in the form of detentionfor all three accused.Throughout the monitoring period of this

proceedings, a group of prosecutors, statinga request for an extension of the measure ofrestraint in the form of detention, limited them-selves to voicing the list of risks identified byArticle 177 of the Code of Criminal Procedureof Ukraine. Without their justification, as wellas the justification of why an alternative mea-sure of restraint, for example, round-the-clockhouse arrest, cannot be applied to the accused.However, such requests (formally not meetingthe requirements of the CPC) were systemati-

cally granted by the court.In order to prevent the prosecutor from abus-

ing his powers, implementing the principle ofpublicity of court hearings, as well as in con-nection with quarantine measures related tothe spread of COVID-19 virus infection, whichexcludes the physical presence of observers atcourt hearings, the ISHR requested the Gady-atskiy district court to broadcast the courthearings on 8 and April 9, 2020. The Inter-national Society for Human Rights expressesits gratitude to the court for the satisfactionof this request (statement), which testifies tothe openness of the court to the human rightscommunity.However, even the video broadcast could

not be reflected in the validity of the prosecu-tor’s request for an extension of the detentionperiod. Although, it must be admitted thatit has become a little more informative. Asusual, the prosecutor D. Moskalenko pointedout that the risks did not decrease and onlydetention could guarantee A. Melnik’s fulfill-ment of his procedural duties and prevent thepossible risks.The essence of the hearing. In his applica-

tion, the prosecutor D. Moskalenko indicatedthe following: 1. The severity of a possiblesentence of life imprisonment is the reasonthat the accused can hide from court; 2. The“procedural sabotage” aimed at delaying theconsideration of the case of the defense (thestatement of the defense’s petition to providethe accused Melnik with mobile communica-tions and the Internet) indicates that evenwith such a measure of restraint, A. Melnikis trying to evade the court; 3. Imperfectionof electronic controls; 4. Pressure on the vic-tim Shlyakhova - by discrediting her lawyerKononenko in court; 5. The presence of Mel-nik significant financial resources; 6. Risk ofpressure on witnesses. ECtHR case law.

1. With regard to the gravity of the possiblepunishment, the European Court of HumanRights admits that suspicion of serious crimesmay initially justify detention. At the initialstage of the proceedings, the need to ensurethe proper conduct of the investigation and toprevent the escape or re-commission of the of-

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fense may justify detention. However, althoughthe severity of the sentence is an importantelement in assessing the risk of escaping or re-offending, the Court recalls that the gravity ofthe charges alone cannot justify the lengthy pe-riods of pre-trial detention (§ 102, “Panchenkov. Russia”). Recall that A. Melnik has beenkept in custody for more than 5.5 years, whichin no way can be considered the “initial stage”.

2. As regards the risk of escape, the Courtrecalls that such a danger cannot be measuredsolely on the basis of the severity of the sen-tence faced (§ 106, “Panchenko v. Russia”).The motives of the prosecution for pressure onwitnesses and victims should be supported byevidence. In addition, for the period of quaran-tine measures, all borders of Ukraine (both airand ground) are closed. The risk of escapingthe court by escape at this stage is substan-tially minimized.

3. In § 73 of the ECtHR judgment “Lyubi-menko v. Russia”, the Court accepts that theauthorities could reasonably have consideredthat the risk of pressure on witnesses and ju-ries was initially present. However, the Courtis not convinced that this basis alone couldjustify the entire five-year period of the appli-cant’s detention. Indeed, the domestic courtsreferred to the risk of obstructing the trial ina short form, without indicating any aspect ofthe applicant’s nature or behavior, in supportof his conclusion that he would likely resortto intimidation. In the Court’s view, such agenerally formulated risk cannot justify theapplicant’s detention for more than five years.The domestic courts did not take into accountthe fact that this basis inevitably became lessand less relevant over time. The motivation ofthe courts did not develop in order to reflectthe evolving situation and to check whetherthis basis remained sufficient at an advancedstage of the proceedings. Thus, the Court isnot convinced that throughout the entire pe-riod of the applicant’s detention there weresubstantial grounds for fear that he would in-terfere with witnesses or jurors or otherwiseimpede the examination of the case, and, ofcourse, not to outweigh the applicant’s rightto a trial within a reasonable time or to release

pending trial.The International Society for Human Rights

cannot assess the arguments of the prosecu-tion about the “procedural sabotage” of thedefense, due to the fact that such terminol-ogy is absent in the procedural law. A groupof observers who have been monitoring thisproceeding for several years asked to indicatethat the prosecutor’s words about pressure onthe victim, about threats to the prosecutor,cynical and impudent statements, cannot beconfirmed. Observers believe that these wordsmay have the nature of manipulations by theprosecution on camera in connection with thevideo broadcast.

Melnik’s lawyer, Ruslan Lazorenko, filed amotion to amend the measure of restraint,which is motivated by the following:

1) Melnik is a participant in the liquidationof the Chernobyl accident, as a result of whichhe is a disabled person, has numerous chronicdiseases, confirmed by the protocols of medi-cal examinations. In addition, over time, thenumber and severity of diseases only grows. 2)Repeatedly elected as a member of a local par-liament; 3) Member of public organizations; 4)A measure of restraint was chosen on the basisof a motion by the prosecutor D. Khodatenko,who was not authorized in this criminal pro-ceeding; 5) Detention of more than 5 years isa violation of reasonable time limits. In § 9of the ECtHR case “Levchenko and Others v.Ukraine” (containing a complaint about thisproceeding), the Court having examined allavailable materials, considers that in this casethe length of the pre-trial detention of theapplicants was excessive. The fact that the na-tional court completely disregarded the provi-sions of the ECtHR in this case is of great con-cern to the human rights community. 6) Theformal nature of the prosecutor’s request foran extension of the measure of restraint. Risksare not confirmed by actual circumstances.Lawyer Mironov said that the prosecutor’s

justification for the suspicion is based on thetestimony of the accused A. Kryzhanovsky,which he gave during the pre-trial investiga-tion. At the same time, in court, AlexanderKryzhanovsky denied this evidence, referring

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to the use of torture and pressure from theprosecution on him and his family.


On April 9, a regular court session was held inthe Gadyatsky District Court of the PoltavaRegion in the case of the head of the “Visit”television company Alexander Melnik, who isone of the three accused (together with A.Kryzhanovsky, I. Kunik) in the murder of themayor of Kremenchug A. Babayev and Judgeof the Kremenchug court A. Lobodenko.At the hearing, the court continued to con-

sider the prosecutor’s request for an extensionof the measure of restraint to the accused A.Kryzhanovsky and I. Kunik.

The prosecution claims that the trial in theGadyatsk court lasts 1 year and 9 months. Dur-ing this time, written evidence for one episodeand only part of the written evidence for an-other episode were studied. Material evidenceand expert examinations remained unexplored,and witnesses for both episodes were not ques-tioned.

The prosecutor D. Moskalenko at the sessionon April 9 continued to assert that the positionof the defense of A. Kryzhanovsky was agreedwith the other defendants and had signs of“procedural sabotage”. Speaking of “proceduralsabotage”, the prosecution points out that thedefense of Alexander Melnik makes petitionsthat are not related to the consideration of thecase. Surprisingly, the “procedural sabotage”of A. Kryzhanovsky’s defense is also justifiedby the actions of Melnik’s defense.ISHR experts note the fact that the appli-

cation is motivated by circumstances not pre-scribed by law. The court, in turn, does notgive an assessment of the foregoing, which mayindicate agreement with the charge of “proce-dural sabotage” of the defense. At the sametime, there is no groundless fear that the crim-inal proceeding is not performed in this casein the context of ensuring the rights, freedomsand legitimate interests of participants in theproceeding, including the justification of thegrounds provided for in the Code of CriminalProcedure to extend detention.

Justifying the existence of risks, the prose-cutor Moskalenko noted the following circum-stances: 1) The severity of a possible sentenceof life imprisonment is the reason that theaccused can hide from court; 2) electronic con-trols are not perfect; 3) the interrogation ofa witness, I. Pasichny, has not yet been car-ried out (note of one of the accused in thecase, who made a deal with the prosecutorand has already been released); 4) A. Kryzha-novsky served in the Soviet army; 5) in Ukrainethere are territories beyond the control of theUkrainian authorities.Each report on the case of A. Melnik and

others, which includes an analysis of the prose-cutor’s request for an extension of the measureof restraint in the form of detention, containsreferences to the decisions of the EuropeanCourt of Human Rights, which states that theECtHR recognizes that the suspicion of seriouscrimes may initially justify detention. At theinitial stage of the proceedings, the need toensure the proper conduct of the investigationand to prevent the escape or re-commissionof the offense may justify detention. However,although the severity of the sentence is animportant element in assessing the risk of es-caping or re-offending, the Court recalls thatthe gravity of the charges alone cannot justifythe lengthy periods of pre-trial detention (§102, “Panchenko v. Russia”). As regards therisk of escape, the Court recalls that such adanger cannot be measured solely on the basisof the severity of the sentence faced (§ 106,“Panchenko v. Russia”).

Nevertheless, every 2 months, when the timecomes to resolve the issue of measures of re-straint, it is this risk that underlies both thepetition of the prosecutor and the court rul-ing. And the International Society for HumanRights states that the detention of the accusedis unfounded and has automatic, i.e. one thatdoes not include new risks and any new justi-fications, nature.

The motives of the prosecution for pressureon witnesses and victims should be supportedby evidence.In § 73 of the ECtHR judgment “Lyubi-

menko v. Russia”, the Court accepts that the

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authorities could reasonably have consideredthat the risk of pressure on witnesses and jurymembers was initially present. However, theCourt is not convinced that this basis alonecould justify the entire five-year period of theapplicant’s detention. Indeed, the domesticcourts referred to the risk of obstructing thetrial in a short form, without indicating anyaspect of the applicant’s nature or behavior,in support of his conclusion that he wouldlikely resort to intimidation. In the Court’sview, such a generally formulated risk cannotjustify the applicant’s detention for more thanfive years. The domestic courts did not takeinto account the fact that this basis inevitablybecame less and less relevant over time. Themotivation of the courts did not develop inorder to reflect the evolving situation and tocheck whether this basis remained sufficient atan advanced stage of the proceedings. Thus,the Court is not convinced that throughoutthe entire period of the applicant’s detentionthere were substantial grounds for fear thathe would interfere with witnesses or jurors orotherwise impede the examination of the case,and, of course, not to outweigh the applicant’sright to hold a trial within a reasonable periodof time or to release pending trial.

The prosecution, earlier on February 2020,in a petition for an extension of the measure ofrestraint, cited the case of the ECtHR “Labitav. Italy”. But after the ISHR experts revealedthe manipulation and selective quoting by theprosecutor of the text of this decision, alreadyin this petition the prosecutor does not speakabout the name of the ECtHR case, but stillquotes it.

Section 152 of the ECtHR “Labita v. Italy”states that in accordance with the jurispru-dence of the Court, the question of the reason-ableness of the term of imprisonment cannotbe assessed in “abstracto”. The reasonablenessof the accused’s detention must be determinedin each case, depending on the particulars ofthe case. Prolonged detention may be justifiedif there are specific indicators of the urgencyof the public interest, which, despite the pre-sumption of innocence, prevail over respect forindividual freedom.

The first for national judicial authoritiesis the obligation to ensure that the pre-trialdetention of the accused does not exceed areasonable time. To do this, they are obligedto consider all the facts for and against theexistence of a genuine public interest, takingdue account of the presumption of innocence,not applying the rule on respect for individualfreedom, and to state all these factors in adecision that refuses the applicant’s release. Itis on the basis of these arguments for making adecision and the facts mentioned by the Appli-cant in his complaints that the Court is calledto decide whether there has been a violation ofArticle 5 § 3 of the Convention (§ 152 “Labitav. Italy”).

It should be noted that already in the next §153 of the ECtHR case of “Labita v Italy”, it isstated that the persistence of a reasonable sus-picion that the arrested person has committeda crime is the (most important) sine qua noncondition for the legality of a lasting conclu-sion, but after a lapse of time insufficient. Insuch cases, the Court must establish whetherthe judicial authorities provided the basis forthe continued deprivation of liberty. Wheresuch grounds were “relevant” and “sufficient”,the Court must also find out that the nationalauthorities demonstrated “special diligence” inconducting the investigation and considerationof the case.

In this case, for reference, the accused stayedin custody for only 2 years and 7 months.In paragraphs 163, 164 of the ECtHR

“Labita v. Italy” case, the Court observes thatthe grounds for the relevant decisions werereasonable, at least in the beginning, althoughthey were general in nature. The authoritiesreferred to the prisoners as a whole and onlyabstractly mentioned the essence of the al-leged crime. They did not point out any fac-tors demonstrating that the risks to whichthey referred exist and did not establish thatthe applicant, who had not previously beenprosecuted and whose role in the organizationof the mafia type was allegedly insignificant(the prosecutor requested 3-year sentence inthis case) was a danger. The fact that thecharges against the applicant were based on

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evidence, which over time, became weaker andnot stronger, was not taken into account.

The Court considers that the grounds speci-fied in the contested decisions are not sufficientto substantiate the applicant’s preliminary de-tention for 2 years and 7 months.

Thus, in the context of the decision of theECtHR, by which the prosecutor motivateshis application, the extension of the measureof restraint for the accused in this case is un-founded.

The defense filed a motion to change themeasure of restraint to A. Kryzhanovsky andI. Kunik. The defense’s position consists in thegroundlessness of the prosecutor’s motions andthe lack of evidence, the poor state of health ofthe accused, the introduction of an emergencyand quarantine regime (the ban on gatheringmore than 2 people in one place), and the ab-sence of facts of non-fulfillment of proceduralobligations. The ISHR insists that due to quar-antine measures, due to which communicationbetween the cities of the country is suspended,and also air and almost all land borders areblocked, it is necessary to take into accountthe reduced risk of hiding from the court.

In addition, special attention should be paidto proceedings in which the terms of detentionalready reach the minimum penalty prescribedby the Criminal Code (including in cases cov-ered by the so-called “Savchenko law”). In thepresent case, the period of detention had al-ready exceeded 5.5 years and more than sixmonths ago, in paragraph 9 of the ECtHRcase of “Levchenko and Others v. Ukraine”,the Court having examined all available mate-rials, concluded that in this case the length ofpre-trial detention under the applicants’ cus-tody is excessive. In view of the fact that thecase of the ECtHR “Levchenko and Others v.Ukraine” is being considered in relation to thepreviously accused I. Pasichny (on his state-ment), the fact that the court completely disre-garded the requirements of this case is of deepconcern to the expert council of the ISHR.

The court ruled to extend the measure ofrestraint to all the accused.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing on05/20/20)

On May 20, in the Gadyatsky District Courtof the Poltava Region, a regular court sessionwas held in the case of the head of the “Visit”television company Alexander Melnik, who isone of the three accused (together with A.Kryzhanovsky, I. Kunik) in the murder of themayor of Kremenchug A. Babayev and Judgeof the Kremenchug court A. Lobodenko.

The court continues to consider written evi-dence of the prosecution.

At this hearing, a series of evidence relatedto temporary access to belongings and docu-ments was examined. The prosecution submit-ted to the court the ruling of the investigatingjudge (permission to conduct temporary ac-cess), the temporary access protocol and anoptical disk.

The purpose of temporary access is to obtaininformation from a mobile operator about callsof mobile terminals, which according to theinvestigation belong to the accused, as well asaddresses of stations that recorded these calls.The defense categorically objected to the

inclusion of this evidence in the case, indicat-ing that the investigator had received thesedocuments without having the authority to doso. Temporary access is always preceded bythe appropriate permission of the investigatingjudge. Like all court decisions, the definition ofan investigating judge must be motivated andjustified. The defense insisted on a mandatoryretrospective assessment of the validity of thedetermination of the investigating judge.

The International Society for Human Rightsnotes that some of the objections of the defensewere reflected in the following decisions of theECtHR.In paragraph 81 of the ECtHR judgment

in “Malone v. The United Kingdom” (Applica-tion No. 8691/79), the Court stated that theexistence of a law authorizing the interceptionof communications to assist the police in theirinvestigation and detection functions may be“necessary in a democratic society . . . to pre-vent unrest or crime.” However, the exercise ofsuch powers, because of their inherent secrecy,

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carries the risk of abuse, which in some casescan be detrimental to a democratic society asa whole. Moreover, the resulting interferencecan be considered “necessary in a democraticsociety” only if the specific secret surveillancesystem adopted provides adequate guaranteesagainst abuse.

In paragraph 66 of the ECtHR judgment in“Ben Faiza v. France” (31446/12), the Courtreiterates that the use of information regard-ing the date and duration of telephone callsand dialed numbers can create a problem un-der Article 8, which elements are “ an integralpart of telephone communications ”, althoughit differs in nature from interception of mes-sages (“PG and JH v. United Kingdom”, No.44787/98, § 42). In any case, the collectionand storage, without the knowledge of the in-terested party, of personal data regarding theuse of the telephone constitutes an interfer-ence with the right of the interested party torespect his personal life and correspondencewithin the meaning of Article 8 (“Copland v.The United Kingdom”, No. 62617/00, § 44).

Consequently, the Court considers that thejudicial claim, by virtue of which these doc-uments were transferred to the investigatorsand used, constituted an interference by a pub-lic authority with the person’s right to respectfor his private life (§ 68 “Ben Faiza v. France”).Furthermore, the Court observes that the

judicial claims are subject to further judicialreview. In subsequent criminal proceedingsagainst the person concerned, criminal courtsmay review the lawfulness of such a measureand, if it is declared unlawful, the court hasthe right to exclude evidence obtained in thisway from the proceedings (§ 73 “Ben Faiza v.France”).It should be noted that in accordance with

Art. 162 of the Code of Criminal Procedureof Ukraine, information that is held by mobileoperators is a secret protected by law. Anyunauthorized access to such information con-stitutes an interference with the rights guar-anteed by Art. 8 of the Convention (Right torespect for private and family life).

According to § 233 of the ECtHR judgmentin the case of “Roman Zakharov v. Russia” (Ap-

plication No. 47143/06), the review and super-vision of secret surveillance measures can takeeffect in three stages: when ordering surveil-lance for the first time, during or after it is ter-minated . . . It is important that the establishedprocedures themselves provide adequate andequivalent guarantees for the protection of hisrights. In addition, the values of a democraticsociety should be respected as accurately aspossible in supervisory procedures if the limitsof necessity in the sense of paragraph 2 of Arti-cle 8 can be exceeded. In an area where there isabuse and can have such harmful consequencesfor a democratic society as a whole, it is inprinciple advisable to entrust supervisory con-trol to a judge. Judicial control provides thebest guarantees of independence, impartialityand the right procedure.

As for the third stage, after the terminationof supervision, the issue of subsequent notifi-cation of supervision measures is inextricablylinked with the effectiveness of legal remediesin the courts and, therefore, with the avail-ability of effective guarantees against abuseof supervision powers. Thus, the individualshould be able to challenge their legitimacy inretrospect.The Gadyatsky court, after hearing the ar-

guments of the participants, decided to attachevidence of the prosecution to the case, fol-lowed by an assessment in the deliberationroom when sentencing.It should be noted that the International

Society for Human Rights requested the courtto broadcast the court hearing on 05/20/2020.The Gadyatsky District Court provided thebroadcast, in connection with which the ISHRis grateful to the court for the openness of thecourt to the human rights community and thedesire to comply with the principle of public-ity during the quarantine period, which mostcourts use to ensure maximum closeness froman outside observer.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing on05/21/20)

Monitoring of the case of A. Melnik, A. Kry-zhanovsky, I. Kunik (hearing on 05/21/20) On

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May 20, in the Gadyatsky District Court ofthe Poltava Region, a regular court session washeld in the case of the head of the “Visit” tele-vision company Alexander Melnik, who is oneof the three accused (together with A. Kryzha-novsky, I. Kunik) in the murder of the mayorof Kremenchug A. Babayev and Judge of theKremenchug court A. Lobodenko.At a hearing on May 21, the court contin-

ued to examine the evidence of the prosecu-tion, namely, the investigating judge’s defini-tion of temporary access to information aboutthe connections of mobile subscribers, relevantprotocols and optical discs.

The defense stated that some of the decisionsof the investigating judges on temporary accesswere not open to the accused and lawyers, anddue to the fact that a protocol was drawn upon their basis and an optical disk was obtained,all of the above evidence are unacceptable.On the issue of opening pre-trial investiga-

tion materials to the defense, the ECtHR in itsdecisions demonstrates a consistent positionon the inadmissibility of violating the principleof adversarial and equal rights of the parties.According to § 77 of the ECtHR decision

in the case of “Lisa v. Estonia” (ApplicationNo. 59577/08), a fundamental aspect of theright to a fair trial was that criminal proceed-ings, including elements of such proceedingsthat are related to the procedure, must beadversarial and that between the prosecutionand the defense must be equality of arms. Theright to an adversarial trial in a criminal casemeans that both the prosecution and the de-fense must be able to learn and comment onthe evidence submitted by the other party. Inaddition, article 6, paragraph 1, requires theprosecution authorities to disclose to the de-fense all material evidence at their disposal infavor of or against the accused.Despite statements by the defense that it

was impossible to further investigate such doc-uments, the court continued to examine theinformation on the optical disk. This decisionwas motivated by the fact that although thedefinitions of the investigating judges were notopen, research of the protocol and the disc ispossible, since the latter were opened to the

defense.ISHR experts believe that only strict adher-

ence to the legal rules for the collection andprovision of evidence can guarantee the obser-vance of the rights of participants in a demo-cratic society. On the contrary, well-foundeddoubts about the legality of the legal proce-dure should form the basis of the motives ofthe procedural decisions of the court in such away as not to violate the right to defense.

At this hearing, the court did not de-cide on the inadmissibility of the investi-gated documents and announced a break until05/26/2020.

Concern is also caused by the fact that theaccused Melnik has not been able to apply fora pension for a long time.Previously, the ISHR has already docu-

mented the unsuccessful attempts of the ac-cused to exercise the right to retirement. Mel-nik repeatedly appealed to the court with arequest for his delivery to the pension fundoffice. At the same time, the court, withoutmaking any decision, sent a petition to theremand prison. In turn, the administration ofthe Poltava remand prison stated that it isimpossible to deliver Melnik to a pension fundoffice without a court order.

In accordance with Art. 10 of the Conventionon the Rights of Persons with Disabilities, theparticipating States reaffirm the inalienableright of everyone to life and take all necessarymeasures to ensure its effective implementationby persons with disabilities on an equal basiswith others.

However, the participating States recognizethat persons with disabilities have the rightto the highest attainable standard of healthwithout discrimination on the basis of disabil-ity. States Parties shall take all appropriatemeasures to ensure access by persons withdisabilities to gender-sensitive health services,including rehabilitation for health reasons (Ar-ticle 25 of the Convention).

The ISHR experts believe that, with the ap-propriate powers, the court has stepped asidefrom resolving the issue of pension for theaccused Melnik, which certainly violates hisconstitutional rights.

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We believe that issues with violation of rea-sonable time limits for the trial, as well asignoring the court’s request for delivery to thepension fund office should be considered in thecontext of disrespect for the honor and dignityof the participants in the proceeding.

ISHR also expresses deep concern about thecurrent trend of ineffective revision of deter-minations on extending measures of restraint.Earlier, we have repeatedly recorded that thedefinitions are reviewed after the expirationdate, that is, after the next extension of thedetention by the trial court.

As of today, the definition of Kunik regard-ing the extension of the terms of detention of12/17/2019 has not been revised in the appeal.At the same time, already twice the Gadyatskycourt extended the measure of restraint to theaccused I. Kunik.

This state of affairs gives reason to assert asystematic violation of the rights of the accusedto a fair trial.


On June 2 and 3, in the Gadyatsky DistrictCourt of the Poltava Region, a regular courthearing was held in the case of the head of the“Vizit” TV company Alexander Melnik, who isone of the three accused (together with A. Kry-zhanovsky, I. Kunik) in the case of the murderof the mayor of Kremenchug A. Babayev andthe judge of the Kremenchug court A. Lobo-denko.At this hearing, the prosecutor’s petitions

to extend the terms of detention of accusedMelnik, Kunik and Kryzhanovsky were consid-ered.The accused have been in custody since

September 2014 (which is 5.5 years withoutchanging the measure of restraint).

In his petition, prosecutor Moskalenko justi-fied the need to extend the exceptional mea-sure of restraint with the following risks:1) the presence of uncontrolled territories,

which justifies the risk of the possibility of es-cape. 2) the presence of undisclosed witnesses,which confirms the risk of possible pressureon them. The case law of the ECtHR, in such

cases, speaks of the need to take into accountthe terms of detention. In § 73 of the EC-tHR judgment in the case of “Lyubimenko v.Russia”, the Court acknowledges that the au-thorities could reasonably have believed thatthe risk of pressure on witnesses and jurors waspresent in the first place. However, the Courtis not convinced that this ground alone canjustify the entire five-year period of the appli-cant’s detention. Indeed, the domestic courtsreferred to the risk of complicating the proceed-ings in a succinct manner, without indicatingany aspect of the applicant’s character or con-duct, in support of their conclusion that he waslikely to resort to intimidation. In the Court’sopinion, such a usually formulated risk can-not justify the applicant’s detention for morethan five years. The domestic courts did nottake into account the fact that this groundinevitably became less and less relevant overtime. The motivation of the courts did notevolve to reflect the evolving situation and tocheck whether the sufficiency retained this rea-son at the advanced stage of the proceedings.Thus, the Court is not convinced that duringthe entire period of the applicant’s detentionthere were compelling reasons for fear that hewould interfere with witnesses or jurors or oth-erwise obstruct the consideration of the case,and, of course, not in order to outweigh theapplicant’s right to be prosecuted within a rea-sonable period of time or release pending trial.3) The defense declares a motion to declare theevidence inadmissible, therefore it delays thetrial. 4) The lawyer of the accused Kryzhanov-sky - M. Vasilishin, previously represented theinterests of the accused Melnik in civil proceed-ings (2013). 5) The imperfection of electroniccontrols, according to the prosecutor, confirmsthe impossibility of applying a measure of re-straint not related to imprisonment. It shouldbe noted that during the consideration of theapplication of methods of ensuring criminalproceedings, the parties must submit to thecourt evidence of the circumstances to whichthey refer (part 5 of article 132 of the Crimi-nal Procedure Code of Ukraine). At the sametime, the prosecution in the petition for theextension of the measure of restraint limited

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itself to only formal descriptions of possibleviolations by the accused, without referringto specific evidence. 6) The severity of thepossible punishment.With regard to the severity of the possible

penalty, the European Court of Human Rightsrecognizes that suspicion of serious crimes mayinitially justify detention. At the initial stageof the proceedings, the need to ensure properinvestigation and to prevent escape or reof-fending may justify detention. However, whilethe severity of the sentence is an importantelement in assessing the risk of escape or reof-fending, the Court reiterates that the gravityof the charges alone cannot justify lengthy pre-trial detention (§ 102, “Panchenko v. Russia”).

As regards the existence of a risk of escape,the Court reiterates that such a risk cannotbe measured solely on the basis of the severityof the sentence that a person may face (§ 106,“Panchenko v. Russia”).

Also, in the petition for the extension ofthe measure of restraint, the prosecution onceagain incorrectly quotes the decisions of theECtHR and does not link it with its arguments.The prosecutor referred to § 58 of the EC-

tHR Judgment in the case of “Bekchiev v.Moldova”, pointing out that the risk of escapeis assessed in the context of factors related tocharacter, morality, place of residence, occupa-tion, property status, family ties and all typesof ties in the country.

At the same time, in the same decision andin the same paragraph, the court indicatedthat the expectation of a harsh sentence andthe weight of evidence may be appropriate,but they are not decisive, and the possibilityof obtaining guarantees can be used to com-pensate for any risk (“Neumeister v. Austria”§ 10 ).

ISHR experts have been monitoring this trialsince 2017, which gives us the right to concludethat the measure of restraint will be automati-cally extended and that there are no real factsthat would confirm the risks. Petitions to thedefense are handed in immediately before thehearing, and the reasoning about the advisabil-ity of extending the detention often does notmeet the requirements of the Criminal Proce-

dure Code. In addition, in this context, onecan recall that earlier, when the observer askedthe prosecutor about why the prosecution didnot support the risks with any justificationsand did not try to reasonably explain why noother, softer measure of restraint could be ap-plied, the prosecutor, who, on this stage is amember of the group of prosecutors in the caseof A. Melnik and others, said (literally) thatfor this court it is enough. That certainly castsdoubt on the objectivity of the trial.The defense referred to the formal nature

of the prosecutor’s request to extend the mea-sure of restraint. As well as unconfirmed risksby actual circumstances. In addition, in theopinion of the defense, reasonable time limitswere violated.

Detention in custody for more than 5 years,based on the case law of the ECtHR, is a vi-olation of reasonable time limits. In § 9 ofthe ECtHR case “Levchenko and Others v.Ukraine” (which, as we have repeatedly indi-cated, includes the case of one of the previouslyaccused in this case – “Pasichny v. Ukraine”),the court, having considered all available ma-terials, decided that in this case the durationof the applicants’ detention was excessive.It should be noted that the International

Society for Human Rights asked the court tobroadcast the court session from 06.02.2020and 06.03.2020. The Gadyatsky District Courtprovided the broadcast. The ISHR is gratefulfor the openness of the court before the humanrights community.


On June 24, in the Gadyatsky District Courtof the Poltava Region, a regular court hearingwas held in the case of the head of the televi-sion company “Visit” Alexander Melnik, who isone of the three accused (together with A. Kry-zhanovsky, I. Kunik) in the case of the murderof the mayor of Kremenchug A. Babaev andjudge of the Kremenchug court A. Lobodenko.At this hearing, the defense provided the

court with evidence that is related to the mur-der episode of the mayor of the city of Kre-menchug Babayev Oleg Maidanovich.

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Attorney Mironov, attached to the case doc-uments of financial relations between the vic-tim Shlyakhova (wife of the mayor Babayev)and other persons, as well as materials of thetrials between them after the murder, which,according to the defense, should be taken intoaccount by the prosecution during the investi-gation of the case.In addition, the defense directly speaks

about the schemes of taking possession of theproperty of the mayor Babayev, indicates who(in the opinion of the defense) and under whatcircumstances carried out these schemes, theimplementation of which began shortly beforeBabayev’s death and continued after the mur-der.These data can speak not only of the pres-

ence of motive among the interested persons,but also of another justified version of the mur-der.

In the Decision of the Supreme Court dated01.21.2020 in case No. 754/17019/17, it isstated that the existence of a different ver-sion of events is the basis for reasonable doubtabout the proof of guilt.The Supreme Court recalled that the stan-

dard of proof beyond reasonable doubt meansthat the totality of the circumstances of thecase, established during the trial, excludes anyother reasonable explanation of the event, isthe subject of judicial proceedings, except thatthe alleged crime was committed, and the ac-cused is guilty of committing this crime. . .This issue must be resolved on the basis

of an impartial and unbiased analysis of theprosecution and defense of admissible evidencesupporting or against one or another versionof events.

The duty of a comprehensive and impartialexamination by the court of all the circum-stances of the case in this context means thatin order to find guilty, which is proven beyondreasonable doubt, the prosecution’s versionmust explain all the circumstances establishedby the court that are relevant to the event thatis the subject of the trial. The court cannotdisregard that part of the evidence and the cir-cumstances established on its basis only for thereason that they contradict the prosecution’s

version. The presence of such circumstances,for which the prosecution’s version cannot pro-vide a reasonable explanation or indicating thepossibility of the existence of another versionof the incriminated event, is the basis for rea-sonable doubt about the proof of the person’sguilt.To comply with the standard of proof be-

yond a reasonable doubt, it is not enough thatthe prosecution’s version is only more likely ac-cording to the defense’s version. The legislatorrequires that any reasonable doubt about theprosecution’s version of the event be refuted byfacts established on the basis of admissible evi-dence, and the only version that an intelligentand impartial person can explain the totalityof facts established in court is the version ofevents that gives grounds for finding a personguilty on the charge brought against him.

The court did not include all documents ofthe defense in the case. The materials of thedefense, which were provided as corroboratingan alternative version of events, different fromthe one incriminated by the prosecution, werenot included. The court motivated by the factthat the documents are not adequate evidence,that is, such that they do not relate to thiscriminal proceeding.We believe that the assessment of the evi-

dence by the defense, the court should give inthe deliberation room, during the sentencing.Otherwise, the court will not be able to takeinto account the version of the defense, whichthe court is obliged to investigate, and theprosecutor - to refute.On June 25, 2020, the European Court of

Human Rights ruled on the complaint of theaccused Kunik about the prolonged and unjus-tified detention.In accordance with §§ 35-38 of the ECtHR

“Bevz and Others v. Ukraine” (on the Kunikapplication), the Court reiterates that the rea-sonableness of the length of the proceedingsmust be assessed in the light of the circum-stances of the case at hand and with referenceto the following criteria: the complexity of thecase, the conduct of the applicant and the rel-evant authorities, and what is at stake for theapplicant in the dispute.

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In the main case, “Merit v. Ukraine” (no.66561/01 of 30 March 2004), the Court founda violation in respect of issues similar to thoseexamined in the present case.

Having examined all the materials presentedto it, the Court did not find a single fact orargument capable of persuading it to come to adifferent conclusion. Having regard to its case-law on this point, the Court considers that inthe present case the length of the proceedingsagainst the applicants was excessive and didnot meet the “reasonable time” requirement.Accordingly, there have been violations of

Article 6 § 1 of the Convention. Earlier theECtHR ruled on the complaint of the accusedPasichny. In § 9 of the ECtHR case “Levchenkov. Ukraine”, the court examined all availablematerials and ruled that in this case the lengthof the applicants’ pre-trial detention was ex-cessive.It should be noted that the International

Society for Human Rights asked the court tovideo broadcast the hearing of June 24, 2020.The Gadyatsky District Court provided thebroadcast, in connection with which the ISHRis very grateful for the openness of the courttowards the human rights community.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing on07.21.20)

On July 21, 22, 23, in the Gadyatsky DistrictCourt of the Poltava Region, a regular hearingwas held in the case of the head of the “Vizit”TV company, Alexander Melnik, who is one ofthe three accused (together with A. Kryzha-novsky, I. Kunik) in the case of the murder ofthe mayor of Kremenchug A. Babayev and thejudge of the Kremenchug court A. Lobodenko.At these sessions, the court continued to

examine the evidence of the defense on thealleged murder episode of the mayor of thecity of Kremenchug A. Babayev.The defense once again tried to draw the

court’s attention to the fact that the pre-trialinvestigation body had not worked out theversion of involvement in the murder of otherpersons.

On July 22, 2020, lawyer Lazorenko an-nounced the decision of the Poltava RegionalCouncil of July 14, 2017 on the appeal of thedeputies to the High Council of Justice to dis-miss the judge of the Kievsky District Courtof Poltava Logvinova.As indicated earlier in the reports of the

ISHR in the case of A. Melnik and others, on12 July 2017, judge Logvinova released theaccused A. Melnik and A. Kryzhanovsky fromcustody. This decision led to an appeal to theHigh Council of Justice (HCJ) on the initia-tive of the first deputy head of the Poltava Re-gional Council E. Kholod. In public speeches,E. Kholod directly stated that the person whoordered the killings was the accused AlexanderMelnik. Despite the fact that judge Logvinovaalso applied to the HCJ with a statement aboutpressure on her, it was the appeal of the firstdeputy head of the Poltava Regional Councilthat got the move, and the judge’s promotionto the Poltava Court of Appeal was suspended.Despite the decision of the HCJ, the Interna-tional Society for Human Rights considers suchactions to be contrary to the principle of jus-tice, acknowledges that such measures takenagainst Judge Logvinova due to the change inthe measure of restraint (which did not entailany negative consequences - the accused havenever violated the obligations under the housearrest regime) may be the reason for the auto-matic extension of an exceptional measure ofrestraint in the form of detention in custodyby the Gadyatsky District Court, contrary tothe decisions of the European Court of HumanRights.By the decision of the Avtozavodsky Dis-

trict Court of Kremenchug, the informationindicated in the appeal of the deputies of thePoltava Regional Council was recognized asunreliable.Let us also recall that the defense argued

that it was the first deputy head of the PoltavaRegional Council, E. Kholod, who had signifi-cant debts to Mayor Babayev before his mur-der. In addition, the defense directly speaksabout the possible seizure of property of themayor Babayev by E.M. Kholod, they indicatewho and under what circumstances carried out

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these schemes, the implementation of whichbegan shortly before Babayev’s death and con-tinued after the murder.The ECtHR has repeatedly drawn atten-

tion to the inadmissibility of statements bypublic figures who violate the presumption ofinnocence.The ECtHR’s sustainable approach to the

right to the presumption of innocence is thata violation of this provision will occur if ajudgment or statement by an official againsta person accused of a criminal offense reflectsan opinion of his guilt before it is proven ac-cording to the law. It is enough to have, evenin the absence of any formal opinion, certaingrounds to assume that the court or the officialconsiders the accused guilty. It is essential todistinguish between a message that someoneis simply suspected of committing a crime anda clear statement that a person has commit-ted a crime, made in the absence of a finaljudgment. The court has repeatedly empha-sized the importance of the choice of words byofficials in their speeches, if they make theirstatements public before the trial and con-viction of a person for a certain crime. Thequestion of whether a statement by a public of-ficial violates the principle of the presumptionof innocence should be determined in the con-text of the particular circumstances in whichthe impugned statement was made (para. 48“Dovzhenko v. Ukraine”).

The court, without indicating the reasons,refused to accept these documents as inappro-priate. The court considers that the facts inthese documents are not included in the sub-ject of proving the alleged crime. It shouldbe noted that the violation of the presump-tion of innocence of the accused Melnik hasalready taken place in the same criminal pro-cess (which was also previously indicated inthe reports of the ISHR).The ECtHR has repeatedly drawn the at-

tention of national courts to the necessary andsufficient substantiation of its decisions.In paragraph 50 of the ECtHR judgment

“Krasulya v. Russia”, the court reiterates thatwhile Article 6 of the Convention guaranteesthe right to a fair trial, it does not lay down

any rules on the admissibility of evidence orhow it should be assessed, which is therefore acentral issue for regulation by national law andnational courts. However, for the proceedingsto be fair, as required by para. 1 of Article 6,the “tribunal” must conduct a proper examina-tion of the arguments and evidence presentedby the parties, without prejudice to its as-sessment of whether they are relevant to itsdecision. Para. 1 of Article 6 of the Conventionobliges the courts to substantiate their deci-sions but cannot be considered as requiring adetailed answer to every argument. The ques-tion of whether the court has failed to complywith the obligation to state the reasons arisingfrom Article 6 of the Convention can only bedecided in the light of the circumstances of thecase.The ISHR observer notes the complete ab-

sence of visible motives for issuing a determi-nation to refuse to accept evidence.It should be noted that the International

Society for Human Rights asked the court tovideo broadcast the court hearings on July 22,23, 24, 2020. The Gadyatsky District Courtprovided the broadcast, in connection withwhich the International Society for HumanRights is grateful for the openness of the courtfor the human rights community.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing on07.28.20)

On July 28 and 29, in the Gadyatsky DistrictCourt of the Poltava Region, a regular courthearing was held in the case of the head of the“Vizit” TV company Alexandr Melnik, who isone of the three accused (together with A. Kry-zhanovsky, I. Kunik) in the case of the murderof the mayor of Kremenchug A. Babayev andthe judge of the Kremenchug court A. Lobo-denko.

At these sessions, the prosecutor’s petitionsto extend the measure of restraint for the ac-cused in the form of detention and the defensepetition to change the measure of restraintwere considered.

As in previous motions, the prosecution re-ferred to the following circumstances:

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1) The severity of the possible punishmentin the form of life imprisonment, the prosecu-tor considers as the reason that the accusedcan hide from the court. However, the Euro-pean Court of Human Rights recognizes thatsuspicion of serious crimes may initially justifydetention. At the initial stage of the proceed-ings, the need to ensure proper investigationand to prevent escape or reoffending may jus-tify detention. However, while the severity ofthe sentence is an important element in as-sessing the risk of escape or reoffending, theECtHR recalls that the gravity of the chargesalone cannot justify lengthy pre-trial detention(para. 102, “Panchenko v. Russia”). As regardsthe existence of a risk of escape, the Courtreiterates that such a risk cannot be measuredsolely on the basis of the severity of the sen-tence the person faced (para. 106, “Panchenkov. Russia”).

2) Pressure on victims and witnesses. Inpara. 73 of the ECtHR judgment “Lyubimenkov. Russia”, the Court acknowledges that theauthorities could reasonably have consideredthat the risk of pressure on witnesses and ju-rors was present in the first place. However,the Court is not convinced that this groundalone can justify the entire five-year period ofthe applicant’s detention. Indeed, the domes-tic courts referred to the risk of complicatingthe proceedings in a succinct manner, withoutindicating any aspect of the applicant’s charac-ter or conduct, in support of their conclusionthat he was likely to resort to intimidation. Inthe Court’s opinion, such a usually formulatedrisk cannot justify the applicant’s detentionfor more than five years. The domestic courtsdid not take into account the fact that thisground inevitably became less and less relevantover time. Thus, the Court is not convincedthat during the entire period of the applicant’sdetention there were compelling grounds forfear that he would interfere with witnesses orjurors or otherwise obstruct the examinationof the case, and, of course, not in order to out-weigh the applicant’s right to prosecute withina reasonable time or be released pending trial.

3)The impossibility of applying a mildermeasure of restraint, motivated by the fact

that there is no control over the communica-tion of the accused at the place of residence,the lack of full control during the days of courtsessions, the imperfection of electronic con-trols.

It should be noted that during the consider-ation of the application of methods of ensuringcriminal proceedings, the parties must submitto the court evidence of the circumstances towhich they refer (part 5 of article 132 of theCriminal Procedure Code of Ukraine). At thesame time, the prosecution in the petition forthe extension of the measure of restraint lim-ited itself only to formal descriptions of possi-ble violations by the accused, without referringto specific evidence.The defense argued the petition to change

the measure of restraint by the groundlessnessof the accusation and the absence of risks ofnon-fulfillment of procedural duties. The char-acterizing data of the accused, according tothe lawyers, indicate the absence of such risks.In addition, the violation of the reasonable

time limits for the trial and detention in thiscase was stated in two decisions of the ECtHR.As a result of consideration of the complaintof the accused I. Kunik and I. Pasichny, theECtHR pointed out violations by the nationalcourt of the permissible terms of detention.In paras. 35,36,38 of the ECtHR judgment

“Bevz and Others v. Ukraine” (on the Kunikcomplaint), the Court reiterates that the rea-sonableness of the length of the proceedingsmust be assessed in the light of the circum-stances of the case at hand and with referenceto the following criteria: the complexity of thecase, the conduct of the applicant and the rel-evant authorities and what is at stake for theapplicant in the dispute. Having examined allthe materials presented to it, the Court didnot find a single fact or argument capable ofpersuading it to come to a different conclusion.Having regard to its case-law on this point,the Court considers that in the present casethe length of the proceedings against the ap-plicants was excessive and did not meet the“reasonable time” requirement.

Accordingly, there has been a violation ofthe para. 1 of the Article 6 of the Convention.

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At the same time, the court took into ac-count that 5 years and 8 months of the trialis a violation of Article 6 of the Convention.In paras. 25-30 of the judgment of “Bevz

and Others v. Ukraine” (on the complaint ofI. Kunik), the ECtHR notes that the serious-ness of the charges against the applicants andthe risk of their escape or interference in therelevant investigations were mentioned in theinitial orders for their detention. These reasonsremained the main reasons for the applicants’detention pending their conviction or release.The Court also notes that the decisions inrespect of the accused were formulated in gen-eral terms and contain repeated phrases. Theydo not suggest that the courts have properlyassessed the facts relevant to the question ofwhether such a measure of restraint is neces-sary.In addition, over time, continued deten-

tion requires further justification; however, thecourts did not provide any further arguments.It appears that the domestic courts did not at-tempt to demonstrate the existence of specificfacts proving the actual existence of the saidrisks, which, the courts argued, outweighedrespect for individual freedom. In fact, theburden of proof was wrongly shifted to theapplicants.

The ECtHR has frequently found a violationof para. 3 of the Article 5 of the Conventionin cases against Ukraine on the ground that,even with respect to long periods of detention,the domestic courts relied on the same set ofgrounds (if any) in all cases of the relevantdetention.In view of the above, the Court considers

that relying primarily and usually on the grav-ity of the charges, the authorities extendedthe applicants’ “pre-trial detention on groundsthat could not be considered “sufficient” and“appropriate” to justify its length.

Accordingly, violations of Article 5 para. 3of the Convention have been found.Despite the fact that the prosecutor again

did not change the request to extend the mea-sure of restraint, nor to the already existingtwo decisions of the European Court of HumanRights specifically in this case, as well as the

fact of the automatic extension of the measureof restraint recorded by the International So-ciety for Human Rights, the Gadyatsky courtgranted the requests prosecutor to extend thedetention of all accused.During the entire period of monitoring of

trials, the International Society for HumanRights records for the first time a direct dis-regard by a national court of the decisions ofthe ECtHR rendered in relation to the samecases.The experts of the ISHR do not have suffi-

cient grounds to believe that there are politicalor other, different from the judiciary, motivesfor making decisions, but deliberate disregardfor the decision of the ECtHR is contrary tojudiciary practice.

Monitoring of the case of A. Melnik, A.Kryzhanovsky, I. Kunik (hearinging ofAugust 11-13, 2020)

On August 11, 12, 13, in the Gadyatsky Dis-trict Court of the Poltava Region, court hear-ings were held in the case of the head of the“Vizit” TV company Alexander Melnik, who isone of the three accused (together with A. Kry-zhanovsky, I. Kunik) in the case of murder ofthe mayor of Kremenchuk A. Babaev and thejudge of the Kremenchug court A. Lobodenko.At these court sessions, some material evi-

dence was examined in the case of the murderof Judge Lobodenko.

The prosecutor presented to the court “ma-terial evidence” packed by the Poltava Courtof Appeal. It should be noted that this casewas not considered by the Poltava Court ofAppeal, especially since the material evidencein the case was not examined. The prosecutorwas unable to reasonably explain the origin ofthe packaging and the fact that the court ofappeal sealed the evidence.In the course of the court’s examination of

material evidence, the defense demanded thatthe objects be measured, but the court indi-cated that they were not experts and couldnot make measurements. For the same pur-pose, the lawyers filed requests to summonthe experts to the court, the court refused tosatisfy the requests.

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The defense lodged objections to the viola-tion by the court of the right to a fair trial.

Lawyer Mironov argued his protest by thefact that the defense had previously filed apetition to involve a specialist during the ex-amination of material evidence in the case.

The panel of judges refused to satisfy thepetition without any explanations.

It should be noted that in accordance withArticle 360 of the Code of Criminal Procedureof Ukraine, during the examination of evidence,the court has the right to use oral advice orwritten explanations of a specialist providedon the basis of his special knowledge. Thespecialist may be asked questions about theessence of the provided oral advice or writtenexplanations.

Nevertheless, experts of the InternationalSociety for Human Rights are concerned aboutthe lack of motives for the court’s decision andwe believe that there is a violation of the rightto a fair trial.

The ECtHR has repeatedly drawn atten-tion to the need for a sufficient reasoning ofdecisions of national courts.

In §§ 31; 32 “Duralisky v. Bulgaria”, theECtHR ruled that the judges themselves mustrespect the adversarial principle, in particularwhen they reject applications or decide a caseon the basis of an issue raised by the court ontheir own initiative.

The Court notes in this regard that it isimportant for those who bring applications tothe courts to rely on the proper functioningof the justice system: this hope is based, interalia, on the confidence that a party to a disputewill be heard on all counts of the case. In otherwords, the parties to a dispute have a legalright to expect to be consulted as to whether aparticular document or argument, as the casemay be, requires their comments.

Rejection of motions by the court withoutstating the reasons deprives the defense of theopportunity to understand the reasons for therefusal, which ultimately constitutes a viola-tion of the right to defense and the right to afair trial.


On September 15, in the Gadyatsky DistrictCourt of the Poltava Region, a court hearingwas held in the case of the head of the “Vizit”TV company Alexandr Melnik, who is one ofthe three accused (together with A. Kryzha-novsky, I. Kunik) in the case of the murder ofthe mayor of Kremenchug A. Babaev and thejudge of the Kremenchug court A. Lobodenko.Prior to the hearing, lawyer R. Lazorenko

drew the observer’s attention to the fact thatsome of the evidence that the defense considersimportant - 40 court rulings on the conductof a search (regarding the weapon from which,according to the prosecutor’s office, the shotswere fired) are not provided to them for re-view and study. Lawyers have repeatedly filedmotions to oblige the prosecutor’s office to pro-vide documents for review, but the court didnot satisfy any of them. The lawyers also askedthe court to oblige the prosecutor’s office toprovide them with other evidence for review -documents on the movement of the deceasedjudge A. Lobodenko. However, the court alsorejected these requests. In the opinion of theISHR, this may indicate a violation of the rightto defense and one of the fundamental princi-ples of legal proceedings - equality of arms.As foreseen by the ECtHR judgments, the

difficulties of the defense associated with notdisclosing all materials must be balanced bythe existence of legal procedures and be un-der judicial control (“Fitt v. The United King-dom”, para. 20), with the possibility (bothlegal and factual) of a court to analyze theimportance and usefulness of these materialsfor protection purposes. In addition, the rightsdue to all those charged with a criminal offenseshould include the opportunity to familiarizethemselves, in order to prepare their defense,with the results of the investigation carriedout throughout the proceedings (“Tarasov v.Ukraine”, para. 88).One of the defendants, A. Kryzhanovsky,

was unable to arrive in Gadyach for the courthearing due to poor health and difficult con-ditions of escort. The court, after consulting,decided on the possibility of his participation

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in the videoconference mode. This situationcannot but cause concern. The ISHR recordeda negative trend in the health status of A. Kry-zhanovsky for several years: from just feelingunwell, back pain, the need to take painkillersbefore the start of each hearing, to the cur-rent one - the complete impossibility of per-sonal presence. We are obliged to note this fact,which undoubtedly has signs of a violation ofthe European Convention on Human Rights.

One of the forms of violation of Art. 3 of theConvention, which is often established by theobservers of the ISHR during monitoring, isthe lack of adequate medical assistance. Thus,in the “Kashuba v. Ukraine” case, the ECtHRstressed that the lack of medical assistance dur-ing detention may constitute an appeal thatcontradicts Art. 3 of the Convention. The EC-tHR came to a similar conclusion in the cases“Chuprina v. Ukraine”, “Hummatov v. Azer-baijan”, “Wuhan v. Ukraine”, and “Petukhovv. Ukraine”.

Lawyer M. Vasilishin also read out the pe-tition of A. Kryzhanovsky, who has been injail since September 2014. According to him,during his entire stay in custody and even af-ter the medical examination on April 2018, hisclient did not receive proper medical assistance.Since March 2020, he has been moving withthe help of a stick or other people, has lostall upper teeth, which is why he cannot eatsolid food. Due to the lack of medical support,the inflammation in the upper jaw does notgo away and A. Kryzhanovsky cannot eat nor-mal healthy food for almost a month, whichin turn led to an even greater deterioration inhis health. In the petition, the accused asksthe court to pay attention to his problem andensure an adequate level of medical support.By videoconference, A. Kryzhanovsky also

added that he wants to take part in courthearings in person, but cannot. And he askedthe court to provide his treatment both atthe hospital, according to the conclusion ofthe medical examination, carried out almost 2years ago, and at the dentist.

The prosecutor, as well as the representativeof the victims, asked the court to pay atten-tion to the fact that this issue does not apply

directly to the court, but to the pre-trial deten-tion center. Therefore, they suggested to thecourt that the letter with A. Kryzhanovsky’spetition be sent there. And despite the factthat the defenders urged the court to make adecision that oblige the medical institution atthe pre-trial detention center, which is a sepa-rate legal entity from the pre-trial detentioncenter, to provide the necessary legal assis-tance, the court decided to send another letterto the pre-trial detention center management.In this case, one can note not so much thefailure to comply with the court decisions, butthe possible self-removal of the panel of judgesfrom resolving the issue with the provision ofproper treatment.

According to the observer of the ISHR, thestatement of the lawyer O. Mironov that suchan attitude is used by the prosecutor in orderto persuade the accused to take certain actionsin favor of the prosecution, for example, con-fessing to committing the incriminated crimesthat the accused did not commit [according tothe lawyer], are not groundless. It should be re-called that earlier, after a long period of healthproblems, one of the accused, I. Pasichny, madea deal with the prosecutor. In the reports ofthe ISHR, it was recorded that Igor Pasichnycomplained about his health condition for along time, asked the court to facilitate the pro-vision of medical assistance to him, but neverreceived it. After some time, when he couldno longer physically come to court sessionsand took part in the videoconference mode,I. Pasichny made a deal and pleaded guiltyto the incriminated crimes, after which theprosecutor personally petitioned to change hismeasure of restraint to house arrest. Interna-tional Society for Human Rights cannot assessthe court’s decision, but since it was made onthe basis of a deal, it can be assumed that thedefendant’s poor health was one of the reasonsfor such a deal. According to the definition ofarticle 1 of the UN Convention against Torture,“the definition of ‘torture’ means any act bywhich a person is intentionally inflicted withsevere pain or suffering, physical or mental,in order to obtain information or confessionsfrom him or from a third party. . . ”.

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When examining material evidence, namelywad and wad containers, the defense drew thecourt’s attention to a number of inconsisten-cies of evidence with official documents andlegislation, for example, the names of the at-testing witnesses, the purity of the wads al-legedly removed from the bodies, etc. Whichcasts doubt on the ownership and admissibilityof this evidence.

Since A. Kryzhanovsky was unable to evalu-ate and study the material evidence via video-conference, the prosecutor suggested stoppingthe proceedings to provide treatment for A.Kryzhanovsky, or still find out his state ofhealth and why he was not taken to the hear-ing. The court, having consulted, decided to at-tach all the evidence, giving A. Kryzhanovskythe right to examine the evidence separatelyupon request.Due to the fact that A. Kryzhanovsky be-

came ill and needed to call an ambulance tothe pre-trial detention center, a break was an-nounced until September 16, 2020.

Monitoring of criminal proceedings of A.Melnik, A. Kryzhanovsky, I. Kunik(hearing 09/30/2020)

On September 30, 2020, a hearing was held inthe Gadyatsky District Court of the PoltavaRegion in the case of A. Melnik, A. Kryzha-novsky, I. Kunik in the case of the murder ofthe mayor of Kremenchug A. Babaev and thejudge of the Kremenchug court A. Lobodenko.

At the hearing, the examination of materialevidence continued.

The prosecutor presented the mobile opera-tor’s starter packs as evidence. Such materialevidence was seized during a search in the placeof residence of Alexandr Kryzhanovsky. Theaccused himself notes that the court was notprovided with video filming of the investigativeaction, although it was made. In addition, henotes that he really used two starter packs andtheir numbers, but did not use the others. Theaccused believes that the attachment of evi-dence is illegal, since the search did not complywith the requirements of the law. The lawyersupported the position of the accused and onceagain drew attention to the fact that video

filming was carried out during the search, butit was not provided to the court. The lawyerannounced the suspicion that some of the ev-idence could have been deliberately plantedon the accused during the search. Proceedingfrom the above, the lawyer stated that he wasagainst admitting such evidence to the casematerials, since they were obtained in violationof the law.The defense filed a motion on the inadmis-

sibility of the evidence obtained as a resultof the search, citing the following grounds: •the search was carried out by an unauthorizedperson; • during the investigation, a lawyerwas absent, which means that the accused wasnot provided with legal assistance; • the pack-age with evidence was opened and not sealed,no documents on the previous autopsy wereprovided by the prosecution; • the prosecutordid not provide evidence of obtaining mate-rial evidence from a legal source; • the courtwas not provided with video footage of theinvestigative action.

In the Resolution of the Cassation CriminalCourt of the Supreme Court dated August 5,2020, in case No. 334/5670/18, the issue of theinadmissibility of evidence obtained as a resultof the search, which was filmed, was clarified,but the video was not provided to the court.

So, the requirements provided for in Part 10of Art. 236 of the Criminal Procedure Code,Part 2 of Art. 104 of the Criminal ProcedureCode, Parts 1 and 6 of Art. 107 of the Code ofCriminal Procedure, aimed at improving theprocedure for conducting a search of housingor other premises by the pre-trial investigationauthorities, in particular, when inaccurate in-formation about the evidence obtained duringtheir conduct is added to the protocols of in-vestigative actions. Given the content of Part6 of Art. 107 of the Code of Criminal Pro-cedure, negative consequences in the form ofrecognition of a procedural action and the re-sults obtained as a result of its commissioninvalid can occur only in the case of non-useof technical means of fixation.

However, even in this case, this is not an un-conditional basis for recognizing the evidenceobtained during the search as inadmissible,

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since Part 6 of Art. 107 of the Code of Crimi-nal Procedure provides for exceptions to thisrule when the grounds for recognizing factualdata as inadmissible as evidence can be “over-come” by consensus of the parties to criminalproceedings (the so-called conditionally con-sensual grounds for recognizing factual dataas admissible as evidence).A situation in which video recording of

the search was not carried out should not beequated with a situation in which the prosecu-tion did not submit the video to the court asa mandatory annex to the protocol.

At the same time, failure to provide a videorecording of the inspection of the scene, whichis an integral annex to the protocol, by theprosecution in the course of the trial is a vi-olation of the requirements of Part 2 of Art.104 of the Criminal Procedure Code.

Assessing the materiality of such a viola-tion, the Court, taking into account the pro-visions of Art. 87 of the Code of CriminalProcedure does not consider that there are un-conditional grounds for recognizing the resultsof the inspection of the scene and the deriva-tive investigative (search) actions inadmissibleas evidence.On the existence of other (conditional)

grounds for recognizing evidence as inadmissi-ble, the courts need in each specific criminalproceeding to find out what consequences ofviolation of the requirements of the criminalprocedural law have led and whether these con-sequences are irreversible (that is, those thatcannot be eliminated in the course of judicialconsideration). When it comes to recognizingevidence obtained in the course of investigative(search) actions as inadmissible, this mainlyconcerns the existence of doubts about the re-liability of the information obtained as a resultof their conduct.In the Decree of the Cassation Criminal

Court of the Supreme Court of November 19,2019, in case No. 750/5745/15-k, a legal posi-tion is provided: if the admissibility of evidenceis questioned, the obligation to prove the ad-missibility of evidence is imposed on the partythat submits it.When doubts arise about the credibility of

the source of evidence, it becomes necessary tocorroborate the circumstances with evidencefrom another source (“Jalloha v. Germany”,para. 96). In such situations, a question arisesthat must be answered: is the judicial review,including the methods of obtaining evidence,fair (“Bykov v. Russia”, para. 89).In addition, the defense filed a petition to

attract a specialist to examine the phone andsim cards (subscriber identification modules).

Also, the defense drew attention to the factthat as evidence the prosecutor attached a doc-ument, as indicated by the lawyer, – “a pieceof paper”, which confirms the purchase of thephone on 12.31.2012. However, if you open thetechnical documentation, namely, pay atten-tion to the warranty card, there is a differentdate of purchase of the phone.

The defense’s petition to involve a specialistwas granted.

Further, after a technical break in the courtsession, the prosecutor filed a motion to inves-tigate material evidence - a burnt car at theplace of its storage, since it is impossible todeliver it to the court session. The prosecutorasked to involve a specialist for video record-ing by technical means of examining materialevidence. In turn, the defense filed a petitionto involve a specialist - automotive technician.Prosecutor Moskalenko D.V. and the

representative of the victims, lawyer A.P.Kononenko objected to the satisfaction of thepetition for the involvement of a specialist -automotive technician, since at present the ex-pert’s opinion on this material evidence hasnot been examined, the witness has not beenquestioned.As a result of the trial, the prosecution’s

petition was satisfied and the defense’s petitionwas denied.

Monitoring of the cases of A. Melnik, A.Kryzhanovsky, I. Kunik (hearing11.19.2020)

On November 19, 2020, a hearing was heldin the Gadyach District Court of the PoltavaRegion in the case of A. Melnik, the head ofthe “Visit” TV company, who is one of threedefendants (together with A. Kryzhanovsky, I.

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Kunik) in the case of the murder of the mayorof Kremenchug A. Babaev and the judge ofthe Kremenchug court A. Lobodenko.Earlier, the International Society for Hu-

man Rights appealed to the Gadyach DistrictCourt of the Poltava Region with a request toconduct a video broadcast of the court hear-ings on November 18, 19 and 20. However,on November 23, 2020, the ISHR observer re-ceived a reply stating that video broadcastingis allowed on the basis of a court decision,which is adopted by a panel of judges, takinginto account the position of the parties andthe possibility of such actions being carriedout without prejudice to court proceedings.Since Judge E. Zakolodyazhnaya was on sickleave, the application of the ISHR could not beconsidered, since clause 20-5 of Section XI ofthe “Transitional Provisions” of the CriminalProcedure Code of Ukraine does not providefor the possibility of solving this issue by thepresiding judge.

At the court session on November 19, 2020,the prosecutor’s petition to extend the periodof detention was considered.The issue was decided by the presiding

judge, since in accordance with paragraph 5of clause 20-5 of section XI “Transitional Pro-visions” of the Criminal Procedure Code ofUkraine temporarily, for the period of quar-antine established by the Cabinet of Minis-ters of Ukraine (Resolution of the Cabinet ofMinisters of Ukraine No. 641 dated July 22,2020 as amended in accordance with Resolu-tion No. 956 dated October 13, 2020) in orderto prevent the spread of coronavirus disease(COVID-19) in Ukraine, if it is impossible forthe panel of judges to consider an applicationfor the extension of a measure of restraint inthe form of detention within the time periodspecified by this Code, it may be consideredby the presiding judge.As in previous requests for extensions of

detention, the prosecution referred to:The severity of the possible punishment in

the form of life imprisonment.However, the ECtHR has repeatedly noted

that the severity of the charge cannot in it-self justify long periods of detention (“Ecius v.

Lithuania”, para. 94).According to paragraph 3 of Article 5 of the

Convention, after a certain period of time, themere existence of reasonable suspicion doesnot justify the deprivation of liberty, and thecourts must give other grounds for extendingthe detention (“Borisenko v. Ukraine”, para.50). Moreover, these grounds must be clearlyindicated by the national courts (“Yeloyev v.Ukraine”, para. 60; “Kharchenko v. Ukraine”,para. 80).

The existence of a reasonable suspicion thata detainee has committed a crime is a prereq-uisite and sine qua non for the legality of hiscontinued detention, but after the expirationof the time, such suspicion will not be enoughto justify a prolonged detention. The Courthas never tried to translate this concept into aclearly defined number of days, weeks, monthsor years, or at different times depending on theseverity of the crime. Once “smart suspicion”is no longer sufficient, the court must establishother, court-based grounds that will continueto justify the deprivation of liberty (“Maggieand Others v. The United Kingdom”, paras.88-89).

The ECtHR also recalls that the grounds forsuspicion remain unchanged. If the arrestedperson has committed an offense, this is a sinequa non condition for his continued detentionto be considered lawful, but after a while thiscondition is no longer sufficient. The Courtmust then establish other reasons on whichthe decisions of the judicial authorities arebased, which continue to justify the depriva-tion of liberty. If these grounds are found to be“appropriate” and “sufficient”, then the Courtshall examine whether the competent nationalauthorities have shown “special good faith”in the conduct of the proceedings (“Labita v.Italy”, para. 153).Risk of pressure on victims and witnesses.In paragraph 73 of the ECtHR judgment

“Lyubimenko v. Russia”, the European Courtacknowledges that the authorities could rea-sonably believe that the risk of pressure onwitnesses and jurors was present in the firstplace. However, the Court is not convincedthat this ground alone can justify the entire

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five-year period of the applicant’s detention.Indeed, the domestic courts referred to the riskof complicating the proceedings in a succinctmanner, without indicating any aspect of theapplicant’s character or conduct, in supportof their conclusion that he was likely to re-sort to intimidation. In the Court’s opinion,such a usually formulated risk cannot justifythe applicant’s detention for more than fiveyears. The domestic courts did not take intoaccount the fact that this ground inevitablybecame less and less relevant over time. Themotivation of the courts was not developedto reflect the evolving situation and to checkwhether the sufficiency at the advanced stageof the proceedings retained this basis. Thus,the Court is not convinced that, throughoutthe entire period of the applicant’s detention,there were compelling grounds for fear thathe would interfere with witnesses or jurors orotherwise obstruct the examination of the case,and, of course, not in order to outweigh theapplicant’s right to prosecute within a reason-able period of time or to be released pendingtrial.

As a result of consideration, the petition ofthe prosecution was granted. The court arguedits position by: - the fact that there is a realneed to interrogate a large number of witnesses,therefore there is an objective risk of pressureon witnesses, and A. Melnik may take actionsthat will hinder the trial. - referring to themotive and method of the criminal offense,which has a high level of public danger.

The International Society for Human Rightsin each report on the results of the monitoringof court hearings, at which the issue of extend-ing a measure of restraint was raised, expressesits concern over the situation and believes thatthe extension of the terms of detention of A.Melnik, A. Kryzhanovsky, I. Kunik may beautomatic. Following the positions of the EC-tHR, cited above, such actions of the Statemay violate the rights of the accused underArticle 5 of the European Convention.

According to the lawyer, at the hearing, thepresiding judge considered the prosecutor’s pe-tition, but refused to consider the defense’spetition to change the measure of restraint.

The International Society for Human Rightsexpresses its concern about the violation ofthe principle of equality in the case of A. Mel-nik, A. Kryzhanovsky, I. Kunik. We believethat the principle of equality should be imple-mented regardless of unforeseen force majeureconditions, such as, for example, quarantine.Indeed, the principle of equality of arms isonly one feature of the broader concept of fairtrial, which also includes the fundamental rightto adversarial criminal proceedings (“Barbera,Messege and Jabardo v. Spain”, paras. 33-34).

Monitoring of the cases of A. Melnik, A.Krizhanovsky, I. Kunik (from December14, 2020)

For more than six years, the case of the mur-der in 2014 of the mayor of Kremenchug A.Babayev and judge A. Lobodenko is consid-ered. The director of the television company“Visit” Alexander Melnik, human rights ac-tivist Alexander Kryzhanovsky and residentof Globino Igor Kunik, are accused.As it became known to the ISHR, the case

had not been heard for more than two monthsbecause the judges of the Gadyatsky DistrictCourt are on sick leave. In this regard, thehearings on October 13 and from October 22to December 14, 2020 were canceled.Nevertheless, on November 18, 2020, the

presiding judge single-handedly considered theissue of a measure of restraint (detention wasextended until January 17, 2021) in accordancewith paragraphs 20-5 of section XI of the “Tran-sitional Provisions” of the Criminal ProcedureCode of Ukraine, but already in the previousreport of the ISHR, the observers noted theirconcern about the violation of the principle ofequality in this case, because the prosecutor’srequest to extend the measure of restraint inthe form of detention was considered by thepresiding judge, and the defense lawyer’s appli-cation to change the measure of restraint wasrefused, citing the fact that this issue shouldbe considered only with the participation ofthe full board.According to the ECtHR practice, equality

of arms is an integral part of a fair trial. Thisprinciple requires that each party be afforded

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a reasonable opportunity to present its caseunder conditions that do not place it at a mate-rial disadvantage vis-a-vis the opposing party(“Fouchet v. France”, paragraph 34; “Bobek v.Poland”, paragraph 56; “Klimentiev v. Russia”,paragraph 95). Equality of the parties requiresthe establishment of a fair balance betweenthe parties.

It should also be noted that until this timethe Court of Appeal has not yet consideredthe lawyer’s complaints against the decisionsof the Gadyatsky District Court of the PoltavaRegion dated July 29, 2020, September 23,2020 and November 19, 2020 on the extensionof the measure of restraint in the form of deten-tion. The Sumy Court of Appeal scheduled theconsideration of the complaint by a decision ofJuly 29, 2020, to February 2021, when this de-cision will be invalid for several months. In thisregard, the lawyer R.V. Lazorenko appealed tothe Council of Judges of Ukraine, but has notyet received an answer. In his words: “justicedoes not function”.On December 9, 2020, accused A. Mel-

nik filed an application for the immediateconsideration of the petition of his defenselawyer to change the measure of restraint dated11/18/2020. He also points out that the court’sdecision to extend the right to defense, andalso shows the judge’s commitment to the pros-ecution.A. Melnik’s defense lawyer has repeatedly

pointed out that the court, when deciding toextend the measure of restraint in the formof detention, does not analyze the argumentsof the parties. The prosecutor, referring tothe risks provided for by Article 176 of theCriminal Procedure Code of Ukraine, does nottake into account the fact that A. Melnik wasnot previously convicted, was not brought tojustice, did not evade the investigation andwas interrogated as a witness during the pre-trial investigation. Also, the court does nottake into account the fact that at the momentall the witnesses have already been questionedand none of them complained about pressureby the accused.

It is also worth noting that the crimes werecommitted on 02/11/2014 and 07/26/2014,

and A. Melnik was arrested on September 4,2014, that is, from the moment of the commis-sion of the crime until the moment of detention,the fact of obstruction of the investigation wasnot recorded (this is confirmed by a numberof other documents, for example, replies toinquiries from the Kremenchuk department ofthe National Police). All of the above, as aminimum, should be taken into account by thecourt when assessing the evidence of the risksof non-fulfillment by the accused (including A.Melnik) of their procedural duties when con-sidering the petitions of the prosecutor’s officeto extend the exceptional measure of restraint.

R. Lazorenko also insists that the EuropeanCourt of Human Rights has already twice es-tablished the illegality of keeping the accusedin custody and delaying the case, namely in thedecisions of the ECtHR in the case “Levchenkoand Others v. Ukraine” of 04.11.2019, whichwas combined with the case of “Pasichny v.Ukraine”, as well as in the judgment in the case“Bevz and Others v. Ukraine” dated 06.25.2020,which was merged with the case “Kunik v.Ukraine”. Also, the accused I. Kunik appealedto the Ombudsman about the fact that thedecisions of the ECtHR are not being imple-mented and they continue to keep him in cus-tody, but he receives the same response - “Thedecision of the ECtHR will be taken into ac-count”.On December 14, 2020, defender R. La-

zorenko filed a petition to replace the judgedue to the fact that the judges were deprivedof the opportunity to take part in the hearingsand the case had not been considered for morethan two months. According to Article 28 ofthe Code of Criminal Procedure of Ukraine,criminal proceedings against a person who isin custody must be carried out without delayand must be considered first. It is this rulethat should provide a reasonable time frame,but in practice the defendants are waiting fora decision on their case for six years.In this case, it is worth noting that the de-

fense is already running the risk that the casemay be started anew, because the legislationindicates that the judicial review of the caseshould be carried out by one panel of judges

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and in case of replacement at the request ofone of the parties to the criminal proceedingsor victims, or however, in connection with theneed to study the case materials by a newjudge, the court may decide to consider thecase from the beginning (Article 319 of theCCP of Ukraine). This may also reflect theextremely low level of confidence of the defensein the existing collegium of the court, whichis considering the case.

We clarify that on December 18, to thelawyer’s application for replacing the judge,the head of the Gadyatsky District Court ofthe Poltava Region (one of the judges of thecollegium) replied that the presence of a judgeon sick leave (temporary disability) is not abasis for replacing a member of the collegium.But the case will not be considered for at leastanother month.

The International Society for Human Rightsalso notes that the issue of providing adequatemedical assistance to the accused has not yetbeen resolved. Let us remind you that earlier,probably due to prolonged detention (in dis-regard of the ECtHR decision), serious healthproblems and lack of medical support, thefourth accused in this case, I. Pasichny, wasforced to make a deal with the prosecutor’soffice and admit his guilt. According to theConvention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punish-ment “any actions by which a person is inten-tionally inflicted with severe pain or suffering,physical or mental, in order to obtain informa-tion or confessions from him or from a thirdparty, to punish him for an action that he ora third party has committed or of which heis suspected, and to intimidate or coerce himor a third party, or for any reason based ondiscrimination of any nature, when such painor suffering is caused by a government officialor other person in an official capacity, or attheir instigation, or with their knowledge ortacit consent . . . ” is defined as torture. Arti-cle 3 of the European Convention on HumanRights prohibits torture and “inhuman or de-grading treatment or punishment”. Article 3 ofthe Convention imposes on the State the obli-gation to ensure that every prisoner is held in

conditions compatible with respect for humandignity, so that the conditions of the executionof the measure do not subject the person con-cerned to repression or endurance tests thatexceed the inevitable level of suffering inherentin detention in places of deprivation of libertyand that, taking into account the practicalrequirements of a sentence of imprisonment,the health and well-being of the prisoner isadequately ensured, in particular by providingthe required medical care (“Kudla v. Poland”,paragraph 94).

3.34 The trial of MaksimMikitas

Monitoring of the Maksim Mikitas case(hearing on 07.08.2020)

On July 8, 2020, the Supreme Anti-CorruptionCourt considered the case in criminal proceed-ings number 42017000000004969 on the suspi-cion of ex-deputy and former president of the“Ukrbud” company Maxim Viktorovich Miki-tas of committing crimes under part 3 of Art.27; part 5 of art. 191; part 4 of Art. 369; part 3of Art. 209; part 3 of Art. 28; part 3 of Art.358;part 3 of Art. 368; part 4 of Art. 358 of theCriminal Code of Ukraine.Course of the hearing: On 06.30.2020, the

Supreme Anti-Corruption Court received a pe-tition from the lawyer R.Y. Kirichenko, de-manding to change the measure of restraintapplied to the suspect M.V. Mikitas in theform of detention on remand in the house ar-rest with a ban on leaving the house.

In support of the requirements to change theapplied restraint, the defense attorney refers tothe existence of circumstances that: - testify tothe groundlessness of the reported suspicion ofcommitting the criminal offenses incriminatedto him; - they deny the existence of the risksprovided for in paragraphs 1-5 p. 1 of Art. 177of the Criminal Procedure Code of Ukraine,namely: the risk of hiding from preliminaryinvestigation and / or the court; the risk ofillegal influence on witnesses, other suspects,experts in criminal proceedings; risk of com-mitting another criminal offense; the risk to

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destroy, hide or distort any of documents thatare essential for establishing the circumstancesof a criminal offense; risk of obstructing crimi-nal proceedings in a different way.According to the defense, the number of

border crossings by the suspect, which, amongother things, justify the existence of this risk,without appropriate documentary evidence,cannot serve as evidence that the latter hasthe ability to freely cross the border and leavethe territory of Ukraine. The lawyer believesthat, given the completion of the pre-trial in-vestigation, the use of a measure of restraintin the form of detention is unjustified.The defense attorney also refers to the ex-

istence of other circumstances that were nottaken into account when applying a measureof restraint in the form of detention, namely:the immoderation of a certain amount of bailand the fact that the court did not take intoaccount actual information about the materialcondition during its determination, as well asinformation characterizing the personality ofthe suspect and his social and marital status.

In accordance with the jurisprudence of theEuropean Court of Human Rights, the risk ofconcealment cannot be measured solely on thebasis of the severity of a possible sentence, atleast at further stages of the proceedings. Itmust be assessed taking into account severalrelevant factors, in particular, personal data,moral qualities, property, relations with therespondent State in which the person is beingprosecuted, as well as his international contacts(“Miminoshvili v. Russian Federation”).

The suspect supported the petition, askedto satisfy it and take into account the cir-cumstances cited by the defense lawyer in thepetition, in particular about the need to carefor the mother who needs care and treatment,in support of which the relevant certificatesand documents were provided.Prosecutor Skibenko A.I. objected to the

petition, referring to its unfoundedness andgroundlessness. For example, the defense at-torney’s assertion that the suspect did notviolate procedural obligations is refuted by theconclusion of the Appellate Chamber of theSupreme Anti-Corruption Court, which, by its

ruling, turned 30 million hryvnias into staterevenue, contributed as collateral precisely be-cause of the latter’s violation of proceduralobligations.

The prosecution also pointed out that allthe arguments to which the defense attorneyrefers in his petition, in fact, boil down todisagreement with the decision of the Appel-late Chamber of the Supreme Anti-CorruptionCourt. However, in accordance with the pro-visions of the Code of Criminal Procedure ofUkraine, when proving the need to change theapplied restraint, the defender must cite newcircumstances that were not investigated whenapplying the measure of restraint and affectthe court’s conclusion about the applied mea-sure of restraint. After consulting, the courtdecided to refuse to satisfy the lawyer’s peti-tion.

In its decision, the court refers to the analy-sis of the case law of the European Court ofHuman Rights, which highlights the followingcriteria of the proof standard of “reasonablesuspicion”: - the existence of facts and infor-mation that made it possible to convince anobjective observer that the person concernedmay have committed a criminal offense; - thefacts that justify the suspicion can be “rea-sonably” considered to fall under the signs ofan offense under the criminal liability law; -the reasonableness of a suspicion cannot beestablished in abstracto or based on subjec-tive assumptions, but must be supported byspecific evidence in criminal proceedings; - thereasonable suspicion standard of proof does notrequire the competent authorities to operatewith evidence sufficient to bring charges or con-victions. And, the interpretation of the term“reasonable” depends on all the circumstancesof the case (“Fox, Campbell and Hartley v. TheUnited Kingdom”).

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3.35 The trial of KonstantinMirchenko

Monitoring of the case of K. Mirchenko(hearing of 12.17.2020)

On December 17, 2020, a hearing was held inthe Poltava Court of Appeal in the case ofKonstantin Mirchenko, who was sentenced onSeptember 20, 2019 under Part 1 of Art. 115 ofthe Criminal Code of Ukraine - premeditatedmurder.According to the text of the decision of

the court of first instance, on December 2,2017, at the place of residence in the apart-ment of K. Mirchenko, after sharing alcoholicbeverages with his partner, on the basis ofa quarrel, in a state of alcoholic intoxication,Konstantin Mirchenko deliberately inflictednumerous blows on the latter, in particular,with parts of a wooden stool to the head andother parts of the body, causing grievous bodilyharm that resulted in the death of the victimat the scene.

On September 20, 2019, the Oktyabrsky Dis-trict Court of Poltava found K. Mirchenkoguilty of committing a crime under Part 1 ofArt. 115 of the Criminal Code of Ukraine andsentenced him to imprisonment for a term ofeleven years.

The measure of restraint for the accused K.Mirchenok until the entry into force of thesentence was left in the form of detention.According to the Human Rights Conven-

tion, everyone who has been convicted of acriminal offense has the right to have the sen-tence or penalty imposed on him reviewed bya higher court. And on October 31, 2019, thePoltava Court of Appeal received an appealfrom the lawyer Marina Shinkarenko, in theinterests of the accused, against the verdict ofthe Oktyabrsky District Court of Poltava onSeptember 20, 2019.At the beginning of the hearing, it became

known that in connection with the reform, thePoltava Regional Prosecutor’s Office was re-organized, and the prosecutor was replacedin this case, since the previous prosecutor, O.Pleskach, is currently not working. The newlyappointed prosecutor Y. Prishchepa filed a

motion to adjourn the case to prepare the nec-essary documents. This procedure is providedfor by Art. 37 of the Criminal Procedure Codeof Ukraine (appointment and replacement of aprosecutor). It is worth noting that the reformbegan in September 2020 and the replacementof the prosecutor took place at approximatelythe same time, but so far, the head of theprosecutor’s office has not issued a decree thatauthorizes Y. Prishchepa to participate in crim-inal proceedings.Due to the fact that the prosecutor is not

yet authorized to participate in these criminalproceedings, the consideration of the appealwas postponed to another date. Thus, due tothe fault of the prosecution, the considera-tion of the case is being delayed. Althoughit should be noted that the appointment ofa session by the court of appeal one and ahalf months after the receipt of the appeal forthe Ukrainian criminal proceedings is quiteprompt. The International Society for HumanRights will continue to monitor this case.

3.36 The trial of VasilyMokrinsky and others

Monitoring of criminal proceedings ofMokrinsky Vasily and Frankovsky Roman(hearing 10/13/2020)

On October 13, 2020, in the Khmelnytsky CityDistrict Court of the Khmelnytsky Region, ahearing was held in case No. 686/13590/16-k on the charges of V.I. Mokrinsky and R.S.Frankovskiy under Part 2 of Art. 365, part 2of Art. 121 of the Criminal Code of Ukraine.Employees of the Zamkov Prison MokrinskyV.I. and Frankovskiy R.S. accused of havingarrived at the Khmelnytsky pre-trial detentioncenter for the convicted Danilyuk A., exceedingtheir authority, used physical violence againstthe convict, namely inflicted at least 19 blowson the head with a blunt object, as a result ofwhich Danilyuk A. died.

The prosecutor, the victim and her represen-tative, the accused and their defenders arrivedat the hearing.However, the prosecution witness, whom it

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was planned to question, did not appear. Inconnection with the absence of the witness, thecourt, having heard the opinion of the parties,decided to postpone the consideration of thecase.National courts often face the problem of

failure to ensure the attendance of witnessesby the prosecutor’s office.For example, in the “Kazyulin v. Russian

Federation” case, the ECtHR found a violationof Art. 6 of the Convention in the aspect of thereasonableness of the time frame for the con-sideration of the case, since the witnesses haverepeatedly failed to appear at the court hear-ings (paragraph 36). The state made no secretof the fact that the examination of the casewithin a reasonable time was complicated bythe difficulties in calling witnesses (paragraph31).

The question of the existence of a valid rea-son for the non-appearance of a witness mustbe considered before it is determined whethersuch evidence is unique or conclusive. If thewitness did not appear in person to testify, itis imperative to establish the justification forhis absence (“Al-Kawaya and Taheri v. TheUnited Kingdom”, paragraph 120; “Gabrielyanv. Armenia”, paragraphs 78, 81-84).

Paragraph 1 of Art. 6, in conjunction withparagraph 3, requires the Contracting Statesto take measures to allow the accused to ques-tion witnesses who testify against him or tohave them questioned (“Trofimov v. Russia”,paragraph 33; “Sadak v. Turkey”, paragraph67).In the event that the questioning of wit-

nesses is impossible due to their absence, theauthorities must take reasonable measures toensure their presence (“Karpenko v. Russia”,paragraph 62; “Damir Sibgatullin v. Russia”,paragraph 51; “Pello v. Estonia”, paragraph35; “Bonev v. Bulgaria”, paragraph 43).

However, impossibilium nulla est obligatio(the impossible cannot be made a duty); pro-vided that the authorities cannot be accusedof negligence in attempting to provide the ac-cused with the opportunity to question rele-vant witnesses, the absence of witnesses doesnot, as such, necessitate the termination of

the prosecution (“Gossa v. Poland”, paragraph55).Also, the defense side filed a petition for

the court to appeal to the expert institutionwith a petition to expedite the examination incriminal proceedings, and the court grantedthis petition.

3.37 The trial of VasilyMuravitsky

Monitoring the case of V. Muravitsky(court hearing 01.27.2020)

On January 27, 2020, in the Korolevskiy Dis-trict Court of Zhytomyr, a regular court sessionwas held on the case of the journalist VasilyMuravitsky, who is accused of treason andencroachment on the territorial integrity ofUkraine (part 2 of article 110, part 1 of article111, part 2 of article 161, part 1 of article 258-3 of the Criminal Code of Ukraine) throughhis journalistic activities. Experts from theInternational Society for Human Rights con-tinue to monitor this lawsuit. The course ofthe hearing.At the beginning of the court session, the

issue of the absence of lawyer S. Novitskayawas raised. She did not appear at the hearingwithout warning the court. The accused saidthat now lawyer A. Gozhi will represent hisinterests in court, and the contract with S.Novitskaya will be terminated. The court againdrew V. Muravitsky’s attention to the factthat the refusal of the defense counsel wascarried out in his presence and therefore S.Novitskaya should arrive at the next hearing orconfirm the information about the terminationof the contract in writing and submit it tothe court. The prosecutor asked the court toavoid further claims by the defense and notto delay the trial due to the failure of one ofthe lawyers to appear, in the event of repeatedfailure to appear without a good reason, bringS.Novitskaya to justice.Despite the fact that the accused was not

deprived of defense and the prosecutor hadno objection to the continuation of the trial(since the right to defense was not violated),

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the court decided to transfer it to the nextagreed date and consider only the petitionsfiled.

Due to the fact that the term of the selectedmeasure of restraint is ending, the prosecutorfiled a petition for the selection of the measureof restraint to V. Muravitsky in the form ofdetention with the possibility of making a bail.The prosecutor argued his request, as in previ-ous times, by the gravity of the alleged crimes,the risk of hiding from the court, and ties toRussian politicians. He also indicated that ac-cused’s social connections are not sustainableand exist only with his family.

Attorney A. Gozhiy objected to the satisfac-tion of this application arguing his objectionby the lack of evidence of risks indicated bythe prosecutor. Emphasizing that for the entiretime the defendant was under house arrest, noviolations were recorded on his part. He con-firmed his argument with answers to inquiriesto law enforcement agencies, which indicatedthat there were no recorded violations of housearrest by the accused. The lawyer also filed amotion in which he asked to change the mea-sure of restraint of the accused to a personalobligation. V. Muravitsky filed a petition inwhich he requested not to apply any measureof restraint.

After the meeting, the court, taking into ac-count all the circumstances, came to the con-clusion that at this stage of the judicial review,in order to avoid attempts to evade the court,a measure of restraint in the form of housearrest at night would be sufficient. During thestay of the accused under house arrest, no vio-lations by the accused were recorded, and therisks indicated by the prosecutor were not doc-umented, therefore the court sees no reason tosatisfy the prosecutor’s request. This positionof the court is fully consistent with the caselaw of the European Court of Human Rights,which insists that only a reference to the rel-evant rule of law without specifying groundsjustifying the allegation that the person maybe absconding, interfere with the proceedingsor commit new crimes is not sufficient to de-cide on the applicant’s detention (“Boychenkov. Moldova”).

The court extended the previously selectedmeasure of restraint in the form of a nighthouse arrest to V. Muravitsky until March 28,2020.

Monitoring the case of Vasily Muravitsky(court hearing 02/18/2020)

On February 18, 2020, in the Korolevskyl Dis-trict Court of Zhytomyr, a regular court sessionwas held on the case of the journalist VasilyMuravitsky, who is accused of treason andencroachment on the territorial integrity ofUkraine (part 2 of article 110, part 1 of article111, part 2 of article 161, part 1, article 258-3of the Criminal Code of Ukraine) through hisjournalistic activities. Experts from the Inter-national Society for Human Rights continueto monitor this trial.

The course of the hearing. At the beginningof the court session, the court drew attentionto the fact that despite the notification by allavailable means, the lawyer Svetlana Novit-skaya did not appear at the hearing, the rea-sons for the failure to appear to the court wereunknown.Attorney A. Gozhiy stated that he also

wrote a letter to attorney S. Novitskaya with adraft signed agreement on breaking the agree-ment with Vasily Muravitsky. The letter washanded to her on February 05, 2020. The letterindicated that due to a systematic failure toappear in court, V. Muravitsky wants to breakthe contract and asks to sign the agreementor to come to court. But, lawyer Novitskayadid not contact.

When asked by the court whether S. Novit-skaya would continue to defend him or whetherhe would raise the question of breaking the con-tract, the journalist confirmed that he wouldraise the question of breaking the contract andhis defender would be A. Gozhiy. V. Muravit-sky also informed the court that S. Novitskayadid not contact him and that he did not receivea response from her.The court asked the accused and the pros-

ecutor whether it is possible to continue thetrial, despite the failure of one of the lawyersto appear. The defendant and the prosecutorreplied that it is up to the court.

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The prosecutor also noted that the lawyerS. Novitskaya does not fulfill the obligationslaid down on her by the Code of Criminal Pro-cedure, which is a violation and the basis forbringing her to disciplinary liability. Accordingto the prosecutor, the court must oblige herto appear, impose the appropriate penaltieson her in case of failure to comply with theserequirements. Also, to find out the opinionof the defense, whether their right to defensewould be violated in the absence of Novitskayaand, if that, in their opinion, was not violated,to continue the trial.

The court, after hearing the parties and con-sulting on the spot, made a decision in connec-tion with the failure of Novitskaya, who didnot re-provide the reasons for the failure toappear, and did not provide any informationregarding the continuation of the contract orits termination, the trial will be postponed.A letter will be sent to the Kiev DisciplinaryCommission of Attorneys stating that the de-fender Novitskaya is not fulfilling the dutiesassigned to her, according to the contract.According to information received from

lawyer Gozhiy, the defense wanted to file 5motions, but the court decided to postponetheir consideration until the circumstances ofthe failure to appear of the second defenselawyer were clarified.Officially, due to the absence of a lawyer S.

Novitskaya, 4 court hearings were adjourned.The ISHR expresses its concern about such aformal postponement of the consideration ofthe case, since taking into account the pres-ence of the second lawyer, A.Gozhiy, at thehearing, the defendant’s right to defense isnot violated. In addition, the consideration ofthe case is postponed solely for the purposeof officially recognizing the termination of thecontract between the journalist and one of hislawyers, which in itself cannot interfere withthe examination of the case.

However, the provision of Article 6 § 1 of theECtHR establishes that everyone has the rightto a fair and public hearing within a reasonabletime. In this case, the court admits that jour-nalist V. Muravitsky for a long period of timebe under the weight of the charge, which the

European Court has recognized as a violationof Article 6 of the Convention (“Vemkhov v.Germany”, “Brogan and others v. The UnitedKingdom”).

Monitoring the case of V. Muravitsky(court hearing 03.20.2020)

March 20, 2020 in the Korolevsky DistrictCourt of the city of Zhytomyr, a regular courtsession was held in the case of the journalistVasily Muravitsky, who is accused of treasonand encroachment on the territorial integrity ofUkraine (part 2 of article 110, part 1 of article111, part 2 of article .161, part 1, article 258-3of the Criminal Code of Ukraine) through hisjournalistic activities. Experts from the Inter-national Society for Human Rights continueto monitor this lawsuit.

The previous hearing, which was to be heldon 03/04/2020, did not take place due to thefailure to appear of the prosecutor Levchenko.The presiding judge read out a letter from theprosecutor’s office explaining the reasons forthe prosecutor’s failure to appear and, withoutasking the opinion of the parties, postponedthe hearing.The course of the session. The presiding

judge N. Yanchuk opened the session andraised the question of the appearance of theparties. The court clerk reported that all par-ties to the trial had appeared, except for oneof the defenders - Svetlana Novitskaya, whowas duly notified of the date and place of thehearing.The court heard the views of the parties

on the possibility of starting a case on themerits without the participation of lawyer S.Novitskaya. Vasily Muravitsky did not mind,saying that he sent her a letter of refusal of herservices, and even contacted the press with arequest not to block the consideration of hiscase. Lawyer A. Gozhiy said that he did notunderstand the behavior of S. Novitskaya andwas ready to hear the case. The court, havingconferred on the spot, since no notifications orpetitions were received from Novitskaya abouther participation (or non-participation) in thecase, and in the absence of information on themeasures taken by the disciplinary commission

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of the Kiev Council of Lawyers, determined: 1.To adjourn the hearing to 04/21/2020 - 10:30am. 2. Re-inform the lawyer S. Novitskaya.Further, the prosecutor V. Levchenko once

again filed a motion to change the measure ofrestraint for a journalist from nightly housearrest to 60-day detention with the possibilityof bail of 300 non-taxable minimum incomes ofcitizens. The prosecutor substantiated the needfor arrest by Muravitsky’s opportunity to hidein Russia, to continue “criminal activity in theform of writing articles”, ties with “Ukrainianpro-Russian politicians”, as well as the factthat the defense (represented by counsel S.Novitskaya) disrupts the hearing, which leadsto delaying the proceedings.Lawyer A. Gozhiy and the accused himself

objected to the satisfaction of such a petition,provided a letter from the police of the Zhyto-myr Region which stated that V. Muravitskyhad never violated the conditions of house ar-rest, and he was not obliged to answer for S.Novitskaya’s behavior, present on all courtsand does not mind continuing the proceed-ings. The defense also indicated that the risksstated by the prosecutor are unproven, espe-cially since the whole country is on quarantineand the border is closed, and with regard to “re-lations with pro-Russian politicians,” he askedthe prosecutor to clarify who he had in mind.After that, the defense filed a request to

change the measure of restraint from housearrest to a personal obligation with a requestto return V. Muravitsky’s passport of a citizenof Ukraine and an identification code. Thepetition, among other things, was justified byinternational resonance and the recognition ofthe journalist as a political prisoner, the lackof clear accusatory language in understandingthe practice of the ECtHR, the absence ofthe risks stipulated by the Criminal ProcedureCode, humanitarian needs (the right to work,the right to medical care), and general judicialpractice (cases of Vasilts-Timonin, Volkov ,Kotsaba, Vyshinsky).

The court, having conferred in the delibera-tion room, determined: 1. Refuse the prosecu-tor in the application for detention. 2. Extendthe night house arrest until 05/18/2020. 3. Re-

turn to Vasily Muravitsky passport of a citizenof Ukraine and identification code.

3.38 The case of Naftogaz ofUkraine

Monitoring of the case regarding damageto NJSC “Naftogaz of Ukraine” (hearingon 08.11.2020).

On August 11, the Supreme Anti-CorruptionCourt held a preparatory hearing in thecase regarding damage to NJSC “Naftogaz ofUkraine”. The International Society for HumanRights has monitored the hearing online.

At this hearing, the petition of the represen-tative of the legal entities in respect of whichthe proceedings is being carried out - KovalN.M. in the interests of LLC “Energia-NovyRazdel” on the cancellation of the seizure andreturn of property.

The petition is substantiated by the fact thatcriminal proceedings No. 52018000000000856dated 09/06/2018 were separated from crimi-nal proceedings No. 22016000000000243 dated06/22/2016, in which, by a resolution of theSolomensky District Court of the city of Kievdated 06/07/2018, property belonging to LLC“Energia-Novy Razdel” was seized as a singleproperty complex, without specifying an ex-haustive list of seized property, and transferredto the management of the National Agency ofUkraine for identifying the search and manage-ment of assets received from corruption andother crimes.According to the defense, the arrest is un-

founded in terms of property, since the prop-erty is not material evidence, is not intendedfor the production of heat and electricity but isintended for the implementation of centralizedwater supply and sewerage. In addition, it isimpossible to ensure the management of suchproperty based on a management agreementconcluded between the National Agency andthe manager, since it is not intended for theproduction of heat and electricity. Unjustifiedarrest and management impede the implemen-tation of the activities of the Company oncentralized water supply and drainage.

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The accused and the rest of the defenderssupported the stated petition and asked thecourt to grant it.The European Court of Human Rights rec-

ognizes seizure as a measure to control the useof property (“Raimondo v. Italy”). Therefore,when considering complaints related to theseizure of property, the Court requires thatthe actions of the authorities do not contradictthe paragraph 2 of Article 1 of Protocol No. 1to the Convention for the Protection of HumanRights and Fundamental Freedoms, namely:

Every physical or legal person hasthe right to respect for their prop-erty. No one can be deprived of hisproperty except in the public interest(“Feldes and Feldesne v. Hungary”)and under the conditions providedfor by law and general principles ofinternational law. The preceding pro-visions do not diminish the right ofthe state to enforce such laws as itdeems necessary to control the useof property in accordance with thegeneral interest or to enforce the pay-ment of taxes or other fees or fines.

The ECtHR also imposes other requirementsfor the seizure of property, such as: legality,the observance of a fair balance between thepublic interest and the protection of propertyrights, the possibility of appealing against theactions of the authorities to impose the seizure(“Chitaev and Chitayev v. Russia”) and theobligation of the authorities to keep the prop-erty in proper condition.

In addition, the Court reiterates that, whileany arrest entails losses, the actual losses in-curred should not exceed those that are un-avoidable (“Djukis v. Lithuania”; “Borzhonovv. Russia”).

Prosecutor Garvanko I.M. provided oral andwritten explanations in which he asked to re-ject the petition. In support of his position, henoted that LLC “Energia-Novy Razdel” as asingle property complex was an instrument ofcriminal offenses incriminated to the partici-pants of an organized group of criminal offensesin 2013-2015. The seizure of property in crimi-nal proceedings is to ensure the inevitability

of the onset of negative consequences for aperson for committing criminal offenses dueto the deprivation of such a person of the eco-nomic benefits obtained as a result of his illegalbehavior, and to prevent such a person fromobtaining any benefit as a result of the commis-sion of a criminal offense, including proceedsfrom it. The detective, according to the prose-cutor, proved the status of the single propertycomplex of LLC “Energia-Novy Razdel”, as ma-terial evidence in accordance with the require-ments of Article 98 of the Criminal ProcedureCode of Ukraine.

Thus, in the opinion of the prosecution, theneed for arrest is motivated by the fact thatthe property is an instrument for committinga crime and by the decision of the detective isrecognized as material evidence.

As noted by the European Court of HumanRights, in accordance with established practicereflecting the principle of the proper admin-istration of justice, decisions of courts andtribunals must properly set out the argumentson which they are based (“Papon v. France”).

In accordance with the requirements of Ar-ticles 94, 132, 173 of the Code of CriminalProcedure of Ukraine, when deciding on theseizure of property, the investigator, the judgemust take into account the legal grounds forthe seizure of property, the possibility of usingproperty as evidence in criminal proceedingsor the application of special confiscation, theexistence of a reasonable suspicion of the com-mission by a criminal offense of an unlawfulbenefit that a legal entity has received, thereasonableness and proportionality of the re-striction of property rights by the task of crim-inal proceedings, as well as the consequencesof the seizure of property for the suspect, thirdparties.

The court, after consulting, made a decisionto reject the petition to cancel the arrest andreturn the property.

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3.39 The trial of VladimirPakholok

Monitoring of the case of VladimirMiroslavovich Pakholok (09/15/2020)

On September 15, 2020, the Frankovsky Dis-trict Court of Lvov considered the case in crim-inal proceedings number 12020140080001455on the suspicion of Pakholok VladimirMiroslavovich of committing theft with pene-tration into the premises provided for in Article185, Part 3 of the Criminal Code of Ukraine.

Based on the materials of the pre-trial inves-tigation, 08/28/2020 Pakholok V.M. in orderto steal someone else’s property, damaged thefront door and entered the storeroom of theCommunal non-profit enterprise “2nd city poli-clinic in Lvov” and stole property for 1924.62hryvnias.Criminal proceedings on the suspicion of

V.M. Pakholok was considered by the inves-tigating judge Kuz V.Ya. The InternationalSociety for Human Rights is starting to moni-tor this case.The course of the hearing. Investigator

Segeda M.M. filed a petition for the appli-cation of a measure of restraint to the suspectPakholok V.M. in the form of detention for aperiod of 60 days. The investigator referredto the existence of risks under Art. 177 of theCriminal Procedure Code of Ukraine, in par-ticular, that the suspect may later hide fromthe pre-trial investigation authorities, as wellas commit another criminal offense. PakholokV.M. is previously convicted for committingcrimes against property, including serious ones,the previous convictions have not been can-celed in the manner prescribed by law. In ad-dition, during 2019 and 2020, a number ofindictments against V.M. Pakholok were sentto individual courts of the city of Lvov andthe Lvov region.The prosecutor of the Lvov local prosecu-

tor’s office Burdin S.N. fully supported thepetition of the investigator Segeda M.M. andasked to satisfy it.The suspect Pakholok V.M. at the hearing

explained that he does not care what decisionwill be taken by the court. He also said that he

was registered with the probation departmentfor previous sentences. The suspect also saidthat he had evidence at home that he is sickwith tuberculosis, there was a certificate fromthe place of detention and a birth certificate.It should be noted that subsequently the

question may arise about the need for treat-ment of V.M. Pakholok. if the court appliesa measure of restraint in the form of deten-tion. Conditions of detention in Ukraine haveoften been found by the European Court tobe in violation of Article 3 of the ECHR. Inaddition, the Court notes factors such as over-crowding and unsanitary conditions in cellsand their negative impact on the health andwell-being of persons in detention for a longtime (“Kalashnikov v. Russia”, “Florea v. Ro-mania”).However, the International Society for Hu-

man Rights recognizes that the suspect knew(according to him) about his illness before thealleged criminal offense. This does not relievethe state of the obligation to ensure an ade-quate level of health care, but this fact muststill be subsequently taken into account byboth the national court and the EuropeanCourt of Human Rights, in case of applica-tion.

The ECtHR considers that it is unacceptableto leave prisoners in an institution where thereare no adequate means for adequate treat-ment of tuberculosis, or denying them accessto such means. In addition, the inaccessibilityof adapted conditions of detention, combinedwith the failure to isolate healthy prisonersfrom those suffering from infectious diseasessuch as tuberculosis, can not only cause physi-cal and mental suffering to prisoners requiringtreatment, but also contribute to the spreadof the disease and have serious negative con-sequences for all prisoners in general. In suchcases, the ECtHR highlights a violation of Ar-ticle 3 of the Convention (case “Logvinenko v.Ukraine”, paragraphs 76-77).The judge, taking into account the state-

ment of Vladimir Pakholok that he had tuber-culosis disease, made a decision to elect thesuspect a measure of restraint in the form ofdetention for 8 days to enable the pre-trial

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investigation body to collect documents thatwould characterize and identify a person, in-cluding documents on the state of health ofthe suspect Pakholok V.M.

3.40 The trial of RomanPetruk

Monitoring of the case of RomanAndreevich Petruk (session 08.03.2020)

On August 3, 2020, in the Novograd-Volynskycity court of the Zhytomyr region, a courthearing in the case of Petruk Roman was held.He is accused of committing a crime underPart 2 of Article 289 of the Criminal Codeof Ukraine, namely: illegal seizure of a vehiclerepeatedly or by prior conspiracy by a group ofpersons, or combined with violence that is notdangerous to the life or health of the victim, orwith the threat of such violence, or committedwith penetration into a room or other storagefacility, or with significant material damage.Criminal proceedings on charges against

R.A. Petruk considered single-handedly byjudge Nagornyuk Y.V. The International Soci-ety for Human Rights is starting to monitorthis case.The course of the court session: At the be-

ginning of the trial, it was established that thevictims did not appear at the court session forreasons unknown to the court.

The defendant’s lawyer, V.A. Radziwil, fileda motion to bring the victims, noting that thiswas not their first failure to appear in court.The defense also expressed the opinion that itis necessary to switch to the examination ofwritten evidence of the case (if the victims willfail to appear again) in order not to violatethe principle of reasonableness of the terms ofthe trial.

Other participants in the court proceedingssupported the opinion of the defense lawyer.

In addition, at the beginning of the session,the decision to change the prosecutor in thiscase was attached to the case file.After examining the materials of the crimi-

nal proceedings, after hearing the opinions ofthe participants in the proceeding, the court

came to the following conclusions:In accordance with the requirements of Ar-

ticle 325 of the Code of Criminal Procedure ofUkraine, if the victim did not appear at thehearing when summoned, duly notified of thetime and place of the hearing, the court, havingheard the opinion of the participants in the pro-ceedings, depending on whether it is possiblein his absence to find out all the circumstancesduring the trial, decides whether to conduct atrial without a victim or to postpone the trial.The court has the right to impose a monetarypenalty on the victim in the manner providedfor by Chapter 12 of the CCP of Ukraine.According to Article 139 of the Code of

Criminal Procedure of Ukraine, if the victim,who was summoned in the manner prescribedby the Code (in particular, there is confirma-tion of his receipt of the summons or famil-iarization with its contents in another way),did not appear without good reason or did notreport the reasons for his non-arrival, the courtpostpones the proceedings and has the rightto issue a resolution on imposing a monetarypenalty on the victim in the amount of 0.5 to2 times the subsistence level for able-bodiedpersons.

In this respect, one should also refer to thepractice of the European Court of HumanRights. So, in particular, paragraph 26 of thejudgment of the ECtHR of May 15, 2008 inthe case “Nadtochy v. Ukraine” states thatthe principle of equality of arms is one of thecomponents of the broader concept of a fairtrial - provides that each party must have areasonable opportunity to present its positionunder conditions that do not place it in a sub-stantially disadvantageous position comparedto the opposing party (“Dombo Beheer v. theNetherlands”).

Each party must be given the opportunity toknow and comment on the observations or evi-dence submitted by the other party, includingthe other party’s appeals (“Bier v. Austria”).Thus, the consideration of the case in the

absence of a participant in the trial, regard-ing which there is no information about thedelivery of a summons to him, is a violation ofArticle 6 of the Convention for the Protection

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of Human Rights and Fundamental Freedoms.Considering the above, the court ruled to

impose on each victim a monetary penalty inthe amount of 0.5 of the subsistence minimumfor able-bodied persons.

3.41 The trial of AndreyPolivoda

Monitoring of criminal proceedings ofAndrey Polivoda (hearing on 11.25.2020)

On November 25, 2020, the Solomensky Dis-trict Court of the city of Kiev considered caseNo. 760/20778/16-k on charges of Andrey Po-livoda of committing a crime under Part 2 ofArticle 345 of Ukraine, namely, intentionallyinflicting beatings on a law enforcement offi-cer, light or medium severity of bodily harmin connection with the performance of thisemployee’s official duties.Recall that Andrey Polivoda was detained

on 10/01/2016 near the Court of Appeal of thecity of Kiev for an attack on a police officer,when the accused tried to “break through” tothe trial in the case against Andrey Romanyuk,Evgeny Koshelyuk, Vita Zaverukha, NikolayMnishenko and Danil Sitnikov, known as thename “case of Zaverukha” or “case of Vinnytsaterrorists”.The court session on November 25, 2020

began with the interrogation of witnesses forthe defense, one of whom was former memberof the Parliament Igor Lutsenko and lawyer inthe “Zaverukha case” Alina Samarets.Before the start of the interrogation, the

judge warned the witnesses about criminalresponsibility for giving deliberately false tes-timony.During the interrogation, lawyer Alina

Samarets emphasized that the case of10/01/2016, which was considered in the KievCourt of Appeal, was open, therefore, in heropinion, the police officers exceeded their pow-ers, in particular when they did not allow ac-tivists and journalists to go to this hearing asfree listeners.After the interrogation of both witnesses,

the defense announced its desire to interro-

gate eight more witnesses at the next hearing.The prosecutor spoke against the advisabilityof interrogating such a number of witnesses,since none of the previous ones, in his opinion,said any specific information that could di-rectly relate to the indictment against AndreyPolivoda.

In such cases, the European Court of HumanRights notes that an assessment of the impor-tance of a witness can be made on the basis ofan analysis of the importance of this particu-lar evidence in the structure of the indictmentand, accordingly, the sentence (“Birutis andOthers v. Lithuania”, paras. 28-35).

The International Society for Human Rightsbelieves that such a position of the ECtHRcan be interpreted in such a way that only byquestioning a witness can the importance ofhis testimony in a particular case be assessed.Hence, we can come to the following conclu-sion: the value judgment of the prosecutor thatnone of the previous witnesses, in his opinion,indicated any specific information that coulddirectly relate to the indictment, cannot betaken as fundamental.

Although it is not the function of the EC-tHR to express an opinion on the suitability ofthe evidence presented, the lack of justificationfor refusing to examine or summon a witnessmay, in its opinion, lead to a restriction of therights of the defense, incompatible with guar-antees of a fair trial (“Popov v. Russia”, para.188; “Bokos- Guesta v. The Netherlands”, para.72; “Wierzbiki v. Poland”, para. 45; “Vidal v.Belgium”, para. 34).

Moreover, if the defendant’s request to ques-tion witnesses is not burdensome, is sufficientlysubstantiated, is relevant to the subject of thecharge and could strengthen the position ofthe defense or even lead to the acquittal of theaccused, the domestic authorities must providecompelling reasons for rejecting such a request(“Topek v. Croatia”, para. 42; “Polyakov v. Rus-sia”, paras. 34-35).

Following the specified legal positions fromthe practice of the ECtHR, the SolomenskiyDistrict Court will question the witnesses ofthe defense at the next court hearings.

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3.42 The trial of Sergey Popov

Monitoring of criminal proceedings ofPopov S.V. (hearing 10.06.2020)

On October 6, 2020, in the Kremensky DistrictCourt of the Luhansk Region, a hearing washeld in the case No. 433/300/19 on charges ofSergei Vyacheslavovich Popov of committingcrimes under Part 4 of Art. 187, part 3 of Art.289 of the Criminal Code of Ukraine (robbery,illegal seizure of a vehicle).

It should be noted that the indictment wentto court on February 21, 2019. Thus, the casehas been heard for almost 2 years. All thistime, the accused is kept in custody.Such a long time for consideration of the

case is due to the fact that it was repeatedlytransferred from one court to another. Initially,the indictment was filed with the Troitskiy Dis-trict Court of the Luhansk Region. However,due to the lack of an opportunity to form apanel of judges, the case was transferred to theStarobelskiy District Court of the Luhansk Re-gion. Then, due to the impossibility of formingthe composition of the court in the Starobel-skiy district court of the Luhansk region, onJune 11, 2019, the case was transferred to theRubezhanskiy city court of the Luhansk re-gion. On January 23, 2020, the case was againtransferred to another court, the Kremenskiydistrict court of the Luhansk region, on thebasis of the impossibility of forming a compo-sition of the court in the Rubezhanskiy citycourt of the Luhansk region to consider thespecified criminal proceedings.Due to the lack of judges in this case, the

problem arises of non-observance of a reason-able time frame of the trial, since each timethe case is transferred to a new court, theconsideration of the case begins anew.Art. 6 of the European Convention recog-

nizes that every person prosecuted in a crim-inal case has the right to receive, within areasonable time, a final decision on the justi-fication of the charge against him, or ratherto ensure that the accused do not remain un-der the weight of the charge for a long timeand the validity of the charge (“Wemkhov v.Germany”, para. 18, “Giulia Manzoni v. Italy”,

para. 25, “Brogan and Others v. the UnitedKingdom”, para. 65).

According to the ECtHR, “by requiring theconsideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delay,which may jeopardize its effectiveness and cred-ibility” (“Vernillo v. France”, para. 38). Thereasonableness of the length of the proceedingsmust be assessed in the light of the circum-stances of the case and taking into accountthe following criteria: the complexity of thecase, the conduct of the applicant and the rel-evant state authorities (“Pelissier and Sassi v.France”, para. 43).

The ECtHR recalls that the accused in crim-inal proceedings should have the right to havethe proceedings in his case carried out withparticular care, especially in the case of anyrestriction of freedom for the period until theend of the proceedings. Article 6 of the Con-vention requires the courts to use all availableprocedural means to establish the guilt or in-nocence of a person without undue delay. Thisrequirement is intended to ensure the earliestelimination of uncertainty regarding the legalfate of the accused, who remains in a stateof uncertainty throughout the entire periodof proceedings, regardless of whether the pro-ceedings are ongoing or have been suspended(“Doroshenko v. Ukraine”, para. 41).

Present at the hearing were the prosecutorL.V. Borovkova, the defender I.N. Shmuylova,and accused S.V. Popov. The translator andthe victims did not appear. The prosecutorconsidered it possible to hold a hearing in thecase with such an attendance. The accused andhis defense counsel spoke out against the con-sideration of the case without victims, however,the court, having indicated that the partici-pation of victims is not obligatory, decided toconsider the case in this composition.

The prosecutor filed a petition to replace theinterpreter, due to the fact that the previousinterpreter did not appear at the court hear-ings. S.V. Popov challenged the interpreter onthe grounds that she did not have a documentconfirming the specialty of an interpreter fromUkrainian into Russian. The defense attorney

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supported her client’s petition. Prosecutor L.V. Borovkova objected to the satisfaction ofthe application for challenge in connection withits unfoundedness.

The panel of judges refused to satisfy therequest to challenge the interpreter. The courtmotivated its decision by the fact that thereis no clear definition of the concept of “inter-preter” in the norms of the criminal procedurallaw. From the analysis of the Criminal Proce-dure Code of Ukraine, it follows that the inter-preter is a participant in criminal proceedingswho is fluent in the state language, as well asthe language of the participant in the proceed-ing, who needs translation into the language heknows. Before deciding the issue of admittingan interpreter to participate in the case, hercompetence was checked by the court, she is acitizen of Ukraine, knows the state language,is a teacher of Russian language and literatureand has 34 years of teaching experience.

In paragraph 48 of the ECtHR judgment ofNovember 28, 1978 in the case “Ludika, Thomp-son and Koch v. Germany”, the Court notedthat the right to free assistance of an inter-preter applies not only to oral statements incourt proceedings, but also to documentarymaterials and pre-trial proceedings. In partic-ular, anyone charged with a criminal offensewho does not understand or speak the lan-guage used in court has the right to receivefree assistance from an interpreter who trans-lates and interprets all those documents orstatements in proceedings against him in or-der to understand what he needs or needs tobe announced in court in the language thatis used there in order to exercise his right toa fair trial. However, it cannot be consideredthat paragraph 3 (e) of Art. 6 of the Conven-tion requires written translation of all writtenevidence or official documents that are in theproceedings. The assistance of an interpretershould be such as to ensure that the defendantsunderstand the case against him and conducthis defense, in particular, due to the fact thatthrough the interpreter he can put forwardhis version of events to the court (indicatedin paragraph 74 of the ECtHR judgment ofDecember 19, 1989 in the case “Kamazinski v.

Austria”). Also, given the need to ensure thereality and effectiveness of the law guaranteedby paragraph 3 (e) of Art. 6 of the Convention,the duty of the competent authorities is notlimited to the appointment of an interpreter,but if warned, in specific circumstances, it canalso expand, including the establishment ofsome control over the proper quality of thetranslation, as the Court expressed its opinionin paragraphs 33 and 36 of the judgment ofMay 30, 1980 in the case of “Artico v. Italy”.The court then continued to examine the

evidence.

Monitoring of criminal proceedings ofSergey Vyacheslavovich Popov (hearing11.03.2020)

On November 03, 2020, in the Kremensky Dis-trict Court of the Luhansk Region, a hearingwas held in case No. 433/300/19 on chargesof Sergei Vyacheslavovich Popov accused ofcommitting crimes under Part 4 of Art. 187,part 3 of Art. 289 of the Criminal Code ofUkraine (robbery, illegal seizure of a vehicle).

On November 03, 2020, the court consideredthe issue of extending the measure of restraint(detention) for the accused.

The prosecutor indicated that the accusedis on the international wanted list, is wantedthrough Interpol channels and, if the measureof restraint is changed, is subject to immediatearrest. In addition, she provided for examina-tion documents from the Office of the Prose-cutor General of Ukraine that the accordingto the Department of the Ministry of InternalAffairs of Russia in the Belgorod Region S.V.Popov is wanted for criminal offenses on theterritory of the Russian Federation.

The accused objected to the approval of therequest for an extension of detention, askedto change the measure of restraint to 24-hourhouse arrest or to release him on bail. He ar-gued his position by the fact that: - The posi-tion of the prosecutor that he can hide from thepre-trial investigation bodies or the court doesnot deserve attention. At any attempt to crossthe border, he will be detained and arrested,since he is on the international wanted list. Inaddition, the accused indicated that the actual

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transfer under the extradition procedure waspostponed until the end of the criminal pro-ceedings; - The accused cannot influence thewitnesses and victims, since they have alreadybeen questioned; - The accused has strong so-cial ties, has been legally married for over 20years, has two children, a permanent place ofwork, a registered place of residence in the cityof Kharkov.

In the accused’s view, the length of detentionfor more than two years is not reasonable.

As a result of consideration, the prosecutor’srequest was granted.The decision of the Kremensky District

Court of the Luhansk Region states that“. . . when an accused is found on the interstatewanted list through Interpol channels, chang-ing his measure of restraint may complicate ormake it impossible to ensure his appearancein court sessions.”

A similar problem has already been consid-ered by the European Court of Human Rights.In “Quinn v. France”, the applicant appliedto the ECtHR and noted that the extraditionproceedings are generally very expeditious andthat in his case they lasted for almost twoyears, which is an evidence of abuse of the ex-tradition procedure. The real aim of the Frenchauthorities was, according to him, to keep himat their disposal as long as it was necessary toconduct an investigation in France (para. 44).The Court considers that detention pend-

ing extradition is, in principle, justified underArticle 5 para. 1 (f).

Para. 1 of Article 5 requires, above all, the“lawfulness” of the detention, which means, in-ter alia, the need to comply with a procedureestablished by law. Here, the Convention, infact, refers to the provisions of national law,but at the same time it requires that any depri-vation of liberty be consistent with the purposeof Article 5, namely, to provide a person withguarantees against arbitrariness (para. 47).In accordance with Art. 18 of the Conven-

tion, the restrictions allowed in this Conven-tion in relation to the specified rights and free-doms shall not apply for purposes other thanthose for which they are established.As regards the extension of the detention

period, the European Court of Human Rightsnotes that the domestic courts must first andforemost ensure that the detention of an ac-cused person in a particular case does notexceed a reasonable time. To this end, theymust, taking due account of the principles ofthe presumption of innocence, examine all thecircumstances of the case that may confirmor deny the existence of a public need thatjustifies deviations from the requirement torespect individual liberty, and indicate this intheir decisions to extend the term of detention(“IA v. France”, para. 102).

The European Court of Human Rightspoints out that at the initial stages of theinvestigation, the possibility of obstruction ofjustice by the accused justifies the detentionof such an accused. However, once evidence isgathered, this rationale becomes less convinc-ing. In particular, as regards the possibilityof putting pressure on witnesses, the Courtreiterates that the domestic courts must showthat during the relevant period of the appli-cant’s detention there continued to be a sub-stantial risk of intimidation of witnesses, it isnot enough to rely only on some abstract pos-sibility not supported by any evidence. Thecourt must also analyze pertinent factors, suchas progress in the investigation or proceedings,the applicant’s personality, his behavior beforeand after arrest, and any other specific factorsto justify the risks that he might abuse thereturned freedom by acting in for the purposeof falsifying or destroying evidence, or puttingpressure on victims (“Sokurenko v. RussianFederation”, para. 88).

Having studied the legal position of the Eu-ropean Court in the case “Sokurenko v. Rus-sian Federation”, it can be concluded that theprosecutor, when applying for an extension ofthe period of detention, must, among otherthings, provide real facts confirming the exis-tence of the risk of intimidation of witnesses.However, in the present case no such facts werepresented.

Having studied the decision of the Kremen-sky District Court of the Luhansk Region ofSeptember 8, 2020 to extend the period of de-tention, it is worth noting that it was based

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on the same grounds as in the current decision.Observers are concerned that the extension ofdetention in this case may be automatic.

3.43 The trial of InnaPopovskaya

Monitoring of the case of Popovskaya InnaPetrovna (hearing on June 24, 2020)

On June 24, 2020, the Appellate Chamber ofthe Supreme Anti-Corruption Court consid-ered the appeal of the prosecutor and lawyerof the accused I.P. Popovskaya on the deci-sion of the investigating judge on the applica-tion of a measure of restraint in the form ofbail in case No. 991/4815/20 on the charge ofPopovskaya Inna Petrovna - Director of the De-partment of Communal Property of the OdessaCity Council, Chairman of the Standing Com-mission and Head of the Legal Departmentof the Odessa City Council, in the commis-sion of crimes under Part 5 of Article 27 ofthe Criminal Code of Ukraine (complicity),part 5 of Article 191 of the Criminal Code ofUkraine (misappropriation, embezzlement orseizure of property by abuse of official posi-tion committed on an especially large scale orby an organized group). Popovskaya Inna isaccused of taking possession of the funds ofthe territorial community of Odessa when thecity purchased non-residential buildings of theformer “Zastava” airfield on Tiraspolskoe high-way, 22g for almost UAH 150 million, allegedlyfor the expansion of the Western cemetery.Criminal proceedings are considered colle-

gially, consisting of a judge: M.S. Glotov, O.F.Pavlyshin, O.Y. Semennykov. The hearing onthis case was scheduled for 4:00 pm. The In-ternational Society for Human Rights beganmonitoring this case using the official videobroadcast on the website of the Judicial Powerof Ukraine due to the difficulty of the per-sonal presence of the ISHR observers in thecourtrooms.

The course of the hearing. At the hearing theaccused Popovskaya I.P. objected to the appealof the prosecutor, who asked the court to revisethe amount of the bail in the direction of its

increase from UAH 630.600 to UAH 5.658.000,since, in her opinion, the accusation itself isunfounded and not motivated.

According to her, the suspicion was based onthe false accusation of a group of persons withher participation in the use of a corruptionscheme to buy out buildings and structuresto expand the Western cemetery in Odessa,according to which, officials could embezzleUAH 131 million inflating the price of land onthe site of the location of “Odessa” AirlinesLLC.

Moreover, in the accused’s opinion, the risksreferred to by the prosecutor are not justi-fied. The prosecution has no evidence to sup-port the above risks. The court-appointed bailin the amount of UAH 630.600 for a periodof 2 months is excessive and unreasonable.Popovskaya I.P. asked the court to cancel thedecision of the investigating judge and make anew decision to refuse to apply a measure ofrestraint.

The ECtHR reiterates on this point that therequirement that suspicion should be based onreasonable grounds is a significant part of theguarantee against arbitrary detention. More-over, in the absence of reasonable suspicion,a person cannot under any circumstances bedetained or taken into custody for the purposeof forcing him to confess to a crime, testifyagainst other persons or in order to obtainfrom him facts or information that may serveas a basis for reasonable suspicion. (“Cebo-tari v. Moldova”, para. 48). According to I.Popovskaya, her charge of committing a crimeis based on speculation without any evidence.

The International Society for Human Rightsagrees with the ECtHR that incompetenceand improper work of state authorities, whichmay lead to the establishment of an unfairamount of bail, can be considered a violationof the Convention for the Protection of HumanRights and Fundamental Freedoms. Since theissue under consideration is the fundamentalright to freedom guaranteed by Article 5, theauthorities should make every effort to estab-lish an appropriate amount of bail. In addition,the amount of the bail must be properly justi-fied (“Gafa v. Malta”, para. 70, “Manguras v.

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Spain”, paras. 79-80).Also, the accused supported the appeal of

her lawyer Lysak O.M. The defense objectedto the prosecutor’s complaint, referring to thegroundlessness of suspicions and lack of evi-dence of the existence of the risks providedfor by Article 177 of the Criminal ProcedureCode of Ukraine. The lawyer asked the courtto cancel the decision of the investigating judgeand make a new decision refusing to apply ameasure of restraint.The prosecutor of the Specialized Anti-

Corruption Prosecutor’s Office of the Of-fice of the Attorney General objected to thecomplaint of the defense, and also upheldhis appeal. Citing the fact that the accusedPopovskaya I.P. may try to hide from the pre-trial investigation authorities, unlawfully in-fluence witnesses, destroy or distort evidencedue to the fact that she was not removed fromoffice and she has free access to evidence.The pre-trial investigation established that

the price of the land was over UAH 146 million.However, an examination within the frame-work of the investigation, established that itsreal cost was about UAH 15 million, that is,the price was actually overstated 10 times.In addition, the prosecution disagrees with

the size of the bail and asks the court tochange the decisions of the investigating judgeregarding the size of the bail and choose abail of UAH 5 million 658 thousand. Accord-ing to the prosecutor, the suspicion is moti-vated given the fact that the criminal acts ofI.P. Popovskaya consist precisely in complic-ity, which turned out to be in the approval ofthe draft decision on the implementation ofthe sale and purchase of buildings and struc-tures on a land plot measuring 141 hectares,on which the “Odessa” Airlines LLC is located.She did not carry out a legal examination ofthe appraisal of the value of these objects.The court, having consulted, decided to

refuse to satisfy the appeal of the prosecutor ofthe Specialized Anti-Corruption Prosecutor’sOffice of the Office of the Prosecutor Generaland refuse to satisfy the appeal of the defenselawyer Lysak O.M, leaving the decision of theinvestigating judge unchanged.

3.44 The trial of GrigoryRadutny and others

(07/08/2020)

On July 8, in the Pechersky District Court ofKiev, a hearing was held on the case of thefifth President of Ukraine Petr Poroshenko.This was the third hearing to elect

Poroshenko a measure of restraint forPoroshenko.P. Poroshenko is suspected of having per-

suaded the head of the Foreign IntelligenceService (hereinafter - FIS) Yegor Bozhko toan illegal order, namely, to appoint Sergei Se-mochko to the post of deputy head of the FIS.Course of events:June 10, 2020 - P. Poroshenko was informed

of the suspicion on behalf of the ProsecutorGeneral.

June 18, 2020 - the election of a measure ofrestraint began in the Pechersky Court. Prose-cutors announced a petition to choose a mea-sure of restraint for the ex-president in theform of detention, but later changed the peti-tion to a personal obligation.July 1, 2020 - a hearing was held at which

the petition of the prosecutors was considered,but later the judge announced a break in thesession.

July 8, 2020 - they continued to consider thepetition; at the hearing they began to interro-gate two attesting witnesses who were presentduring the presentation of the suspicion toPoroshenko. The defense asked whether theprosecutors had shown them the decree on thepower of attorney to perform procedural ac-tions, but one of them noted that he did notremember this, but allegedly later he saw theoriginal document.According to P. Poroshenko, the presenta-

tion of suspicion to him took place with anumber of violations of procedural legislation,which means that there was no suspicion, how-ever, the prosecution did not agree with this.Prosecutors stated that the defense is con-stantly looking for reasons to avoid obtainingthe document. At the same time, the prosecu-tor points to the fact that all documents are inthe materials of criminal proceedings and the

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defense has the opportunity to get acquaintedwith them.

Since P. Poroshenko claims that he did notsee the aforementioned resolution, the defenseconsiders it as falsification of documents. Inparticular, in order to hand over the suspi-cion to P. Poroshenko, the employees of theGeneral Prosecutor’s Office had to show threedocuments: a report of suspicion, a decree ona power of attorney to perform proceduralactions and the very order to carry out proce-dural actions.Throughout the hearing, the ex-president

accused the prosecutors of committing acrime (falsification of documents), also statedthat they would become suspects and beheld accountable for this, and pointed outthat the prosecutors were following Babikov’sinstructions (lawyer of the ex-president V.Yanukovych), Prosecutor General Venediktovaand current President Zelensky. Any humili-ating phrases of Poroshenko in the directionof the accusation were heard in the courtroomwith applause from the activists, as well asshouts: “Shame!” Directly, such actions on thepart of the suspect can be regarded as pressureon the prosecution.

Later, after a short break in the session, un-expectedly for everyone, one of the prosecutorsannounced the completion of the pre-trial in-vestigation, therefore, he believes that consid-eration of the petition for choosing a measureof restraint is impossible.The defense drew the court’s attention to

the fact that, as follows from the report, theinvestigation was completed on July 7, at thesame time the decision to extend its terms wasmade by the Pechersky court on July 8, andthe prosecutors did not inform the court aboutthe completion of the proceedings.One cannot fail to point out the fact that

“supporters” of the fifth president tradition-ally gathered next to the court with posters“No to political repression!” etc. As practiceshows, such actions can be regarded as an at-tempt to intervene in the trial and influencethe decision-making by the court, because thiscan be perceived by the judges as psychologi-cal pressure. A similar situation was noted by

the observers of the ISHR in the cases of V.Muravitsky, A. Melnik, E. Mefedov.According to the case law of the ECtHR,

mere signs of pressure on the court may beenough to call into question the fairness of thetrial. If there is a chance that the executivebranch may change the decision or suspend itsexecution, then this deprives the characteristicof an “independent” court (paragraphs 45-55of the case “Van de Hurk v. The Netherlands”).Article 6 § 1 of the Convention requires

the independence of the court from the otherbranches of government (i.e. the executive andlegislative) and from political parties (“Ninn-Hansen v. Denmark”). Also, the ECtHR notesthat the national courts are composed entirelyof professional judges, whose experience andqualifications, in contrast to the jury, allowthem to resist any external influences (para.104 of the case “Craxi v. Italy”; para. 75 ofthe case “Mircea v. Romania”). As a result,the court left without consideration the peti-tion of the prosecutors to choose a measure ofrestraint.

3.45 The trial of GrigoryRadutny and others

Monitoring of the criminal proceedings ofRadutny Grigory Vyacheslavovich, GoncharVitaliy Valerevich, Shmorgun SergeyIvanovich (04/01/2020)

On April 01, 2020, in the Lutsky City Courtof the Volynsky Region, a hearing was held incase No. 164/63/19 on charges of RadutnyGrigory Vyacheslavovich, Gonchar VitaliyValerevich, Shmorgun Sergey Ivanovich in com-mitting a criminal offense under part 3 of Arti-cle 187 of the Criminal Code of Ukraine (rob-bery with penetration into housing, anotherpremise or storage). The indictment was filedto the court on January 31, 2019.During the trial, a witness was questioned.

He was provided with a translator, since hedoes not speak the Ukrainian language at therequired level.After interrogation, the court provided

the opportunity for the accused to testify.

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Shmorgun S.I. limited himself to the statementthat he had not committed a criminal offense.Gonchar V.V. asked the court to give him moretime to prepare for testimony. Radutny G.V.refused to testify, referring to the fact that“. . . I have a lot of case materials that I stillneed to familiarize myself with. . . I have no pri-vacy with my defense counsel.” To which theCourt indicated that the accused had “morethan enough time . . . each court hearing theaccused was warned that it was necessary tobe prepared to testify”. In addition, the Courtstated that “every court session gives the courtthe impression that it is the defendants whodrag out the trial. “Every court hearing is ad-journed, in the court’s opinion, for no reason.”As indicated in the statement of the

Supreme Court of March 19, 2019 in case No.748/636/16, “the party involved in the trial isobliged to conscientiously use its proceduralrights and steadily fulfill its procedural obliga-tions”.A superficial analysis of the court schedule

shows that the case is being heard in courtquite actively. Hearings in the court of firstinstance are held monthly. According to thejudge, the accused were warned about the needto testify and, according to the court, could ini-tiate confidential communication with a lawyerin advance, familiarization with the materialsof the criminal proceedings. However, based onthe comments of the judges and the accusedthemselves, the latter neglected the exercise oftheir rights.It should be noted that the court’s state-

ments regarding the unreasonable adjournmentof court hearings are of interest, since it is thecourt that makes the decision to continue thehearing, or announce a break. In addition, suchjudges’ treatment of the accused may give theimpression of a violation of the principle of theimpartiality of the court.

However, in connection with the defendant’srequest for confidential communication withthe defense counsel, the proceedings were post-poned.In addition, the court examined the issue

of extending the terms of detention at the re-quest of the prosecutor, which, according to the

practice already established for the Ukrainianprosecutor’s office, limited itself to the follow-ing argument: “risks stipulated by Article 177Code of Criminal Procedure of Ukraine hasremained unchanged at present”. The Interna-tional Society for Human Rights once againnotes that according to the Ukrainian proce-dural law, an exceptional measure of restraintin the form of detention can be applied only ifthe prosecutor proves that none of the mildermeasures of restraint can prevent the risks ofthe defendant not fulfilling his procedural obli-gations (Article 183 of the Code of CriminalProcedure). As a result of consideration of thepetition of the prosecution for the extension ofthe measure of restraint in the form of deten-tion and the petition of the defense to changethe measure of restraint to round-the-clockhouse arrest, the court decided to extend thedetention for 60 days.

As the court indicated, “at the hearing theprosecutor proved the existence, at present,of risks that have not disappeared, as de-fined by Article 177 Code of Criminal Proce-dure of Ukraine. Radutny G.V., Gonchar V.V.,Shmorgun S.I. accused of committing a par-ticularly serious crime, for which a penalty ofimprisonment of up to 12 years is prescribed.In addition, Radutny G.V. does not have apermanent residence. And also, there are nomedical data on the impossibility of being de-tained. And, there is reason to believe that theaccused will not comply with the proceduralobligations assigned to them if they choose ameasure of restraint not related to deprivationof liberty. Being free, they can commit anothercriminal offense.”

Despite the fact that each of the parties cancause a delay in the consideration of the case,and in this proceeding the court directly statedthat the behavior of the accused helps to delaythe proceeding, the question of the measureof restraint cannot be considered superficially.The prosecutor, arguing the need to extend theterms of detention, stated: “Given the defen-dants’ request for confidential communicationwith lawyers, familiarization with the case file,it will be impossible to complete the judicialreview before April 11 (the date of the end

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of detention).” Undoubtedly, this should notbe the basis for the automatic extension ofdetention and the objective observer, who isthe ISHR, has the impression that the dead-lines are automatically extended. Such courtactions may have signs of violation of Part 3,Article 5 of the European Convention.

The European Court of Human Rights hasoften found a violation of Article 5 of the Con-vention in cases where the national courtscontinued to be detained, referring mainlyto the gravity of the charges and using tem-plate language, without even considering spe-cific facts or the possibility of alternative mea-sures (“Kharchenko v. Ukraine”, paras 80-81;“Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion of acrime committed by a detained person is anindispensable condition for the legality of hiscontinued detention, but after the lapse of timesuch a suspicion will not be sufficient to justifyprolonged detention. The ECtHR never triedto translate this concept into a clearly definednumber of days, weeks, months or years, or atdifferent times depending on the severity ofthe crime. Once “smart suspicion” is no longersufficient, the court must establish that theother grounds given by the courts continueto justify the person’s deprivation of liberty(“Maggie and Others v. The United Kingdom”,paras. 88-89).The court also recalls the immutability of

the grounds for suspicion. That an arrestedperson has committed an offense is a sine quanon condition in order for his continued deten-tion to be considered legal, but after a whilethis condition is no longer sufficient. Then theCourt must establish that the other groundson which the decisions of the judiciary arebased continue to justify the deprivation of lib-erty. If these grounds turn out to be “relevant”and “sufficient”, then the Court will ascertainwhether the competent national authoritiesfound “special good faith” in the conduct ofthe proceedings (“Labita v. Italy”, para. 153).Also, one should pay attention to the tech-

nical shortcomings of the work of the judicialauthority website, which the representatives ofthe ISHR were able to identify through moni-

toring of this case.Today, in quarantine, monitoring of many

cases is carried out by viewing broadcasts ofcourt hearings on the judicial authority’s web-site. So, case No. 164/63/19 in the calendar ofbroadcasts of court hearings was dated May01, 2020. However, when watching the videoitself on YouTube, we found that the hearingtook place on April 01, 2020.

3.46 The trial of AntonRosevtsov and others

Monitoring of criminal proceedings ofRosevtsov Anton Alexandrovich and BozhyYaroslav Yurievich (10/26/2020)

On October 26, 2020, a hearing was held inthe Leninsky District Court of the city of Za-porozhye in the case of Anton AlexandrovichRosevtsov and Yaroslav Yuryevich Bozhy, whoare accused of committing a brutal murder inVerkhnyaya Khortitsa. According to the inves-tigation materials, 25-year-old Danil Gribkowas shot twice in the back of the head whenhe was in the front passenger seat of his car.His body was hidden in the garage of thecooperative where the murder was commit-ted. Two days later, the mother of the mur-dered man received messages demanding thatmoney be transferred for the return of herson, although he was already dead. Ten dayslater, the closest friend of the murdered man,Yaroslav Bozhy, was detained. According tothe investigation, he, together with his friendAnton Rosevtsov, planned the murder in orderto take possession of the victim’s car (source- https://www.vv.com.ua). The accused arecharged with the commission of premeditatedmurder by a group of persons by prior con-spiracy from mercenary motives; illegal seizureof a vehicle; extortion and illegal handling ofweapons (paragraphs 6, 12, part 2 of article115, part 3 of article 289, part 2 of article 189,part 1 of article 263 of the Criminal Code ofUkraine).The case was monitored online for the first

time. The case was considered by a panel ofjudges: Turbina Tatyana Fedorovna, Barulina

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Tamara Evgenievna, Gnatyuk Alexander Niko-laevich.In this court session, a study of evidence

was carried out - a mobile phone. Informa-tion about the car in which the murder wascommitted was investigated.

After examining the evidence, the court an-nounced a break for more than two weeks -until 11/13/2020.The indictment was received by the Lenin-

sky District Court of Zaporozhye on 07.03.2015.Thus, the case has been heard in the court offirst instance for more than five years. Ob-servers of the ISHR are concerned about thetiming of the case. The lengthy considerationwas due to the following reasons: the hearingwas postponed due to the witness’s failure toappear in court; the case was referred to an-other collegium; during the trial, the accusedfiled a large number of challenges to judges,which were dismissed; lawyers have changedseveral times.Art. 6 of the Convention for the Protec-

tion of Human Rights and Fundamental Free-doms (hereinafter referred to as the Conven-tion) recognizes for every person prosecutedin a criminal case the right to receive, withina reasonable time, a final decision on the justi-fication of the charges against him, or rather,the achievement of ensuring that the accuseddo not remain for a long time under the weightof the charge and that a decision is made onthe validity of the charge (“Vemkhov v. Ger-many”, paragraph 18, “Julia Manzoni v. Italy”,paragraph 25, “Brogan and Others v. UnitedKingdom”, paragraph 65).

According to the ECtHR, “by requiring theconsideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delay,which may jeopardize its effectiveness and cred-ibility” (“Vernillo v. France”, paragraph 38).The reasonableness of the length of the pro-ceedings must be assessed in the light of thecircumstances of the case and taking into ac-count the following criteria: the complexity ofthe case, the conduct of the applicant and therelevant public authorities (“Pelissier and Sassiv. France”, paragraph 43).

The ECtHR recalls that the accused in crim-inal proceedings should have the right to havethe proceedings in his case carried out withparticular care, especially in the case of any re-striction of freedom for the period until the endof the proceedings. Article 6 of the Conventionrequires courts to use all available proceduralmeans to establish the guilt or innocence of aperson without undue delay. This requirementis intended to ensure the earliest eliminationof uncertainty regarding the legal fate of theaccused, who remains in a state of uncertaintythroughout the entire period of proceedings,regardless of whether the proceedings are on-going or have been suspended (“Doroshenko v.Ukraine”, paragraph 41).

3.47 The trial of YuriRossoshansky

Monitoring the case of Yuri Rossoshansky(Session May 15, 2020)

On May 15, 2020, a hearing was held in theShevchenkovsky District Court of Kiev in thecase of Yuri Rossoshansky. Yuri Rossoshanskyis charged with the murder of lawyer Irina Noz-drovskaya. He is charged with paragraph 4 ofPart 2 of Art. 115 (intentional murder commit-ted with particular cruelty) of the CriminalCode of Ukraine.

December 29, 2017 it became known aboutthe disappearance of the famous human rightsactivist, lawyer Irina Nozdrovskaya. And onJanuary 1, 2018, her body was found in a rivernear the village of Demidov in the Kievskyregion. After some time, the police detainedthe murder suspect - Yuri Rossoshansky. Thenhe confessed to the crime, stating that he hadkilled I. Nozdrovskaya out of personal hostility,but he soon abandoned his testimonies. Thedefendant faces up to 15 years or life impris-onment.At this session, the question of the advis-

ability of extending the measure of restraintwas considered. The prosecutor filed a motionto extend the measure of restraint for another60 days because Y. Rossoshansky was chargedwith a particularly serious crime. In his opin-

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ion, this will make it possible to prevent thecommission of new crimes, as well as exertinginfluence on victims and witnesses. In this case,he draws attention to the hostile relationshipthat has developed with members of the fam-ily of I. Nozdrovskaya, who live in the samevillage with the accused. In this regard, theISHR considers it necessary to indicate thatthe murder of Irina Nozdrovskaya is associ-ated with the fact that she was a lawyer ofthe victim in the case of the murder of hersister - Svetlana Sapatinskaya. Guilty of thedeath of S. Sapatinskaya was found DmitryRossoshansky - the son of Yuri Rossoshansky.The prosecutor referred to the risks stipu-

lated by the Code of Criminal Procedure andnoted that at the moment they persisted andother measures of restraint were insufficientto ensure the effectiveness of this proceedings.According to the prosecutor, the risks also ex-ist because the accused may be hiding fromthe court. The lawyer of the victims supportedthe prosecutor.The defense objected to the satisfaction of

the prosecutor’s request, since the accused hasbeen in custody for a long time (since January2018). Attorney of Y. Rossoshansky believesthat this violates the principle of legal cer-tainty and it is necessary to resolve the issueof changing this measure of restraint to a per-sonal obligation.As for the risks, the defense side drew the

court’s attention to the fact that: 1) Witnessesin the case have already been questioned andthere is no risk of influence on them; 2) Regard-ing the risk of hiding from the court, the per-son’s social connections, age, whether crimeshave been committed before, etc. must betaken into account. The accused is a pensioner,he is characterized positively at the place ofresidence and place of work, has not been pros-ecuted before.Referring to this, the lawyer of Rossoshan-

sky believes that the risks indicated by theprosecutor are unfounded and claims that hisclient did not commit this crime, therefore,there are not only no risks, but also objectiveevidence on which he was prosecuted. YuriRossoshansky fully supported his defender.

Also, the defense drew the court’s attentionto the fact that, according to the Cabinet ofMinisters Decree No. 211 of March 11, 2020,on self-isolation of persons over 60 years old,in connection with the situation in Ukraine,there is a risk of infection and the defendantis at risk. Therefore, according to the defense,the measure of restraint must be changed.The ECtHR has repeatedly found a viola-

tion of Article 5 § 3 of the Convention in casesin which the domestic courts extended theapplicant’s detention, referring mainly to thegravity of the charges and using stereotypedlanguage, not taking into account the specificsituation and not considering alternative mea-sures of restraint ”(paragraph 144 of the judg-ment, dated May 22, 2012 in the case of “Idalovv. Russia”).

The Court observes that over time, theinitial reasons for detention are becomingless and less substantial, and that the courtsmust proceed from “substantial” and “suffi-cient” grounds for prolonged imprisonment”(paragraph 54 of the judgment, dated Febru-ary 10, 2011 in the case “Pelevin v. RussianFederation”).

However, the ECtHR accepts that the dan-ger of a relapse if convincingly proven mayconstitute a basis for the judicial authoritiesto place a suspect in custody and to extendhis detention in order to prevent any attemptto commit new crimes. In addition to observ-ing other conditions, it is necessary that thedanger is real, and that the assessment of thedegree of danger be accurate, taking into ac-count the circumstances of the case and, inparticular, the previous facts and the identityof the suspect (paragraph 155 of the decision,dated June 24, 2010 in the case of “Veliyev v.Russia Federation”).As regards to the risk of influencing wit-

nesses and victims, the Court recalls in thisconnection that if, at the initial stages of theinvestigation, the risk of the accused being in-volved in the administration of justice couldjustify his detention, then after the evidencehas been gathered, this reason may not be-come so obvious (Paragraph 69 of the judg-ment, dated September 20, 2011 in the case of

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“Fedorenko v. Russia”).The International Society for Human Rights

considers this proceeding to be extremely im-portant, since earlier, together with the Initia-tive Group for the Defense of Lawyers, ISHRwas involved in the study of violations of therights of lawyers - “Defenseless Defenders” and,in this regard, has a lot of information aboutviolations of the rights of lawyers in connec-tion with their work in a specific proceedings.The murder of I. Nozdrovskaya is a vivid ex-ample of the insecurity of representatives ofthe lawyer profession. And, of course, a matterof considerable public interest.As a result, the court granted the prosecu-

tor’s motion to extend the measure of restraintby 60 days. The International Society for Hu-man Rights will continue to monitor and refinethe details of this proceeding.

Monitoring of the case of YuriRossoshansky (Session June 3, 2020)

On June 3, 2020, the consideration of thecase of Yury Rossoshansky continued in theShevchenkovsky District Court of Kiev.Yuri Rossoshansky is charged with the

murder of human rights activist Irina Noz-drovskaya. He is charged with paragraph 4of part 2 of Article 115 (premeditated mur-der, committed with extreme cruelty) of theCriminal Code of Ukraine.On December 29, 2017, it became known

about the disappearance of the well-knownhuman rights activist Irina Nozdrovskaya. Andon January 1, 2018, her body was found in theriver near the village of Demidov, Kiev region.Sometime later, the police detained a murdersuspect, Yuri Rossoshansky. Then he confessedto what he had done, saying that he had killedNozdrovskaya out of personal enmity, but hesoon recanted his testimony. The accused facesup to 15 years or life imprisonment.The hearing began 30 minutes late due to

a problem with the technology used to viewthe videos. Earlier, several sessions did nottake place due to quarantine measures thatare being carried out by the state.

The consideration of the case stopped at thestatement of the accused about pressure on

him. On this occasion, an appeal was sent tolaw enforcement agencies to verify all the cir-cumstances. It was also decided to investigatethe relevant video recordings of the conversa-tion between the accused and law enforcementofficers on January 8, 2018 (recorded immedi-ately after the arrest of Yuri Rossoshansky).On the recording, one could hear that the ac-cused talks about all the circumstances thathappened, and also complains that the vic-tim herself constantly provoked a conflict andpushed other people to do so, there were re-peated threats to his family.

After watching the video, the defense lawyerof the accused drew attention to the fact that:1) It is necessary to look at the date and timeof the beginning of the recording (08.01.201811:29:03am) corresponding to the protocol, atthe place of the “interrogation”, namely theVyshgorod police department, and also at thefact that there is no lawyer from the Center forthe provision of free secondary legal aid LychikM.M., who was obliged to arrive to defend thesuspect at 08:35 am that day. According toPart 1 of Article 52 of the Criminal ProcedureCode of Ukraine, the participation of a defenseattorney is mandatory in criminal proceedingsin respect of especially grave crimes. In thiscase, the participation of a defense attorney isensured from the moment the person acquiresthe status of a suspect. The case law of theECtHR in its decision’s notes that the rightof a person accused of a crime to an effectivedefense a lawyer is one of the fundamentalcharacteristics of a fair trial proceedings (para.51 of the “Salduz v. Turkey” judgment). Usu-ally, the suspect must be granted access tolegal aid from the moment he is arrested bythe police or taken into custody (para. 31 ofthe “Dayanan v. Turkey” judgment). The rightof the accused to effectively participate in theproceedings in a general sense includes notonly the right to be present, but also the rightto receive legal assistance as needed (para. 49of the “Lagerblom v. Sweden” judgment; para.89 of the “Galstyan v. Armenia” judgment).In this regard, the absence of a defense at-torney on the video indicates a violation ofthe accused’s right to defense. Therefore, such

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an investigative action is illegal, according toArticle 87 of the Code of Criminal Procedureof Ukraine, if the right to defense is violated,then the evidence is declared inadmissible; 2)It is noted in the protocol that audio and videocontrol of the person was carried out, but theSupreme Court in its decisions also called thecriteria for the inadmissibility of such evidence.That is, if this was carried out by a police offi-cer, then this is an interrogation and cannotbe considered as video monitoring of a person.This can be regarded as covert interrogation.3) Also, an integral part of investigative ac-tions is the order of the investigator to carrythem out. If this order is not opened to thedefense side, all materials received from suchactions are inadmissible. In this case, there isno instruction, therefore, the actions can berecognized by the court as such that they donot comply with procedural norms.

It is not the responsibility of the ECtHR todetermine whether certain types of evidence,such as evidence obtained illegally under na-tional law, in principle, be admissible. Thequestion to be answered is whether the trialwas fair in general, taking into account, amongother things, the way the evidence was ob-tained. This includes a consideration of thealleged illegality and, where a violation of an-other Convention law is involved, the natureof the violation found (para. 34 of the “Khanv. The United Kingdom” judgment; para. 76of the “PG and J. H. v. The United Kingdom”judgment; para. 42 of the “Allan v. the UnitedKingdom” judgment).The defendant’s lawyer also stated that Y.

Rossoshansky gave false testimony, since therewere authorized persons who indicated whichevidence to give and which not.

Nevertheless, the prosecution denies the in-admissibility of the evidence, since the accuseddescribed in detail all the circumstances thathappened on the day of the murder and there-fore believes that the testimony is truthful.The court, taking into account the above

circumstances regarding the statement of theaccused about the facts of pressure on him,as well as the presence of a video recordingwith a confession, considers that it is neces-

sary to submit for consideration the questionof the petition of the participants in the caseto conduct an expert study using a polygraphif the accused agrees to this. The lawyer of Y.Rossoshanskiy pointed out that manipulationswith the polygraph had already been carriedout twice, but this is not in the case materials,which again violates the right to defense. De-spite this, the defendant agreed to once againconduct such a study.

Monitoring of criminal proceedings of YuriRossoshanskiy (hearing on October 22,2020)

On October 22, 2020, a hearing was held inthe Shevchenkovsky District Court of Kiev inthe case of Yuri Rossoshansky, who is accusedof the murder of human rights activist IrinaNozdrovskaya. He is charged with paragraph4 of part 2 of Art. 115 (premeditated mur-der committed with particular cruelty) of theCriminal Code of Ukraine.The consideration of the case stopped at

the examination of the evidence. The prose-cutor requested that the video be included inthe materials along with the protocol of theinterrogation of the accused, on the basis ofwhich a forensic psychiatric examination wascarried out. But the defender of Y. Rossoshan-skiy objected. He believes that the protocol isnot a source of evidence. The court must inter-rogate the accused directly in the courtroom,so as not to create a bias towards the futuretestimony of his client.The court concluded that the admission of

evidence to the case file was unfounded and alltestimony should be heard in court directly.Further, the panel of judges examined the

protocol of the investigative experiment. Fortechnical reasons, the video of the investigativeexperiment could not be viewed.

The victims, having listened to the protocolunder investigation, believe that the testimonyof the accused is invented. The position is justi-fied by the fact that many facts describing thearea where the crime was committed do not co-incide. The victims believe that Y. Rossoshan-sky did not commit the murder alone. They de-mand a second investigative experiment. They

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believed that someone is trying to hide the realkillers of their daughter, since the investigativeexperiment was carried out without them andtheir lawyers.The defender of Y. Rossoshanskiy draws

attention to the fact that if the video had beenexamined, all the questions of the prosecutionwould have disappeared. The video shows thathis client did not even guess what the murderedwoman was wearing.

Further, the court considered the issue ofextending the measure of restraint to the ac-cused. Yuri Rossoshansky has been detainedfor almost 3 years. For the first time, theShevchenkovsky District Court of Kiev, afterthe transfer of the indictment to the court,extended the accused’s detention on October18, 2018.

According to the prosecutor, the measure ofrestraint in the form of detention should becontinued due to the fact that Yuri Rossoshan-sky is accused of committing especially gravecrime, for which the law provides for a penaltyof imprisonment for more than 10 years. Theprosecutor states that the risks have not di-minished: the accused lives in the same townwith the victims’ family and can illegally influ-ence them. The prosecutor also drew attentionto hostile relations between the accused andthe victim, which may lead to the commis-sion of other criminal offenses. In this regard,any other measure of restraint, except for de-tention, will not help to achieve the goal ofcriminal proceedings - the execution by theaccused of procedural duties and preventingthe commission of other criminal offenses.

Y. Rossoshanskiy’s lawyer objected to grant-ing the petition.

The ECtHR draws attention to the inadmis-sibility of prolonged unjustified detention.The Court reiterates that the question of

the reasonableness of the detention of an ac-cused must be assessed in each case in the lightof its particularities. The continued detentioncan only be justified on a case-by-case basis ifthere is concrete evidence of a genuine claim ofpublic interest which, despite the presumptionof innocence, outweighs the rule of respect forpersonal liberty enshrined in Article 5 of the

Convention (paragraph 110 of the “Kudla v.Poland”).

The existence and persistence of reasonablesuspicion that the person arrested has commit-ted a crime is a condition sine qua non of thelawfulness of further detention. However, aftera certain time, this becomes insufficient. Insuch cases, the Court must establish whetherthe other grounds adduced by the judicialauthorities continued to justify the depriva-tion of liberty. If such grounds were “relevant”and “sufficient”, the Court must also establishwhether the competent national authoritiesdisplayed “special diligence” in the conduct ofthe proceedings (paragraph 152 of the “Labitav. Italy” judgment). The validity of any periodof detention, no matter how brief, must beconvincingly demonstrated by the authorities(paragraph 66 of the “Shishkov v. Bulgaria”judgment). When deciding whether a personshould be released or detained, the authoritiesare obliged to consider alternative measuresto ensure his appearance in court (paragraph83 of the “Jablonski v. Poland” judgment).

The Court has frequently found a violationof Article 5 § 3 of the Convention in caseswhere the domestic courts extended the appli-cant’s detention based mainly on the gravity ofthe charges and using stereotypical formulaswithout considering specific facts or consid-ering alternative measures of restraint (para-graph 55 of the “Pelevin v. the Russian Feder-ation” judgment).The court has repeatedly pointed out that

“. . . although the severity of a possible sentenceis an important component in assessing therisk of escape or committing new offenses onthe part of the accused, the need to extend theperiod of application of a measure of restraintin the form of detention cannot be assessedonly from an abstract point of view, takinginto account only the gravity of the charges.Continued detention cannot be used to await averdict either” (paragraph 51 of the judgmentin the case “Kolunov v. Russia”).

In many cases, the ISHR observers are facedwith the fact that representatives of the pros-ecutor’s office do not adequately justify theneed to extend the period of detention in their

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applications. In most cases, prosecutors do notjustify the existence of risks, and the burdenof justifying the risks rests entirely with thecourt.

As a result of considering this case, the courtgranted the prosecutor’s request and extendedthe measure of restraint in the form of deten-tion for another 60 days.

Monitoring of the case of Yu.V.Rossoshansky (hearing on December 03,2020)

On December 3, 2020, the Shevchenko DistrictCourt of the city of Kiev continued to considerthe case of Yuri Rossoshansky, who is accusedof the murder of human rights activist IrinaNozdrovskaya. He is charged with Paragraph4, Part 2, Article 115 of the Criminal Code ofUkraine.Recall that on January 1, 2018, the body

of lawyer Irina Nozdrovskaya was found in ariver near Kiev, she disappeared a few daysbefore. On January 8, suspicion of murder wasannounced to Yuri Rossoshansky, the father ofDmitry Rossoshansky, who in September, 2015beated Svetlana Sapatinskaya, Nozdrovskaya’ssister, to death, and was sentenced to prisonfor this.

Today, the accused Yu. Rossoshansky facesup to 15 years or life imprisonment.

At this hearing the video of the investigativeactions was evaluated.

While watching the video, one can hear thatthe accused said that he had killed the woman,however, as we know, later (after the inves-tigative actions), at one of the sessions, theaccused stated that he gave false testimonydue to the fact that he was under pressurefrom of law enforcement agencies and he doesnot admit his guilt at this stage.The defense attorney noted that since dur-

ing the pre-trial investigation the accused was“promised Article 116 of the Criminal Code(murder in a state of intense emotional excite-ment),” he invented the circumstances of thecrime, hoping that his actions would be quali-fied in this way. This is confirmed, in his opin-ion, even by the fact that the possessions ofthe murdered woman were found in one place,

and the way he returned home was completelydifferent. Also, the prosecutor noticed that thevideo during the investigative actions showsthat the accused could not display the way hereturned home after the crime was committed.Even Rossoshansky’s description of the belong-ings of the murdered woman does not coincidewith reality. The lawyer also cited a numberof proofs that may confirm the invention ofcircumstances by Yu. Rossoshansky.

In paragraph 108 of the “Ibrahim and othersv. United Kingdom” judgment, the ECtHRnoted, “. . . the fact that if the defendant givesfalse testimony does not in itself prove hisguilt. The defendant can lie for many reasons,which may well be innocent in the sense thatthey do not indicate his guilt. It is assumedhere that the false testimony was given for avariety of reasons: out of fear of the accusedto admit that he was to some extent involvedin the crime or knew about its preparation,but what was said by the defendants is notenough to consider him guilty. . . ”. If the courtconsiders that the false testimony given to therelevant defendants has or may have an inno-cent explanation, it should not take them intoaccount. Only if we are sure that he did notlie for an innocent reason, can this false tes-timony be considered as evidence confirmingthe prosecution’s version, taking into accountother instructions that the ECtHR indicatedon the issue of interrogation in the interests ofsecurity.That is, in this case, the reason that Yuri

Rossoshansky pointed out the false circum-stances of the crime can be assumed to bepressure on him from other persons, as wellas a promise to mitigate the punishment. Ifwe draw an analogy with the opinion of theECtHR in the case “Ibrahim and others v. TheUnited Kingdom”, then the video recordingcan theoretically be declared invalid by thecourt. When the judge asked whether the cir-cumstances were invented, the accused repliedthat yes, they were invented for the record.

The victim, in turn, was outraged that dur-ing the investigative actions the authorizedpersons did not even take samples from thecrime scene. She claims that Yu. Rossoshan-

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sky could not have planned and killed herdaughter himself, and this is confirmed by anumber of facts. Irina Nozdrovskaya’s motherbelieves that this is a contract-based organizedmurder. The woman demands to investigateher daughter’s Facebook correspondence, be-cause she believes that there is all the informa-tion about those who threatened Irina, fromwhich it would be possible to understand whocould really have committed the murder orcontributed to it.In addition, at the hearing, questions were

clarified about the location of the victim’sphone. The prosecutor provided a forensictelecommunications expertise, which was ex-amined by the court at the hearing. Also, thecourt examined the conclusion of a forensicpsychiatric expert, but the defense attorneyclaims that it has no probative value, becausehe believes that the described characteristic issuitable for 99% of the population.At the next hearing, which will be held on

December 10, 2020, the court will continue toexamine the evidence. The ISHR experts willcontinue to clarify the details of this case.

3.48 The trial of EvgenySagaidak

Monitoring of criminal proceedings ofSagaidak Evgeny Sergeevich (hearings onOctober 29, 2020)

On October 29, 2020, a hearing in case No.331/4277/17 was held in the Oktyabrsky Dis-trict Court of Zaporozhye on charges of EvgenySergeevich Sagaidak accused of committing acrime under Part 2 of Art. 187 of the CriminalCode of Ukraine, namely, robbery committedby prior conspiracy by a group of persons or aperson who has previously committed robberyor banditry.

The court session was held with the partici-pation of the prosecutor, the accused and hisdefense counsel. The victims and their repre-sentative did not appear at the hearing. De-spite this, the parties considered it possible tohold the hearing without them.The course of the trial: at the beginning of

the trial, the accused filed a complaint aboutthe violation of the trial procedure. He indi-cated that the trial began 50 minutes laterthan the scheduled time, despite the fact thatthe accused had been in a glass box all thistime. The judge attached this statement tothe case file and suggested that the case becontinued.

He indicated that the trial began 50 minuteslater than the scheduled time, despite the factthat the accused had been in a glass box allthis time. The judge attached this statementto the case file and suggested that the case becontinued.In this court session, a disc with a video

recording of the arrest of the accused by thepolice was examined.After examining the materials of the case,

the court proceeded to decide on the extensionof the time limit for the application of the mea-sure of restraint, since the term of detentionwas about to expire.

The prosecutor petitioned for an extensionof the term of detention for two months, whileasking to take into account when making adecision the characteristics of the accused,namely, the fact that he had previously beenrepeatedly prosecuted for mercenary and othergrave crimes committed with violence. In addi-tion, the prosecutor expressed her opinion thatthe aggressive behavior of the accused duringand after the arrest indicates his unwillingnessto take the path of correction.

The defense, for its part, asked the court tochange the measure of restraint from detentionto house arrest, arguing that the prosecutiondid not note any existing risks provided forby the current criminal legislation of Ukraine,which could justify the further detention ofthe accused.

The accused Sagaydak Y.S., in order to en-sure his right to defense and the right to free-dom, demanded to get acquainted with thearguments of the prosecution in writing. Theaccused also stated that the court was violat-ing his rights by considering the prosecutor’spetition to extend the period of detention tendays before the expiration of the previous de-tention order, referring to the Law of Ukraine

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“On Amending Clause 20-5 of Section XI” Tran-sitional Provisions “of the Criminal ProcedureCode of Ukraine regarding the peculiaritiesof judicial control over the observance of therights, freedoms and interests of persons incriminal proceedings and the consideration ofcertain issues in the course of judicial proceed-ings for the period of quarantine establishedby the Cabinet of Ministers of Ukraine in orderto prevent the spread of coronavirus disease(COVID-19)” dated April 13, 2020, where it isnoted that “during the pre-trial investigationand during the trial, an application for an ex-tension of the period of detention shall be filedno later than ten days before the expirationof the previous detention order”. Thus, accord-ing to Y.S. Sagaydak, the court assumes theresponsibilities of the prosecution, once againindependently initiating the issue of extendingthe term of detention.

In addition, the accused emphasized that ac-cording to the Information Letter of the HighSpecialized Court of Ukraine for the Considera-tion of Civil and Criminal Cases on some issuesof the procedure for the application of mea-sures during pre-trial investigation and judicialproceedings in accordance with the CriminalProcedure Code of Ukraine dated April 04,2013 No. 511-550 / 0 / 4-13, the investigatingjudge must carefully check the compliance ofthe submitted petition of the investigator, theprosecutor on the application of a measure ofrestraint to the requirements of Art. 184 ofthe Code of Criminal Procedure, as well asthe timeliness of providing the suspect, the ac-cused with a copy of the petition and materialsthat justify the need to apply a measure ofrestraint (no later than three hours before thestart of the consideration of the petition). Incase of non-compliance by the investigator, theprosecutor with the requirements of Art. 184of the Code of Criminal Procedure, the judgeconsiders the relevant petition and refuses tosatisfy it.

The European Court of Human Rights (here-inafter - the ECtHR) notes in such cases thatthe national authorities are obliged to estab-lish the existence of specific facts that maybe grounds for further detention. Placing the

burden of proof on a prisoner in such mat-ters amounts to a violation of Article 5 of theConvention. The situation in which there is aderogation from the right to liberty in favor ofdetention is permissible only with an exhaus-tive list of facts and strictly defined cases. (§§84-85 of “Iliikov v. Bulgaria” case).

In § 41 of the case “Khayredinov v. Ukraine”,the ECtHR notes that in the present case thedomestic courts justified the applicant’s con-tinued detention mainly on the basis of thegravity of the charges against him. In rejectinghis applications for release and in extendinghis detention without reference to any specificfacts, they considered that this was the onlyreason sufficient to conclude that he might ab-scond or otherwise disrupt the course of theinvestigation. As regards the applicant’s de-tention pending trial, the only thing the courtreferred to was that the measure of restraintmust be considered justified without consider-ing its justification over time and taking intoaccount the progress in the proceedings. TheCourt does not consider these grounds for theapplicant’s continued detention “relevant andsufficient”.It must be added that the validity of any

period of detention, regardless of its length,must be convincingly demonstrated by the au-thorities (§ 66 of “Shishkov v. Bulgaria” case).

Thus, from the point of view of the ECtHR,detention under Article 5 § 1 (c) must satisfythe requirement of proportionality (§ 55 of“Ladent v. Poland” case).

The court, having consulted, decided to ex-tend the term of detention of the accusedSagaidak E.S.The issue of automatic prolongation of de-

tention and the lack of proper reasoning forthe existence of risks is often raised by ISHRobservers in their reports. In many cases, ob-servers are faced with the fact that prosecutorsdo not justify the existence of risks and theburden of making a decision rests entirely withthe court. Thus, the prosecutor’s office doesnot perform its functions properly, which maylead to a violation of the rights of the accusedunder Art. 5 of the Convention. As, for exam-ple, in the case of R.A. Dubinevich (hearing

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of 05.12.2020) and V.I. Tyapkin (hearing of04.01.2020).

Monitoring of criminal proceedings ofEvgeny Sergeevich Sagaidak (hearing onDecember 08, 2020)

On October 29, 2020, a hearing in case No.331/4277/17 was held in the Oktyabrskiy Dis-trict Court of Zaporozhye on the charges ofE.S. Sagaidak in the commission of a crime un-der Part 2 of Art. 187 of the Criminal Code ofUkraine, namely, robbery committed by priorconspiracy by a group of persons or a per-son who has previously committed robbery orbanditry.

The International Society for Human Rightshas already monitored this case on October29, 2020.

At the hearing on December 8, 2020, theinvestigation of the disc with the video record-ing of the arrest of the accused by the policeauthorities continued.Defendant E.S. Sagaidak and his lawyer

drew the attention of the judges that duringhis arrest he was not provided with a lawyer.The accused insisted on the need to providehim with legal assistance, but the representa-tives of the police did not provide a defenselawyer.

Paragraph 1 of Article 6 of the ECtHR gen-erally requires access to a defense lawyer fromthe first interrogation of a suspect by law en-forcement officials, unless it has been demon-strated in the specific circumstances of thecase that there are compelling reasons to re-strict such a right. Even if compelling reasonsmay in exceptional cases justify denying accessto a lawyer, such a restriction, regardless ofthe reasons, must not unreasonably violate therights of the accused under Article 6 of theConvention.The ECtHR must assess the existence of

compelling grounds for restricting access toa defense lawyer. Next, it must assess theamount of damage that was caused to theright to defense in the case of the relevantrestrictions. If compelling reasons are estab-lished, a comprehensive assessment of the pro-ceedings should be carried out to determine

whether they were “fair” in accordance withthe purposes of Paragraph 1 of Article 6 ofthe Convention (“Ibrahim and Others v. TheUnited Kingdom”, para. 264).During a comprehensive study of proceed-

ings in order to assess the impact of proceduraldeficiencies on the fairness of criminal proceed-ings in general, it is necessary to take intoaccount such an inexhaustible list of criteriain the practice of the ECtHR: (a) whether theapplicant was in a particularly vulnerable posi-tion; (b) the regulations governing the pre-trialinvestigation procedure and the admissibilityof evidence during their assessment, as wellas their observance; (c) whether the applicanthad the opportunity to challenge the admis-sibility of the evidence or challenge its use;(d) the quality of the evidence, whether thecircumstances in which it was obtained haveraised doubts about its reliability and accuracy,taking into account the extent and nature ofany duress; (e) if the evidence was obtainedunlawfully, the relevant unlawfulness, and ifit was caused by a violation of another articleof the Convention, the nature of the violationfound; (f) in the case of testimony, the essenceof the testimony and whether the applicantretracted it or changed it in a short period oftime; (g) the way in which the evidence wasused, as well as, in particular, whether the evi-dence became an integral or significant part ofthe evidence base on which the conviction wasbased, as well as hundreds of other evidencein the case; (h) whether guilt was found to beguilty by professional judges or jurors, and inthe latter case, the content of any attitudes tothe jury; (i) the degree of public interest in in-vestigating and punishing a particular offense;(j) other relevant procedural safeguards pro-vided for in national law and ECtHR practice(“Ibrahim and Others v. the United Kingdom”,para. 274).On the basis of previous arguments, the

defense asked the domestic court to declare thearrest record as inadmissible evidence, sincethe procedural action was carried out withouta defense counsel.The judge refused to satisfy the defense’s

petition and indicated in the court decision

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that the current legislation does not requirestopping the investigative action - in case ofa search of the person - before the defenselawyer arrives at the place of detention, butonly indicates the need to ensure confidentialcommunication between the defense lawyerand the suspect before interrogation, whichwas done properly by the investigator. The ab-sence in the protocol of the person’s detentionof a written reference to the message of the le-gal aid center about the detention of a persondoes not indicate a violation of the right to de-fense, since the requirements of Art. 213 of theCriminal Procedure Code of Ukraine were ac-tually fulfilled by the investigators, which wasverified by the court during the court session.However, the domestic court noted that theissue of the invalidity of the evidence would bedecided upon assessing the remaining evidenceat the time of the final decision in the criminalproceedings.

The International Society for Human Rightsdraws attention to the lack of a unified practicein the issue of invalidating the detention proto-col. Thus, in case no. 645/1774/17, during thearrest and search, the suspect was not properlyprovided with a defense lawyer, while from thebeginning of the detention she insisted on this,she did not refuse the participation of a defenselawyer. The conduct of the procedural actionwas not postponed by the investigator untilthe arrival of the defense counsel chosen bythe accused or until the arrival of the involveddefense lawyer from the free legal aid agency.Procedural rights do not require a suspect toactively resist law enforcement officials in theirintentions to conduct procedural actions, inthis case a search of a detainee, without a finaldecision on her petition to have a lawyer. Ne-glecting the request for a lawyer on the partof the suspect, a search was conducted, the re-sults of which the suspect also did not confirmwith her own signature. On the proposal tosign the protocol, the suspect drew attentionto the absence of a lawyer and refused to par-ticipate in the procedural action without him.In case No. 645/1774/17 on November 7, 2019,the Frunzensky District Court of Kharkov de-clared the detention report invalid.

Thus, the national courts have yet to developa unified approach to resolving the issue ofinvalidating the detention report, which wasdrawn up without the participation of a lawyer.

Then the participants in the court sessionproceeded to the study of written evidence.The defense attorney asked the court to re-conduct the portrait examination. However,the court rejected this request.

Also, at the hearing, the petition of the ac-cused and the lawyer to change the measureof restraint from detention to house arrest wasconsidered. E.S. Sagaidak argued it as follows:- he is in custody for a long time (more than3 years); - none of the risks, to hide from thecourt or obstruct the court proceedings, arejustified; - he has no intention to continuecriminal activity.

Checking for the risks under Art. 177 of theCriminal Procedure Code of Ukraine, the na-tional court notes that due to the lack of dataon the employment of E.S. Sagaydak before hisimprisonment, drawing attention to the pres-ence of two episodes of criminal acts, a selfishmotive for the crime, and also taking into ac-count the two convictions of the accused, thereis a likelihood of continued criminal activity.According to the court, this risk is significantand such that it prevails over a person’s rightto personal freedom.

Without questioning the decision of the na-tional court, the International Society for Hu-man Rights draws attention to the fact thatthe justification for the need to extend theperiod of detention remains unchanged in thecourt’s decision.

It should be noted that the ECtHR hasoften found a violation of paragraph 3 of Art.5 of the Convention in cases where domesticcourts continued detention, referring mainly tothe gravity of the charges and using formulaiclanguage, without even considering specificfacts or the possibility of applying alternativemeasures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”, para. 59).

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3.49 The trial of SergeySergeyev and others

Monitoring the case of Sergeyev andothers (Sessions on January 28, 2020 andFebruary 3, 2020)

On January 28, 2020, a session was held in theKommunarsky District Court of Zaporozhyeon the case of drivers from Makeevka SergeySergeyev and Andrey Gorban, as well as threeemployees of the Zaporizhzhya Social Secu-rity Administration - Victoria Voloshina, AnnaKhokhotva and Yulia Semenyuk, accused ofcommitting crimes under Part 1 of Article 255of the Criminal Code of Ukraine (creation ofa criminal organization), Part 5 of Article 191(misappropriation, embezzlement of propertyon an especially large scale or the seizure of itby abuse of official position by prior conspiracyby an organized group of persons), Part 2, 4of Article 28 (commission of a crime by anorganized group or criminal organization byprior conspiracy), Part 1 of Article 366 (officialforgery), Part 1 of Article 258-3 (other assis-tance to the creation or activities of a terroristgroup or terrorist organization), Part 2, 3 ofArticle 258-5 (financing of terrorism repeatedlyor from selfish motives, or by prior conspiracyby a group of persons, or on an especially largescale).Experts from the International Society for

Human Rights (ISHR) monitor these lawsuits.According to the defense, these accusations

(which may lead to up to 15 years in prison)of the defendants are for the fact that thedrivers arranged for the transportation of pen-sioners from uncontrolled part of the EasternUkraine to receive pensions, and the social ser-vice employees applied for these pensions. Ac-cording to lawyers, such cases are being openedwith the aim of reducing social payments toUkrainian citizens living in uncontrolled ter-ritories. Criminal proceedings last more thantwo years.

The victim in the case is the Pension Fund,a representative of which was present andwas questioned at this hearing. Among otherthings, he indicated that the amount of theclaim was not considered by the Pension Fund

- it was indicated to them by the Secret Ser-vice (SBU). During the interrogation of wit-nesses, no one testified against the accused.At the moment, all the materials of the casehave been studied and all witnesses have beeninterrogated, it remains to investigate the lat-est material evidence - the buses belonging todrivers, which have been parked at the SBUcompound for 3 years now. The prosecutor ig-nored two decisions of the court on the deliveryof vehicles to the court.The court considered the question of the

technical feasibility of delivering vehicles tothe court, since the letter of the colonel of theSBU indicated that there was no technical fea-sibility of delivering the vehicles to court andasked them to be examined on the territoryof the SBU. Attorney Shostak A. in her ob-jections noted that no documents confirminga technical malfunction were included in theSBU letter - expert examinations or any other.The SBU is responsible for the safety of thematerial evidence, but it is the prosecutor whomust comply with the court order, that is, en-sure that everyone attends the retreat that heis applying for. And for failure to comply witha court decision criminal liability is providedin accordance with Article 382 of the CriminalCode of Ukraine. The court noted that theprosecutor ignored twice and did not complywith the court decision on the obligation toensure the delivery of physical evidence (twovehicles).

In addition, the lawyer Zelinskaya O. clearlylisted examples of material evidence, for thestudy of which the court appoints a retreat,such as a building, a ship, military equipmentat a military base, specifying that vehicles arenot included in this list.

After a discussion in the deliberation room,the court decided for the third time to deliverthe vehicles to a hearing.

During the interrogation of the accused, thedeputy head of the social protection depart-ment - the head of the labor department A.Khothotova explained that she was accusedof putting signatures on certificates to peoplewho were not registered in the territory con-trolled by Ukraine and that the money went

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to terrorists. However, during the indicated pe-riod, she was on vacation (from June 1, 2016 toJune 20, 2016) and noted that all the originalsof the certificates were from people who arenow in Donetsk and it is not known who isthe signer of these certificates. She also notedthat she was accused of illegally putting thestamp “indefinitely” on the certificates of im-migrants, but from 08.06.2016, in accordancewith new legislation, all certificates of inter-nally displaced persons automatically becameunlimited. She answered the questions of theprosecutor that she saw the drivers accusedof this lawsuit and they helped internally dis-placed persons, it was easier to work with them,as volunteers helped turn the crowd into anorganized queue. They never applied for sig-natures of any certificates, and their nameswere recognized only in this lawsuit. To thequestions of the lawyer O. Zelinskaya, doesthe immigrant certificate give the right to re-ceive a pension right away, she noted that it isnecessary to go to a pension fund first. It is im-possible to receive a pension automatically byreference, and that it must issue a certificate,even if the person did not present a documenton the actual place of residence in Zaporozhye.The place of residence is indicated accordingto the person and is sufficient. The accusedalso noted that for some of the people indi-cated in the lawsuit, pensions are paid afterthe lawsuit has been filed, and even after thedetention of Sergeyev and Gorban. And onewoman received it six months ago

At the hearing on February 3, 2020, the ac-cused Yulia Semenyuk was questioned, whoconfirmed that she did not plead guilty in fulland the court again raised the issue of thedelivery of material evidence by the prosecu-tion. The lawyers of the accused said that ifthe prosecutor does not provide the deliveryof material evidence of the two vehicles as anobligation to fulfill the court decision, theywill have to contact the state bureau of inves-tigations with the aim of initiating a criminalcase due to the prosecutor’s unwillingness tocomply with the court decision.

Monitoring the case of Sergey Sergeyevand others (Session on February 17, 2020)

On February 17, 2020, in the Kommunarskycourt of Zaporozhye, a session was held on thecase of Makeevka drivers Sergey Sergeyev andAndrey Gorban, as well as three employeesof the Zaporozhzhya Social Security Adminis-tration: Victoria Voloshina, Anna Khokhotvaand Yulia Semenyuk, accused of committingcrimes under Part 1 of Art. 255 of the CriminalCode of Ukraine (creation of a criminal orga-nization), Part 5, Art. 191 (appropriation, em-bezzlement of property on an especially largescale or seizure by abuse of official positionby prior conspiracy by an organized group ofpersons) Part 2, Article 4 28 (commission of acrime by an organized group or criminal orga-nization by prior conspiracy), part 1 of article366 (official forgery), part 1 of article 258-3(other assistance to the creation or activitiesof a terrorist group or terrorist organization),Part 2, 3 of Article 258-5 (financing of terror-ism repeatedly or from selfish motives, or byprior conspiracy by a group of persons, or onan especially large scale).The Pension Fund undergoes as the victim

in the case, although pensioners themselves,whose funds were allegedly illegally transferredto terrorists, did not file lawsuits.

Over the past hearings, the court ruled threetimes on the delivery to the hearing of ar-rested vehicles of drivers. Two times the prose-cutor’s office ignored the court’s decision. Thistime the cars were delivered by the accused inthe presence of responsible persons from theUkrainian secret service (SBU). The board ofthe court examined the cars in the parkinglot in front of the courthouse, and then in thecourtroom heard the accused S. Sergeyev andA. Gorban.

Andrei Gorban said that a new battery, aset of keys, a fire extinguisher, a first-aid kit,a tow rope, and caps from disks disappearedfrom his car. Also, according to him, a newwinter tire was removed, and the old summerone was replaced instead. In addition, on theway to the court, the front wheel nearly fell off.Sheathing is torn from the car, plastic near thewindshield, there is a dent on the body near

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the bottom. According to Gorban, the car wasserviced 5 days before the arrest and was inexcellent technical condition.

Sergey Sergeyev also indicated that the newwinter tires and battery from his car disap-peared. In addition, cracks appeared on thewindshield, a dent in the rear, the taillight wasbroken, the interior trim was torn out, and theseats were cut. In addition, the spare glassesstored in the glove compartment were lost.The officer of the SBU responsible for stor-

ing material evidence said that the cars storedin the parking lot of the SBU for 3 years weretransferred to him only 1.5 years ago and with-out an inventory.During the session, it turned out that ac-

cording to the data sheet and in fact, therewere 7 seats (8 with a driver) in Sergeyev andGorban’s cars, while the indictment states thateach of the drivers transported more than 10pensioners.

Lawyer Antonina Shostak filed a motion toremove the arrest regarding the ban on theuse of cars and said that a technical exami-nation would be carried out in order to holdaccountable those responsible for the improperpreservation of material evidence.

The court decided to consider the motion atthe next hearing and adjourned the hearing toApril 9, 2020.

The International Society for Human Rightsexpresses concern about allegations of damageand loss of property (of the accused) held incustody at the SBU, which falls under Article1 of Protocol No. 1 to the Convention for theProtection of Human Rights and FundamentalFreedoms, which states:

“Every individual or legal body has the rightto respect for his property. No one may be de-prived of his property except in the publicinterest and under the conditions provided forby law and the general principles of interna-tional law.”

In addition, part 2 of article 100 of the Codeof Criminal Procedure of Ukraine states that“the party of the criminal proceedings whohave been provided with evidence or a docu-ment is required to keep them in a conditionsuitable for use in criminal proceedings”. Part

4 of the same article assumes that “in the eventof a loss or destruction by a party to criminalproceedings of the material evidence providedto him, he is obliged to return the same thingto the owner or to reimburse its cost.” Accord-ing to Article 194 of the Criminal Code ofUkraine, intentional destruction or damage toproperty is punishable by a fine of up to fiftytax-free minimum incomes of citizens or cor-rectional labor for a term of up to two years, orimprisonment for a term of up to three years.In paragraph 50 of the Decision of the EC-

tHR in the case of “LLC Gastronom v. Russia”,dated March 19, 2019, the European Courtnotes that law enforcement and judicial author-ities are required to take reasonable measuresto store material evidence, and national lawshould provide for the possibility of bringingan action against the state to recover damagedue to improper storage of the seized property.Moreover, the procedure for filing such claimsmust be effective so that the owner can reallyprotect his rights.

Monitoring of the case of Sergei Sergeevand others (hearing on July 13, 2020)

On July 13, 2020, in the Kommunarskiy Dis-trict Court of Zaporozhye, a hearing washeld on the case of the Makeyevka driversSergey Sergeev and Andrey Gorban, as well asthree employees of the Zaporozhye Social Se-curity Department - Victoria Voloshina, AnnaKhokhotva and Yulia Semenyuk, accused ofcommitting crimes under Part 1 of Art. 255of the Criminal Code of Ukraine (creation ofa criminal organization), Part 5 of Art. 191(appropriation, embezzlement of property onan especially large scale or taking possession ofit by abuse of office by prior conspiracy by anorganized group of persons), Part 2; 4 of Art.28 (commission of a crime by an organizedgroup or a criminal organization by prior con-spiracy), Part 1 of Art. 366 (official forgery),part 1 of Art. 258-3 (other assistance to thecreation or activities of a terrorist group orterrorist organization), part 2: 3 of Art. 258-5(repeated financing of terrorism or out of self-ish motives, or by prior conspiracy by a groupof persons, or on an especially large scale).

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Recall that, according to the defense, thesearticles, which imply up to 15 years in prison,are charged to the defendants for the fact thatthe drivers organized the transportation ofpensioners from uncontrolled regions of easternUkraine (ORDLO) for registration of pensions,and the social service employees issued thesepensions. According to lawyers, such cases areopened with the aim of reducing social benefitsto citizens of Ukraine living in the uncontrolledterritories.The criminal proceedings lasts two and a

half years.The victim in the case is the Pension Fund,

its representative was not present at the hear-ing.

Translator of S. Sergeev, who usually partic-ipates in the hearings because the defendantdon’t speak Ukrainian language, did not ap-pear at the hearing. In order to respect therights of the accused, the lawyer filed a mo-tion to postpone the hearing. The court heardthe opinion of the parties present on whetherthis was a reason to postpone the hearing, towhich the accused and their lawyers repliedthat the absence of an interpreter was not areason for postponing the criminal proceedings.The panel of judges made a decision at thishearing to proceed to the consideration of thecase in essence without an interpreter.

In the course of these proceedings, the courtordered the prosecutor to ensure control overthe appearance of the interpreter at the nexthearing, which is scheduled for October 5, 2020,since the interrogation of the accused Sergeevis scheduled for that date.The trial is coming to an end and debates

and a court decision are tentatively scheduledfor October 6, 2020. One accused A. Gorbanwas questioned at the hearing.

The prosecution did not provide evidencethat the defendants took possession of thepensioners’ money. There was only a checkfor 810.00 rubles, according to Gorban, thisis a mandatory payment to the DPR fund,which the military forced him to make at thecheckpoint, providing the bank details.During interrogation, the defendant denied

any involvement in facilitating the creation

or activities of a terrorist group or terroristorganization. He confirmed that he was famil-iar with the driver Sergeev, but they neverplanned joint trips or other events. The pres-ence of bank cards and other photocopies ofpensioners’ documents was explained by thefact that elderly and sick people, in order notto waste money and time on travel and stayin hotels in Zaporozhye, asked to transfer themissing documents for registration of a pen-sion, receive a pension or purchase medications.Gorban did not take any rewards for openingaccounts and did not deal with registration ofpensions. He said that after his arrest and in-terrogation of him and the pensioners whom hehad brought to the city of Zaporozhye by theUkrainian Secret Service officers, his wife paidfor a new transport, which took the peopleand took them back to the Donetsky region.Let us recall that this trial has been drag-

ging on for the third year, which may runcounter to the principle of considering a casewithin a reasonable time and the norms of theEuropean Convention on Human Rights andFundamental Freedoms.Paragraph 116 of the ECtHR judgment of

03.12.2009 in the case “Vergelsky v. Ukraine”states: “The reasonableness of the length ofthe proceedings must be assessed in the lightof the specific circumstances of the case andtaking into account such criteria as the com-plexity of the case, the conduct of the applicantand the relevant authorities (see, in particular,paragraph 67 of the judgment in the case of“Pelissier and Sassi v. France”).

3.50 The trial of Shapoval

Monitoring the case of Shapoval N.P.(hearing 04/27/2020)

On April 27, 2020, a hearing was held in theArtyomovsky City Court of Donetsk Regionon charges of Shapoval N.P. of committing acrime under subsection 1.4 of Part 2 of Article1115 of the Criminal Code of Ukraine.

During the trial, the prosecutor filed a re-quest for an extension of the measure of re-straint in the form of detention, since the risks

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foreseen in paragraphs 1,3,5 h. 1 art. 177 of theCode of Criminal Procedure of Ukraine (2012),the defendant can hide from the court, putpressure on the victims, witnesses, or commita new crime.

The defense counsel requested that the pros-ecutor’s petition be denied because “. . . it isnot substantiated, the petition does not indi-cate evidence that confirms the risks, thereis no evidence of the defendant’s guilt, thepunishment is life imprisonment, it is not arisk, it cannot be said that the defendant wasrepeatedly convicted, previously he was con-victed only once, the verdict in this case hasnot been decided, and after a week the de-fendant has been detained for 10 years, andaccording to the ‘Savchenko law’ it is 20 years,and after serving 20 years of punishment thereare grounds for applying for pardon.”In addition, the accused himself asked to

choose a measure of restraint in the form ofhouse arrest, since the prison administrationcreates improper conditions for him in deten-tion, he was bitten by bugs, he was forcedto refuse food provided by the administration,since it was not proper quality, in addition, wa-ter flows from the ceiling, clothes do not dryout in 3 days. He asked to be transferred toanother room, but he was refused. The accusedbelieves that such conditions of detention area direct threat to his life. He will not influencewitnesses and will not hide from the court. Heis physically unable to be detained in suchconditions.

As a result of the review, the court grantedthe request of the prosecutor.Representatives of the ISHR are concerned

about the timelines for the consideration ofthis case, the lack of adequate justification forthe risks that form the basis of the decision toextend the terms of detention, as well as theconditions of detention of the accused.Article 6 of the Convention recognizes the

right of every person prosecuted in a criminalcase to receive a final decision within a reason-able time on the validity of the charges againsthim, or rather, to ensure that the accused donot remain for a long time under the weight ofthe charge and that a decision is made on the

validity the charges (“Vemkhov v. Germany”,para. 18; “Julia Manzoni v. Italy”, para. 25;“Brogan and others v. the United Kingdom”,para. 65).

Having studied the history of court decisionsin the case, it can be established that in 2020,court hearings exclusively considered issues ofextending measures of restraint.According to paragraph 3 of Article 5 of

the Convention after a certain period of time,just the existence of reasonable suspicion thatdoes not justify the deprivation of liberty, andthe courts should give other reasons for theextension of detention (“Borisenko v. Ukraine”,para. 50). Moreover, these grounds must beclearly indicated by the national courts (“Eloevv. Ukraine” para. 60, “Kharchenko v. Ukraine”para. 80).The court often found a violation of para-

graph 3 of Article 5 of the Convention in caseswhere the national courts continued detention,referring mainly to the gravity of the chargesand using template language, without evenconsidering specific facts or the possibility ofalternative measures (“Kharchenko v. Ukraine”,paras. 80-81; “Tretyakov v. Ukraine” para. 59).The existence of a reasonable suspicion of

a crime committed by a detained person isan indispensable condition for the legality ofhis continued detention, but after the lapse oftime such a suspicion will not be sufficient tojustify prolonged detention. The court neverattempted to translate this concept into aclearly defined number of days, weeks, monthsor years, or at different times depending on thegravity of the crime. Once “smart suspicion” isno longer sufficient, the court must establishthat the other grounds given by the courtscontinue to justify the person’s deprivation ofliberty (“Maggie and Others v. The UnitedKingdom”, paras. 88-89).

The accused is previously convicted, and thecrime attributed to him is characterized by spe-cial severity. However, even in cases of suchcomplexity, the extension of the terms of deten-tion should be well-reasoned. And this require-ment is, first of all, established for the Pros-ecutor’s Office. Representatives of the ISHRhave repeatedly emphasized that the “burden”

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of argumentation for extending the measure ofrestraint rests with the court, while prosecu-tors use template language, without referenceto specific facts, confirming the risks, countingon an automatic extension.And even if the periods of detention con-

tinue, the European Court of Human Rightshas repeatedly emphasized that the state mustensure that a person is detained in conditionsthat are consistent with the principle of re-spect for their human dignity, and that themethod and restrictions of freedom do notcause him mental suffering or difficulties thatexceeded the inevitable level of suffering inher-ent in detention and that, in accordance withthe practical requirements of imprisonment,health care was properly ensured (“Kudla v.Poland,” paras. 92-94).Thus, in a case randomly selected in the

list of broadcasts of court hearings, so manynegative trends are concentrated. Representa-tives of the ISHR will continue to monitor thecase through broadcasts. The next hearing isscheduled for May 25, 2020.

3.51 The trial of AlexanderShchegolev

Monitoring of the case of AlexanderShchegolev (court hearing 23 June 2020)

On June 23, 2020, a regular hearing in thecase of Alexander Shchegolev was held in theShevchenkovsky District Court of Kiev.

Alexander Shchegolev is accused of organiz-ing the violent dispersal of peaceful protestson February 18-19, 2014. For a long time, theex-head of the Secret service (SBU) of Kievand the region was in custody, but on June 26,2019, the court released him under round-the-clock house arrest and ordered him to wearan electronic bracelet, later the measure ofrestraint was changed to a personal obligation.

On June 28, 2020, the lines of the measure ofrestraint of the accused - a personal obligationexpire, therefore, on June 17, 2020, the pros-ecutor sent a petition to the court to resolvethe issue of changing the measure of restraintfrom a personal obligation to a 24-hour house

arrest using an electronic control device.The prosecutor believes that the measure

of restraint must be changed in order to en-sure that the accused fulfills his duties, andalso points to the existence of risks that havealready been declared earlier and continue toexist at the moment, namely: - the possibil-ity of the accused to hide from the court; -the ability to destroy, hide any of the thingsor documents that are essential for establish-ing the circumstances of the case; - the riskof illegal influence on witnesses and victims,also experts, etc.; - other actions that maybe committed by the accused to obstruct theconsideration of the case.

According to the prosecution, these risks arenot diminishing, but on the contrary. Also, theprosecutor drew attention to the fact that theaccomplices of the crimes incriminated to theaccused Shchegolev - the first deputy head ofthe SBU Totsky and the head of the SBU Yaki-menko for this time have chosen a measure ofrestraint in the form of detention, which alsoindicates an increase in risks, since these per-sons can assist the accused in an attempt toescape from the court. During the monitoringof this case, the experts of the ISHR have re-peatedly noted that throughout the entire trial,the list of risks in the prosecutor’s applicationsdoes not change.

The representative of the victims also askedto grant the prosecutor’s request because hebelieves that there may be threats to the vic-tims or their relatives, and there is also a riskof changing the testimony of witnesses due tothe influence of the accused.At the beginning of the hearing,

Shchegolev’s defender noted that a copy of thepetition was not sent to the accused, and thisis already a direct violation of the procedurallegislation of Ukraine. And, therefore, there isa reason to refuse to satisfy the prosecutor’spetition.

The lawyer draws attention to the fact thatArticle 200 of the Code of Criminal Procedureof Ukraine stipulates that the petition mustnecessarily indicate the circumstances that: -arose after the previous decision to apply ameasure of restraint; - existed at the time of

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the previous decision on the application of ameasure of restraint, but about which the in-vestigator, the prosecutor at that time did notknow and could not know. But there are nosuch circumstances, and this is the second rea-son to refuse to grant the petition. Thirdly, ma-terials that confirm these circumstances mustbe added to the application, but they are notthere either.

The defense attorney noted that the prosecu-tor had already several times asked the courtto change the measure of restraint, despitethe fact that the accused fulfills his obliga-tions. Also, he is against any electronic meansof control, because their absence in no waycauses violations of A. Shchegolev’s duties orthe occurrence of risks.

Based on the above, given the circumstancesof the case and the positive procedural behav-ior of the accused, the court continued themeasure of restraint in the form of a personalobligation for 60 days until 08.21.2020.

Also, earlier, the experts of the ISHR oftendrew attention to the fact that in this casethe principle of reasonable time is violated,because the trial has been going on for morethan five years. The case law of the ECtHRsuggests that the reasonableness of the lengthof the proceedings is determined taking intoaccount the circumstances of the case, whichrequire an assessment in the aggregate (para.36 of the judgment “Boddaert v. Belgium”). Ofcourse, if certain stages of the proceedings arecarried out at an acceptable speed, the totalduration of the proceedings may neverthelessexceed a “reasonable time” (para. 44 of the“Dobbertin v. France” judgment).

However, Article 6 of the Convention re-quires that judicial proceedings be expeditious.A fair balance must be struck between thevarious aspects of this fundamental require-ment (para. 39 of the “Boddaert v. Belgium”judgment).

Monitoring of the case of AlexanderShchegolev (hearing on 08.18.20)

On August 18, 2020, a regular hearing washeld in the Shevchenko District Court of Kievin the case of the ex-head of the Security Ser-

vice of Ukraine (SBU) of Kiev and the region,Alexander Shchegolev.

He is accused of organizing the violent dis-persal of peaceful protests on February 18-19,2014. For a long time Shchegolev was in cus-tody, but on June 26, 2019, the court releasedhim under round-the-clock house arrest andordered him to wear an electronic bracelet,later the measure of restraint was changed toa personal obligation.This session began with the fact that the

defense lawyer challenged the prosecutor A.A.Suprun. He claims that the appointed prosecu-tor, in prior agreement with one of the officersof the General Prosecutor’s Office, creates ob-stacles in the defense of the interests of theaccused by the lawyer, namely, in terms of re-ceiving information constituting state secrets.The defense lawyer says that for almost a yearhe has been unable to obtain information in or-der to familiarize himself with the documentsthat prove A. Schegolev’s innocence. In hiswords, he received permission to obtain statesecrets from the authorized bodies. Referringto this, the defense has doubts about the im-partiality of the prosecutor.

According to the prosecutor, the applicationfor his challenge is unfounded, explaining thatthe admission to state secrets does not fallwithin his competence. The victim’s defenderalso objected to the challenge.The court rejected the request. On August

21, 2020, the term of the measure of restraint (apersonal obligation) for Alexander Shchegolevexpired, therefore, at this hearing, the prose-cutor’s petition to change the measure of re-straint from a personal obligation to a round-the-clock house arrest using an electronic con-trol device was considered.Prosecutor A.A. Suprun substantiated the

petition by the fact that, in his opinion, thepreviously declared risks are not diminishing,just the opposite, namely: - the risk of escapingfrom the court; - the risk of destruction of anyof the documents that are essential for crimi-nal proceedings; - the risk of illegal influenceon victims, witnesses or other participants incriminal proceedings; - obstruction of criminalproceedings in any other way.

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The prosecutor referred to the fact that onFebruary 19-20, 2014, Alexander Schegolev de-stroyed a number of documents. Also, he drewthe attention of the court to the fact that theaccused committed the alleged crimes in com-plicity with other heads of state and law en-forcement agencies. During March - July 2020,a measure of restraint in the form of detentionwas applied to the persons whom the prosecu-tor designated as accomplices. The prosecutionstated that it is precisely the measure of re-straint in the form of round-the-clock housearrest with the use of an electronic means ofcontrol for a period of 60 days that will helpto avoid any risks.The defendant’s lawyer objected to the pe-

tition, since he did not see in the prosecutor’spetition a justification for toughening the mea-sure of restraint. In the period from June 23 toAugust 18, there were no hearings and the ev-idence was not considered, all the obligationsof the accused were fulfilled, so the lawyersees no reason to change the measure of re-straint. V. Rybin also claims that significantrisks are needed to change the measure of re-straint, which must be supported by evidence,but the prosecutor did not provide them.In one of the decisions, the ECtHR says

that during the investigation national courtshave consistently relied on the severity of theaccusations as the main factor in assessingthe potential applicants to hide. They did notprovide specific facts in support for such con-clusions (para. 58 of the judgment “Zentsov v.Russia”; para. 50 of the judgment “Kolunov v.Russia”).The current law enforcement practice in

Ukraine has shown that the subjects of law en-forcement do not always correctly understandthe legal nature of house arrest, regarding thistype of measure of restraint as not related toimprisonment, respectively, without extendingto such cases the guarantees provided for inArticle 5 of the Convention.

Article 5 of the Convention guarantees every-one the right to liberty and security of person.No one can be deprived of liberty except inthe cases and in the manner prescribed by law.The list of grounds for imprisonment is given

in para.1 of Article 5 of the Convention, andany deprivation of liberty will not be lawful ifit does not comply with one of these grounds(para. 60 of “Austin and Others v. The UnitedKingdom”).The European Court in its case law has

pointed out that before demanding house ar-rest of a person, it is necessary to study thereal situation and take into account a numberof factors, such as the type, duration, conse-quences and method of implementation of thecorresponding measure (para. 46 of the judg-ment “Osipenko v. Ukraine”; para. 44 of the“Dacosta Silva v. Spain” judgment).

In this proceeding, the prosecutor has re-peatedly petitioned to change the measure ofrestraint to house arrest, explaining this onlyby risks, but not taking into account manyother factors.

After consulting, the court decided to refuseto satisfy the prosecutor’s petition and con-tinue the measure of restraint in the form of apersonal obligation for another 60 days, thatis, until October 16, 2020.

Monitoring of the case of AlexanderShchegolev (hearing of September 18,2020)

On September 18, the Shevchenko DistrictCourt continued to consider the case of Alexan-der Shchegolev, who is accused of organizingthe violent dispersal of “Maidan” protests onFebruary 18-19, 2014.

Recall that A. Shchegolev was in custody forthree years, but on June 26, 2019, the court re-leased him under round-the-clock house arrestand ordered him to wear an electronic bracelet,later the measure of restraint was changed toa personal obligation.At the beginning of the court session, a

number of motions were submitted from theprosecutor Suprun, as well as from the vic-tim Plekhanova and from the representativeof other victims Zakrevskaya - to change theprocedure for examining evidence (a combinedprocedure was proposed) and one more fromthe representative of Zakrevskaya - to ensurereasonable time limits for the consideration ofcriminal proceedings.

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The prosecutor explained his request by thefact that for a long time the materials of thiscriminal proceeding have been studied at thesessions, but due to a number of circumstancesthe victims are not able to come to court andgive testimony. He also drew attention to thefact that at this time only 47 of 136 victimshave been questioned, in addition, a large num-ber of witnesses (619) have been declared, whoalso need to be interrogated, and since they alllive in different parts of Ukraine and abroad,to call them the court takes time, and it isalso necessary to ensure interrogation in othercourts in the mode of videoconference. There-fore, in order to ensure a reasonable time frame,promptly resolve issues of criminal proceedings,as well as to plan further court hearings, theprosecutor proposed to change the procedurefor examining evidence and insisted on inter-rogating the victims via videoconference. Thevictim’s defender Zakrevskaya supported theprosecutor’s motion.

The ECtHR points out that equality of armsis an integral part of a fair trial. This principlerequires each party to be given a reasonableopportunity to present its case in such circum-stances as does not place it at a material dis-advantage with respect to the opposing party(“Fouche v. France”, § 34; “Bobek v. Poland”, §56; “Klimentiev v. Russia”, § 95). After all, itis worth noting that the legislation of Ukraineis not limited to the fact that testimony is pos-sible only at that time and in the court wherethe sessions are held, the prosecutor proposedoptions for interrogation by videoconferencein the premises of the courts of the location ofthe victims.Shchegolev’s lawyer objected to the prose-

cutor’s petition, supporting only part of theinterrogation of the victims, but emphasizedthat it was their duty to appear at the hearingand give evidence. He proposed to complete theorder that had already been chosen, becausewritten evidence, documents, video recordingshad already been examined, and further exam-ination of material evidence should be carriedout and then - the interrogation of witnesses.

The court expressed its dissatisfaction withthe fact that the victims, notified of the le-

gal proceedings, were not present during theexamination of the evidence.Also, the judge emphasized that if it were

not for the constant petitions of the parties, theproceedings could move much faster. But thepractice of the ECtHR notes that the govern-ment should not justify the protracted proceed-ings by referring to appeals, motions, requestsand other procedural actions of the applicanthimself, unless they are of the nature of abuse.The defendant cannot be blamed for taking fulladvantage of the resources and tools providedto him by national law in order to protect hisinterests (“Kolomiets v. Russia”, §§ 25-31).As a result, after consulting, the panel of

judges drew attention to the fact that the orderthat has been established at this time was cho-sen in order to comply with the CCP, namely,the reasonableness of the time of trial, havingconsidered the petition, the court decided topartially satisfy it and continue to examine thematerial evidence. In the event of the arrivalof the victims - to resolve the issue of theirinterrogation. As for the combined order, thecourt considers that today it is unacceptable,because they understand that in this case, theywill have to return many times to the study ofthe same evidence, which will lead to a loss oftime.

Monitoring of criminal proceedings ofAlexandr Schegolev (hearing of October16, 2020)

On October 16, 2020, a hearing was held inthe Shevchenko District Court of Kiev in thecase of the ex-head of the Security Service ofUkraine (SBU) of the city of Kiev and theregion, Alexandr Shchegolev, who is accusedof organizing the violent dispersal of protestson February 18-19, 2014.On this day, the term of the measure of

restraint in the form of a personal obligationexpired.

Prosecutor O.O. Suprun has filed a petitionin advance to change the measure of restraintfrom a personal obligation to round-the-clockhouse arrest. The prosecutor O.N. Garkushaarrived at the hearing and read out this peti-tion.

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The prosecution referred to the same risks inthe petition that the ISHR observers had pre-viously described in the case reports, namely:

- to hide from the court:1) since the accused faces a sentence of life

imprisonment, this may induce him to commitactions that are aimed at evading criminal lia-bility. But, the ECtHR notes that the risk ofabsconding cannot be measured only on thebasis of the severity of a possible sentence, atleast for further stages of trial. The risk mustbe assessed taking into account several relevantfactors, in this context should be, in partic-ular, assessed personal data, moral qualities,property associated with the respondent State,in which a person is prosecuted, as well as hisinternational contacts” (paragraph 91 of thejudgment in the case “Miminoshvili v. RussianFederation”).

2) the accused committed the crime (basedon the text of the petition) in complicity withother heads of law enforcement agencies whoare hiding from the court, are on the wantedlist and who have been detained: A. Yaki-menko, V. Totsky and others. The accusedkept in touch with them, and there are realrisks that accomplices may help him abscondfrom court. In the context of the aforemen-tioned, the ECtHR notes that the behavior ofan accomplice in a crime cannot be a decisivefactor in assessing the risk that the accusedwill abscond. Such an assessment should bebased on the personal characteristics of theaccused” (paragraph 70 of the judgment in thecase “Fedorenko v. Russian Federation”).3) earlier the accused lived in Donetsk,

where he held leadership positions and hasstrong social ties that can be used to avoidcriminal liability.

- to destroy or hide evidence that is relevantto criminal proceedings, which means there isa risk of actions that will interfere with theidentification of victims.

- to illegally influence victims and witnesses.Since A. Shchegolev held leading positions, hehas special knowledge and skills. In particular,he can use connections with the SBU, the Min-istry of Internal Affairs of Ukraine and otherstate and law enforcement agencies that can

illegally influence persons interrogated or sub-ject to interrogation as victims or witnesses.At the same time, the prosecutor drew atten-tion to the fact that earlier at the hearings thevictims said that they were afraid of commit-ting illegal actions by A. Schegolev and otherpersons involved in this case.- other way to interfere with criminal pro-

ceedings. The prosecutor indicated that earlierA. Shchegolev had given false testimony, triedto obstruct the clarification of the real circum-stances. The prosecutor drew attention to therepeated violations of the order established inthe court, for which the court made remarksto the accused (for example, at the hearing ofMarch 7, 2019).Therefore, the prosecutor believed that all

the alleged risks continue to exist and may hin-der the effectiveness of the trial. Under suchcircumstances, softer measures of restraint, inhis opinion, cannot provide and give an op-portunity to control the place of stay of A.Shchegolev. The prosecutor indicated that onlya measure of restraint in the form of house ar-rest with the use of a means of control wouldhelp to ensure further consideration of the case.As indicated by the ECtHR, house arrest,

taking into account its degree and duration,is considered a deprivation of liberty withinthe meaning of Art. 5 of the Convention(paragraph 104 of the judgment in the case“Buzadzhi v. Republic of Moldova”). The courtruled that appropriate and sufficient reasonsare necessary for this type of deprivation ofliberty, as in the case of pre-trial detention(paragraph 113).

The lawyer V. Rybin objected to the satis-faction of the petition. He considers that theapplication did not indicate sufficient reasonsfor changing the measure of restraint.It should be noted that the prosecutor in

his petition indicated the same reasons thatwere previously considered by the court. Thecourt has repeatedly come to the decision thatthere is no reason to change the measure ofrestraint. The International Society for HumanRights also notes the fact that A. Schegolevhas been under a personal obligation for a longperiod of time and the prosecution has never

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been able to point out the factual violationsby the accused of his procedural duties, alwaysguided by assumptions.As a result of the hearing, the court ex-

tended the measure of restraint in the formof a personal obligation for another 60 days,that is, until December 12, 2020, and refusedto satisfy the prosecutor’s request.

3.52 The Sheremet case

Pre-trial investigation of the Sheremetcase (court hearings February 2020)

On July 20, 2016, the journalist PavelSheremet was murdered. Сriminal proceedingswere opened on the grounds of a crime underPart 3 of Art. 28, items 5.12, part 2, Art. 115of the Criminal Code of Ukraine (intentionalmurder by an organized group). After almost4 years of pre-trial investigation, 12.12.2019,the suspicion was announced to Y. Dugar (mil-itary paramedic), A. Antonenko (sergeant ofthe Special Operations Forces), Y. Kuzmenko(cardiac surgeon). ISHR experts began moni-toring this criminal proceeding.

The criminal proceedings are at the stage ofpre-trial investigation in the Pechersk districtcourt of Kiev. Issues related to the measure ofrestraint were considered.The prosecutor filed a motion to apply a

measure of restraint in the form of detentionfor A. Antonenko and Y. Kuzmenko, and for Y.Dugar he applied for a round-the-clock housearrest (later changed to a night house arrest).According to the defense, these petitions con-tained only the risks stipulated by the Codeof Criminal Procedure of Ukraine, which werenot justified. So, for example, the prosecutortalked about the examination of video mate-rials from surveillance cameras, which estab-lished the height of the killers, and after thedefense began to use this data to confirm theinnocence of the suspects, since the height ofsuspects differs by an average of 10 cm, theprosecutor spoke as follows: the conclusion wasdrawn that it is generally impossible to estab-lish the height of people when walking and theexpert did not even determine approximately

height.According to the ECtHR, it is necessary to

take into account the quality of the evidence,including whether the circumstances in whichit was obtained raise doubts about their reli-ability or accuracy (“Dzhallokh v. Germany”,para. 96). It is worth noting that this examina-tion was the only evidence that the prosecutoroperated on. The ISHR expresses its concernabout this fact, since it is confident that theapplication of a measure of restraint restrictingfreedom should be supported by evidence thatconfirms the real existence of risks, since theright to liberty is of paramount importance ina democratic society and is guaranteed by theConstitution of Ukraine, the European Con-vention and a number of other internationaltreaties.On February 14, the Pechersky District

Court granted the prosecutor’s motions andextended the measure of restraint to the sus-pects. On February 20, lawyers tried to ap-peal this decision, but the suspects were notbrought from the pre-trial detention center, sothe hearing was adjourned.It is worth noting that, according to the

lawyer Y. Dugar, the burden of proof in thisproceeding rests with the defense, since theprosecutor’s office does not provide new ev-idence of guilt, but only tries to cast doubton the evidence of innocence. For example, incourt, 5 witnesses (2 nurses and 3 military)were interrogated by the defense, who con-firmed the alibi of Y. Dugar and said that inJuly 2016 the latter was in a military hospital.In response to this, the prosecutor stated thatthe testimony should not be regarded as ad-missible, since they interrogated 10 employeesfrom the same hospital who said they did notremember anything about the events of thattime, which means that it was suspicious thatsome remember, and others did not.It is important to note that shifting the

burden of proof from the prosecution to thedefense is an absolute violation of the pre-sumption of innocence (“Telfner v. Austria”,para. 15). ISHR experts believe that not onlythe aforementioned circumstance violates thepresumption of innocence in this criminal pro-

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ceeding, systematic statements in the mediaby law enforcement officials and the executiveregarding the pre-trial investigation and sus-pects, in particular, may also cause a breach ofthe presumption. We emphasize that we do notascertain the fact of the violation, but assumethe possibility of its existence, since the pre-sumption of innocence can be violated not onlyby a judge or court, but also by other state au-thorities (“Allene de Ribemont v. France”, para.36; “Dactaras v. Lithuania”, paragraph 42). Ar-ticle 6, paragraph 2, prohibits statements bystate officials about pending criminal inves-tigations that promote public opinion aboutthe guilt of the accused and predetermine theassessment of the facts by the competent judi-cial authority (“Ismoilov and Others v. Russia”,para. 161; “Butkevichius v. Lithuania”, para.53).In addition, the lawyer Y. Dunar named

the list of violations that he considers werecommitted in relation to his client:

1. Violation of the right to personal freedom(the suspect was detained without a court orderand without drawing up a detention protocol).

2. Violation of the right to defense (lawyersand suspects are not provided with case ma-terials for review). The “means” that any sus-pected of committing a crime must have theability to familiarize themselves with the re-sults of the investigation in preparation fordefense (“Hussein and Others v. Azerbaijan”,para. 175; “Yukos Oil Company v. Russia”,para. 538).It is especially important to note the fact

that today this criminal proceeding causes se-rious resonance in society. The media dailypublishes new information on the position ofthe investigation and defense. The Interna-tional Society for Human Rights believes thatthis media activity can be regarded as a mas-sive campaign against any of the participantsin the trial or aimed at achieving a certaineffect in forming the court’s opinion on thiscase. In this case, there will be a violation ofthe principle of a fair trial. The ECtHR in thecase of “Kuzmin v. Russia”, paragraph 62, em-phasized that an unrestrained press campaigncould have a negative effect on the fairness

of the trial, influencing public opinion. In thecourse of their monitoring, the ISHR expertsrepeatedly faced situations when the court wassubjected to pressure both from the executivebranch and from mass media campaigns (A.Shchegolev’s case, A. Khandrykin’s case, V.Yanukovych’s case, former officers of “Berkut”riot police case, etc.). In the annual report for2018, the ISHR experts identified pressure onthe court as one of the negative trends of theyear.

Why should mass media campaigns be re-garded as one of the levers of pressure on thecourt? Based on the fact that the media actas a kind of regulators of public opinion, theirpublications can lead to the following conse-quences:1. By their publications condemning court

decisions, for example, calling them illegal,they can raise the level of mistrust in the ju-diciary as a whole. The judge of the ECtHR,Anna Yudkovskaya, at the 12th extraordinarycongress of judges of Ukraine noted that oneof the reasons for Ukraine’s leading positionin the number of complaints to the ECtHR isthe mass media campaigns, which put distrustfor the courts in the minds of Ukrainians.

2. Mass publications denigrating a judge ora panel of judges can provoke people certainpeople to take measures that, in their opinion,can change the course of a judicial review.We faced a similar situation in the case of ex-officers of the “Berkut”, when the collegiumchanged measure of restraint for one of theaccused to a lesser measure (detention waschanged to house arrest), the media began tocondemn this decision, and as a result, thepresiding judge was attacked near his home,after which the accused was detained onceagain.

3.53 The trial of Nelia Shtepa

Monitoring of criminal proceedings ofNelia Shtepa (hearing 08.17.20)

On August 17, 2020, in the OrdzhonikidzeDistrict Court of Kharkov, a hearing was heldin the case of Nelia Igorevna Shtepa. She is

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charged with encroachment on the territorialintegrity and inviolability of Ukraine, resultingin the death of people and the creation of aterrorist group or organization (according topart 3 of Article 110, part 1 of Article 258-3of the Criminal Code of Ukraine).The indictment was filed with the Cher-

vonozavodskiy District Court of Kharkov onOctober 31, 2014. However, by the decision ofthe court of appeal dated February 1, 2017,the case was transferred for consideration tothe Kominternovskiy district court of Kharkov,since after satisfying the applications for self-challenge of judge V.A. Ezhov in the Cher-vonozavodskiy District Court of Kharkov itwas impossible to form a new composition ofthe court for the trial due to the insufficientnumber of judges. Accordingly, in the Kom-internovskiy District Court of Kharkov, thecase began to be considered from the stage ofthe preparatory hearing.

Further, by the decision of the Court of Ap-peal of May 26, 2017, the case was transferredfrom the Kominternovsky District Court ofKharkov to the Leninsky District Court ofKharkov. And again, the consideration startedfrom the stage of the preparatory court session.After that, the case was transferred to the

Oktyabrskiy District Court of Kharkov, andthen to Ordzhonikidzevskiy. Thus, the hearingof the case started over 5 times.On October 24, 2019, the European Court

of Human Rights ruled in the case of “Shtepa v.Ukraine” in favor of the accused and found thatUkraine had violated Articles 5 § 3, 6 § 1 of theConvention. The ECtHR also recognized thatthe pre-trial detention, which lasted 3 yearsand 3 months, had no sufficient grounds. Thedomestic courts motivated the decision by theseriousness of the charges, but not by specificfacts (“Shtepa v. Ukraine”, paras. 22, 27).In addition, in paragraph 36 of the judg-

ment in this case, the ECtHR found that thedomestic court did not exercise due diligencein this case. In particular, according to infor-mation provided by the authorities, hearingswere often scheduled at intervals of three tofour weeks, and in six cases hearings were post-poned due to the failure of witnesses to appear

in court. The absence of witnesses led to thefact that the hearing was postponed for a totalof three and a half months.

Regarding the judges’ repeated refusals fromthe case, the ECtHR notes that each refusalled to the reopening of the proceedings fromthe very beginning. Thus, the total delay inthe proceedings was more than seven months.Having examined all the materials submittedto it and in the light of its case-law on this issue,the Court considers that in the present case thelength of the proceedings was excessive and didnot meet the “reasonable time” requirement(“Shtepa v. Ukraine”, paras. 37, 38).

The Ukrainian justice system is riddled withone global problem - the lack of judges. TheNeli Shtepa case is a vivid example of how theunderstaffing of judges can affect the reason-ableness of the length of criminal proceedings.

On July 21, 2020, the Law “On Amendmentsto the Criminal Procedure Code of Ukraineregarding the implementation of criminal pro-ceedings in a court of first instance by a panelof judges” No. 817-IX was adopted, whichamended Article 31 of the Criminal ProcedureCode of Ukraine. Now, criminal proceedings inthe court of first instance in relation to crimesfor the commission of which the punishmentis imprisonment for a term of more than tenyears are carried out collectively by a court ofthree judges only at the request of the accused.

It would seem that a mechanism is envisagedthat should facilitate the consideration of thecase within a reasonable time frame. However,in the case of Nelia Shtepa, the aforementionedprovision, on the contrary, became the basisfor the postponement of the court session untilthe next month.

Thus, one of the judges, G.V. Matvievskaya,at the court session on August 17, 2020, re-cused herself, since the accused did not file amotion to consider the case by a panel of threejudges. The judge acted in accordance withthe law.

The transitional provisions of the above Lawprovide that in criminal proceedings in thecourt of first instance, in which, prior to theentry into force of this Law, the collegiate com-position of the court was determined according

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to the rules in force prior to the entry into forceof this Law, and a preparatory hearing takesplace, but the trial has not yet been sched-uled , the trial in criminal proceedings shall beconducted and completed by the compositionof the court provided for in the light of theprovisions of this Law.The court sessions in the case were con-

stantly postponed, respectively, the case is stillat the stage of the preparatory court session.

It should be noted that the preparatory hear-ing in the Ordzhonikidzevskiy District Courtof Kharkov was appointed by a court decisionas early as March 12, 2018. However, the stageof the preparatory court session has not ended.Thus, the mechanism, which was supposed

to speed up the consideration of complex crim-inal cases, in the case of Nelia Shtepa, on thecontrary, became the reason for the postpone-ment of the court session.During the court session on August 17, it

was not possible to hear the position of theparties regarding such a statement by thejudge, and the parties agreed to postpone thecourt session in order to prepare for the ses-sion. The next court hearing was scheduledfor August 27, 2020, but the same judge, G.V.Matvievskaya, will be on vacation at this time.Thus, the next hearing is scheduled for 04September 2020.The ECtHR observes that Article 6 § 1 of

the Convention imposes on Contracting Statesan obligation to organize their legal systemsin such a way that their courts can complywith each of the requirements of this provision,including the obligation to resolve cases withina reasonable time (“Duklos v. France”, para.55).However, even after the European Court

found a violation of Nelia Shtepa’s right totrial “within a reasonable time”, the accusedcannot exercise her right to receive, within areasonable time, a final decision on the validityof the charges against her.

Monitoring of criminal proceedings ofNelia Shtepa (09.04.2020)

On September 4, 2020, in the OrdzhonikidzeDistrict Court of Kharkov, a hearing was held

in the case of Nelia Igorevna Shtepa. She ischarged with encroachment on the territorialintegrity and inviolability of Ukraine, resultingin the death of people and the creation of aterrorist group or organization.Recall that one of the judges, G.V.

Matvievskaya, at the hearing on August 17,2020, recused herself, since the accused didnot submit a petition to consider the case bya panel of three judges. On July 21, 2020, LawNo. 817-IX was adopted, which amended Art.31 of the Criminal Procedure Code of Ukraine.Now, criminal proceedings in the court of firstinstance in relation to crimes for the commis-sion of which punishment is imprisonment fora term of more than ten years are carried outcollectively by a court of three judges only atthe request of the accused. The transitionalprovisions of Law No. 817-IX provide that incriminal proceedings in the court of first in-stance, in which, prior to the entry into forceof this Law, the collegiate composition of thecourt was determined according to the rules inforce prior to the entry into force of this Law,and a preparatory hearing takes place, andthe trial has not yet been scheduled, the trialin the criminal proceeding is being conductedand completed by the composition of the courtprovided for in the light of the provisions ofthis Law.

On August 4, the question regarding compo-sition of the court in the case was consideredin detail.The defense and the prosecution objected

to the satisfaction of the judge’s applicationfor recusation.The panel of judges considers that the ap-

plication of G.V. Matvievskaya is not subjectto satisfaction, since Art. 75 of the CriminalProcedure Code of Ukraine does not providefor such a basis for self-recusation. In addi-tion, the right to file a motion for the trial byone judge was not explained to Nelia IgorevnaShtepa.During the court session, Nelia Igorevna

Shtepa was explained the changes made tothe Criminal Procedure Code of Ukraine. Theaccused used the right and stated that shedid not insist on the collegial examination of

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the case. A motion was filed with the court’sregistry to hear the case in the compositionof one judge. As a result, the petition wasgranted - the case will be considered by judgeO. Glibko.In addition, at the beginning of the court

session, it was established that new prosecutorshad entered the case - Aleksandr ValerievichChekin and Oksana Valerievna Pavliychuk.

The next court hearing was supposed to takeplace on September 10, 2020. However, thelawyers filed a motion to postpone the hearingas they were engaged in other proceedings.It should be noted that the representatives

of the ISHR monitored 3 court sessions inthe case of Nelia Igorevna Shtepa - 08/17/20,09/04/20, 09/10/2020 The last of them didnot take place for the reasons indicated above,the other two were devoted to considerationof exclusively procedural issues. In fact, theexamination of the case has essentially notadvanced a single step.

The ECtHR holds that the State is respon-sible, under the “reasonable time” aspect ofArticle 6 § 1, for the delay in the delivery ofjudgments by the judges (“McFarlane v. Ire-land”, § 121). However, the length of the pro-ceedings must be assessed in the light of thespecific circumstances of the case, taking intoaccount the criteria set out in the Court’s case-law, in particular the complexity of the case,the behavior of the applicant and the compe-tent authorities, and the importance to theapplicant (“Chiarello v. Germany”, § 45).In this case, court sessions are scheduled

with a frequency of approximately 3 times amonth. Thus, the court is ready to deal effec-tively with the case. Despite the fact that thegroup of prosecutors was replaced, the prosecu-tion is always present at court sessions. How-ever, in spite of the fact that three defendersof the accused are involved in the proceeding,the last court session was postponed preciselyon their initiative.

Monitoring of criminal proceedings ofNelia Shtepa (09.18.2020)

On September 18, 2020, in the OrdzhonikidzeDistrict Court of Kharkov, a hearing was held

in the case of Nelia Igorevna Shtepa. She ischarged with encroachment on the territorialintegrity and inviolability of Ukraine, resultingin the death of people, as well as the creationof a terrorist group or organization.

Previous court sessions were devoted to con-sideration of procedural issues. The interro-gation of witnesses was scheduled at today’shearing. However, it did not take place, be-cause the prosecutor was unable to ensure theappearance of witnesses in court, in the modeof videoconference with which the interroga-tion should take place. The witnesses indicatedthat they were in another city and could notappear at the Slavyanskiy District Court ofthe Donetsk Region.The judge drew attention to the fact that

it is the prosecutor’s office that is responsiblefor taking measures to ensure the appearanceof witnesses, since it was the prosecutor’s of-fice that filed the request for interrogation. Inaddition, during the court session it turnedout that the representatives of the prosecu-tor’s office did not even know in which city thewitnesses were today and where it would beconvenient for them to take part in the inter-rogation, in which court they could come toparticipate in the next court session to conductinterrogation.

It should be noted that in the case of ShtepaNelia, the decision of the European Courtof Human Rights drew attention to the factthat “. . . in six cases the hearings were post-poned due to the absence of witnesses in court.The absence of witnesses led to the postpone-ment of the hearing for a total of three anda half months (at the time of filing the ap-plication with the ECtHR). The Ukrainiangovernment did not indicate whether any mea-sures were taken to shorten the intervals be-tween hearings or to punish absent witnesses”(para. 36 “Shtepa v. Ukraine”). The systematicnon-appearance of witnesses is one of the as-pects of the violation of Art. 6 para. 1 ECHR,established by the ECtHR.

However, positive dynamics can be traced inthe trial. In para. 36 of the “Shtepa v. Ukraine”judgment, the European Court stated that“. . . the role of the national courts is to manage

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their proceedings so that they are prompt andeffective (‘Silin v. Ukraine’, para. 34). However,in the Court’s opinion, the domestic court didnot show due diligence in the Shtepa Nelia case.In particular, according to information pro-vided by the authorities, hearings were oftenscheduled at intervals of three to four weeks.”

To date, court hearings in the OrdzhonikidzeDistrict Court of Kharkov are scheduled sys-tematically. For example, in September thejudge planned to hold 4 court sessions: 09/04;09/10; 09/18; 09/25. Thus, the national court,in the opinion of the ISHR, is trying to com-ply with the decision of the European Courtregarding the need to hold court hearings with-out long interruptions. However, in this case,it is necessary to note the insufficient diligenceof the parties in the case, which does not con-tribute to the effectiveness of judicial proceed-ings. On September 4, the hearing was post-poned because the lawyers were employed inother courts. On September 10, the question ofthe composition of the court was decided, thecase was not considered in essence. September18 is the date of the current court session; theprosecutor did not ensure the attendance ofwitnesses. On September 25, the hearing willnot take place, since the lawyer MarchenkovD.I. is participating in the elections (runningfor the mayor’s office) and he needs to go tothe Central Election Commission.

The European Court indicates that it con-siders the State to be responsible under the“reasonable time” aspect of Art. 6 for the delayin the delivery by the judges of their decisions(“McFarlane v. Ireland”, para. 121).

In this case, the state is responsible for thedelay in the delivery of decisions because ofthe prosecution’s actions. Since the ECtHRnotes that in criminal cases the whole issue ofcollecting evidence must be examined in thelight of Art. 6 of ECHR and requires, interalia, that the burden of proof lies with theprosecution. (“Barbera, Mesigue and Jabardotv. Spain”, paras. 76-77).

Monitoring of criminal proceedings of NeliaShtepa (hearings 10.07.2020, 10.16.2020)

On October 7 and 16, 2020, two court hearingsin the case of Nelia Shtepa were supposed totake place in the Ordzhonikidze District Courtof Kharkov. She is charged with encroachmenton the territorial integrity and inviolability ofUkraine, resulting in the death of people andthe creation of a terrorist group or organiza-tion.The hearing did not take place on October

7th, since the judge - Glibko O.V. was onsick leave. And on October 16th, the defenseside already filed a motion to postpone thehearing, referring to the introduction of strictquarantine (red zone in Kharkov).

It should be noted that in the case of ShtepaNelia, the representatives of the ISHR are al-ready monitoring the 7th court session (08.17,09.04, 09.10, 09.18, 09.27, 10.07 and 10.16).Three of the designated hearings actually tookplace but were devoted exclusively to proce-dural issues. The remaining four did not takeplace for a variety of reasons - the involvementof lawyers in other criminal proceedings, theinvolvement of the accused (Shtepa Nelia isrunning for the post of mayor of the city ofSlavyansk, and she had to go to the CentralElection Commission), a hospitalization of ajudge and the introduction of strict quaran-tine (postponement on the initiative of thedefense).Thus, hearings in this case are more often

rescheduled than occurring.The ECtHR reiterates that it holds the State

responsible under the “reasonable time” aspectof Art. 6 for the delay in the delivery by thejudges of their decisions (“McFarlane v. Ire-land”, § 121). However, the length of the pro-ceedings must be assessed in the light of thespecific circumstances of the case, taking intoaccount the criteria set out in the ECtHR’scase-law, in particular the complexity of thecase, the behavior of the applicant and thecompetent authorities, and the importance tothe applicant. (“Chiarello v. Germany”, § 45).

The representatives of the ISHR believe thatthe responsibility for considering a case withina reasonable time in this case cannot be as-

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signed only to the state. As we can see, thepostponement of three of the four analyzedsessions took place on the initiative of the de-fense.

Monitoring of criminal proceedings ofNelia Igorevna Shtepa (11/23/2020)

On November 23, 2020, the OrdzhonikidzeDistrict Court of Kharkov heard the case ofN.I. Shtepa. She is charged with encroachmenton the territorial integrity and inviolability ofUkraine, resulting in the death of people andthe creation of a terrorist group or organiza-tion.Earlier, the court session was repeatedly

postponed. One of the reasons for the post-ponement was that the defendant was sick andtested positive for Covid-19. At the beginningof the trial, she provided the court with medi-cal documents confirming this fact.The court session on November 23, 2020

began with the interrogation of the witnessA.V. Pivovar using video communications.

It is worth noting that the court has notyet moved on to the examination of evidenceand the witness was interrogated as part ofthe consideration of the issue of applying ameasure of restraint.

Earlier, the prosecution filed a petition to ap-ply a measure of restraint against N.I. Shtepa- partial house arrest.

At the hearing, witness A.V. Pivovar statedthat N. I. Shtepa and her lawyers were ex-erting pressure on him. During his stay inthe pre-trial detention center in 2017, the wit-ness wrote a statement to the prosecutor’soffice that he received threatening letters andpressure was being exerted. Representativesof the Security Service of Ukraine (SBU),in agreement with the accused, threatenedthe witness’s wife. In addition, he indicatedthat, through another witness, the defendant’slawyer sought to meet with A.V. Pivovar. Butthe witness did not accept such an offer.The defendant’s lawyer A.V. Tatanakin

filed a letter to the court from the Bakhmut-skiy Penitentiary Institution that witness A.V.Pivovar during his stay in the institution didnot receive or send correspondence.

In addition, the lawyer D.I. Marchenkoasked the court to attach to the case mate-rials an extract from the Unified Register ofPre-trial Investigations that N.I. Shtepa asksto take measures and bring to justice A.V.Pivovar for knowingly giving false testimony.

N.I. Shtepa indicated that earlier, when de-ciding on the application of a measure of re-straint, the Leninsky District Court of Kharkovhad already interrogated A.V. Pivovar, tookinto account his testimony and changed themeasure of restraint from detention to housearrest.

In accordance with paragraph 1 of Art. 177of the Criminal Procedure Code of Ukraine,a measure of restraint, among other things,is applied to prevent attempts to influencewitnesses. On this point, the ECtHR stated:as regards the possibility of putting pressureon witnesses, the Court reiterates that thedomestic courts must show that during the rel-evant period of the applicant’s detention therecontinued to be a substantial risk of intimida-tion of witnesses, it is not enough to rely onlyon some abstract possibility, not supportedby any evidence. The Court must also ana-lyze pertinent factors such as progress in theinvestigation or proceedings, the applicant’spersonality, his behavior before and after ar-rest, as well as any other specific factors tojustify the risks posed by him being able toabuse his returned freedom by acting for thepurpose of falsifying or destroying evidence,or putting pressure on victims (“Sokurenko v.The Russian Federation”, paragraph 88).

The International Society for Human Rightsbelieves that in the case of N.I. Shtepa, the rep-resentatives of the Prosecutor’s Office have se-riously approached the substantiation of theirposition on the need to apply a measure of re-straint - partial house arrest. The prosecutiondefends the position that N.I. Shtepa unlaw-fully influences the witnesses.

In addition, the prosecution insisted on theinterrogation of the witness - the wife of A.V.Pivovar. At the court hearing on November23, 2020, she could not come for interrogation,since she could not leave work.

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3.54 The trial of Ivan Shurman

Monitoring of the case of Shurman IvanVladimirovich (session of 11.03.2020)

On November 03, 2020, a hearing was heldin the Berdichev City District Court of theZhytomyr Region on the case of Shurman I.He is accused of murdering a woman and ischarged with paragraph 7 of part 2 of article115 of the Criminal Code of Ukraine.

On July 5, 2018, a 37-year-old woman wasbrutally murdered in Berdichev when she wentout to walk the dog. Shortly after the womanleft the apartment, she was found with a slitthroat and multiple stab wounds. Two dayslater, Shurman I., a 15-year-old teenager, wasarrested and was suspected of committing thiscrime. At present, less than half of the wit-nesses have been questioned in the case. Dur-ing interrogations, a large discrepancy is seenin the testimony and time of events. Most ofthe evidence does not confirm the involvementof the accused in the crime and characterizeshim from a positive side.

The defendant’s lawyer Krivoruchko L., didnot appear at the hearing and filed a motionto postpone the trial due to the deterioratinghealth condition. She insists that the consid-eration of the case should not be carried outwithout her presence, because according toparagraph 1 of part 2 of Article 52 of theCriminal Procedure Code of Ukraine, the par-ticipation of a defense attorney in criminalproceedings against persons accused of com-mitting a criminal offense under the age of 18is mandatory.In addition, the composition of the panel

of judges was incomplete due to the fact thatjudge Vdovichenko T. was on sick leave.

It is worth paying attention to the fact thatthe situation with court hearings, which arepostponed or held by an incomplete collegium,since the judges are ill, is not unique. The In-ternational Society for Human Rights is facedwith such a problem in many criminal proceed-ings: the case of Shtepa N., the case of MelnikA., Kryzhanovsky A., Kunik I. and others.

At the court session on 11.03.2020, it wasplanned to consider the following issues: 1) on

the possibility of continuing the considerationof the case with such a composition of thecourt and its participants - all the participantsexpressed their opposition; 2) on the advisabil-ity of extending the measure of restraint tothe accused.

The prosecutor and other participants in thecriminal proceedings objected to consideringthese issues without the defense. It should benoted that recently the ISHR faced an exten-sion of the measure of restraint without the par-ticipation of defenders (the case of Filtsev A.),despite such a discrepancy between the court’sdefinition and the norms of the CCP, the ap-pellate court left such a decision unchanged,and the complaint of Filtsev’s defenders wasdismissed. That can undoubtedly create anunofficial precedent in non-observance of theright to defense in Ukrainian courts.

In accordance with Part 1 of Article 53 of theCriminal Code of Ukraine, the court is obligedto involve a defense attorney to conduct aseparate procedural action in the manner pre-scribed by Article 49 of this Code, exclusivelyin urgent cases when there is a need to conducta procedural action with the participation ofa defense lawyer, and a previously notified de-fense lawyer cannot come to participate in theprocedural action or ensure the participationof another defense lawyer.The judge made a decision to involve a de-

fense lawyer from the Legal Aid Center toresolve the issue of extending the measure ofrestraint for Shurman I.According to Part 3 of Article 331 of the

Code of Criminal Procedure of Ukraine, re-gardless of the availability of petitions, thecourt is obliged to consider the expediency ofcontinuing the detention of the accused untilthe expiration of a two-month period from thedate the indictment was filed with the courtand the petition to apply a measure of restraintin the form of detention against the accused.

In accordance with paragraph 5 of part 20-5of section XI of the “Transitional Provisions”of the Criminal Procedure Code of Ukraine,temporarily, for the period of quarantine estab-lished by the Cabinet of Ministers of Ukraine(Resolution of the Cabinet of Ministers of

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Ukraine No. 641 dated 07.22.20 as amendedin accordance with Resolution No. 956 dated10.13. 20) in order to prevent the spread ofcoronavirus disease (COVID-19) on the terri-tory of Ukraine, if it is impossible for a panelof judges to consider an application for an ex-tension of a measure of restraint in the form ofdetention in the period specified by this Code,it may be considered by the presiding judge.

The measure of restraint ends on November14, 2020. The next court session is scheduledfor November 24, 2020. This means that thechairman needs to consider the issue of extend-ing the measure of restraint on November 3,2020.

A lawyer from the Secondary Legal Aid Cen-ter arrived at the hearing. As a result of theexamination, the court, having heard the opin-ions of the participants, extended the detentionof Shurman I. for another 60 days.So, the accused was elected a measure of

restraint in the form of detention on July 09,2018, and subsequently the period of deten-tion was constantly extended, most recentlyon September 16, 2020. The risks indicated inthe prosecutor’s petition remained the sameas the previous times (all that are providedfor in Article 177 of the Criminal ProcedureCode of Ukraine).In a decision of September 16, 2020, the

court indicated: currently, Shurman I., alreadyin this trial, continues to be accused of com-mitting an especially grave violent crime. Thesanction of the article, which provides for crim-inal liability for the crime of which ShurmanI. is accused, provides for punishment in theform of imprisonment for a term of 10 to 15years or life imprisonment with confiscation ofproperty in the case provided for in paragraph6 of part 2 of this article. When consideringthe prosecutor’s petition, it was essentiallyestablished that the state of health of the ac-cused (according to the data available to thecourt), property status, strength of his socialties, his characteristics have not changed (agehas changed upward), which indicates thatthere is no risk reduction, in this part charac-terizing this person.In the context of the mentioned above, the

International Society for Human Rights cannotbut draw attention to the fact that the prac-tice of the ECtHR has an absolutely oppositevector.

The ECtHR has repeatedly noted that theseverity of the charge cannot in itself justifylong periods of detention (“Ecius v. Lithuania”,para. 94).According to paragraph 3 of Article 5 of

the Convention, after a certain period of time,only the existence of reasonable suspicion doesnot justify the deprivation of liberty, and thecourts must give other grounds for extendingthe detention (“Borisenko v. Ukraine”, para.50). Moreover, these grounds must be clearlyindicated by the national courts (“Yeloyev v.Ukraine”, para. 60; “Kharchenko v. Ukraine”,para. 80).

The existence of a reasonable suspicion thatthe detainee has committed a crime is a prereq-uisite and sine qua non for the legality of hiscontinued detention, but after the expirationof the time, such suspicion will not be enoughto justify a prolonged detention. The courthas never tried to translate this concept into aclearly defined number of days, weeks, monthsor years, or at different times depending on theseverity of the crime. Once “smart suspicion”is no longer sufficient, the court must establishother court-based grounds that will continueto justify the deprivation of liberty (“Maggieand Others v. The United Kingdom”, paras.88-89).

The Court also recalls that the grounds forsuspicion remain unchanged. If the arrestedperson has committed an offense, this is a sinequa non condition for his continued detentionto be considered lawful, but after a while thiscondition is no longer sufficient. The Courtmust then establish other reasons on whichthe decisions of the judicial authorities arebased, which continue to justify the depriva-tion of liberty. If these grounds are found to be“appropriate” and “sufficient”, then the Courtshall examine whether the competent nationalauthorities have shown “special good faith”in the conduct of the proceedings (“Labita v.Italy”, para. 153).

In the context of the above positions of the

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European Court, it is necessary to analyze thecourt’s decision of 11.03.2020 for the purposeof whether the grounds for extending the termof detention have changed.

As a result of the analysis, it was establishedthat the past and current decisions are iden-tical in substantiating the court’s position onthe need to extend the terms of detention.The court often found a violation of para-

graph 3 of Article 5 of the Convention in caseswhere the domestic courts continued detention,referring mainly to the gravity of the chargesand using formulaic language, without evenconsidering specific facts or the possibility ofapplying alternative measures (“Kharchenko v.Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”,para. 59).Thus, the International Society for Human

Rights is concerned that prolongations of de-tention may be automatic.

Monitoring of the case of Shurman IvanVladimirovich (session of 11.24.2020)

On November 24, 2020, the Berdichevsky CityDistrict Court of the Zhytomyr Region con-tinued to consider the criminal proceedings inthe case of I.V. Shurman, who is accused ofthe brutal murder of a woman and is chargedwith paragraph 7 of part 2 of article 115 of theCriminal Code of Ukraine.

The court session was attended by the pros-ecutor, the legal representative of the accused,one of the victim’s lawyers and the victimhimself.From the defender L. Krivoruchko, a peti-

tion was received to participate in the courtsession by videoconference due to the spreadof coronavirus disease in Ukraine. Accordingto the prosecutor, this ground is valid and,moreover, the possibility of video broadcastingis provided for by paragraph 1 of part 1 ofarticle 336 of the Criminal Procedure Code ofUkraine.At the hearing, the problem of the non-

appearance of witnesses from the prosecutionwas raised. The court claims that it is takingall the necessary steps to ensure that they arepresent. The prosecutor insisted on bringingin adult witnesses to testify in the courtroom.

The International Society for Human Rightsbelieves that the absence of witnesses is one ofthe reasons for the lengthy criminal proceed-ings.

On November 24, 2020, the court was forcedto postpone the consideration of the case untilnext month.

With regard to this issue, the ECtHR meansthat the judge of the national court is obligedto decide whether or not a witness is requiredto appear in court (“Brickmont v. Belgium”,para. 89).In addition, the ECtHR recalls that all ev-

idence must be examined in open proceed-ings in the presence of the accused in order toensure the adversarial nature of the process(“Krivoshapkin v. Russia”, para. 51).

The fundamental requirement, in accor-dance with paragraph 1 and subparagraph (a)of paragraph 3 of article 6, will be a validopportunity for the accused to challenge thetestimony against him and to question the wit-ness, either at the time of the testimony orlater (“Van Mechelen and Others v. the Nether-lands”, para. 51; “People v. Switzerland”, para.49). Although there are exceptions to this prin-ciple, they should not violate the rights of thedefense. If the impossibility of questioning wit-nesses or obtaining the right to question themis due to the fact that they are absent or other-wise unavailable, the authorities should makereasonable efforts to ensure their presence atthe trial (“Bonev v. Bulgaria”, para. 43).

The International Society for Human Rightsis concerned that in the I.V. Shurman case, theabsence of witnesses has a negative impact on areasonable time frame for criminal proceedings.Recall that on July 09, 2018, the accused wasplaced in custody. The ECtHR often consid-ered cases of violation of reasonable time limitsin cases against Ukraine and indicated thatthose accused in criminal proceedings shouldhave the right to have the proceedings in theircase carried out with particular care, espe-cially in the case of any restriction of freedomfor a period until the end of the proceedings(“Doroshenko v. Ukraine”, para. 41).

The provisions of article 6 of the EuropeanConvention on Human Rights indicate that

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accused persons cannot remain in the darkabout their fate for too long (“Nakhmanovichv. Russia”, para. 89, “Ivanov v. Ukraine”, para.71).

In the opinion of the ECtHR, “by requiringthe consideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delay,which may jeopardize its effectiveness and cred-ibility” (“Vernillo v. France”, para. 38).

Monitoring of the case of I.V. Shurman(hearing dated 12/14/2020)

On December 14, 2020, the Berdichevsky CityDistrict Court of the Zhytomyr Region con-tinued to consider the criminal proceedings inthe case of Ivan Shurman, who is accused ofmurdering a woman and is charged with para-graph 7 of part 2 of article 115 of the CriminalCode of Ukraine (premeditated murder with ahooligan motive).The prosecutor, representatives of the vic-

tims, the victims themselves, the legal rep-resentative of the accused and two witnessesattended this hearing.

From the defender L. Krivoruchko a petitionwas received with a request to postpone thehearing, since she was at another hearing atthat time. In the petition, the lawyer notedthat the refusal to postpone the hearing was aviolation of Art. 6 of the Convention, namelythe right to defense.

As a reminder, the right of a person accusedof a crime to be effectively defended by a lawyeris one of the fundamental characteristics of afair trial (“Salduz v. Turkey”, para. 51).Further, the court raised the question of

whether it was possible to continue consideringthe case without the participation of a defenseattorney, to which the prosecutor indicatedthat if there was a petition from defense coun-sel L. Krivoruchko, they could not continuethe consideration of the case.The prosecutor also mentioned that last

time she petitioned to bring one of the wit-nesses, since the girl (witness) does not respondto summons. Regarding the non-appearanceof witnesses, the ECtHR notes that the ques-tion of the existence of a valid reason for the

non-appearance of a witness must be consid-ered before it is determined whether such ev-idence is the only one or is decisive. If thewitness did not appear in person to testify, itis imperative to establish the justification forhis absence (“Al-Kawaya and Taheri v. TheUnited Kingdom”, para. 120; “Gabrielyan v.Armenia”, paras. 78, 81-84). But, accordingto the prosecutor, the reasons why some wit-nesses do not regularly attend hearings areunknown. According to paragraph 1 of part 2of article 66 of the Criminal Procedure Code ofUkraine, the witness is obliged to arrive whensummoned by the prosecutor or the court.

In addition, the prosecutor filed a petition toextend the measure of restraint to the accused,but since such a petition could not be consid-ered without the presence of a lawyer, it be-came necessary to apply to the Center for theProvision of Free Legal Aid to attract a lawyerto one court session, as it became necessary toresolve this issue. According to paragraph 20-5of section XI of the “Transitional Provisions”of the Criminal Procedure Code of Ukrainefor the period of quarantine established bythe Cabinet of Ministers of Ukraine (Resolu-tion of the Cabinet of Ministers of UkraineNo. 641 dated 07.22.20) in order to preventthe spread of coronavirus disease (COVID-19)on the territory of Ukraine, if it is impossiblefor the panel of judges to consider a petitionfor the extension of a measure of restraint inthe form of detention, it may be consideredby the presiding judge. The urgency of extend-ing the measure of restraint, which expiredon January 3, 2021, is justified by the factthat the presiding judge is planning a vaca-tion, and in January, the Cabinet of Ministersof Ukraine introduces a full lockdown in thecountry, therefore, it is impossible to appointanother hearing in the coming days until Jan-uary, and those the question is necessary sincethe next hearing will take place in February2021.

A little later, lawyer V. Dudnik from theFree Legal Aid Center appeared and after abreak the court continued to consider the is-sues.Another prosecutor arrived for the second

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part of the session and read out a motion tobring witnesses, which was already mentionedearlier. The defense attorney indicated that hecould not object to the prosecutor’s petition ifthere were grounds for the need for such a pro-cedural action. As you know, the witness didnot come to the court session when summoned,without informing the reasons for failure to ap-pear, the time and place of the court sessionwas duly reported. The prosecutor considersit necessary to force the witness to attend thecourt session. Other participants supportedthe prosecutor’s motion.

Considering that the appearance of a witnessat the hearing to clarify all the circumstancesis mandatory and the court cannot considercriminal proceedings without interrogating her,for the purpose of prompt consideration of thecriminal proceedings, the court considers it aneffective measure of coercion under Art. 139of the Criminal Procedure Code of Ukraine –enforcing appearance.

Observers of the ISHR have more than oncepaid attention and are concerned that the con-stant extension of a measure of restraint in theform of detention, without sufficient grounds,may be automatic, which is also observed inthe cases of Melnik , Zolotarev, and many oth-ers, where prosecutors constantly refer onlyto the gravity of the charge and to the factthat the risks they previously identified arenot diminishing.Regarding the reference to the seriousness

of the charges as the main reason for the ex-tension of the detention period, the ECtHRhas repeatedly acknowledged that this argu-ment does not in itself constitute a basis forprolonged detention. While the severity of thecharges is an essential element in assessing thethreat of escape and re-committing a crime,the further need to restrict freedom cannotbe justified by the severity of the crime alone.Also, the extension of the period of detentioncannot be used as a punishment in the formof imprisonment. This is especially true insuch cases . . . where the legal qualification ofthe crime and, as a consequence, the chargesagainst the applicant were determined by theprosecution without a judicial assessment of

the question, whether the collected evidence isindeed grounds for believing that the suspectcommitted the crime imputed to him (“EvgenyKuzmin v. Russian Federation”, para. 30).

As a result of the hearing, the court grantedthe prosecutor’s petition, continued the mea-sure of restraint in the form of detention, as itsees no reason to change the measure, referringto the fact that the risks did not cease to exist.Regarding the defense, the judge noted thatthe proceedings actually did not continue dueto the systematic failure to appear of defensecounsel Krivoruchko, her constant groundlessmotions, and because of this, the court couldnot complete the examination of the evidenceand draw conclusions on the case (witnessesfor the defense appeared at this hearing, sincethere was no lawyer, it was not possible tointerrogate them). The European Court of Hu-man Rights notes that the right of a personaccused of a crime to be effectively defendedby a lawyer is one of the fundamental char-acteristics of a fair trial (“Salduz v. Turkey”,para. 51).

3.55 The trial of VitaliySobenko and others

Monitoring of the case of Vitaliy Sobenkoand Arthur Melnikov (session 01.29.20)

01/29/2020 in the Frankovskiy district courtof the city of Lvov a criminal case No.12014140080002713 was examined on chargesof Sobenok Vitaliy and Melnyk Arthur in com-mitting a crime under Part 2 of Article 186 ofthe Criminal Code of Ukraine “Robbery withthe use of violence not dangerous to the lifeor health of the victim, or with the threat ofsuch violence, or committed repeatedly, or byprior conspiracy by a group of persons”.

The accused V. Sobenko, his legal represen-tative Sobenko Elena, the defendant’s lawyer,Oleg Ivanov, the prosecutor of the Lvov cityprosecutor’s office No. 3, Yulia Germanovich,arrived at the hearing.Accused Melnikov A. and his legal repre-

sentative at the hearing did not arrive. Thelawyer of the accused A. Melnikov at the hear-

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ing also failed to appear. They did not reportthe reason for their failure to appear to thecourt. No requests were received from themeither. In addition, the victim, Sekh Arsen, didnot arrive at the hearing; he did not explainthe reason for the failure to appear.

Prosecutor Germanovich Yu. filed a motionto postpone consideration of the case in con-nection with the failure to appear of the par-ticipants in the trial, namely the accused Mel-nikov A., his lawyer, as well as the victim SekhA., whose presence is mandatory.

The defendant Sobenko V., his legal repre-sentative and lawyer Ivanov O. at the hearingsupported the request of the prosecutor Ger-manovich Yu. The court granted this requestand, in this connection, postponed the con-sideration of the criminal proceedings on thecharge of Sobenko V. and Melnikov A.

It should be recalled that the case is at thepreparatory stage since 2014.According to the lawyer of V. Sobenko -

O. Ivanov, this judicial proceeding violatedclause 1 of Article 6 of the Convention for theProtection of Human Rights and FundamentalFreedoms, namely the right to a trial by acourt within a reasonable time.

The International Society for Human Rightsalso believes that the inability to complete thepreparatory hearings since 2014 has signs of aprotracted process. According to the decisionof the ECtHR in the case of “Nechiporuk andYonkalo v. Ukraine”, the court notes that themoment from which article 6 begins to applyto “criminal” matters depends on the circum-stances of the case. The leading place in ademocratic society to a fair trial is promptingthe Court to give preference to the “substan-tive” rather than the “formal” concept of “pros-ecution”, referred to in paragraph 1 of Article6 of the Convention. In addition, the ECtHRjudgment in the “Vergelsky v. Ukraine” casestates that the reasonableness of the length ofthe proceedings should be assessed in the lightof the specific circumstances of the case andtaking into account criteria such as the com-plexity of the case, the conduct of the applicantand the relevant authorities. Furthermore, theCourt insists that a person accused of a crime

should not be in an uncertain state of his fatefor too long.

3.56 The trial of Sorokin andSorokin

Monitoring of the case of Sorokin SergeyVladimirovich, Sorokin VladimirViktorovich (session on April 30, 2020)

04/30/2020, in the Shevchenkovsky DistrictCourt of the city of Lvov, a criminal case wasexamined in case number 12019140090003025on charges of Sorokin Sergey Vladimirovichand Sorokin Vladimir Viktorovich of commit-ting a crime under Part 4 of Art. 187 of theCriminal Code of Ukraine (robbery aimed atseizing property on a large or especially largescale or committed by an organized group, orcombined with causing grievous bodily harm).

The criminal proceedings are examined col-lectively, composed of three judges: Baeva A.I.,Eder P.T., Glinskaya D.B. The trial in this casewas scheduled for 2:30 pm and began 30 min-utes late. The International Society for HumanRights begins monitoring this case.The course of the hearing. At the hearing

the prosecutor Petlyovany D. I. filed a mo-tion to extend to the accused Sorokin Sergeyand Sorokin Vladimir measures of restraint inthe form of detention for 60 days, referringto the risks under paragraphs 1, 3, 5 of Part1 of Art. 177 Code of Criminal Procedure ofUkraine. The prosecutor argued that the defen-dants could try to hide from the court, illegallyinfluence witnesses, commit another criminaloffense, or continue to engage in criminal ac-tivity, hi asked the court to satisfy requestwithout the possibility of making a bail.

The representative of the victim, lawyerGolen I.R. supported the request of the prose-cutor.The lawyer of the accused Sorokin S.V. -

Dolya R. B. objected to the request of theprosecutor, paying attention to the fact thatthe risks referred to by the prosecutor for theextension of the measure of restraint are thesame as those cited by the prosecution forthe election of such a measure. According to

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attorney Dolya R.B., in order to extend thepreviously selected measure of restraint to theaccused, the risks indicated by the prosecutormust be substantiated and supported by evi-dence. He considers that there are no groundsfor extending the measure of restraint in theform of detention.

As the European Court has repeatedly notedin its decisions, when raising the question ofextending a measure of restraint, not only therisks that existed at the time the measure ofrestraint was taken should be given, but alsonew risks that could affect in any way thecircumstances referred to by the prosecutor.

According to paragraph 3 of Art. 5 of theConvention after a certain period of time, themere existence of a reasonable suspicion doesnot justify the deprivation of liberty, and thecourts must give other reasons for the exten-sion of detention (“Borisenko v. Ukraine”, para.50). Moreover, these grounds must be clearlyindicated by the national courts (“Eloev v.Ukraine” para. 60, “Kharchenko v. Ukraine”para. 80).

The lawyer of the accused Sorokin V.V. -Zhivko O. B. also objected to the petition ofthe prosecutor. The defense counsel believesthat in his application the prosecutor relieson his own assumptions, without citing anyarguments or facts.

The ECtHR often found a violation ofparagraph 3 of Art. 5 of the Convention incases where national courts continued deten-tion of the accused, referring mainly to thegravity of the charges and using “standard”language, without even considering specificfacts or the possibility of alternative mea-sures (“Kharchenko v. Ukraine”, pp. 80-81;“Tretyakov v. Ukraine ”para. 59).

Defendants Sorokin S.V. and Sorokin V.V.supported the opinion of their defenders.

The court, having conferred, decided to sat-isfy the prosecutor’s request by extending thedetention for 60 days.

Monitoring of the case of Sorokin SergeiVladimirovich, Sorokin VladimirViktorovich (hearing on June 22, 2020)

On June 22, 2020, the Shevchenkovsky Dis-trict Court of the city of Lvov consid-ered the case in criminal proceedings num-ber 12019140090003025 on charges of SergeiVladimirovich Sorokin and Vladimir Vik-torovich Sorokin of committing a crime underPart 4 of Article 187 of the Criminal Code ofUkraine (robbery aimed at seizing propertyon a large or especially large scale, or commit-ted by an organized group, or combined withcausing grievous bodily harm).

The criminal proceedings are considered col-legially, consisting of three judges: A.I. Bayeva,P.T. Eder, D.B. Glinskaya. The hearing on thiscase was scheduled for 2:30 pm, and began witha delay of 10 minutes. The International So-ciety for Human Rights continues to monitorthis case.The course of the hearing. At the hearing,

the prosecutor Petlevaniy D.I. filed a petitionto extend for the accused Sergei Sorokin andVladimir Sorokin the measure of restraint inthe form of detention for a period of 60 days,referring to the risks provided for in paragraphs1, 3, 5 p. 1 of Article 177 of the CriminalProcedure Code of Ukraine. The prosecutormotivated by the fact that the accused maytry to hide from the court, unlawfully influencewitnesses, commit another criminal offense, orcontinue to engage in criminal activity. Heasked the court to satisfy his request withoutthe possibility of posting bail. According tothe prosecutor, a number of written evidencesconfirming the guilt of the accused Sorokinswere examined at the hearing.

The lawyer of the accused Sorokin S. V. -Dolya R. B. objected to the prosecutor’s re-quest. He emphasized that his client had ad-mitted his guilt, however, the evidence referredto by the prosecutor for extending the mea-sure of restraint in the form of detention isinadequate and asked the court to pay spe-cial attention to this. In the opinion of theECtHR, the quality of the evidence must betaken into account, including whether the cir-cumstances under which it was obtained raise

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doubts about its reliability or accuracy (“Jal-loha v. Germany”, para. 96).

The defendant’s lawyer Sorokin V.V. - O.BZhivko also objected to the prosecutor’s peti-tion. According to the lawyer, the risks referredto by the prosecutor are not substantiated.The risk that the suspect would obstruct theproper conduct of the pre-trial investigationcannot be assessed in the abstract, but mustbe supported by factual evidence (“Bekchievv. Moldova”, para. 59).

The defense asks not to apply measure ofrestraint in the form of detention, but applyit in the form of a personal obligation. Thedefendants’ lawyers asked the court to refuseto satisfy the prosecutor’s petition to extendthe measure of restraint for the accused in theform of detention.

Accused Sorokin S.V. and Sorokin V.V. sup-ported the opinion of their defenders.

The court, after consulting, decided to grantthe prosecutor’s request, extending the deten-tion for 60 days.

Monitoring of the case of Sorokin SergeiVladimirovich, Sorokin VladimirViktorovich (hearing 08/31/2020)

On August 31, 2020, in the ShevchenkivskyDistrict Court of Lvov, a case was con-sidered in criminal proceedings number12019140090003025 on charges of SergeiVladimirovich Sorokin and Vladimir Vik-torovich Sorokin of committing a crime underPart 4 of Article 187 of the Criminal Code ofUkraine (robbery aimed at seizing propertyon a large or especially large scale, or commit-ted by an organized group, or combined withcausing grievous bodily harm).

The criminal proceedings are considered col-legially, consisting of three judges: A.I. Bayeva,P.T. Eder, D.B. Glinskaya. The hearing in thiscase was scheduled for 11:00 am and beganalmost an hour late. The International Societyfor Human Rights continues to monitor theobservance of the right to a fair trial in thiscase.

The course of the hearing. At the hearing theprosecutor Kravchik R.R. filed a petition forthe extension of the measure of restraint in the

form of detention for a period of 60 days, refer-ring to the risks provided for in paras. 1, 3, 5part 1 of Article 177 of the Criminal ProcedureCode of Ukraine. The prosecutor motivatedit by the fact that the accused could try toescape from the court, unlawfully influencewitnesses, commit another criminal offense, orcontinue to engage in criminal activity, askedthe court to satisfy his request without thepossibility of posting bail.

The lawyer of the accused V.V. Sorokin -O.B. Zhivko, objected to the prosecutor’s mo-tion. According to the defense attorney, allthe requests of the prosecutor are identical.For seven months, the prosecutor has not pro-vided any other evidence for the detention ofthe accused. The ECtHR has often found aviolation of paragraph 3 of Article 5 of theConvention in cases where domestic courtscontinued detention, referring mainly to thegravity of the charges and using formulaic lan-guage, without even considering specific factsor the possibility of applying alternative mea-sures (“Kharchenko v. Ukraine”, paras 80-81;“Tretyakov v. Ukraine”para. 59).

The lawyer of the accused S.V.Sorokin – R.B.Dolya, also objected to the prosecutor’s motion.According to the lawyer, the risks referred toby the prosecutor are not substantiated. Therisk that the suspect would obstruct the properconduct of the pre-trial investigation cannot beassessed in the abstract but must be supportedby factual evidence (“Bekchiev v. Moldova”,para. 59).

The defense asked not to apply the measureof restraint in the form of detention, but toreplace it with a personal obligation. The de-fendants’ lawyers asked the court to refuse tosatisfy the prosecutor’s request to extend themeasure of restraint for the accused.

Accused Sorokin S.V. and Sorokin V.V. sup-ported the position of their defenders.

The court, after consulting, decided to grantthe prosecutor’s request, extending the deten-tion for 60 days.

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3.57 The trial of NikolaiSorokopud and others

Monitoring of criminal proceedings ofSorokopud Nikolai Alexandrovich,Omelyanyuk Nikolai Vladimirovich(December 23, 2020)

12/23/2020 in the Lutsk City District Courtof the Volyn region with the participation ofJudge Artysh Ya.D. a court hearing was held incase No. 161/3455/18 on charges of SorokopudN.A. and Omelyanyuk N.V. in the commissionof a criminal offense under Part 3 of Art. 368of the Criminal Code of Ukraine - “acceptanceof an offer, promise or receipt of an unlawfulbenefit by an official”. According to the versionof the investigation, the defendants, who weremembers of the attorney qualification commis-sion, back in 2017 received a bribe of morethan 2,000 dollars for successfully passing ofthe bar qualification exam.

Before starting the consideration of the case,the judge indicated that a preliminary breakwas announced in connection with the satis-faction of requests from the public, journalistsregarding an open consideration of this caseand setting up the broadcast on the officialwebsite of the “Judicial Power of Ukraine”.

The lawyer of the defendant Sorokopud N.A.asked the court to attach to the case a num-ber of evidence proving the innocence of hisclient, namely: information about the tele-phone calls of Sorokopud N.A. in the periodfrom 09.17.2017 to 09.28.2017; informationfrom the Internet regarding a certain accountto which the accused had access; the declara-tion of the applicant in the case - police officerKhomyuk S.P. for 2016-17; personal character-istics of Sorokopud N.A., issued by the Head ofthe National Bar Association of Ukraine, theBar Council of Ukraine. The court admittedthis evidence to the case.In turn, the prosecutor noted that the evi-

dence presented by the lawyer in no way refutesthe factual circumstances of the charge. More-over, the prosecutor believes that the lawyerconfuses the court by providing inappropriateevidence, since it does not confirm or establishthe facts examined by the prosecution.

After the court suggested that the accusedshould give evidence, the prosecutor beganto petition for time to change the indictmentin court. The court granted this request, thedefense did not object. But the defense notedthat these actions on the part of the prosecutorshould take place more quickly in order toavoid delaying the consideration of the case.Moreover, the lawyer pointed out that sucha request had previously been made by theprosecution.The experts of the ISHR suggest that the

provision of this kind of evidence to the court,which is not directly related to the prosecu-tion, can be used to delay the proceeding, or tomaximize the number of volumes of the case,complicating it. And this, in turn, may havesigns of a violation of the principle of reason-able terms of the trial. It should be noted thatthe indictment was submitted to the court on03/07/2018. Thus, the case of Sorokopud N.A.and Omelyanyuk N.V. has been considered incourt for more than 2 years.

Art. 6 of the Convention for the Protectionof Human Rights and Fundamental Freedomsrecognizes for every person prosecuted in acriminal case the right to receive, within a rea-sonable time, a final decision on the justifica-tion of the charges against him, or rather to en-sure that the accused do not remain for a longtime under the weight of the charges and thata decision be made on the well-foundedness ofthe charge (“Vemkhov v. Germany”, para. 18,“Julia Manzoni v. Italy”, para. 25, “Brogan andOthers v. the United Kingdom”, para. 65).

In addition, according to the observer of theInternational Society for Human Rights, one ofthe reasons for the delay in the considerationmay be a second request from the prosecutorto give time to change the indictment.

3.58 The trial of AlexanderStreletsky and others

Monitoring the case of Streletsky andothers (session on March 16, 2020)

On March 16, 2020, in the Zaporizhzhya dis-trict court of the Zaporizhzhya region, an open

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court session was held by videoconference withthe State Institution “Bakhmutsk PenitentiaryInstitution No. 6” on the application of Alexan-der Pavlovich Streletsky on reconsideration ofthe verdict of the Zaporizhzhya district courtof the Zaporizhzhya region on April 16, 2015,convicted under Article 27 p.3; Article 115p.2; Clause 6,9, 12,13 of the Criminal Codeof Ukraine; Article 190 p. 3; Article 357 p. 3;Article 358 p. 2, 3 of the Criminal Code ofUkraine.Recall that on April 16, 2015, the panel of

judges of the Zaporizhzhya District Court ofthe Zaporizhzhya Region passed a sentencein a lengthy lawsuit with significant publicimpact.

Alexander Streletsky, whom the court recog-nized as the executor of the murders of threeresidents of Nikopol, was sentenced to life im-prisonment, Albert Rokhkin, as a client ofthe killer, was sentenced to 15 years in prison.Artem Chernysh, whom the court recognizedas an accomplice in the killings, was sentencedto 6 years in prison, of which he had alreadyserved 2 years, Julia Kishinskaya was sentencedto probation, but spent two years in prison.After the verdict was announced, the de-

fense considered that the court had neglecteda number of facts and expert examinations.Lawyers appealed to various human rights or-ganizations, thanks to which an alternative in-vestigation was carried out, which uncovered anumber of new crimes. According to the resultsof this investigation the case was fabricated bythe police. In one episode of the murder of a res-ident of Nikopol, Andrei Mikitenko, it turnedout that the scam with the apartment and thedisappearance of Andrei Mikitenko had beenplanned exactly two years before. The formerrelative received fake documents, on the basisof which she managed to take possession ofthe apartment of Andrei Mikitenko allegedlykilled in 2008. The corpse itself, found on July17, 2008 near Kirillovka, is in fact not iden-tified either by fingerprints or by DNA. Thewhole accusation was based on the sincere tes-timonies of Alexander Streletsky and ArtemChernysh. By the way, A. Chernysh repeatedlychanged the testimony and in February 2016

completely abandoned the previous testimony.The victim, who had given false evidence in

court for 6 years, disappeared. The defendantsaccused a prosecutor of “protecting” fraudstersand police officers who were convicted of othercrimes. At the last session, the prosecutor de-manded the maximum term for the defendantAlbert Rokhkin, after the main witness did notidentify in the photographs his brother AndreiMikitenko, who was being killed in the case.The course of the hearing. At this hearing,

Streletsky’s statements and the petition ofthe defense were considered, convicts Alexan-der Streletsky and Albert Rohkin, prosecutorUzun V.K. and lawyer Pletskaya Yu.V., panelof judges and jurors were present.

Convict Streletsky read out a statement ask-ing to investigate the facts cited in the state-ment and admit that Svetlana Mikitenko couldnot be recognized as a victim and asked to es-tablish her witness status.

The court did not satisfy this statement, ex-plaining to the convict that in the sentence,which had gained legal force, Mikitenko wasrecognized as a victim, and in this proceeding,when considering the application for review ofthe sentence due to newly identified circum-stances, the issues of changing the statusesof the parties are not considered. Court alsorecommended, in the event of the annulmentof the verdict and consideration of the caseagain, to re-submit this application.Streletsky’s lawyer filed a request for a

posthumous forensic molecular genetic exami-nation, arguing that during the sentencing andat the moment there is no appropriate and per-missible evidence that the body of the personwho was killed belongs to Andrei Mikitenko,as well as in the case file information that con-firms the inconsistency and contradictions ofinformation whose exact corpse was found inthe village Limanskoe.The defense drew attention to the inconsis-

tency in the two expert opinions of the infor-mation on the hight and size of the feet of thecorpse, moreover, in one of the examinationsthe name of the other person was indicated –A.M. Mykolenko, and also there is no informa-tion about the presence of a scar on the body.

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In addition, the ex-wife did not confirm thatit was her husband in the photographs of thedeceased, since she believed that her husbandhad a leaner body, the man consumed alco-hol and that he had a different tattoo design.The lawyer drew attention to the fact that thecase file contains black and white photographsthat make it impossible to determine the colorof the victim’s hair and the matching colorof the tattoo. A great emphasis was placedon the court that in one of the identificationprotocols it was described that the corpse wasbadly burned. Thus, it is not clear how two fin-gerprints appeared in the case materials fromburnt limbs.

In addition, the lawyer provided informationthat the credit history of the injured MikitenkoAndrey is located in the Privatbank branch,and strangely enough after his death anotherloan was taken from the words of the bank’ssecurity service, but the lawyer’s request wasrefused by the bank referring to the client’spersonal data. Thus, she believes that eitherMikitenko Andrey took a loan or someone usedfake documents. In this connection, she wantsto submit a request for temporary access tothe documents of the loan file of the victim.

She also drew the attention of the court thatin the case file there are two act records ofdeath with different dates, one of an unknownperson and one Mikitenko Andrey, the questionarises: why in the case file there is informationabout two act records of death.The lawyer stated that in the materials of

this case there is a massive falsification of doc-uments, and the consequence is a life sentenceof two people and, according to the lawyer,these facts are doubtful, not related to eachother and illiterate falsified by the investiga-tion and that the fact of the death of AndreiMikitenko was not proved, in general it is notknown whose body is buried.

Moreover, Andrei Mikitenko’s wife still doesnot have information on where her husband’scorpse was buried and did not give any expla-nations before. The case file does not containthe original protocol for identifying a corpse,medical certificate and death certificate of An-drey Mikitenko.

Summing up, the lawyer filed a petition foran examination and stated the questions thatneed to be put to the experts about the exis-tence of family ties with the corpse, which wasburied in the cemetery near the village of Kir-ilovka, allegedly belonging to Andrei Mikitenkoand his uncle, Puzikov. She emphasized thatthe latter gave goodwill and consent to suchan examination. She requested an examinationto determine family ties with the daughter ofthe injured Mikitenko Svetlana, but she em-phasized the court, to conduct an examina-tion only with the consent of the parties andrequested that the corpse be exhumed. Con-victed Streletsky A.P. supported the motion.

The prosecutor objected to this petition,arguing that this question had already beenraised by experts during the trial in the trialcourt and it had already been established thatthe skull belonged to Mikitenko, and in expertconclusion No. 105 it had already been estab-lished that a technical error had been madein the initials. In addition, the defense cannotclearly indicate the burial place of this person,and that it is impossible each time to dig allgraves and conduct an examination.Convict Albert Rokhkin drew attention to

the fact that the case has been dragging onfor 12 years and that the defense is payingattention to the fact that the corpse’s skullwas compared with photographs, and that thephotographs were not of Andrei Mikitenko,and that the investigators concealed informa-tion about the presence of Andrei Mikitenko’ssibling, wife and child, whose presence theylearned only through journalistic investiga-tions.

After meeting in the deliberation room, thecourt decided to refuse the application for anexamination in accordance with the require-ments of chapter 34 of the Code of Crimi-nal Procedure of Ukraine, since the court wasnot empowered to collect evidence during theproceedings due to newly discovered circum-stances. The collection of evidence may takeplace during a new review of criminal proceed-ings in the event of a cancellation of a sentencedue to newly discovered circumstances.

Convict Streletsky Alexander told the court

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that the case file contained a number of au-dio and video recordings that were not to beconsidered in the court of first instance, butthe verdict indicated that the evidence was as-sessed as admissible and appropriate. He alsofiled a motion to establish by the court thefact that there is no technical record of thefixation of some court hearings. The court ex-plained to the convict that the request wouldbe considered in the deliberation room uponthe adoption of the main decision.After that the court invited the parties to

proceed to the debate. There were no objec-tions to the parties. Providing participants inthe trial with the opportunity to prepare forthe debate, the court announced a break untilApril 21, 2020.

In order to respect the right to a fair trial,experts from the International Society for Hu-man Rights will continue to monitor this trial.

3.59 The trial of IrinaSukhanova

Monitoring the case of Irina Sukhanova(11.11.2020 and 11.25.2020)

On November 11 and 25, 2020, preparatoryhearings were held in the Shevchenko DistrictCourt of Zaporozhye in the resonant case ofSukhanova I., the owner of an illegal kinder-garten in an apartment, accused of premed-itated murder of a little child (paragraph 2,part 2, article 115 of the Criminal Code ofUkraine). For the murder of a one-year-oldgirl, the teacher faces life imprisonment. Thewoman does not consider herself guilty, butCCTV cameras recorded the woman’s violenceagainst the girl. In order not to hear the cryingof the child, the teacher put a pillow over herface.The court sessions were held with the par-

ticipation of the prosecutor, the accused, herdefense lawyers, the victims and their represen-tative. The hearings were held with the partici-pation of two judges: Dmitriuk O., SchastlivayaE.To prevent the spread of respiratory dis-

ease COVID-19 caused by the SARS-Co V-2

coronavirus, by order of the chairman of theShevchenko District Court of Zaporozhye No.5 dated September 25, 2020, the court intro-duced restrictive preventive and anti-epidemicmeasures for the quarantine period, includingrestricting access in court sessions of personswho are not participants in court sessions.

Therefore, the monitoring was carried outusing an online broadcast of the court ses-sion on the website of the Judicial Power ofUkraine.

The course of the trial on 11.11.2020. In thiscourt session, the main composition of the jurywas determined. During the hearing, the jurywas asked questions about circumstances thatwould make it impossible to consider the caseor interfere with its consideration.

At the hearing, the prosecutor filed a motionto disqualify the jury Ryabchuk N., since sheis the wife of juror Ryabchuk V., who is alsoincluded in the jury in this criminal proceed-ing.The representative of the victims, whose

position was supported by the victims, didnot object to the satisfaction of the prosecu-tor’s motion. At the same time, he announcedthe disqualification of the juror Ryabchuk V.on the basis of paragraph 4 of part 1 of ar-ticle 75 of the Criminal Procedure Code ofUkraine (the presence of circumstances thatraise doubts about his impartiality) in orderto prevent violations - paragraph 4 of part 2of article 386 of the Criminal Procedure Codeof Ukraine (the jury is obliged not to commu-nicate without the permission of the presidingjudge with persons who are not part of thecourt regarding the essence of the criminal pro-ceedings and the procedural actions carried outduring it).The defense lawyers and the accused left

this request to the discretion of the court.Defense attorney Budilko P. announced the

recusation of the juror Bulygina T., since thelatter is a practicing psychologist and this cir-cumstance, if there are requests for the ap-pointment of appropriate examinations in thiscriminal proceeding, may affect the adoptionof procedural decisions.The accused asked to resolve the issue of

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disqualification of the jury Bulygina T. at thediscretion of the court.The prosecutor, the representative of the

victims and the victims objected to the dis-qualification of the jury Bulygina T., referringto the lack of motivation and the absence ofgrounds determined by Article 75 of the Crim-inal Procedure Code of Ukraine.

The jury, who was challenged, explained thatthey have no relationship with the participantsin the proceeding and are ready to fulfill theirduties. The jurors Ryabchuk V. and RyabchukN. confirmed that they are spouses.Having heard the participants in the trial,

the court considered that the petition of theprosecutor and the representative of the vic-tims should be satisfied. In the Court’s opinion,this follows from the practice of the EuropeanCourt of Human Rights. In accordance withArticle 9 of the Criminal Procedure Code ofUkraine, the most important issue is the ad-ministration of justice by an independent andimpartial court and the confidence that thecourts must instill in the public in a democraticsociety. When providing an assessment of theimpartiality of the court, it is necessary todistinguish between subjective and objectiveaspects.In substantiating its position, the national

court referred to the decisions of the ECtHR:“Gausschildt v. Denmark”, “P’ersak v. Bel-gium”, “Fey v. Austria”, “Bochan v. Ukraine”,where it is stated that the existence of impar-tiality for the purposes specified in paragraph1 of article 6 of the Convention should be deter-mined on the basis of a subjective criterion, inthe context of which the personal convictionsand behavior of a particular judge should betaken into account, and means the need to es-tablish whether the judge in a particular casehad any personal interest or bias, and on thebasis of an objective criterion in the context ofwhich it is necessary to establish whether thecourt and, among other aspects, its composi-tion, provided sufficient safeguards to rule outany reasonable doubt about its impartiality.At the same time, the ECtHR warns that

only the doubts of a “sensible observer” thatthe court is independent and impartial may

have a certain value in understanding the pro-vision of citizens’ right to a fair trial (“Feranteliand Santangelo v. Italy”, “Housechildt v. Den-mark”, “Wetstein v. Switzerland”).

The court took into account that the jurorsRyabchuk N. and Ryabchuk V. are spousesand, by virtue of the provisions of part 2 ofarticle 75 of the Criminal Procedure Code ofUkraine, they cannot be together in the com-position of the court that carries out the pro-ceedings, and in case of satisfaction of thechallenge to one of them, may give an outsideobserver an impression of the jury’s bias in theconsideration of this case, which is the basisfor satisfying the requests of the prosecutorand the representative of the victims.

Considering the statement of defense attor-ney Budilko P. about the challenge of the juryBulygina T., the court proceeded from thefollowing: in order to challenge the jury, itis necessary to substantiate the existence ofcircumstances that objectively may indicatea possible bias. The circumstances that wereused as the basis for the defense lawyer’s chal-lenge must be proven. The challenge must bemotivated, indicating the relevant arguments,evidence confirming the existence of groundsfor the challenge. If it’s not motivated, this isthe basis for refusing to satisfy it.The court considered that the defense

lawyer’s argument that the juror Bulygina T.is a practicing psychologist, which may affectprocedural decisions, cannot be considered asmotivated. The lawyer’s application was notsatisfied by the court.

The course of the trial on November 25, 2020.In accordance with Article 388 of the CriminalProcedure Code of Ukraine, the jury, who isinvolved in the consideration of criminal pro-ceedings, was sworn in and the court explainedto them their rights and obligations.After that, the mixed panel of the jury

moved to the stage of the trial, and the prose-cutor Zhulay S. read out the indictment.The defense attorney of the victims Mame-

dov T. filed a motion to recover from the ac-cused moral damage in the amount of UAH800,000.00 in favor of each parent of the de-ceased child.

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The court also considered and satisfied theprosecutor’s petition to extend the term of theaccused’s detention for 60 days. After that,at the request of one of the lawyers of theaccused Sukhanova I., a break was announcedto familiarize herself with the case materials.

3.60 The trial of IrinaSukhorukova

Monitoring of the case of IrinaSukhorukova (hearing on September 30,2020)

On September 30, 2020, a preparatory hear-ing on the resonant case of Irina Sukhorukova,the owner of an illegal kindergarten, equippedin a three-room apartment, was held in theShevchenkovsky District Court of Zaporozhye.The woman is accused of premeditated mur-der of a one-year-old child (clause 2, part 2,article 115 of the Criminal Code of Ukraine).Irina Sukhorukova faces 15 years or life im-prisonment. Despite the fact that she does notconsider herself guilty of the death of the child,Surveillance cameras recorded the woman’s vi-olence against the girl. In order not to hear thecrying of the child, the teacher put (or tied) apillow on her face.The court session was held with the par-

ticipation of the prosecutor, the accused, herdefense lawyers, the victims and their repre-sentative.

The course of the trial. At the beginning ofthe hearing, the prosecutor asked the court toschedule the case for trial and filed a motionto extend the detention of the accused, whichwas motivated by the fact that she was rea-sonably accused of committing an especiallygrave crime, there was a risk of her escape,illegal impact on victims and witnesses. Thesefactors, according to the prosecutor, should betaken into account when deciding whether tochoose a measure of restraint in the form ofdetention.The victims and their representative sup-

ported the position of the prosecutor and askedto take into consideration also civil claims.The defender of the accused, attorney P.V.

Budilka, asked to return the indictment to theprosecutor, arguing that the act does not com-ply with Article 291 of the Criminal ProcedureCode of Ukraine, since the wording of the accu-sation does not correspond to the qualificationsof the accused’s actions, the accused did notunderstand the essence of the accusation, itdoes not indicate the form of guilt, the motivesand degree of implementation of the criminalintent of the incriminated criminal offense, andalso challenged the prosecutor A.S. Zhulay, ar-guing that she did not have the appropriatepowers, that the prosecutor was personally in-terested in the unilateral consideration of thecase due to career motives. The lawyer alsopointed out that, in his opinion, the pre-trial in-vestigation in the Shevchenkovsky district wasconducted ineffectively, he referred to the factthat the Internet contains information aboutthe personal interest of the prosecutor AnnaZhulay and her family ties with the chairmanof the court. This information has not beenconfirmed by any document.Also, the defender of the accused objected

to the extension of the measure of restraint inthe form of detention and asked to change themeasure of restraint to house arrest.The defendant agreed with the position of

her lawyers and filed a motion for the criminalproceedings to be examined by a jury consist-ing of two professional judges and three juries.

Having heard the opinion of the participantsin the proceeding, having checked the compli-ance of the indictment with the requirementsof the procedural law, the court came to theconclusion that the defense lawyer’s requestto return the indictment to the prosecutor isnot subject to satisfaction, as well as the chal-lenge to the prosecutor, due to the fact thatthe applicant has not presented convincing ar-guments and evidence that would indicate theexistence of circumstances that are groundsfor challenging the prosecutor, and the powersof the prosecutor in this proceeding are con-firmed by the relevant decisions of the headsof the prosecutor’s office, information aboutwhich is reflected in the register of pre-trialinvestigation materials.

The court decided that the case will be con-

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sidered by a common panel with the partic-ipation of a jury, and the circumstances ofthe case do not require a trial in closed courtsession.

When deciding on the extension of the mea-sure of restraint against the accused Sukho-rukova, the court took into account the exis-tence of a reasonable suspicion, as well as infor-mation that Irina Sukhorukova has a perma-nent place of residence, which coincides withher registration, has children, including minors.The court also considered the risk of continu-ing the accused criminal activity as unlikely,since Irina had not been previously convicted,is a senior citizen, that is, she is adapted insociety, has a source of income.

At the same time, the court agreed with thearguments of the prosecution that the possibil-ity of imposing a sentence of imprisonment fora long term may induce the accused to take ac-tions in order to prevent the establishment ofthe truth in the case, to influence the victimsand witnesses.When considering this petition, the court

concluded that the stated risks of the defen-dant’s escape, the possibility of illegal influenceon victims and witnesses, even after the com-pletion of the pre-trial investigation, did notdiminish and continue to exist, which is thebasis for refusing to change the measure ofrestraint of the accused to house arrest.The Court, taking into account the provi-

sions of Article 5 of the Convention for theProtection of Human Rights and Fundamen-tal Freedoms, as well as the practice of theEuropean Court of Human Rights, accordingto which restrictions on the human right toliberty and security of person are possible onlyin cases provided for by law according to theestablished procedure, as well as the facts thatthe European Court of Human Rights has re-peatedly emphasized and that the court byits decision must ensure not only the rights ofthe suspect, but also high standards of protec-tion of civil rights and interests, extended theperiod of detention by 60 days.The court accepted for consideration the

civil claims of the victims for compensation formoral damage caused as a result of a criminal

offense.

3.61 The trial of AndreiTatarintsev

Monitoring the case of Andrei Tatarintsev(session 03/20/2020)

Monitoring the case of Andrei Tatarintsev (ses-sion 03/20/2020) On March 20, 2020, an opencourt hearing was held in the KuybyshevskyDistrict Court of the Zaporizhsky Region inthe case of businessman Andrei Tatarintsev,who is charged with committing crimes underPart 1 of Art. 258-3, p. 5, art. 27, part 2, arti-cle 28, part 2, article 437, part 1 of the article438 of the Criminal Code of Ukraine (financ-ing of a terrorist organization, aiding in theconduct of an aggressive war, cruel treatmentof prisoners of war and civilians).According to the lawyer, Andrey Tatarint-

sev’s accusation is that in 2014-2015 he wastrading gasoline at a tank farm located in theterritory of the Eastern Ukraine and trans-ferring it to armed persons, allegedly mili-tary men of the unrecognized republics of the“DPR/LPR”, as well as transferring fuel to theambulance station and other facilities in theterritory of the “DPR/LPR”.Experts from the International Society for

Human Rights continue to monitor this trial.The ISHR observer recorded that despite the

quarantine measures introduced by the gov-ernment in the context of the coronavirus epi-demic, as well as the recommendations postedat the entrance to the court, the panel ofjudges, the court clerk and the convoy didnot have masks. Also, the mask was not givento the accused, who, according to him, wastransported in a car that did not pass throughdisinfection. Also, according to informationprovided to the ISHR observer by Tatarintsevand the convoy’s staff, no sanitary measuresare taken in the pre-trial detention center, theprisoners are not provided with masks anddisinfectants, the pre-trial detention center’smedical unit does not examine the prisonerseither when they go to court or when theyreturn to the pre-trial detention center, which

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can expose a large number of contained intight and poorly ventilated areas to the risksof coronavirus infection.

Given that the accused suffers from severe di-abetes, and therefore is at risk for coronavirus,this situation can be regarded as a violation ofhuman rights (Article 3 of the European Con-vention). Thus, the decision of the ECtHR inthe case of “Kudla v. Poland” (No. 30210/96,§ 94, ECHR 2000-XI) states that detaineesshould be held in conditions compatible withrespect for their human dignity, and that thenature and method of implementation of themeasure the detainees were not in difficultywhich intensity exceeds the inevitable level ofsuffering inherent in imprisonment.Before the trial, Andrei Tatarintsev in-

formed his lawyer about his poor health, thathe had not been given sugar-lowering pills, andinstead of a dietary meal, he had a torn bagwith cookies, butter, white bread and otherfoods that are contraindicated for diabetes. Inaddition, the accused claimed that the lastmeasurement of sugar was made to him in thecourtroom two months ago, and since then thedoctor of the medical unit did not even come tohim. Attorney Vladimir Lyapin filed a requestfor an ambulance. However, the court, havingconferred on the spot, decided that Tatarintsevcannot take part in the hearing in this stateof health, and ignored the request to call anambulance. Several attempts by the lawyer torecall the need for medical care were again ig-nored, and the judge, Malevanny V.A. statedthe need to consider extending the measure ofrestraint.ISHR experts note that such actions by

the state may violate article 3 of the Euro-pean Convention for the Protection of Hu-man Rights and Fundamental Freedoms, whichstates that “No one shall be subjected to tor-ture or to inhuman or degrading treatment orpunishment” (case of “Beketov v. Ukraine”),No. 44436/09, § 76, ECHR 2019-II). Also, ac-cording to the decision in the “Kalashnikov v.Russia” case (No. 47095/99, § 95, ECHR 2002VI), the state must ensure that a person is de-tained in conditions consistent with respect forhuman dignity, so that the nature and method

of execution of the measure of restraint doesnot cause the person suffering or difficulty, theintensity of which exceeds the inevitable levelof suffering inherent in detention. In addition,the court is not the first time, having decidedto postpone the hearing due to the impossi-bility of Tatarintsev’s participation in it forhealth reasons, continues the hearing to hearthe petition of the prosecution to extend themeasure of restraint.

Lawyer Lyapin V. challenged the presidingjudge Malevanny V.A. on the grounds thatthe judge by his actions endangers the life ofthe defendant. Returning from the delibera-tion room, the board rejected the challengewithout giving any reason. The full text ofthe decision, according to the judge, will bepresented later. Then the lawyer declared thesecond challenge - to the judge Khodko V.N.,having informed that he would provide theargument of the challenge in writing at thenext hearing. The challenge was rejected. Weconsider it necessary to pay attention that allthis time Andrei Tatarintsev was without med-ical assistance. Judge Malevanny V.A. saidthat an ambulance would be called only whenthe board retired to the deliberation roomto make a decision to extend the measure ofrestraint. An ambulance paramedic who ap-peared in the courtroom over time recordedsugar at 12.1 with a normal rate of 5.5 andhigh blood pressure. The paramedic was ques-tioned and affirmed that Tatarintsev neededro visit endocrinologist, timely medication anddietary intake. To help the patient, namely, toorganize control of sugar, is possible only in ahospital. The court released the paramedic andmade no decisions to provide Tatarintsev withmedical care, but again ignored the requestsof the lawyer and the accused himself.

In the decision of the ECtHR in the caseof “Salakhov and Islyamova v. Ukraine” (No.28005/08, § 129, ECHR 2013-III) “The Courtemphasizes that Article 3 of the Conventionimposes an obligation on the State to ensure,taking into account the practical requirementsof imprisonment, that health and the well-being of the prisoner was adequately guar-anteed, including by providing him with the

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necessary medical care . . . One of the impor-tant factors for such an assessment is a drasticdeterioration in the state of health of a personin places of detention, which inevitably castsdoubt on the adequacy of the medical careavailable there. . . ” In addition, the ECtHRhas repeatedly indicated that the provisionof necessary medical assistance to persons inplaces of detention is the responsibility of thestate (“Wuhan v. Ukraine”, No. 30628/02, §72, ECHR 2008-XII).

The prosecutor who participated in the hear-ing via videoconference read out a request foran extension of the measure of restraint in theform of detention. ISHR experts express con-cern that the prosecutor once again repeatedthe same arguments in his application (thegravity of the charge, the presence of socialties in uncontrolled territory and in the Rus-sian Federation, the possibility of pressure onwitnesses) without substantiating or provingin detail, but only stating the existence ofrisks of non-fulfillment by the defendant oftheir procedural obligations and the inabilityto avoid these risks with the help of mildermeasures, which is a prerequisite for detention(Articles 176-178, 183 of the Code of CriminalProcedure).According to the legal position of the EC-

tHR in the case of “Todorov v. Ukraine” (No.16717/05, § 62, ECHR 2012-IV), there mustbe exceptionally good reasons for extendingdetention. Moreover, as the Court points out,only the gravity of the crime, the complexityof the case and the seriousness of the chargescannot serve as a basis for extending such ameasure. In addition, Art. 184 of the Codeof Criminal Procedure of Ukraine expresslystates that the prosecutor’s application for theapplication of a measure of restraint shouldcontain a statement of circumstances, basedon which the prosecutor concluded that thereare one or more risks noted in his application,and links to materials that confirm these cir-cumstances. Once again, the prosecutor didnot confirm the presence of risks with eitherwritten evidence or witness testimony.

The court decided to leave Andrey Tatarint-sev in custody for another 60 days.

The International Society for Human Rightsnotes that the fact that other measures ofrestraint were not considered by the courtwhen extending detention in custody may indi-cate a violation of paragraph 3 of Article 5 ofthe Convention for the Protection of HumanRights and Fundamental Freedoms (“Buryagav. Ukraine” 27672/03, § 62, 2010-X) - the rightto trial within a reasonable time or to releasepending trial. Release may be subject to guar-antees of attendance of the court i.e. the rightto consider an alternative measure of restraint.

Monitoring the case of Andrei Tatarintsev(session 04/30/2020)

On April 30, 2020, a hearing was held in theKuybishevsky District Court of the ZaporozhaRegion in the case of Andrei Tatarintsev, ac-cused of participating in a terrorist organiza-tion, aiding in conducting an aggressive warby prior conspiracy by a group of people, andcruel treatment of prisoners of war and civil-ians. In fact, the accused after 2014 continuedto carry out entrepreneurial activities in theterritory bordering the uncontrolled by theUkrainian government territories of the East-ern Ukraine (trading in diesel fuel from a tankfarm).Experts from the International Society for

Human Rights continue to monitor this law-suit.Before the trial, Andrei Tatarintsev in-

formed his lawyer that he was given dry ra-tion (a sweet cookie and bread and butter) forbreakfast in the pre-trial detention center andthat he could not eat these products - they arenot dietary food for diabetes. Accordingly, hewas not able to take sugar-lowering pills, whichare used simultaneously with food. The con-sequence of this was poor health, high bloodpressure, dizziness and dry mouth.

The course of the trial. At the beginning ofthe trial, the court announced that the defen-dant had provided the legal aid agreement withanother lawyer, V. Kravtsov, who asked courtto be admitted to the criminal proceedings asan advocate and to declare a short break forthe possibility of confidential communicationwith his client. The participants in the trial

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did not object, and the panel of judges on thespot decided to satisfy the motion.After the break, the new defender of the

accused filed a petition for the court to callan ambulance, so that the doctors once againtestify to the state of health of the accused.The court clarified with the accused about hisstate of health and decided to call an ambu-lance team.Ambulance paramedic told the court that

Andrei Tatarintsev had high blood pressureof 160/95 at a normal rate of 120/80 andhigh sugar 11.3 at a rate of 5.5, a moderatehealth condition and he urgently needed totake dietary food and take sugar-lowering pills,and continue to follow a diet, otherwise se-rious consequences are possible, including adiabetic coma. When asked by lawyer VladimirLyapin, the paramedic confirmed that cookiesand bread and butter are not suitable as dietfood.Defender V. Kravtsov, with the consent of

the accused, requested that the patient’s infor-mation sheet with the diagnoses: “Vegetative-vascular dystonia of the hypertonic type, type1 diabetes mellitus”, which issued an ambu-lance paramedic, be included in the case file.He filed a motion to stop the trial, consideringthe severe long-term illness of Andrei Tatar-intsev, guided by Article 335 of the Code ofCriminal Procedure of Ukraine, due to the factthat criminal proceedings have not been exam-ined for more than 20 months on the meritsdue to the health status of his client. The sec-ond lawyer filed a request for the inclusion ofanother patient information sheet confirmingthe defendant’s illness.

Attorney Vladimir Lyapin again drew atten-tion to the fact that in such a difficult healthstate it is impossible to hold a court session,that the State continues to ignore the imple-mentation of the 2018 decision of the Kuiby-shevsky court on providing adequate treatmentand dietary nutrition for the accused in jail.He reminded that diabetes is a disease thatinjures the blood vessels of the brain and ifpills are not taken in a timely manner, seriousconsequences are possible, and he supportedthe request of his colleague.

The enforcement of court decisions is partof the right to a fair trial under Art. 6 of theEuropean Convention on Human Rights. Thisis also a necessary condition of the rule oflaw enshrined in Art. 8 of the Constitution ofUkraine.

There is no point in justice if court decisionsare not enforced. This greatly deepens thedistrust to the judicial branch of governmentand to the government as a whole.The European Court of Human Rights has

repeatedly drawn attention to this problem. Itadmitted the violation of the right to a fairtrial in the case of “Yuri Nikolaevich Ivanov v.Ukraine”.

The prosecutor stated that the defense wasabusing its rights, delaying the considerationof the case and trying to avoid any consider-ation of the indictment by any action. In hisopinion, the accused must be provided withthe necessary food and medicines and con-tinue the trial. The defense confirmed that itis necessary to postpone the examination ofthe indictment on the merits each time due tothe poor health of Andrei Tatarintsev, whichis confirmed by the ambulance paramedic ateach hearing, given that the accused was notfed and did not provide necessary dietary food.The court ruled to reject the application.The ECtHR reiterates that Article 3 of the

European Convention for the Protection ofHuman Rights and Fundamental Freedoms en-shrines one of the fundamental values of ademocratic society. In absolute terms, it pro-hibits torture or inhuman or degrading treat-ment or punishment, irrespective of the cir-cumstances or behavior of the victim (“Labitv. Italy”, Grand Chamber).

The new defense attorney filed a motion topostpone the trial to another date due to thestate of health of the client and his inabilityto express his opinion on the issues raised, aswell as with the hope that the state of healthof the accused could improve.On the positive side regarding the obser-

vance of the principle of reasonableness of thetime limits for the consideration of the case,it can be noted that after agreeing with allparticipants in the trial, the court set sev-

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eral dates for judicial review in the comingmonths on 05.08.2020, 06.10.2020, 06.18.2020and 07.01.2020.

Monitoring the case of Andrey Tatarintsev(sessions 05.08.2020 and 06.10.2020)

On May 8 and June 10, 2020, in the Kuiby-shevsky District Court of the Zaporozhye Re-gion, regular court hearings were held in thecase of Andrey Tatarintsev, accused of partici-pating in a terrorist organization, complicityin the conduct of an aggressive war by priorconspiracy by a group of persons, and crueltreatment of prisoners of war and the civilianpopulation. Andrey Tatarintsev, after 2014,continued to carry out entrepreneurial activi-ties (trade in diesel fuel from a tank farm) inarea next to uncontrolled territory of EasternUkraine (ORDLO).The course of the trial. At the very begin-

ning of the session, which took place on May8, 2020, the court gave the lawyer VladimirLyapin the word: “The Constitution of Ukrainedeclares that human rights and freedoms arethe highest value. Today A. Tatarintsev, suffer-ing from diabetes, was again not provided withdietary food. This time they did not even givean egg, only white bread and butter (whichis not a dietary food with the diagnosis ofA. Tatarintsev). I think this is torture. If thestate considers that Tatarintsev is a prisonerof war, then it is necessary to ensure that hemeets the standards of medical care, in accor-dance with the Geneva Convention. Since theKuibyshevsky District Court made a decisionto provide Tatarintsev with a dietary 5 mealsa day, and the pre-trial detention center doesnot fulfill these requirements, I ask you to pro-vide him with food in the courtroom.” In orderto study the provision of medical assistance toA. Tatarintsev, the lawyer filed a motion torequest medical documents (journals, extracts,case histories, etc.) from the Volnyansky pre-trial detention center.

He also asked the court to briefly announcethe indictment and establish the volume andprocedure for examining the evidence, but be-fore that he asked for a break in the hearingin order to provide the accused with dietary

food established by the decision of the samecourt, and which A. Tatarintsev never receivedin the pre-trial detention center and also toestablish whether he is medically able to par-ticipate in the hearing. The prosecutor, in themode of a video conference from the districtcourt of Kiev, supported the defense’s petitionto announce the indictment, but opposed theannouncement of the break.The presiding judge granted the defense’s

petition in terms of reclaiming Tatarintsev’spersonal file from the pre-trial detention cen-ter, and refused to provide food, arguing thatthe court did not have a catering facility anda specially designated place for eating and em-phasized that the court would again send tothe pre-trial detention center the decision tosecure Tatarintsev A. dietary food.

After that, the prosecutor briefly announcedthe indictment, and the court asked the ac-cused if he pleaded guilty. Accused A. Tatar-intsev, through the glass box said that he didnot plead guilty, did not understand what hewas accused of, and why he had been in jailfor 2 years 8 months.Then the court moved on to the question

of determining the volume and procedure forexamining evidence. The prosecutor proposedthe following procedure: examination of audioand video recordings, then interrogation of thevictims and one available prosecution witness,then examination of material evidence andinterrogation of the accused.On the remark of the lawyer V. Kravtsov

that the prosecutor, according to the norms ofArticle 349 of the Criminal Procedure Code,must list each of the evidence, the prosecutorreplied that he had a list of evidence in writing,while attaching the text to the monitor screenon which the video communication was going,and adding that the evidence would take along time to read, so he would send a list ofevidence to the court and the defense. Thelawyer V. Kravtsov objected that if the pros-ecutor cannot announce the list of evidence,then he must be given time to comply withthe requirements of the Criminal ProcedureCode.

The presiding judge confirmed that the pros-

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ecutor needs to read out the list of evidence orsend it by mail to the court and the defensefor review. The prosecutor immediately an-nounced that he was asking the court to post-pone the hearing. The judges decided to an-nounce a break in the proceedings and movedon to the issue of extending the measure ofrestraint for A. Tatarintsev.The prosecutor, in his petition to extend

the detention of the accused, referred to theevidence indicated by the investigator in theindictment and listed standard risks, as in hisprevious petitions.

The lawyer V. Lyapin drew the court’s atten-tion that the prosecutor violates the provisionsof Article 198 of the Criminal Procedure Code,according to which the findings of the inves-tigating judge on the selection of a measureof restraint indicated at the pre-trial investi-gation, the conclusions on the essence of theaccusation do not have prejudicial significanceduring the trial, and the evidence referred to bythe prosecutor has not yet been examined bythe court. The presiding judge agreed that atthe moment the prosecutor could not providethem.

At the same time, the judicial collegium didnot comment on the objections of the lawyersin any way, that, on the basis of the decisionsof the ECtHR, over time, the risks that formthe basis for the election and repeated prolon-gation of the measure of restraint are leveled.Lawyer V. Lyapin once again asked to ap-

point a bail to the accused Tatarintsev, sincethe prosecutor has no evidence of the needto extend Tatarintsev’s detention in the pre-trial detention center. However, the court, afterhearing the opinion of the prosecution and de-fense, and referring to the risk of escaping fromthe court, once again extended the detentionof the accused Tatarintsev for a period of 2months.

The European Court of Human Rights notesthat national courts must first and foremostensure that, in a given case, an accused’s pre-trial detention does not exceed reasonable time.To this end, they must, taking due account ofthe principles of the presumption of innocence,examine all the circumstances of the case that

may confirm or deny the existence of a publicneed that justifies deviations from the require-ment of respect for personal freedom, and in-dicate this in their decisions to extend of theperiod of detention. The question of whetherthere has been a violation of paragraph 3 ofArticle 5 of the Convention for the Protectionof Human Rights and Fundamental Freedomsis up to the Court to decide on the basis ofthe reasons given in those judgments (“IA v.France”, para. 102).

According to paragraph 3 of Article 5 of theConvention, after a certain period of time, itis the existence of reasonable suspicion thatdoes not justify the deprivation of liberty, andthe courts must give other grounds for ex-tending the detention (“Borisenko v. Ukraine”,para. 50). Moreover, after a certain time haselapsed, reasonable suspicion does not in itselfjustify the deprivation of liberty, the judicialauthorities must present other grounds for fur-ther detention, which must be clearly indicated(“Yeloyev v. Ukraine”, para. 60; “Kharchenkov. Ukraine”, para. 80).

The Court often found a violation of para-graph 3 of Article 5 of the Convention in caseswhere national courts continued detention, re-ferring mainly to the gravity of the chargesand using formulaic language, without evenconsidering specific facts or the possibility ofapplying alternative measures (“Kharchenko v.Ukraine”, paras. 80-81; “Tretyakov v. Ukraine”,para. 59).The European Court of Human Rights has

frequently found violations of Article 5 § 3of the Convention, on the basis that, evenwith long periods of detention, domestic courtsfrequently refer, if at all, to the same set ofgrounds throughout the period of detention, al-though Article 5 § 3 of the Convention impliesthat, after a certain period of time, reasonablesuspicion does not in itself justify the depri-vation of liberty, and the judicial authoritiesare obliged to provide other grounds for fur-ther detention (“Kharchenko v. Ukraine” No.40107/02, para. 99, “Svershov v. Ukraine” No.35231/02, paras. 63-65).

On June 10, 2020, in the Kuibyshevsky Dis-trict Court of the Zaporozhye Region, regular

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court hearing was held in the case of AndreyTatarintsev, accused of participating in a ter-rorist organization, complicity in the conductof an aggressive war by prior conspiracy bya group of persons, and cruel treatment ofprisoners of war and the civilian population.Andrey Tatarintsev, after 2014, continued tocarry out entrepreneurial activities (trade indiesel fuel from a tank farm) in the territorybordering ORDLO.

Before the start of the session, A. Tatarint-sev handed over to the lawyer V. Lyapin theration given to him by the escort.

He also told the lawyer that due to the factthat one convoy vehicle serves four districtsof the region, and in order to be in time forthis meeting at 2:00 pm, Tatarintsev was takenout of the pre-trial detention center at 7:30am, while this ration and some three tablets,without specifying what it is and how to takethem.Taking this into account, he did not take

them, but decided to show the court what kindof “treatment” he was receiving; he also did noteat the food given out, since these productswere contraindicated for him.

During the hearing, lawyer V. Lyapinshowed the judicial board the pills and foodthat had been issued in the pre-trial detentioncenter in the morning: an egg, bread and but-ter, sweet biscuits - for A. Tatarintsev theseare non-dietary foods that are contraindicatedfor him due to the presence of diabetes mellitusand blood sugar levels.Then he asked to call an ambulance to es-

tablish whether his client A. Tatarintsev wasable to take part in the hearing, given thathe had not eaten anything since the morning,and due to the abnormal heat, he was takento court for two and a half hours in the closedconvoy car. The prosecutor, who took part inthe hearing via video conference from the courtin Kiev, objected, but the court announced abreak for the call and arrival of an ambulance.The arrived medical team measured A.

Tatarintsev’s blood pressure and sugar level,stating that the pressure was “almost normal,”and the sugar level was 9.9, while the normwas 5.

Lawyer V. Lyapin once again drew the at-tention of the judicial board that the pre-trialdetention center does not comply with thecourt decision on providing Tatarintsev withdietary food and proper medical examinationand assistance, taking into account his diagno-sis of type II diabetes, and the court’s failureto act is the lack of control over the implemen-tation of its own decision, and in a situationof impossibility of its implementation, choos-ing another measure of restraint, instead ofdetention, in which proper food and treatmentof the patient Tatarintsev is not provided -which is a gross violation of Article 3 of theConvention (on the prohibition of torture anddegrading treatment of the accused).The lawyer appealed to the court with an

oral motion - to take measures of judicial con-trol and influence in relation to the employeesof the pre-trial detention center, and to estab-lish the fact that the rights of the accused A.Tatarintsev to proper examination, treatmentand food are violated, to which the judge saidthat this is not within the competence of thecourt, and to the question of a lawyer, whosecompetence is this, the presiding judge saidthat it is not a court, but the prosecutor’soffice exercises appropriate control over the ob-servance of the rights of the accused in placesof execution of sentences and detention.

Further, the court proceeded to discuss theprosecutor’s request to establish the volumeand procedure for examining evidence. Thecourt found out that the prosecutor sent thispetition to the address of the court and lawyerV. Kravtsov, and to lawyer V. Lyapin he didnot send this petition for review.In this part of the proceeding, the court

limited itself to reading the operative partof the petition, having satisfied it on the spotand agreeing with the procedure for examiningevidence indicated by the prosecutor.

Also, lawyer V. Lyapin read out and submit-ted to the court a written petition preparedby the defense - to summon and interrogate21 (twenty one) defense witnesses, with theiraddresses and necessary data, - after 1 (one)available witness on the part of the prosecu-tion will be interrogate. The court granted this

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request.Then he moved on to the question that a

letter from the branch of the Center for HealthProtection of the State Penitentiary Serviceof Ukraine in the Zaporozhsky region fromthe 06/02/2020, to which are attached “logs ofmedical measures for Tatarintsev A.N.” - from09.10.2018 to 05.21.2020.The judge read out the list of documents

attached to this letter and their brief content,which should convince the court and lawyersthat “on paper” the documents concerning A.Tatarintsev are executed correctly and the ac-cused receives proper food and medical care.

The court read out a certificate stating thatA. Tatarintsev refuses to be examined, does notwant to take tests. The court gave A. Tatarint-sev the opportunity to object to the presenceof this certificate and he said that the endocri-nologist did not come to him, he passed thetests, but no one took them within three days,and those pills that were given to him, withoutexamination and recommendations on recep-tion, he really does not want to take.And he is interested in examining and pre-

scribing proper nutrition and treatment forhim, moreover, he demands it, all 2 years and9 months of his detention in a pre-trial deten-tion center, he cannot achieve this from thestate, in the existing system, in any way - aswith the help of lawyers, and in the presenceof journalists and observers from internationalhuman rights organizations.

After that, lawyer V. Lyapin appealed to thecourt with a request to make a ruling that in-formation on how A. Tatarintsev was providedwith dietary food on the day of the hearingon June 10, 2020, taking into account the factthat all participants in the proceeding and thecourt had the opportunity to ascertain whatexactly was contained in the food ration givento A. Tatarintsev, who was escorted to thecourt. The court satisfied the lawyer’s state-ment.It should be noted that in the case “Pivo-

varnik v. Ukraine” of October 6, 2016, theEuropean Court concluded that Article 3 ofthe Convention was violated due to the factthat the pre-trial detention center adminis-

tration did not provide regular medical mon-itoring of the applicant’s state of health anddid not develop an action plan to treating hisdisease. The applicant’s illness was not in anactive stage, however, the pre-trial detentioncenter administration found it was preciselythe applicant’s health disorder. With this inmind, his condition was serious and requiredtreatment. The applicant also received the pre-scribed treatment after a significant delay.

In its judgment in “Garumov v. Ukraine” of6 June 2019, the Court considers that unjusti-fied delays in the provision of medical care bythe authorities to the applicant after his illnesshas been established, his failure to ensure thathe is admitted to hospital for additional exam-ination and inpatient treatment, and furtherdeterioration of his health are sufficient indi-cations of a serious failure by the respondentState to provide him with adequate medical as-sistance while in detention. This amounted toinhuman and degrading treatment, in violationof Article 3 of the Convention.

Monitoring of the case of AndreyTatarintsev (session 08.27.2020)

On August 27, 2020, in the Kuibyshevsky Dis-trict Court of the Zaporozhye Region, an opencourt hearing was held in the case of busi-nessman Andrey Tatarintsev, who is accusedof committing crimes under Part 1 of Article258-3, part 5 of Article 27, part 2 of Article28, part 2 of Article 437, part 1 of Article 438of the Criminal Code of Ukraine (financing aterrorist organization, complicity in the con-duct of an aggressive war, cruel treatment ofprisoners of war and the civilian population).According to lawyer Vladimir Lyapin, in

2014-2015, the accused traded gasoline at atank farm located on the territory uncontrolledby the Ukrainian government, and was obligedby the armed persons (who represented them-selves as the military of the unrecognized DPR/ LPR republics) to transfer fuel to the ambu-lance station and other facilities.Andrey Tatarintsev suffers from type 2 di-

abetes. During the monitoring of this trial,the ISHR repeatedly recorded that during thethree years of detention, the accused did not

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receive medical care and dietary food necessaryfor his illness.Experts from the International Society for

Human Rights continue to monitor this trial.The hearing began with the fact that the pre-

siding judge V.A. Malevanny informed aboutthe absence of judge G.Y. Valigursky, whichmade it impossible to consider the case inessence. However, since on August 29 the termof the measure of restraint assigned to Tatar-intsev expired, judge V.A. Malevanny decidedto consider the issue of extending the measureof restraint alone, in accordance with the tran-sitional provisions of the Criminal ProcedureCode of Ukraine.The lawyer V. Lyapin announced the chal-

lenge of the collegium. The defense lawyer ex-plained that on August 21, 2020, endocrinolo-gist Svetlana Tovstyga examined the accusedin remand prison No. 11. As a result, a worsen-ing of the patient’s condition was once againrecorded (varicose veins appeared on the legs,etc.), treatment and dietary food for diabeticswere prescribed (table No. 9), however, overthe 6 days that have passed since that moment,the medical unit of the remand prison did notfollow the doctor’s recommendations, in whichthe lawyer and the accused see signs of torture.The court has repeatedly passed rulings on theneed to provide Tatarintsev with treatmentand dietary nutrition, however, the implemen-tation of the rulings is not monitored, measuresof judicial control are ignored by the board,and the duty to guarantee the health and lifeof the defendant is not being fulfilled. In thisregard, the lawyer believes that the court doesnot fulfill its procedural duties, is prejudicedand, accordingly, cannot pass a lawful and fairsentence.

The International Society for Human Rightsdraws attention to the position of the Euro-pean Court, which says that unjustified delaysin the provision of medical assistance by theauthorities to the applicant after the diagnosisof his illness, the failure to provide him withhospitalization for additional examination andinpatient treatment and further deteriorationof his health are sufficient signs of serious fail-ure of the respondent State to provide him

with adequate medical assistance while in de-tention. This amounted to inhuman and de-grading treatment, in violation of Article 3 ofthe Convention (“Garumov v. Ukraine”, § 46).In addition, Article 6 of the Convention saysthat the implementation of court decisions ispart of the right to a fair trial. It is also a nec-essary condition for the rule of law, enshrinedin Article 8 of the Constitution of Ukraine.

Judge V.A. Malevanny, as well as prosecu-tor A.S. Kozakevich stated that the challengeof the panel of judges can only be consideredcollegially, therefore this will be done at thenext hearing, and at the moment only theissue of extending the measure of restraintunder Article 331 of the Criminal ProcedureCode of Ukraine will be considered. However,the lawyer noted that before considering thechallenge of the collegium, the court cannotperform any procedural actions, and since thechallenge is considered collegially, it is neces-sary to wait for all members of the collegiumto appear in the session. The postponement ofconsideration of the issue of challenge is notprovided for by any article of the CriminalProcedure Code. Since the judge was going tomove on to extending the measure of restraintwithout considering the challenge and did notrespond to repeated calls by the defense not toviolate the current legislation, lawyer Lyapinasked for a break in order to summon represen-tatives of the National Police to the courtroom.No break was granted, and judge V.A. Male-vanny announced the transition to consideringa measure of restraint. Then the lawyer calledthe police right from the courtroom and askedfor a break in order to meet law enforcementofficers. He was again refused and then hepersonally left the courtroom. After that, thejudge announced a break, since it is prohibitedby law to consider the issue of extending ameasure of restraint without the presence of adefense lawyer.

The rapid response group accepted state-ments from the lawyer and the defendant re-garding torture in the courtroom (according tothe doctor’s recommendation, Andrei Tatar-intsev had to take dietary food and prescribedmedications 3 times by this time, but was not

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provided with either one) and the violationof the Criminal Procedure Code by the judge.The investigator, who arrived later, seized ra-tions (sugar cookies, white bread and peanuts),which the diabetic A. Tatarintsev received inthe pre-trial detention center, for examina-tion, and also promised to withdraw the videorecording of the court session in order to es-tablish the fact of violation of the law by thecourt.

Since A. Tatarintsev’s health worsened,it was decided to call an ambulance. Theparamedic recorded increased blood pressure(160X80) and more than doubled (than thenorm) level of sugar (12.4). Since the am-bulance is not provided with sugar-reducingdrugs, he offered to take the patient to a medi-cal facility. Despite the protests of the prosecu-tor, the court agreed with this and postponedthe session to the next day, since the courtagreed that the CPC does not allow consider-ing the extension of the measure of restraintuntil the issue of the challenge of the collegiumis resolved, which can only be done in the pres-ence of all judges of the collegium.

The Court considers that it is the State’sresponsibility to detain persons in conditionsthat respect human dignity, including the pro-vision of necessary medical assistance (“Kalash-nikov v. Russia”, § 95; “Wuhan v. Ukraine”, §72). A sharp deterioration in the state of healthof a person in places of detention inevitablycasts doubt on the adequacy of the medicalcare available there (“Salakhov and Islyamovav. Ukraine”, § 129). Since the accused AndreiTatarintsev has been reporting for a long timethat he was not provided with the prescribedtreatment and dietary food in the pre-trial de-tention center, and according to the results ofthe examination by an endocrinologist dated08.21.2020, his condition worsened, experts ofthe International Society for Human Rights be-lieve that a violation of Article 3 ECtHR (“Noone shall be subjected to torture or inhumanor degrading treatment or punishment”).

Monitoring the case of Andrey Tatarintsev(hearing 8.28.2020)

On August 28, 2020, in the Kuibyshevsky Dis-trict Court of the Zaporozhye Region, an opentrial continued in the case of businessman An-drei Tatarintsev, who is accused of commit-ting crimes under Part 1 of Art. 258-3, part5 of Art. 27, part 2 of Art. 28, part 2 of Art.437, part 1 of Art. 438 of the Criminal Codeof Ukraine (financing a terrorist organization,complicity in the conduct of an aggressive war,cruel treatment of prisoners of war and thecivilian population).Experts from the International Society for

Human Rights continue to monitor this trial.At the previous hearing, 08.27.2020, judge

V.A. Malevanny planned to single-handedlyconsider the issue of extending the measure ofrestraint to Andrey Tatarintsev in accordancewith the transitional provisions of the Crimi-nal Procedure Code of Ukraine, since one ofthe judges of the collegium was on vacation.However, he could not do this, since lawyerV.Y. Lyapin announced the challenge of theentire collegium, and the court has no rightto take any other actions until this issue is re-solved. 08/28/2020, judge G.Y. Valigursky wasrecalled from vacation to consider a challenge.In his speech, lawyer V.Y. Lyapin outlined

the circumstances that raise doubts about theobjectivity of the board. He drew attention tothe fact that at the previous hearing it wasonce again found out that the accused, suf-fering from type 2 diabetes, is not providedwith the treatment and diet recommended bythe doctor. The defense lawyer asked to attachto the case statement from an endocrinologistand a certificate from the hospital in Belmak,where Andrei Tatarintsev was taken by an am-bulance after the court hearing on August 27,2020. The hospital doctors determined thatthe accused was in a state of moderate sever-ity and needed constant medication accordingto the endocrinologist’s discharge. However, attoday’s hearing, the accused was again given abag with food that is strictly forbidden to usein case of diabetes mellitus and again did notprovide the necessary medicines. The lawyerbelieves that the panel of judges is guided by

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a certificate from the pre-rial detention centermedical unit to permanently extend the excep-tional measure of restraint, which says thatAndrei Tatarintsev is provided with everythinghe needs. According to him, the court has notyet found out whether the official who signedthe certificate is a specialist in the treatment ofdiabetes mellitus and what is actually given toAndrei Tatarintsev. This certificate is refutedby objective data, which were repeatedly estab-lished in the courtroom - explanations of theambulance staff, the testimony of the convoy,the conclusions of endocrinologists who exam-ined A. Tatarintsev both in the courtroom andin the pre-trial detention center. According tothe last examination on August 21, his healthcondition deteriorated due to inappropriatetreatment. Lawyer Lyapin said that the panelof judges pays attention exclusively to the argu-ments of the prosecution, including those thatare not substantiated by anything, and thepanel ignores the factual circumstances thatare established in the courtroom completely.In this regard, it is necessary to pay atten-

tion, according to the European Court, thegovernment must provide reliable and convinc-ing evidence that the accused received com-prehensive and appropriate medical assistancewhile in custody (case “Savinov v. Ukraine”,no. 5212/13, paragraph 50, dated October 22,2015).

In addition, V.Y. Lyapin drew attention tothe repeated violation of the right to defense.At this hearing, as well as at the previous hear-ing, on August 27, 2020, Andrei Tatarintsev’ssecond defense lawyer, lawyer V. Kravtsov,was absent, however, the presiding judge, vi-olating the norms of the Criminal ProcedureCode, did not ask the defendant whether itwas possible to continue the hearing.

According to the practice of the ECtHR,the right of a person accused of committinga crime to an effective defense by a lawyer isone of the fundamental characteristics of a fairtrial (paragraph 51 of the judgment “Salduzv. Turkey”, no. 36391/02 of 11.27.2008). Thisright itself includes not only the right to thepresence of a lawyer, but also the right toreceive legal assistance as needed (paragraph

49 of the decision “Lagerblom v. Sweden”, No.26891/95 of 01.14.2003; paragraph 89 of thedecision “Galstyan v. Armenia”, No. 26986/03of 11.15.2007).The defense also called the behavior of the

court unacceptable and biased, which at oneof the previous hearings did not make any de-cision on the defense’s motion to recognize asobviously inadmissible a number of evidencesfrom the prosecution, but gave the prosecutortime to establish the circumstances referredto in the petition. The lawyer claims that thisis not provided for by any provision of theCriminal Procedure Code and will violate theprinciple of equality of parties in the process.The European Court considers that each partyshould be given a reasonable opportunity topresent its evidence under conditions that donot place it at a disadvantage in relation to itsopponent (“Avotins v. Latvia” No. 17502/07,paragraph 119 of 05.23.2016; “Dombo BeheerBV v. The Netherlands”, no. 14448/88, para-graph 33 of October 27, 1993).

The stated challenge was not accepted, themotivation of the court ruling is not knownto the observer of the ISHR, since only theoperative part of the ruling was announced atthe hearing.

Then, in the order of Art. 331 of the Crimi-nal Procedure Code of Ukraine, the collegiumproposed to make a decision on the advisabilityof extending the measure of restraint to An-drey Tatarintsev in the form of detention andpassed the floor to the prosecutor. ProsecutorAleksey Kozakevich began to talk about thepresence of risks that the defendant will hidefrom the court, since he has close social ties inthe uncontrolled by the Ukrainian governmentcity of Krasnodon (Sorokino) of the Luganskregion, will illegally influence witnesses, andwill also be able to access material evidence inthe case.According to the legal position of the EC-

tHR in the case “Todorov v. Ukraine” (no.16717/05, § 62, ECtHR 2012-IV), there mustbe extremely compelling reasons for the prolon-gation of detention. Moreover, as the EuropeanCourt points out, only the gravity of the crime,the complexity of the case and the seriousness

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of the charges cannot serve as a basis for ex-tending such a measure. In addition, Art. 184of the Code of Criminal Procedure of Ukrainedirectly states that the prosecutor’s request forthe application of a measure of restraint mustcontain a statement of the circumstances onthe basis of which the prosecutor came to theconclusion about the presence of one or sev-eral risks noted in his request, and referencesto materials that confirm these circumstances.The ISHR experts express concern that in hisspeech the prosecutor, once again repeatedthe same arguments, without substantiatingor proving in detail, but only stating the exis-tence of risks of the defendant’s failure to fulfillhis procedural duties and the impossibility ofavoiding these risks with the help of mildermeasures, which is a prerequisite for detention(Articles 176-178, 183 of the CCP).

The lawyer V. Lyapin lodged a protest,since he had previously registered a petitionto change the measure of restraint in the courtoffice, therefore it (within the framework ofArt. 201 of the Criminal Procedure Code ofUkraine) should have been considered earlier.The defense lawyer also asked the prosecutorto provide written evidence of the existence ofthe risks to which he referred. The prosecutorreplied that the evidence is partially already ex-amined and not yet examined materials of thecriminal case. The lawyer expressed surprise,since at the moment only the extract from theERDR and the order on the appointment ofa group of prosecutors were considered, whichcan in no way be evidence of the existence ofa risk. It is impossible to refer to materials notyet considered directly by the court; they mustbe considered in the court session before mak-ing a decision. Nevertheless, the court statedthat since the prosecutor believes that whathe has said is enough, it is his right to examinedocuments confirming the existence of risks incourt, but court will assess the arguments ofthe parties in the deliberation room.

V. Lyapin, a lawyer, said that in this casethe right to defense would be violated. The de-fense will not be able to file a properly drawnup appeal against the court’s decision. Theremust be a motivational part in the decision.

Refer to Part 5 of Art. 176 of the CriminalProcedure Code, which was declared unconsti-tutional, is no longer possible. Also, the lawprohibits referring to the indictment as doc-umentary evidence of the existence of risks(although the court did this on several occa-sions). Since the prosecutor did not provideany documents, but only expressed his opin-ion, the defense does not understand what thecourt’s argumentation will be for making a de-cision and about what to write in the appeal.The lawyer also said that according to the

doctor’s recommendation, Andrei Tatarintsevshould take diet food 6 times a day and med-ications along with meals. Considering thatthe accused was taken from the pre-trial de-tention center to court in the morning, andwill be returned after dinner, he will starve foralmost 24 hours and will not be able to takemedicine. This is a violation of the right to lifeand health.The defense attorney recalled that in

September it will be 6 years since, according tothe “Savchenko law”, A. Tatarintsev is in thepre-trial detention center, which raises doubtsabout the reasonableness of the terms of hisdetention without a sentence. The very factthat the accused is not provided with medi-cal assistance during the trial is bound to bethe reason for the appeal to overturn any sen-tence imposed by the court of first instance.Thus, the consideration of the case may takea period that exceeds the maximum term ofpunishment provided for by the articles un-der which Tatarintsev is accused. Therefore,lawyer V. Lyapin asked the court to appointa measure of restraint for the accused in theform of house arrest or bail, which he couldpay.

The detention was extended. Only the oper-ative part of the decision was announced.

The International Society for Human Rightsexpresses concern about this position of thecourt, since a reference to the same grounds,if they are repeated for the entire period ofa person’s detention, for the extension of anexceptional measure of restraint may be a vio-lation of paragraph 3 of Art. 5 of the Conven-tion (“Kharchenko v. Ukraine”, No. 40107/02,

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paragraphs 80, 81 and 99 of 02.10.2011; “Ig-natov v. Ukraine”, No. 40583/15, paragraph41, of 12.15.2016). The ECtHR also consid-ers that the fact that other measures of re-straint during the extension of detention werenot considered by the court may indicate aviolation of paragraph 3 of Art. 5 of the Con-vention (“Buryaga v. Ukraine” No. 27672/03,paragraph 62, 03.04.2010).

Monitoring of the case of AndreiTatarintsev (session 09.03.2020)

On September 3, 2020, an open court hearingwas held in the Kuibyshevsky District Courtof the Zaporozhye Region in the case of busi-nessman Andrei Tatarintsev, who is accused ofcommitting crimes under Part 1 of Art. 258-3,part 5 of Art. 27, part 2 of Art. 28, part 2 ofArt. 437, part 1 of Art. 438 of the CriminalCode of Ukraine (financing a terrorist organiza-tion, complicity in the conduct of an aggressivewar, cruel treatment of prisoners of war andthe civilian population).According to the lawyer of Andrei Tatar-

intsev, Vladimir Lyapin, in 2014-2015 the ac-cused traded gasoline at an oil depot locatedon the territory uncontrolled by the Ukrainiangovernment (ORDLO), the armed men whopresented themselves as the military of theunrecognized republics of the “DPR / LPR”ordered him to transfer fuel to the ambulancestation and other facilities.Andrey Tatarintsev suffers from type 2 di-

abetes. Objective data obtained by the Inter-national Society for Human Rights during themonitoring of this proceeding, allow us to con-clude that during the 3 years of detention, theaccused did not receive medical assistance anddietary food prescribed for his illness.At the beginning of the session, lawyer

Vladimir Lyapin again announced that theleadership of pre-trial detention center No.11, where the accused is being held, ignoredthe court decisions. At the last session, thecourt ordered the isolation ward to send avideo recording confirming that Tatarintsevhad been given prescribed drugs or had refusedthem. However, the pre-trial detention centersuggested in writing to contact the branch of

the state institution “Center for Health Pro-tection” on this issue. Although, according toTatarintsev himself, the filming is directly car-ried out by the duty assistant to the headof the pre-trial detention center. Also, Tatar-intsev again confirmed that from August 21,i.e. from the moment of examination by anendocrinologist and the appointment of treat-ment, the medical unit workers do not givehim the prescribed medicine, but offer threeunknown pills, packed in a paper bag, with-out specifying the name, dosage and expirationdate. The court disregarded these explanationsand suggested that the defense go to the pe-tition, which had previously been registeredwith the court registry.

Lawyers Vladimir Lyapin and VadimKravtsov in accordance with Art. 201 andArt. 206 of the Criminal Procedure Code ofUkraine petitioned to change the measure ofrestraint for Andrey Tatarintsev. To substan-tiate their position, they cited paragraph 60of the ECtHR judgment of 06.10.2008 in thecase “Yeloyev v. Ukraine”: “After a certain timehas elapsed, the existence of reasonable sus-picion ceases to be the basis for depriving aperson of liberty, and the judicial authoritiesmust provide other grounds for continuing thedetention”.

The ISHR draws attention to the fact that asimilar position, which meets the requirementsof Part 3 of Article 5 of the Convention, isset out in the decisions “Yablonsky v. Poland”,N 33492/96 para. 80, 2000-XII and “I.A. v.France”, no. 28213/95, para. 102, 1998-VII.

In addition, lawyers quoted an excerpt fromthe 15th report of the OHCHR on the humanrights situation in Ukraine (May 16 - August15, 2015):

OHCHR has documented a clear andconsistent trend in human rights vi-olations against individuals againstwhom charges of conflict, nationalsecurity or terrorism are brought, of-ten starting with arbitrary arrest anddetention. OHCHR recalls that theprohibition of unjustified detentionpresupposes that the detention of per-sons pending trial should be an ex-

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ceptional measure of restraint. Theconditions under which this measureis applied should be listed in the leg-islation, and they should not includesuch vague and inexhaustible stan-dards as “ensuring public safety”. De-tention cannot be applied as a com-pulsory measure of restraint to allpersons accused of committing a spe-cific crime, regardless of individualcircumstances. During the monitor-ing of the court hearings, OHCHRdrew attention to the fact that nei-ther the prosecution nor the judgescheck the circumstances for the con-tinued detention of suspects. Courtsrarely consider using alternative non-custodial measures such as bail.

According to the lawyer V. Lyapin, the ma-terials of the criminal proceedings against A.Tatarintsev do not contain evidence providedby the Criminal Procedure Code that the“Donetsk people’s republic” and “Luhansk peo-ple’s republic”, designated in the indictmentas terrorist organizations, are recognized asterrorist in the manner prescribed by law or-ganizations. According to the Law of Ukraine“On Combating Terrorism”, an application forholding an organization accountable for terror-ist activities is submitted to the court by theProsecutor General of Ukraine, prosecutors ofthe Autonomous Republic of Crimea, regions,cities of Kiev and Sevastopol in the mannerprescribed by law.Lawyer Lyapin repeated that the proceed-

ings did not contain the decision of theUkrainian court on the appeal of the subjectsspecified in Art. 24 Law of Ukraine “On Com-bating Tterrorism”, which would recognize the“DPR” or “LPR” as a terrorist organization.Also, according to him, the UN Security Coun-cil and the Council of Europe refused to recog-nize these organizations as terrorist, and theICRC noted in September 2014 that there is acivil war in Ukraine and called on the partiesto the conflict to adhere to international con-ventions. The defense side indicated that it hadreceived official replies from the Office of thePresident, the Parliament Committee on Na-

tional Security, the Supreme Court of Ukraine,regional prosecutor’s offices of Ukraine, the Se-curity Service of Ukraine and others that theappeals for recognizing the “DPR” and “LPR”as terrorist (in accordance with the law) havenot been reported.

In addition, when petitioning to change themeasure of restraint, the defense referred to theCriminal Procedure Code of Ukraine, whichsays that the prosecution must prove to thecourt, in addition to the validity of the chargeand the existence of risks of non-procedural be-havior of the accused, also the impossibility ofapplying a milder measure of restraint. Accord-ing to paragraph 34 of the ECtHR judgmentin the case “Zentsov and Others v. Russia”, N35297/05 of 04.25.2013, the accused must beconsidered innocent until he is found guilty.Thus, the lawyer stated that an accused of acrime should always be released pending trial,unless the state can prove that there are “sub-stantial and sufficient” reasons to justify con-tinued detention. According to paragraph 8 ofthe ECtHR judgment in the case “Mkhitaryanv. Russia”, N 46108/11, dated 02.05.2013, thenational authorities are obliged to establishthe existence of specific facts that may becomethe basis for extending the detention period.

Lawyer Lyapin recalled that the KorolevskyDistrict Court of Zhitomir came to the sameconclusions by its ruling of June 27, 2018, soft-ening the measure of restraint for the accusedunder Part 2 of Art. 110, Part 1 of Art. 111,Part 2 of Art. 161, part 1 of Art. 258-3 of theCriminal Code of Ukraine of journalist VasilyMuravitsky. Also, the Kiev Court of Appealon February 21, 2018 softened the measureof restraint for Dmitry Vasilets and YevgenyTimonin, accused under Art. 258 - 3 part 1 ofthe Criminal Code of Ukraine.

In addition to the above as justification forthe need to change the measure of restraint,the defense noted that on August 21, the ac-cused Tatarintsev was examined in the pre-trial detention center by endocrinologist S.V.Tovstyga, who prescribed treatment for him.On August 25, the lawyer sent a request tothe branch of the state institution “Health Pro-tection Center” of the Zaporozhye region, in

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which he asked for information about the avail-ability of appropriate drugs in the medical unitof the pre-trial detention center and the pro-vision of them to Tatarintsev. The response,which was received on August 28, does notstate anything about the availability of therequested drugs, but it says that Tatarintsevis given completely different drugs. Thus, thecourt, according to the position of the lawyer,does not exercise judicial control and does notprovide Tatarintsev with the necessary treat-ment, which is identical to the use of tortureagainst him.

Experts of the International Society for Hu-man Rights draw attention to the fact thatfailure to provide adequate and timely medicalcare in places of deprivation of liberty is tan-tamount to inhuman and degrading treatment(cases “Garumov v. Ukraine”, p. 46; “Humma-tov v. Azerbaijan”, pp. 112–122; “Wuhan v.Ukraine”, pp. 77-83; “Petukhov v. Ukraine”,pp. 91-98; “Sergey Antonov v. Ukraine”, pp.70-75). In May 2020, the ECtHR ruled in thecase “Kadagishvili v. Georgia” in which it rec-ognized a violation of Article 3 of the EuropeanConvention in a situation where an accusedprisoner with diabetes mellitus does not haveaccess to the necessary treatment and a spe-cial diet. Tatarintsev has been in a similarsituation for a long time.In this regard, the defense asked to change

Tatarintsev’s measure of restraint to housearrest with the obligation to wear an electronicbracelet or bail.After leaving the deliberation room, the

court rejected the defense’s petition and or-dered the branch of the Health Protection Cen-ter to provide the accused with treatment, pro-vide documents confirming the possibility ofkeeping Tatarintsev in the pre-trial detentioncenter, and also ensure that the prosecutor’soffice inspects the treatment of the accused.

Thereafter, the court proceeded to considerthe motion to declare the evidence obviouslyinadmissible. Lawyer Lyapin asked to recog-nize the protocol of Tatarintsev’s detention assuch, since it was drawn up in violation of thenorms of the Criminal Procedure Code andthe right to defense. During a search under

Part 1 of Art. 258-3 Tatarintsev was not pro-vided with a lawyer, which is confirmed bythe absence of the lawyer’s name in the listof persons who took part in the search. Thepublic defender appeared to sign the protocolonly at 10:40 am, while the arrest took placeat 8:40 am.The court also did not satisfy this request,

since it did not find any signs of obvious in-admissibility and will assess this document inthe deliberation room during the sentencing.

Monitoring of the case of AndreyTatarintsev (hearing 10.07.2020)

On October 7, 2020, an open hearing was heldin the Kuibyshevsky District Court of the Za-porozhye Region in the case of businessmanAndrey Tatarintsev, who is accused of commit-ting crimes under Part 1 of Art. 258-3, Part5 of Art. 27, Part 2 of Art. 28, Part 2 of Art.437, Part 1 of Art. 438 of the Criminal Codeof Ukraine (financing a terrorist organization,complicity in the conduct of an aggressive war,cruel treatment of prisoners of war and thecivilian population).Andrey Tatarintsev suffers from type 2 di-

abetes. The accused notes that during the 3years of detention he did not receive adequatemedical care and dietary food prescribed forhis illness.

Before the start of the hearing, the accusedinformed those present that after the dismissalof the Chief of the medical unit, there was nota single doctor left in the pre-trial detentioncenter No. 1, and from August 21 of this year,after a visit it by an endocrinologist, he wasnot given any medicine at all and no one mea-sured his blood sugar. He also handed overto the lawyer Vladimir Lyapin several writ-ten requests (with the entering number) tothe medical unit of the pre-trial detention cen-ter with a request to issue him medications.In addition, Andrei Tatarintsev demonstrateda food ration that was given to him for the“Sudden” - white bread, butter, cookies, eggsand peanuts, which, according to him, doesnot correspond to the diet for diabetics. Theaccused said that the video recording of thetransfer of food rations to him was stopped in

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the pre-trial detention center.At the beginning of the session, the defen-

dant’s lawyer filed a motion to change themeasure of restraint from detention to housearrest. He explained that when Andrey Tatar-intsev was examined by an endocrinologiston 09.09.2020, a deterioration in his healthwas recorded and appropriate treatment wasprescribed. It was also established that sinceAugust 21, 2020, the accused has not receivedthe previously prescribed treatment.Such actions by the state may violate Ar-

ticle 3 of the European Convention for theProtection of Human Rights and Fundamen-tal Freedoms, which determines that “no oneshall be subjected to torture or inhuman ordegrading treatment or punishment” (“Beketovv. Ukraine”, para. 76).

Also, according to the decision of the ECtHR(“Kalashnikov v. Russia”, para. 95), the statemust ensure that a person is held in custodyin conditions that respect human dignity sothat the nature and method of execution ofthe measure of restraint does not cause theperson suffering or difficulties, the intensity ofwhich exceeds the inevitable level of sufferinginherent in detention.The ECtHR emphasizes that Art. 3 of the

Convention imposes an obligation on the Stateto ensure, taking into account the practicalrequirements of imprisonment, that the healthand well-being of the prisoner is adequatelyguaranteed, including by providing him withthe necessary medical assistance (“Salakhovand Islyamova v. Ukraine”, para. 129). In addi-tion, the ECtHR has repeatedly indicated thatit is the responsibility of the state to providethe necessary medical assistance to persons inplaces of detention (“Wuhan v. Ukraine”, para.72).

The defense side attached to the case a re-sponse to the request for the provision of pub-lic information, which was sent to the head ofthe pre-trial detention center No. 11, ViktorOvdienko, regarding the availability of food-stuffs corresponding to the diet for diabetics.This request was forwarded to the head ofthe state institution “Health Protection Cen-ter” of the Zaporozhye region - Oleg Shulga,

who replied that the competence of the staffof the branch’s medical departments does notinclude providing prisoners with dietary meals.In addition, the lawyer told the court that theinquiry about the state of health of AndreyTatarintsev was sent to the pre-trial detentioncenter by the People’s Deputy Renat Kuzmin,after which the chief medical officer of the med-ical unit Svetlana Zakharchuk quit and wentto work in the Kamensk penal colony No. 101.According to the lawyer, during the examina-tion by the doctor on September 9, facts offalsification were established, regarding whichthe People’s Deputy of Ukraine Renat Kuzminhas already applied to the Ministry of Justiceof Ukraine. We are talking about the answerof the head of the state institution “Center forHealth Protection” of the Zaporozhye regionOleg Shulga to the lawyer’s request of VladimirLyapin, where Oleg Shulga wrote that on Au-gust 21, 2020, Tatarintsev was not examinedby an endocrinologist, and the doctor’s reportissued to the accused has signs of falsification.And this despite the fact that the lawyer pro-vided the court with documents confirmingthat the examination was carried out - thepasses issued in the pre-trial detention cen-ter, a copy of the visitors’ logbook, statementsby Andrey Tatarintsev and doctor SvetlanaTovstyga for the examination.

At the hearing, a question was asked tothe convoy whether the accused had receivedmedication before going to court. The chiefof the convoy answered in the negative. Thedefense side petitioned that the court eitherensure the rights of the prisoner in the pre-trial detention center, or change the measureof restraint to a milder one, so that the accusedcould get access to medical care.

Prosecutor Aleksei Kozakevich asked not togrant the defense’s petition on the groundsthat, according to a letter sent to the courtfrom the pre-trial detention center medicalunit, the accused himself refuses to take medi-cations.The court read out the answer received on

September 9 from the head of the state in-stitution “Health Protection Center” of theZaporozhye region, Oleg Shulga: “According to

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the explanations of the medical unit employees,the examination by the doctor Tovstyga wasnot carried out, and the certificate providedby the lawyer Vladimir Lyapin shows signsof fictitiousness. Andrey Tatarintsev’s medi-cal records are not in the medical unit; theywere handed over to the court upon request.Andrey Tatarintsev refuses to measure bloodsugar and take medications prescribed by doc-tor Tovstyga. The medical unit has all themedicines in the form of analogues.” Attachedto the letter were copies of journal with AndreyTatarintsev’s refusal to take medications.

The lawyer said that the copies of the jour-nal provided were falsified, since during theexamination of Andrey Tatarintsev by the en-docrinologist Padafa on September 9, 2020,there were no marks in the journal for Au-gust 21 at all. In addition, there is no signa-ture of Andrey Tatarintsev under the refusalsto receive medicines. According to VladimirLyapin, the conclusions of doctors Tovstygaand Padafa are in a pre-trial detention center,a branch of the state institution “Health Pro-tection Center” of the Zaporozhye region andare filed with the personal file of the accused.In addition, Tatarintsev’s medical card wasindeed in court for some time, but then wassent back to the pre-trial detention center. Thepresiding judge Viktor Malevanny confirmedthat the court had sent the medical card to themedical unit of the isolation ward long ago.Experts from the International Society for

Human Rights remind that failure to pro-vide adequate and timely medical care in pris-ons is tantamount to inhuman and degrad-ing treatment (“Garumov v. Ukraine”, para.46; “Hummatov v. Azerbaijan”, paras. 112-122;“Wuhan v. Ukraine”, paras. 77-83; “Petukhovv. Ukraine”, paras. 91-98; “Sergei Antonov v.Ukraine”, paras. 70-75).The position of the European Court in the

case “Kadagishvili v. Georgia” is indicative.The applicant’s complaint in the aforemen-tioned case concerns the inadequacy of medicalcare for his diabetes and related health prob-lems, the alleged delay in the administrationof insulin injections, the refusal of the prisonauthorities to provide him with the necessary

special diet, and to supplement the care withmedicines and medical assistance from his fam-ily. (case “Kadagishvili v. Georgia”, para. 121).As to the adequacy of the medical supervisionand care provided in respect of the applicant’shealth problems, the Court notes that his diag-nosis of diabetes was known to the relevant au-thorities from the moment of his initial arrest.Despite the fact that the medical history relat-ing to the applicant’s treatment in the medicaldepartment of the Tbilisi prison shows thathis condition was constantly monitored by thedoctor on duty at that institution and that healso consulted an endocrinologist and cardiol-ogist on several occasions, the Court cannotignore the findings of the private medical theexpert examining the applicant that the appli-cant’s health had deteriorated “probably dueto irregular diabetes treatment”. Moreover, nomedical records were drawn up regarding theapplicant’s stay in ordinary prison cells of theTbilisi prison. (case “Kadagishvili v. Georgia”,para. 123).

Moreover, there are no records of the insulininjections given to the applicant in prison. Ac-cordingly, the Court considers that the Govern-ment failed to fulfill their obligation to provethat there was adequate medical supervisionand treatment for the applicant in prison. (case“Kadagishvili v. Georgia”, para. 124).

The situation is aggravated by the prison’sinability, as expressly acknowledged by therelevant authorities, to provide the applicantwith the necessary diabetes diet. The need toprovide the applicant with a special diet wasalso noted as a problem by the prison doctoron duty. Although the authorities appear tohave allowed the applicant’s family to providehim with the appropriate food, his complaintshows that food could not always have beenallowed through. Thus, there is no indicationthat the conditions of the applicant’s deten-tion were adapted to his state of health. (case“Kadagishvili v. Georgia”, para. 125).

The foregoing considerations are sufficientfor the Court to conclude a violation of Art. 3as regards the applicant’s treatment in prison.(case “Kadagishvili v. Georgia”, para. 126).

Based on the analysis of the ECtHR decision

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“Kadagishvili v. Georgia”, it can be concludedthat in the case of Andrey Tatarintsev theremay be a violation of Art. 3 of the Convention.However, in the deliberation room, the na-

tional court decided not to grant the defensemotion. Only the operative part of the judg-ment was announced.The judgment was later published. It is

worth paying attention to the motivation forthe court’s refusal to change the measure of re-straint. Thus, the court took into account thegravity of the incriminated crime, the existenceof the risk that the accused may unlawfullyinfluence witnesses and victims in this crimi-nal proceeding, including witnesses declaredby the defense side who have not yet beenquestioned by the court at the hearing. In ad-dition, the court referred to the fact that theevidence had not been examined, and the ac-cused himself did not testify to the court either.The court also indicated that in the pre-trialdetention center the accused is under constantsupervision of medical workers and receivesthe prescribed treatment. This institution hasall the conditions for the necessary treatment.

It is worth analyzing the practice of the Eu-ropean Court, which was used by the Kuiby-shevsky District Court of the Zaporozhye Re-gion to motivate its position. Thus, one of thedecisions referred to by the court was the de-cision “Goginashvili v. Georgia”. The NationalCourt quotes: “Art. 3 of the Convention cannotbe interpreted in such a way as to enshrine ageneral duty to release detainees due to healthconditions, but rather requires the compati-bility of the prisoner’s health condition withhis or her prolonged detention, even if he orshe is seriously ill, and depends on the state’sability to provide appropriate treatment of therequired quality in a place of detention. How-ever, if you get acquainted with the original ofthe decision, we understand that in the case“Goginashvili v. Georgia” it is about the releasefrom serving a sentence (para. 79). And in thecase of Andrey Tatarintsev, the final decisionhas not yet been made. Thus, the applicationof the legal positions of the ECtHR from thecase “Goginashvili v. Georgia” in the case ofAndrey Tatarintsev is incorrect. Having ana-

lyzed the context of the decision “Goginashviliv. Georgia”, the International Society for Hu-man Rights believes that there is a difference inthe stages of criminal proceedings. In the case“Goginashvili v. Georgia”, the issue of releas-ing the detainees due to health conditions isconsidered at the stage of the already adoptedcourt decision, which established guilt. Whilein the case of Andrei Tatarintsev, the courtcontinues to consider the case and the guiltof the accused is not confirmed by the courtdecision.Then the court proceeded to consider the

evidence contained in the first volume of thecase. The prosecutor asked to pay special at-tention to the letters of the operational unitof the SBU, which contain evidence of AndreyTatarintsev’s connection with the participants,as he believes, of terrorist organizations of theDPR and LPR, including the phone numbersthat were used in their communication.The lawyer said that this is inadmissible

evidence, since the actions of the operationalunit on behalf of the investigator are regulatedby the Criminal Procedure Code, which indi-cates the only form of documents drawn upby him - a protocol, but not a letter. In ad-dition, these documents contain informationabout the personal data of Andrey Tatarintsevand his family members, as well as data thathave signs of banking secrecy. Access to suchinformation is allowed exclusively by the inves-tigating judge, but there is no correspondingdefinition in the case file. The court decided toassess this evidence in the deliberation roomat the time of sentencing.

Experts of the International Society for Hu-man Rights draw attention to the fact that vio-lation of the right to privacy of correspondence,telephone conversations, accompanied by ille-gal interference in personal and family life, inviolation of the procedure established by thecriminal procedure legislation of Ukraine (inparticular, Art.258 of the Criminal ProcedureCode of Ukraine) and guaranteed by Art. 31,32 of the Constitution of Ukraine (“Everyoneis guaranteed the privacy of correspondence,telephone conversations, and other correspon-dence”, “No one may be subject to interference

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in his personal and family life, except in casesprovided for by the Constitution of Ukraine”),Art. 5, 8 of the Convention for the Protectionof Human Rights and Fundamental Freedoms(in terms of violation of the legal procedurefor limiting the right to liberty and securityof person and the right to respect for privateand family life), Art. 17 of the Law of Ukraine“On the execution of decisions and the applica-tion of the practice of the European Court ofHuman Rights” is a gross violation of humanrights and freedoms.The defense also had questions about the

appendix to the protocol of interrogation ofwitnesses and the investigative experiment.Lawyers Vladimir Lyapin and Vadim Kravtsovpetitioned to declare this evidence inadmissi-ble, since the disc with the recording in theunderstanding of the Criminal Procedure Codeof Ukraine is neither the original nor a dupli-cate made in the same way as the original. Inaddition, the disc was not packed, it did notcontain the date and signatures of the partic-ipants in the process, and the file propertiesindicated that the disc was recorded an hourafter the end of the investigative experiment.The court postponed the decision on this issueand gave the prosecutor time to look for theoriginal recording or information regarding thewhereabouts of this original.

We remind you that in case of doubts aboutthe reliability of the source of evidence, thereis a growing need to confirm the circumstanceswith evidence from another source, as well asthe possibility of the accused to appeal againstsuch evidence (case “Jalloha v. Germany”, para.96). In such situations, a question arises, whichmust be answered: is the judicial review, in-cluding the methods of obtaining evidence, fair(case “Bykov v. Russia”, para. 89).

You should also pay attention to the factthat the case of Andrey Tatarintsev has beenheard for more than 3 years. The Court reiter-ates that it holds the State responsible for thedelay in the judges’ decisions (case “Macfarlanev. Ireland”, para. 121).

Art. 6 of the Convention recognizes that ev-ery person prosecuted in a criminal case hasthe right to receive, within a reasonable time,

a final decision on the well-foundedness of thecharges against him, or rather to ensure thatthe accused do not remain under the weightof the charges for a long time and that a deci-sion is made on the justification charges (case“Wemkhov v. Germany” para. 18, case “GiuliaManzoni v. Italy” para. 25, case “Brogan andOthers v. United Kingdom” para. 65).

The provisions of Article 6 of the EuropeanConvention on Human Rights indicate thatthe accused cannot remain in the dark abouttheir fate for too long (cases “Nakhmanovichv. Russia” para. 89, “Ivanov v. Ukraine” para.71).

According to the ECtHR, “by requiring theconsideration of cases within a ’reasonabletime’, the Convention emphasizes the impor-tance of administering justice without delay,which may jeopardize its effectiveness and cred-ibility” (case “Vernillo v. France”, para. 38).The presiding judge said that the pre-

scheduled hearing for October 26 will not takeplace due to the elections. The hearing waspostponed to 10:00 am on November 11, 2020.

Monitoring of the case of AndreyTatarintsev (hearing on 11.25.2020)

On October 25, 2020, an open hearing washeld in the Kuibyshevsky District Court of theZaporozhye Region in the case of businessmanA. Tatarintsev, who is accused of committingcrimes under Part 1 of Art. 258-3, part 5 of Art.27, part 2 of Art. 28, part 2 of Art. 437, part1 of Art. 438 of the Criminal Code of Ukraine(financing a terrorist organization, complic-ity in the conduct of an aggressive war, crueltreatment of prisoners of war and the civilianpopulation).According to the lawyer of A. Tatarintsev,

Vladimir Lyapin, in 2014-2015 the accused wastrading gasoline at a tank farm located on theterritory of certain districts of Donetsk andLugansk regions, and after the obligation tothe armed persons who appeared to be themilitary of the unrecognized republics of theDPR / LPR, he was forced to transfer fuel tothe ambulance station and other facilities.A.Tatarintsev suffers from type 2 diabetes.

Objective data obtained by the ISHR in the

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course of monitoring this proceeding allow usto conclude that during almost 3.5 years ofdetention, the accused did not receive medicalassistance and dietary food prescribed for hisillness.

Hearing progress: At the beginning of thehearing, it was reported that the prosecutor ofthe Office of the Prosecutor General A. Kaza-kevich could not be present at the hearings inthe case of A. Tatarintsev, since quarantinewas declared in the country, and Zaporozhyewas in the “red” zone, which did not allowhim to move from Kiev to Zaporozhye on apublic transportation. A new prosecutor wasappointed in the case, from the Kuibyshevskyinterdistrict prosecutor’s office - V. Vinnitsky.Since he finds out about his participation inthe proceedings only the day before the hear-ing and, accordingly, could not prepare, theprosecutor filed a motion to postpone the hear-ing. Taking into account that the next hearingagreed by the parties was scheduled for Decem-ber 23, 2020, judge V. Malevanny announcedthat he was postponing the court to that date.However, lawyer V. Kravtsov recalled that A.Tatarintsev’s term of measure of restraint ex-pires on December 5, so the court must meetbefore the specified time. Judge V. Malevannyreplied that the issue of extending the measureof restraint can be considered right now, towhich he received a protest from the defense -procedural actions cannot be carried out with-out the participation of the prosecutor, and theprosecutor has not yet studied the case and,accordingly, cannot prove either the existenceof risks or the validity of the charge, which isnecessarily required by the provisions of theCriminal Procedure Code of Ukraine. After ashort meeting, the panel of judges postponedthe hearing to December 02, 2020.

Experts of the International Society for Hu-man Rights believe that the postponement ofhearings for various reasons, incl. due to theunpreparedness of the prosecutor, may lead toa violation of paragraph 3 of Art. 5 of the Con-vention for the Protection of Human Rightsand Fundamental Freedoms, i.e., the right totrial within a reasonable time (“Buryaga v.Ukraine”, para. 62), especially in light of the

defendant’s illness.According to the lawyer V. Lyapin, it be-

came known that a complaint was filed withthe ECtHR regarding the violation of A. Tatar-intsev’s rights. The defense side claims thatthe failure to provide medical care to a per-son suffering from diabetes for several yearscan lead to irreparable and at the same timesignificant harm to the life and health of theprisoner, disability and even death.According to V. Lyapin, all the necessary

evidence regarding the pre-trial detention cen-ter has already been obtained. Thus, to therequest of A. Tatarintsev to the new man-agement of the medical unit of the pre-trialdetention center N11, represented by D. Bal-ashov, an official response was received thatthe drugs prescribed by the endocrinologistwere not available at the disposal of the medi-cal unit of the pre-trial detention center. Thedefense recalled that in a number of decisionsof the Kuibyshevsky District Court on the ex-tension of A. Tatarintsev’s measure of restraintin the form of detention in custody, the courtreferred to the certificate of the head of thebranch of the State Institution “Health Protec-tion Center of the State Penitentiary Serviceof Ukraine”, in which it is indicated that themedical unit of the pre-trial detention centerN11 is equipped with all prescribed drugs inthe form of domestic analogues. Since the docu-ments contradict each other, the defense wouldlike to make sure that A. Tatarintsev receivedtreatment and dietary nutrition.To obtain information on the provision of

dietary food to A. Tatarintsev, the court in-terrogated the convoy. The head of the convoyonce again confirmed that he had not receivedany medicines for A. Tatarintsev, and whetherthe ration given to him was dietary food, he didnot know. Then V. Lyapin asked the court toallow the accused to be examined by endocri-nologist S. Tovstyga, who was in the court-room, in order to assess the state of healthof A. Tatarintsev, who had not received themedicine, and to determine whether the rationtransferred from the pre-trial detention centerwas dietary food for diabetics. However, thecourt did not allow this to be done, telling the

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lawyer that he “confuses the courtroom with ahospital”. Despite the lawyer’s statement thathe had one more motion, the collegium fin-ished the session and left the hall. The ISHRexperts express their concern about the viola-tion of the principle of equality in the case of A.Tatarintsev. The principle of equality of armsis only one feature of the broader concept of afair trial, which also includes the fundamentalright to adversarial criminal proceedings (“Bar-bera, Messege and Jabardo v. Spain”, paras.33-34).

An ambulance was called to the court again.A. Tatarintsev’s blood sugar measurementgave (on the paramedic’s device) an indica-tor of 15.6 (3 times higher than the norm) and(on the device of the endocrinologist Tovstyga- 18.8 (3.5 times higher than the norm), withsuch indicators, the patient needs hospitaliza-tion, an IV drip and other medical measures.Both the paramedic of the ambulance andthe endocrinologist confirmed to the court’squestions that the blood pressure is 165/100,tachycardia and arrhythmia are present.A.Tatarintsev himself reported confirmed

cases of coronavirus in jail among the admin-istration, many prisoners are sick, some havelost their sense of smell, but the administra-tion does not conduct a coronavirus test anddoes not isolate those infected from the rest ofthe prisoners.

The next day, lawyer V. Kravtsov got coro-navirus tests for his clients in the pre-trialdetention center N11. Several of them had pos-itive results. One of the infected is kept in acell together with A. Tatarintsev, a diabetic,who is at risk. All data will be sent to theECtHR for a final decision in accordance withRule 39 of the Regulation.

The International Society for Human Rightsdraws attention to the fact that, according tothe ECtHR judgment in the “Kalashnikov v.Russia” case, para. 95, the state must ensurethat a person is held in custody in conditionsthat respect human dignity, so that the natureand method of execution of the measure ofrestraint did not cause the person suffering orhardship, the intensity of which exceeds the in-evitable level of suffering inherent in detention.

In the judgment of the ECtHR in the case“Salakhov and Islyamova v. Ukraine”, para.129 “. . . The European Court emphasizes thatArt. 3 of the Convention imposes a duty onthe State to ensure, taking into account thepractical requirements of imprisonment, thatthe health and well-being of the prisoner isadequately guaranteed, including by providinghim with the necessary medical assistance.”In addition, the ECtHR has repeatedly indi-cated that it is the responsibility of the stateto provide the necessary medical assistanceto persons in places of detention (“Wuhan v.Ukraine”, para. 72).

In addition, the ECtHR argues that the fail-ure to provide adequate and timely medicalcare in prisons is tantamount to inhuman anddegrading behavior (“Garumov v. Ukraine”,para. 46; “Hummatov v. Azerbaijan”, paras.112-122; “Wuhan v. Ukraine”, paras. 77 - 83;“Petukhov v. Ukraine”, paras. 91 - 98; “SergeiAntonov v. Ukraine”, paras. 70 - 75).

The court’s refusal to conduct a medical ex-amination of the accused complaining aboutthe state of health may be regarded as a viola-tion of Art. 3 of the European Convention forthe Protection of Human Rights and Funda-mental Freedoms, which determines that “noone should be subjected to torture or inhu-man or degrading treatment or punishment”(“Beketov v. Ukraine”, para. 76).

Monitoring the case of Andrey Tatarintsev(hearing 12/23/2020)

On December 23, 2020, an open court hearingwas held in the Kuibyshevsky District Court ofthe Zaporozhye Region in the case of business-man Andrey Tatarintsev, who is accused ofcommitting crimes under Part 1 of Art. 258-3,Part 5 of Art. 27, Part 2 of Art. 28, Part 2of Art. 437, Part 1 of Art. 438 of the Crimi-nal Code of Ukraine (financing of a terroristorganization, complicity in the conduct of anaggressive war, cruel treatment of prisoners ofwar and the civilian population).

Experts of the International Society for Hu-man Rights continue to monitor this criminalproceeding. Hearing progress: At the beginningof the hearing, the accused stated that he was

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not feeling well, and lawyer V. Lyapin askedthe judges for permission to ask the convoyif A. Tatarintsev had been given medicationsand diet food prescribed by the doctor for theday. The panel of judges refused to satisfy themotion, citing the fact that this had nothingto do with the essence of the case, and thepresiding judge added that the lawyer alreadyknew that none of the above had been givento the accused.A.Tatarintsev was outraged by the court’s

decision, stating that he was again given foodunacceptable for diabetics and was not pro-vided with any medicine or mask, although inthe pre-trial detention center out of seven peo-ple who passed the coronavirus test, five had acoronavirus. When asked if the defendant wasill with COVID, the lawyer replied that thepre-trial detention center impedes the doctor’sability to conduct an examination in the deten-tion center. Despite the information providedby the lawyer, the court, without questioningthe accused whether he could take part in thehearing for health reasons, invited the partiesto file petitions.

The International Society for Human Rightsexpresses concern that the court did not re-spond to the accused’s statement that he wasdenied access to medical care, especially duringthe COVID19 pandemic. In the judgment inthe case “Garumov v. Ukraine” (No. 70043/17,§ 46, ECHR 2019-VI), the European Court ofHuman Rights notes that the refusal of thestate to place a prisoner in a hospital for ad-ditional examination and inpatient treatmentif his health deteriorates is inhuman and de-grading treatment. This fact was regarded bythe ECtHR as a violation of Article 3 of theConvention.

Further, the defense side announced the chal-lenge of the panel of judges. The lawyer V.Lyapin referred to Art. 206 of the CriminalProcedure Code of Ukraine, which defines theactions of judicial control carried out by thecourt in order to ensure the rights of the defen-dants during the trial. This article requires thecourt, in case of a statement by the defendantabout the use of violence against him duringdetention, to accept such a statement from the

accused, to provide a forensic medical exam-ination, to instruct the relevant investigativebody to investigate the facts, to take the nec-essary measures to ensure security. Accordingto the lawyer, the defense repeatedly raisedthe issue of not providing A. Tatarintsev withmedicines and dietary food in the pre-trial de-tention center. The court does not take anyaction or decision, as a result of which thestate of health of the accused is constantlydeteriorating. The collegium confines itself toformal sending requests about the possibilityof treating the defendant in the conditions ofa pre-trial detention center and about check-ing the facts indicated by the defense by thesupervisory authorities. Most of these ordershave not been answered yet, and this does notcause any reaction from the court.

V. Lyapin reminded the collegium that asearly as September 28, 2020, he filed a requestto receive from the pre-trial detention centerstatements about the possibility of A. Tatar-intsev’s treatment in the isolation ward. Thecollegium satisfied it and sent a letter to O.Shulga, the head of the “Health ProtectionCenter” branch of the State Administrationfor Information Protection in the Zaporozhyeregion, demanding to provide the court with avideo recording of the transfer of medicines toA. Tatarintsev. The video recording was notprovided to the court, but the collegium againdid not react to it. Also, lawyer V. Lyapinrecalled the hearing held on December 2, 2020,at which the issue of extending the measure ofrestraint to A. Tatarintsev was considered. Thedefender noted that on that day, A. Tatarint-sev’s blood sugar rose to 22.5 points, whilethe norm was 5.5, the blood pressure roseto 165/95 and the temperature rose to 37.3.The employees of the pre-trial detention cen-ter medical unit suspected the prisoner hadCOVID (this was confirmed by the certificateof the head of pre-trial detention center 11, D.Balashov, dated 12.02.2020). Thus, the con-voy was not allowed to take A. Tatarintsev tocourt. A video conference was scheduled, butthe state of health of the accused was suchthat he was physically unable to participatein it, as reported to the collegium by video

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link and went to the medical unit of the pre-trial detention center, where by that time theprosecutor for supervision and the doctor ofthe health center had arrived to examine thepatient. The lawyer V. Lyapin said that thejudges ignored this fact and continued the ses-sion without the participation of the accused(which is unacceptable according to the provi-sions of Article 193 of the Criminal ProcedureCode of Ukraine), referring to his allegedly vol-untary refusal to participate. On this occasioncriminal proceedings began on the commissionof a criminal offense under Part 1 of Art. 374of the Criminal Code of Ukraine (violation ofthe right to defense), in which A. Tatarintsevwas recognized as a victim.

Also, according to the text of the defensepetition, a few months ago Tatarintsev’s bloodsugar reached 15 units, and now it reaches 20and above, which indicates an obvious deterio-ration in the health of the accused, who, withsuch indicators, may fall into a coma. A. Tatar-intsev himself told the court that every day at7 am employees of the medical unit come tohim to measure sugar and blood pressure, butthey do not bring medicine. According to theaccused, the chief medical officer D. Balashovin a privat conversation explained to him thatsuch a demand came directly from the head ofthe financial institution of the public healthcenter in the Zaporozhye region, O. Shulga,from whom the Zaporozhye prosecutor’s officedemanded to act in this way.

The International Society for Human Rightsdraws attention to the fact that Art. 6 of theConvention clearly states that the implemen-tation of court decisions is part of the rightto a fair trial. Each party must be given areasonable opportunity to present its evidencein conditions that do not place it at a disad-vantage in relation to its opponent (“Avotins v.Latvia” No. 17502/07, para. 119 of 05.23.2016;“Dombo Beheer B.V. The Netherlands”, No.14448/88, para. 33 of 10.27.1993).

In addition, the Court considers that thegovernment must provide reliable and convinc-ing evidence that the accused received com-prehensive and appropriate medical assistancewhile in detention (“Savinov v. Ukraine”, No.

5212/13, para. 50, of 10.22.2015), since it isthe State that is responsible for the deten-tion of persons in conditions that respect hu-man dignity, including the provision of neces-sary medical care (“Kalashnikov v. Russia”, No.47095/99, para. 95, ECHR 2002 VI; “Wuhanv. Ukraine”, No. 30628/02, para. 72, ECHR2008-XII). A sharp deterioration in the stateof health of a person in places of detentioninevitably casts doubt on the adequacy of themedical care available there (“Salakhov andIslyamova v. Ukraine”, No. 28005/08, para.129, ECHR 2013-III).

While the board was in the deliberationroom, an ambulance arrived at the court. Theparamedic recorded Tatarintsev’s blood sugarat 17.1 (with a norm of 5.5) and a blood pres-sure of 160/100. Since the ambulance kit doesnot include hypoglycemic drugs, the paramedicoffered to take the defendant to the hospitalto provide him with medical assistance. Theconvoy picked up the accused and took him tothe hospital in Belmak.

Leaving the deliberation room, the board re-jected the challenge, and since A. Tatarintsevwas no longer in the courtroom, suggested post-poning the hearing. Lawyer V. Lyapin statedthat he had received a letter from Strasbourgfrom the head of the ECtHR Filtration Section,Judge Klaudiusz Ringilevich, which indicatedthat the complaint about A. Tatarintsev wasgiven priority in accordance with Rule 41. On13 November 2020, an emergency examina-tion of the complaint under Rule 39, with therequirement to ensure the transfer of the ap-plicant to a specialized clinic for treatment,was suspended by the European Court in or-der to provide additional information on thereaction of the authorities to the applicant’shealth problems, as well as on the applicant’sattempts to obtain legal protection for his com-plaints and the results of these attempts. ByJanuary 15, 2021, the state must provide theEuropean Court with the following materialsand answers to the questions raised:- whether the applicant had access during

the last 6 months to consultations of medicalspecialists specialized in the relevant fields re-lated to his diseases; - whether all prescribed

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medical tests have been performed and hasbeen provided with all medications or otherprescribed treatment; - copies of the appli-cant’s complete medical record, including med-ical records of his current state of health andcopies of documents issued by specialist doc-tors who advised him and prescribed treat-ment; - details of the food offered to the appli-cant in the remand prison and during trans-port between the remand prison and the court-house; - copies of the menu according to whichthe applicant was given food in the remandprison and during transport between the re-mand prison and the courthouse.

3.62 The trial of Oleg Tatarov

Monitoring of the case of Oleg Tatarov(12.28.2020)

On December 28, 2020, the hearing in thecase of the Deputy Head of the Office of thePresident of Ukraine - Oleg Tatarov, who issuspected of committing a crime under Part 3of Article 369 of the Criminal Code, namely,a proposal, promise or provision of improperbenefits to an official, was supposed to takeplace in the Supreme Anti-Corruption Court.On December 18, 2020, O. Tatarov was handeda suspicion of providing an unlawful benefit toan official for falsifying an examination in thecase of taking possession of property of theNational Guard in the amount of more thanUAH 81 million.Earlier, on December 24, 2020, the court

should have already considered the issue ofchoosing a measure of restraint for the suspectbut could not do this because at about 11:40pm on December 23, the General Prosecutor’sOffice changed the jurisdiction of this criminalproceeding: the case was transferred from theNational Anti-Corruption Bureau (NACB) ofUkraine to Security Service of Ukraine. NACBconsiders such actions of the General Prosecu-tor’s Office as interference in their work.

Due to such changes, the new group of pros-ecutors was not yet authorized to participatein the proceedings, and therefore the courtcould not choose a measure of restraint, be-

cause according to Article 193 of the CCP,consideration of a petition for choosing a mea-sure of restraint must be considered with theobligatory participation of prosecutors.

A hearing was scheduled for December 28,2020 to resolve the same issue, but the courtwas forced to postpone the consideration againuntil December 30 due to the fact that the pros-ecutors did not appear without notifying thecourt of the reasons for failure to appear. TheInternational Society for Human Rights is con-cerned that in this proceeding there may be adelay in the process by the prosecution author-ities, since for the second consecutive hearingthe prosecutor’s office cannot start work, whichprevents an effective trial and, in the future,consideration of the case within a reasonabletime. Also, given the complex process of trans-ferring the case to jurisdiction, and the widepublicity of the case in the media, it is impos-sible to exclude the problem of manipulatingpublic conscience in order to achieve a certainattitude of society and, possibly, the collegiumof the court to the proceeding (see the reportof the ISHR “Incitement to hatred and disin-formation in the media”). It is noteworthy thatthe European Court of Human Rights in itsdecisions takes into account delays, sometimesreferred to as “significant periods of inactivity”,which are believed to be the fault of the au-thorities (“H. v. The United Kingdom”, para.45).

As mentioned above, the case is resonant,and on the day of the trial, a lot of media repre-sentatives, as well as activists, gathered underthe building with the words “Tatarov needsto be behind bars!” and posters “No corrup-tion!” demanded punishment for Oleg Tatarovand the resignation of Prosecutor General IrinaVenediktova, who, in their opinion, hinders theinvestigation of the case and the prosecutionof the suspect. Often, such actions of activistscan be regarded as pressure on the court andinducement to make an appropriate decision,which was previously noted by the observersof the ISHR in the cases of P. Poroshenko,A. Melnik and others. Although, according tothe ECtHR, national courts should be com-posed entirely of professional judges, whose

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experience and qualifications, in contrast tothe jury, allow them to resist any external in-fluences (“Craxi v. Italy”, para. 104; “Mircea v.Romania”, para. 75).

3.63 The trial of ValeryTerekhov

Monitoring of the case of Terekhov ValeryVasilievich, Kutas Vladimir Viktorovich(hearing 05/08/2020)

On May 08, 2020, in the Kovelsky City Courtof the Volynsky Region a hearing was heldin case No. 159/2105/19 on charges of ValeryVasilyevich Terekhov (under part 4 of article187, part 2 of article 353, part 1 of article 263of the Criminal Code of Ukraine) and KutasVladimir Viktorovich (under part 4 of article187, part 2 of article 353 of the Criminal Codeof Ukraine), who are accused of armed assaulton a 52-year-old businessman with the aim oftaking possession of his property. The Interna-tional Society for Human Rights has decidedto monitor the observance of the right to a fairtrial in this proceeding (in the video broadcastmode) due to the complexity of the work of theISHR observers during the quarantine period.During the court hearing, the court heard

the testimony of a witness who participatedin the proceeding from the building of anothercourt and with a change in appearance andvoice. However, for technical reasons, an effec-tive interrogation was not possible. The judgesdid not hear the witness, the content was dis-torted. The witness was asked repeatedly torepeat what was said. A break was announcedto eliminate technical difficulties, but even af-ter that the sound quality did not improve.Nevertheless, the panel of judges continuedthe interrogation, periodically questioning andclarifying the testimony of the witness. Accord-ing to the observer, the video broadcast modedid not give the opportunity to hear the wit-ness’s testimony, which cannot mean, of course,that the participants in the trial had the sameaudibility, but nevertheless, it raises doubtsabout the accuracy of these testimonies.

The witness’s testimony is important for the

criminal proceedings, since it is assumed thathe knows the circumstances of the prepara-tion for the commission of the criminal offenseaccording to the accused themselves.It should be noted that the admissibility

and reliability of the evidence underlying thatit is of undeniable importance for a fair trial.The quality of the evidence must be taken intoaccount, including whether the circumstancesin which it was obtained cast doubt on itsreliability or accuracy. In case of doubt aboutthe reliability of a particular source of evidence,the need for evidence to confirm it from othersources is growing (“Dzhallokha v. Germany”,para. 96).According to the International Society for

Human Rights, the testimony of a witness, ifthere is doubt about their accuracy, cannotbe the basis for a court decision. In the eventof such doubts, the ISHR believes that a wit-ness should be re-examined under sufficienttechnical conditions.

3.64 The trial of Ilya Turman

Monitoring the trial of Ilya SergeevichTurman (hearing on June 23, 2020)

On June 23, 2020, a preparatory hearing tookplace on case No. 701/171/20 on charges ofIlya Sergeevich Turman accused of committingcrimes under Part 3 of Article 206-2, part 3of Article 358 and part 2 of Article 366 of theCriminal Code of Ukraine. Ilya Sergeevich issuspected of holding an illegal general meetingof LLC “Victoria”, where he single-handedlymade a decision to alienate 100% of the shareof LLC “Victoria” in favor of another person.

The preparatory hearing began with the con-sideration of a request from a media represen-tative for a video recording of the preparatoryhearing, as well as an online broadcast of fu-ture hearings. The petition was motivated bythe public interest in this case. The defenseobjected, in particular, the defense attorneystated that, firstly, the trial was broadcast onthe website of the “Judicial Power”, and sec-ondly, it violates the right of the accused tothe presumption of innocence, since the me-

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dia can form the public opinion that her clienthad committed the crimes incriminated to himdespite the fact that his guilt has not yet beenproven. However, the court granted the request,stating that there were no grounds for holdinga closed hearing.The lawyer of the accused petitioned that

her client during the preparatory hearing wasseated not in the glass box, but next to her.She referred to the fact that the stay of theaccused in a glass box does not correspondto the case law of the ECtHR. The victim’slawyer objected to this motion. He pointed outa possible threat to the health of the partic-ipants in the proceeding. The judge grantedthe request of the accused’s lawyer, motivatingher decision by the fact that the presence ofthe accused in the glass box is a violation ofthe right to defense and would be degradingtreatment.It has been established by the case law of

the ECtHR that, although the placement ofthe accused behind glass partitions or in glasscubicles does not in itself imply an element ofhumiliation sufficient to achieve a minimumlevel of severity, this level can be achieved if thecircumstances of imprisonment (in a “cage”),taken as a whole will cause them sufferingor hardships that exceed the inevitable levelof suffering inherent in detention (“YaroslavBelousov v. Russia”, § 125).

The court considers that the glass partitionsdo not have the harsh appearance of metalcages, in which simple exposure to the publiccould undermine the image of the accused andcause them to feel humiliated, helpless, fearful,distressed and inferior. The ECtHR also notesthat glass structures are used in courtroomsin other member states, although their designsrange from glass booths to glass partitions,and in most states their use is intended for“high security” hearings (“Yaroslav Belousov v.Russia”, § 124).It is worth paying attention to the positive

tendency for judges to satisfy requests for theaccused to stay next to a lawyer during thetrial, and not in a glass box. Thus, the judgessuccessfully implement the above aspect ofthe application of Article 3 of the European

Convention and recognize that the presence ofan accused in a glass box is a violation of theright to defense and degrading treatment.Also, the lawyer Kaplunova turned to the

court with a motion to close the criminal pro-ceedings in connection with the end of thepre-trial investigation. She argued that theprosecution opened the materials of the pre-trial investigation to the victims, but since thevictims are not a party to the criminal proceed-ings, the period for their acquaintance withthe materials of the pre-trial investigation isincluded in the above period. The prosecutornoted that the current criminal procedural leg-islation guarantees equal rights for the defenseand victims to familiarize themselves with thematerials of the pre-trial investigation. Thelawyer’s motion was denied.During the preparatory court hearing, the

prosecutor filed a motion to extend the mea-sure of restraint for the accused in the formof detention. In turn, the defense petitionedto change the measure of restraint. Justifyingthe existence of risks, the prosecutor noted thefollowing circumstances: 1) Turman previouslyhid from the pre-trial investigation; 2) Theaccused has repeatedly ignored the calls of theinvestigator without good reason.

The defendant’s lawyer stated that the pros-ecutor’s request was formal. In support ofher petition, the lawyer pointed out that theamount of bail of 2 million hryvnias is pro-hibitive for the accused, which is why he isforced to be in custody. She insisted on thepossibility of imposing a less severe measure ofrestraint, not related to restriction of freedom.The court granted the prosecutor’s request.

According to the case-law of the EuropeanCourt of Human Rights, the guarantee pro-vided for in Article 5 §3 of the Conventionis intended to ensure the appearance of theaccused at the hearing (“Manguras v. Spain”, §78). Therefore, the amount of the bail shouldbe established taking into account the person-ality of the defendant, his property, his rela-tionship with the guarantors, that is, takinginto account the confidence that the prospectof loss of the bail or measures taken againsthis guarantors in the event of his failure to

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appear in court will be sufficient to keep himfrom escaping (“Neumeister v. Austria”, § 14).Since the issue under consideration is the

fundamental right to liberty guaranteed byArticle 5, the authorities should make everyeffort to establish an appropriate amount ofbail when deciding whether to continue the de-tention. In addition, the amount of bail mustbe properly justified in the decision to deter-mine the bail and must take into account theproperty of the accused (“Manguras v. Spain”,§ 79-80). The failure of the domestic courtsto assess the applicant’s ability to pay the re-quired amount could lead to a violation of theConvention.However, in the decision of the Mankovsky

District Court of the Cherkasy Region ofMarch 03, 2020 on the determination of thebail, its size was not justified. This is exactlywhat the lawyer stated when filing an appealagainst the court decision. However, the Courtof Appeal did not provide a reasoned responseto such an argument in its judgment of April15, 2020.

As for the extension of the measure of re-straint for the accused in the form of detention,it is worth noting that the indictment was re-ceived by the Mankovsky District Court of theCherkasy Region on February 26, 2020. OnMarch 03, 2020, Turman I.S. was elected ameasure of restraint in the form of detentionwith the possibility of bail. By a decision ofApril 27, 2020, the measure of restraint wasextended. In the case, a problem arose withthe appeal of court decisions on the electionand extension of a measure of restraint, sinceit is impossible to form a panel of judges in thecourt of appeal to consider the appeal due tothe lack of the required number of judges. Forthis reason, the Cherkasy Court of Appeal ap-pealed to the Cassation Court of the SupremeCourt in order to make a decision to trans-fer the materials of criminal proceedings onthe lawyer’s appeal against the decision of theMankovsky District Court of the Cherkasy Re-gion dated March 03, 2020 from the CherkasyCourt of Appeal to another court of appeal.As a result, the materials were transferred tothe Kropyvnytskyi Court of Appeal, which did

not satisfy the lawyer’s appeal.Thus, the ISHR can state the emergence of

a new negative trend in the justice system ofUkraine - the impossibility of promptly appeal-ing against the decision of the first instancecourt on the election or extension of the termof detention. And the main reason for this isthe huge shortage of judges.

In addition, the Cherkasy Court of Appeal,on the basis of a petition by the victim’s lawyer,“Victoria” LLC, considered the issue of jurisdic-tion. As a result, a decision was made to trans-fer the case materials for further proceedingsto the Monastyrischensky District Court of theCherkasy Region. Which led to the resumptionof the preparatory court hearing stage, whichtook place on June 23, 2020.

3.65 The trial of ValentynTyapkin

Monitoring of criminal proceedings of V.Tyapkin (session 04.01.20)

On April 01, 2020, the Lutsk City Court ofthe Volynsky Region heard a case on chargesof V. Tyapkin committing a crime, under Part3, Article 289 of the Criminal Code of Ukraine- illegal possession of a vehicle.

At the hearing, the prosecutor was sched-uled to submit written evidence. However, theaccused’s lawyer stated that he was feelingunwell and requested to limit considerationto the application of the prosecutor’s requestfor an extension of detention. The prosecu-tor requested an extension of the measure ofrestraint. But the lawyer said that the prose-cutor argues his position solely by the gravityof the crime. In turn, the lawyer filed a motionto change the measure of restraint to housearrest. He also indicated that for a long timethe accused did not have social ties, which isimportant for choosing this type of measureof restraint. However, at the time of this courthearing, there is a person with whom the ac-cused will be able to live during the period ofhouse arrest; they could not let him into thecourtroom because of quarantine measures.As a result of the review, the prosecutor’s

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request was granted due to the fact that thejudicial investigation was not completed, andall the witnesses were not questioned.

The European Court of Human Rights notesthat national courts must first ensure that ina particular case the detention of the accuseddoes not exceed a reasonable time. To do this,they must, taking due account of the principlesof the presumption of innocence, investigateall circumstances of the case, which can con-firm or refute the existence of a social needthat justifies deviations from the requirementto respect individual freedom, and indicatethis in their decisions to extend the term ofdetention. The question of whether there hasbeen a violation of paragraph 3 of Art. 5 forthe protection of human rights and fundamen-tal freedoms (hereinafter referred to as theConvention), the Court must decide, relyingmainly on the grounds cited in these decisions(“I.A. v. France”, para 102).

According to paragraph 3 of Art. 5 of theConvention after a certain period of time,just the existence of reasonable suspicion doesnot justify the deprivation of liberty, and thecourts must give other reasons for the exten-sion of detention (“Borisenko v. Ukraine”, para.50). Moreover, these grounds must be clearlyindicated by the national courts (“Eloev v.Ukraine”, para. 60, “Kharchenko v. Ukraine”,para. 80).The court often found a violation of para-

graph 3 of Art. 5 of the Convention in caseswhere national courts continued to be detained,referring mainly to the gravity of the chargesand using template language, without evenconsidering specific facts or the possibility ofalternative measures (“Kharchenko v. Ukraine”,paras 80-81; “Tretyakov v. Ukraine” para. 59).The existence of a reasonable suspicion of

a crime committed by a detained person isan indispensable condition for the legality ofher continued detention, but after the lapse oftime such a suspicion will not be sufficient tojustify prolonged detention. The court neverattempted to translate this concept into aclearly defined number of days, weeks, monthsor years, or at different times depending on thegravity of the crime. Once “reasonable suspi-

cion” is no longer sufficient, the court must es-tablish what other grounds given by the courtscontinue to justify the person’s deprivation ofliberty (“Maggie and Others v. The UnitedKingdom”, paras. 88-89).The ECtHR also recalls the immutability

of the grounds for suspicion. Suspicion thatthe arrested person has committed an offenseis a “sine qua non” condition in order for hiscontinued detention to be considered legal, butafter a while this condition ceases to be suf-ficient. Then the Court must establish othergrounds on which the decisions of the judi-ciary are based, continue to justify the depri-vation of liberty. If these grounds turn out tobe “relevant” and “sufficient”, then the Courtwill ascertain whether the competent nationalauthorities found “special good faith” in theconduct of the proceedings (“Labita v. Italy”,para. 153).Representatives of the ISHR are concerned

about the attitude of prosecutors towards ex-tending detention. Prosecutors do not properlyprove the existence of risks, which leads toshifting the burden of proof to lawyers. Andin this case, the court, deciding on the appli-cation of the measure of restraint requestedby the prosecutor, must either take the side ofthe prosecution, independently substantiatingthe need for detention, or adopt a ruling with-out proper motivation. This negative trend issystematic in all regions of Ukraine and is partof the general trend of automatic extension ofmeasures of restraint.

Monitoring of criminal proceedings ofValentin Tyapkin 07/16/2020

On July 16, 2020, the Lutsk City DistrictCourt of the Volynsky Region heard the caseon charges against V.I. Tyapkin in the commis-sion of a crime under Part 3 of Article 289 ofthe Criminal Code of Ukraine - illegal seizureof a vehicle.At the hearing, the prosecutor filed a peti-

tion to extend the measure of restraint to theaccused due to the fact that the considerationof the case is essentially continuing, and therisks on the basis of which Valentin Tyapkinis being held in custody continue to exist. The

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defendant’s lawyer objected to the satisfactionof the prosecution’s motion, pointing out thatthe prosecution’s witnesses had already beenquestioned, and the prosecutor had transferredthe material evidence to the court, so Tyapkinhad no way of influencing them.In turn, the accused filed a petition to

change the measure of restraint to house arrest,referring to the excessive length of stay in thepre-trial detention center in terrible conditions,which negatively affects his health.

The court decided to satisfy the prosecutor’smotion.

It is worth noting that in this case, the pros-ecution continues to improperly prove the ex-istence of risks, which leads to an automaticextension of the terms of detention of the ac-cused.The ECtHR points out that the question

of whether the length of detention is reason-able cannot be decided in the abstract. It mustbe decided in each case, taking into accountthe specific circumstances, grounds and dulydocumented facts, as well as have appropriatemotivation. Continued detention can only bejustified in a particular case if there are spe-cific indications that it is required by the truedemands of the public interest, which, despitethe presumption of innocence, outweigh therule of respect for personal freedom.According to paragraph 3 of Article 5 of

the ECHR, after a certain period of time theexistence of a reasonable suspicion ceases tobe a basis for deprivation of liberty and the ju-dicial authorities are obliged to provide othergrounds for continued detention. In addition,such grounds must be clearly indicated bythe national courts (“Kharchenko v. Ukraine”,paras. 79-80).The European Court of Human Rights has

often found a violation of paragraph 3 of Arti-cle 5 of the Convention in cases where domesticcourts continued detention, relying mainly onthe gravity of the charges and using formulaiclanguage, without even considering specificfacts or the possibility of applying alternativemeasures (“Kharchenko v. Ukraine”, paras. 80-81; “Tretyakov v. Ukraine” para. 59).

The existence of a reasonable suspicion that

a detained person has committed a crime is aprerequisite for the legality of the continueddetention, but after the expiration of such asuspicion, in the opinion of the ECtHR, willnot be enough to justify a prolonged detention.The European Court of Human Rights hasnever tried to translate this concept into aclearly defined number of days, weeks, monthsor years, or at different times depending onthe severity of the crime. Once “reasonablesuspicion” is no longer sufficient, the nationalcourt must establish whether there are othergrounds justifying the deprivation of liberty(“Maggie and Others v. The United Kingdom”,paras. 88-89).

The accused filed an appeal against the pre-vious decision of the Lutsk City District Courtof the Volynsky Region of April 1, 2020, whichextended the terms of detention. As indicatedin the decision of the court of appeal datedJune 21, 2020, being duly notified of the timeand place of the appeal hearing, the lawyer ofthe accused A.V. Lavrenchuk failed to appearin court twice, which led to a delay in thetrial of the defendant’s appeal. As a result, thecourt of appeal ruled to instruct the VolynskyRegional Center for the provision of free sec-ondary legal aid to ensure the participationof a lawyer in the consideration of the defen-dant’s appeal. However, as it became known tothe ISHR observer, the accused later droppedthe appeal and the proceedings were closed.

As indicated by the Cassation Court of theSupreme Court in its decision of June 6, 2019in case No. 738/1085/17: “. . . the effectivenessof the defense is not identical with the achieve-ment of the desired result for the accused bythe results of the trial, but consists in providinghim with adequate and sufficient opportunitiesusing his own procedural rights or qualifiedlegal assistance.”

Thus, the absence of a lawyer had a negativeimpact on the right of the accused to effectivelegal assistance. And, in fact, it led to the lossof the meaning of considering the complaint,since a new decision had already been taken,which extended the term of detention.

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Monitoring of criminal proceedings ofValentin Ivanovich Tyapkin (November 27,2020)

11/27/2020 in the Lutsk City District Court ofthe Volyn Region with the participation of apanel of judges A.E. Sivchuk, A.M. Pakholyuk,A.D. Artysh a hearing was held in case No.161/14219/18 on charges of V.I. Tyapkin inthe commission of a criminal offense underPart 3 of Article 289 of the Criminal Code ofUkraine - “illegal seizure of a vehicle”.At the hearing, the accused changed his

lawyer to T.P. Gaidamachenko, who will rep-resent his interests on the basis of a legal as-sistance agreement. In connection with the re-placement of the lawyer, T.P. Gaidamachenkoobjected to further judicial consideration, sinceshe did not have time to get acquainted withthe case materials and asked the court to limitthe hearing to considering the petition of theprosecution and defense. The court and theprosecutor did not object.

The prosecution filed a motion to extend V.I.Tyapkin’s measures of restraint in the formof detention for a period of 60 days, and indi-cated that the risks under Article 177 of theCriminal Procedure Code of Ukraine, whichwere the basis for the application of an ex-ceptional measure of restraint in the form ofdetention, did not decrease. The prosecutor in-dicated that V.I. Tyapkin may put pressure onwitnesses, there is a high probability of com-mitting new criminal offenses or interferingwith the investigation.

Defender of V.I. Tyapkin objected to thesatisfaction of the prosecutor’s petition, andstated that the accused would not exert anypressure on the witnesses. In turn, the lawyerT.P. Gaidamachenko petitioned to change themeasure of restraint to house arrest, due tothe fact that the accused has the opportunityto get a job and provide support for his family,in particular, two minor children. Also, V.I.Tyapkin has a registered place of residence inthe city of Kovel and stable social ties.The accused himself has filed a motion to

change the measure of restraint to any formother than detention. He asked to release himcompletely from charges regarding Part 3 of

Article 289 of the Criminal Code of Ukraine.In addition, in his petition, the accused

stated that all reasonable terms of detentionhad been violated in relation to him, and thecourt was showing a biased attitude towardshim.After evaluating the petitions, the court

ruled to satisfy the prosecution’s petition infull, extending the detention period for 60 dayswith the possibility of paying a bail in theamount of UAH 352,400. The court arguedits position by the fact that the accused wason the wanted list, all witnesses from the de-fense had not yet been questioned. In addition,the trial is ongoing, and there is a high prob-ability that the defendant will obstruct theconsideration of criminal proceedings.

The experts of the ISHR are concerned thatthe extension of the terms of detention in thecase of V.I. Tyapkin may be automatic. Ac-cording to the monitoring results on July 16,2020, the observer of the ISHR drew attentionto the improper proof of the existence of risksby the prosecution. For the first time by theLutsk City District Court of the Volyn Region,the term of detention of V.I. Tyapkin was ex-tended on September 10, 2018, which meansthat the accused has been in custody for morethan 2 years waiting for a court decision.The European Court of Human Rights ar-

gues that national courts must first and fore-most ensure that, in a particular case, the de-tention of an accused does not exceed a reason-able time. To this end, they must, taking dueaccount of the principles of the presumptionof innocence, examine all the circumstances ofthe case that may confirm or deny the exis-tence of a public need that justifies deviationsfrom the requirement to respect individual lib-erty, and indicate this in their decisions toextend the term of detention (“IA v. France”,para. 102).

Having studied all the decisions of the LutskCity District Court of the Volyn Region onthe extension of the term of detention, theISHR notes that the national court has notchanged the rationale for the need to extendthe term of detention from the moment of thefirst decision. Such actions may contradict the

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practice of the ECtHR.Thus, the ECtHR points out that the ques-

tion of whether the length of detention is rea-sonable cannot be decided in the abstract. Itmust be decided in each case, taking into ac-count the specific circumstances, grounds andduly documented facts, as well as have anappropriate reasoning. Continued detentioncan only be justified in a particular case ifthere are specific indications that it is requiredby the true demands of the public interest,which, despite the presumption of innocence,outweigh the rule of respect for personal free-dom. According to paragraph 3 of Article 5of the ECHR, after a certain period of timethe existence of a reasonable suspicion ceasesto be a basis for deprivation of liberty andthe judicial authorities are obliged to provideother grounds for continued detention. In addi-tion, such grounds must be clearly indicated bythe national courts (“Kharchenko v. Ukraine”,paras. 79-80).In the case of V.I. Tyapkin the decision of

the national court is based on the followingfacts: V.I. Tyapkin is accused of committingan especially grave crime, was on the wantedlist, witnesses were not questioned. Such argu-ments formed the basis of the first decisionsof the national court to extend the period ofdetention and have remained unchanged fortwo years. In justifying the need to extend theperiod of detention, the domestic court limiteditself only to one paragraph.The European Court of Human Rights has

often found a violation of paragraph 3 of Ar-ticle 5 of the Convention in cases where do-mestic courts continued detention, referringmainly to the gravity of the charges and usingformulaic language, without even consideringspecific facts or the possibility of applying al-ternative measures (“Kharchenko v. Ukraine”,paras. 80-81; “Tretyakov v. Ukraine”, para. 59).

The existence of a reasonable suspicion thata detained person has committed a crime is aprerequisite for the legality of continued deten-tion, but after the expiration of such a suspi-cion, in the opinion of the ECtHR, it will notbe enough to justify prolonged detention. TheEuropean Court of Human Rights has never

tried to translate this concept into a clearly de-fined number of days, weeks, months or years,or at different times depending on the severityof the crime. Once “reasonable suspicion” is nolonger sufficient, the national court must estab-lish whether there are other grounds justifyingthe deprivation of liberty (“Maggie and Othersv. The United Kingdom”, paras. 88-89).

According to the decision of the ECtHRin the case “Belevitsky v. Russia” (paras. 111-112), the court must take into account that therestriction of consideration of the applicationfor election (or the extension) of a measure ofrestraint in the form of detention only by a listof legislative (standard) grounds for its appli-cation without establishing their availabilityand validity to a specific person is a violationof the requirements of paragraph 4 of Article5 of the Convention.In addition, the International Society for

Human Rights is concerned about the timingof the consideration of case No. 161/14219/18.The indictment was submitted to the court on09/06/2018. Thus, the case of V.I. Tyapkinhas been considered in court for more than 2years.

Article 6 of the Convention for the Protec-tion of Human Rights and Fundamental Free-doms recognizes for every person prosecutedin a criminal case the right to receive, withina reasonable time, a final decision on the well-foundedness of the charges against him, orrather, the achievement of ensuring that theaccused do not remain for a long time underthe weight of the charge and that a decision ismade on the validity of the charge (“Vemkhovv. Germany”, para. 18, “Julia Manzoni v. Italy”,para. 25, “Brogan and Others v. United King-dom”, para. 65).

In its judgments, the ECtHR indicates thatan accused in criminal proceedings should havethe right to have the proceedings in his casecarried out with particular care, especially inthe case of any restriction of freedom for a pe-riod until the end of the proceedings. Article6 of the ECHR requires courts to use all avail-able procedural means to establish the guiltor innocence of a person without undue delay.This requirement is intended to ensure the ear-

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liest elimination of uncertainty about the legalfate of the accused, who remains in a stateof uncertainty throughout the entire periodof proceedings, despite the fact that the pro-ceedings are ongoing or have been suspended(“Doroshenko v. Ukraine”, para. 41).

3.66 The trial of “UkrainianRailways”

Monitoring of the trial in the case of thepurchase of diesel fuel of the “UkrainianRailways” Joint Stock Company

On January 28, the High Anti-CorruptionCourt held a preparatory hearing in the caseof the purchase of diesel fuel of the “UkrainianRailways” Joint Stock Company.On October 15, 2019, the Specialized Anti-

Corruption Prosecutor’s Office of the Prose-cutor General’s Office of Ukraine approvedand transferred to the High Anti-CorruptionCourt the indictment in the case of the formerhead of the Production Support Branch of the“Ukrainian Railway” JSC Alexander Kulak andhis deputy Daniil Mizin, as well as two moreemployees. All accused are charged with part 2of article 364 of the Criminal Code of Ukraine,namely the abuse of power or official positionin order to obtain undue benefits, entailinggrave consequences.The prosecution believes that the accused

entered into a conspiracy with an unknownperson and, in the interests of this person andtheir own, abusing their official position, un-reasonably increased the price of diesel fuel.At the beginning of the trial, a small incidentoccurred. The court asked the participants inthe proceedings whether they have any mo-tions or objections. After this question, thelawyers filed an objection to the actions of thejudges, which indicated that the panel in thiscomposition made it impossible to objectivelyconsider the case by an independent and im-partial court, as some of the decisions thathad been taken earlier created a procedural“collapse”. As the lawyer A. Boryak noted, thecourt has stumped itself with its decisions andwill now take subsequent decisions guided not

by an internal conviction, but by a desire notto make a decision that contradicts the previ-ous one. The contents of this statement couldonly be found out from the second attempt bythe lawyer to read it out, because the court, atthe first attempt, tried to prohibit the lawyerfrom giving any explanations on his applica-tion, being guided by the fact that now thereis a different stage of the judicial review, al-though, recall, the court itself asked a questionregarding the availability of petitions, makingit clear to the parties that this stage is now.

Also, at previous sessions, lawyers raised theissue of returning the indictment because ofits inconsistency with the requirements of theCode of Criminal Procedure of Ukraine. Thedefense indicated that the data contained inthe crime of which the person was charged wasnot specific. The petition was filed, but therehave been no court decisions on it yet. ISHRexperts express concern about this fact, sinceif the prosecutors do not clearly interpret thealleged crime against the accused, the latterwill not be able to defend themselves effectively,which certainly can be regarded as a violationof the right to defense.In a criminal case, the provision of full,

detailed information regarding the chargesagainst the person and, accordingly, the legalqualifications that the court can give relevantfacts is an important prerequisite for a fair trial(“Pelissier and Sassi v. France”, “Mattochia v.Italy”, “I.N. and others v. Austria”). In addi-tion, the right to be informed of the natureand cause of the charge should be consideredin the light of the defendant’s right to be ableto prepare for the defense (“Pelissier and Sassiv. France”, “Dallas v. Hungary”).

Monitoring of the trial in the case of thepurchase of diesel fuel by the Joint StockCompany “Ukrainian Railway” (hearing on07.27.2020)

On July 27, the Supreme Anti-CorruptionCourt held a preparatory hearing on the caseof the purchase of diesel fuel by the Joint StockCompany “Ukrainian Railways” online.Recall that on October 15, 2019, the Spe-

cialized Anti-Corruption Prosecutor’s Office

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of the General Prosecutor’s Office of Ukraineapproved and submitted to the Supreme Anti-Corruption Court the indictment in the caseof the ex-head of the Production Support Cen-ter branch of JSC “Ukrainian Railways”, Alek-sandr Kulak and his deputy, Daniil Mizin,as well as two employees. All defendants arecharged with Part 2 of Article 364 of the Crim-inal Code of Ukraine, namely, abuse of poweror official position for the purpose of obtain-ing unlawful benefits, which entailed seriousconsequences.Lawyer V.I. Tkachenko at the hearing did

not appear, without informing the court aboutthe reasons for failure to appear, in turn,lawyer Frolova O.G. sent a petition to thecourt about the impossibility of being presentat this court session in connection with the ur-gent investigative search actions at which shemust be present. Also, a representative of thevictim did not appear in the courtroom (which,according to the parties, resigned, and a newrepresentative has not yet been appointed).Thus, JSC “Ukrainian Railway” was left with-out a representative in this court session.

As a result, the court, guided by the normsof the current legislation of Ukraine, submittedfor consideration the issue of the possibility offurther continuation of the trial in the absenceof defenders and a representative of the victim.The prosecution did not object to the pos-

sibility of holding a hearing in such circum-stances. The defense, on the contrary, ex-pressed the opinion that it was impossible toconsider the claim in the absence of a repre-sentative of the victim. Lawyer Popovskayamade a proposal to recognize the claim in thissituation as such that was not filed at all.Without going into the deliberation room,

the panel of judges, taking into account theposition of the parties, made a decision to ex-tend the session in the absence of the victim’srepresentative, referring to Article 314 of theCCP of Ukraine and stating that the failureof the victim’s representative to appear in thecourtroom, who was duly notified of the timeand place of consideration of the case is not areason for postponing the preliminary hearing.The accused A.P. Kulak, for his part, also

expressed his position on the impossibility ofconsidering the case without the participationof his lawyer O. G. Frolova and the need forthis reason to postpone the hearing to properlyensure his right to defense, in connection withwhich the court announced a break in orderto wait for the lawyer Frolova, who did notappear at the hearing.Note that, in accordance with the case law

of the European Court of Human Rights, thecourt’s refusal to postpone the hearing at therequest of a lawyer who participated in anotherproceedings, and the consideration of the casewithout a defense lawyer is a violation of Arti-cle 6 of the Convention (“Bartaya v. Georgia”,26 July 2018).

During the court session, the defense drewattention to the expediency of considering a pe-tition for clarification of court decisions, whichwas filed on June 10, 2020, focusing on theviolation by the court of Article 380 of theCode of Criminal Procedure, namely the 10-day period for considering such a petition. Thecourt finally considered this request, but it wasrejected.

The International Society for Human Rightsexpresses concern about the fact that the courtdid not take into account the time period forconsidering the application in this matter with-out any explanation, since this may indicatea violation of general principles of criminaljustice.

Para. 1 of Article 6 the Convention requiresthat the “court” falling within its scope beimpartial. As a rule, impartiality means theabsence of bias, and its presence or absencecan be tested in various ways (“Kyprianou v.Cyprus”). The test of objectivity involves thedetermination of whether there are provablefacts that may raise doubts about their impar-tiality (“Castillo Algar v. Spain”).

The ECtHR also recalls that equality of par-ties is an integral part of a fair trial. Thisprinciple requires each party to be given a rea-sonable opportunity to present its case in suchcircumstances that do not place it at a dis-advantage with respect to the opposing party(“Fouche v. France”; “Bulut v. Austria”; “Bobekv. Poland”; “Klimentiev v. Russia”) . . . Equality

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of the parties requires the establishment of afair balance between the parties and appliesequally in criminal and civil matters.Attorney Plyotka P.Y. submitted an appli-

cation to clarify the judgment of 01/28/2020,the consideration of which was postponed to07/31/2020 due to the failure of lawyer O.G.Frolova to appear and the need for her to fa-miliarize herself with this statement.

3.67 The trial of SvetlanaVanzha

Monitoring the case of Svetlana Vanzha(hearing on June 24, 2020)

On June 24, 2020, an online hearing was heldin the Leninsky District Court of the city ofZaporozhye in the case of Svetlana Vanzha,who is accused of committing a criminal of-fense under Part 1 of Article 155 (premeditatedmurder) of the Criminal Code of Ukraine.

The session was attended by the prosecutor,the defense, the victim, the accused, the sec-retary and the panel of judges: T.F. Turbina,N.Y. Kozlova, A.M. Gnatyuk.

The trial against Svetlana Vanzha has beengoing on since September 2018.During the court session on June 24, 2020,

material evidence was examined (passport ofthe accused, kitchen knives, mobile phones).After that the defense filed a petition about theneed to make a request for a phone number andobtain information about who exactly called anambulance, since the testimony of the witnessand the victim was different.

The prosecutor filed a petition for an exten-sion of the measure of restraint in the formof detention, motivating it by the fact thatat the moment the criminal proceedings can-not be completed, while the accused, realizingthe severity of the crime committed and sub-sequent punishment, in order to avoid beingbrought to criminal responsibility and furtherpunishment may be hiding from the court. Tak-ing into account the personality of the accused,the nature and severity of the crime in whichS. Vanzha is accused, the application of milderrestraint is considered insufficient. The defen-

dant’s lawyer objected to the prosecutor’s peti-tion but did not file his own petition to changethe measure of restraint to a softer one. This,according to the observer, may indicate a weakposition of the defense.

For the entire period of the trial, the measureof restraint in the form of keeping the accusedin custody has not changed. The court, havingheard the opinions of the parties, satisfied allthe requests of the parties.The ISHR draws attention to the fact that

during the entire trial, the accused was inthe glass box. The European Court of HumanRights has repeatedly stated in its decisions, inparticular “Svinarenko and Slyadnev v. Russia”and “Labita v. Italy”, that keeping the accusedin certain cases in a metal cage, or even ina glass box, may be considered a violationof Articles 3 and 6 of the Convention for theProtection of Human Rights. The Court alsonotes that Armenia and Georgia, for example,removed the cages in their courtrooms as aresult of reforms.

3.68 The trial of Voitenko andothers

Monitoring of criminal proceedings ofVoitenko M.S., Plavak A.D., Kosolap A.P.,Bogaychuk R.V, Sidoruk V.M. (November20, 2020)

On 11.20.2020, in the Kovel City District Courtof the Volynsky Region, with the participationof a panel of judges Logvinyuk I.M., Lesik V.O.,Panasyuk S.L., a hearing was held in case No.164/309/19 on the charges of Voitenko M.S.,Plavak A.D. in the commission of criminaloffenses under Parts 2, 3 of Art. 307 of theCriminal Code of Ukraine – “Illegal produc-tion, manufacture, acquisition, storage, trans-portation, transfer or sale of narcotic drugs,psychotropic substances or their analogues”,Kosolap A. P., Bogaychuk R.V., Sidoruk V.M. in the commission of criminal offenses, pro-vided for in Part 3 of the same article of theCriminal Code of Ukraine.On November 20, 2020, the International

Society for Human Rights carried out the first

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monitoring of this criminal proceeding. Theexamination of the case was scheduled for 10:00am, but began at 1:10 pm due to the fact thatthe convoy was unable to leave the pre-trialdetention center on time and bring the accusedKosolap A.P. on time.The court session was attended by the de-

fenders of all the accused and the prosecutor.The prosecution filed a petition for an ex-

tension of the measure of restraint in the formof detention for a period of 60 days, concern-ing the accused Voitenko M.S., Plavak A.D.,Kosolap A.P. arguing that the risks providedfor by Art. 177 of the Code of Criminal Proce-dure of Ukraine, which were the basis for theapplication of an exceptional measure of re-straint in the form of detention, did not dimin-ish. The prosecutor indicated that VoitenkoM.S., Plavak A.D., Kosolap A.P. could putpressure on witnesses in this case and there isa high probability of committing new criminaloffenses. And the prosecutor sees no reason tosoften the measure of restraint.The accused Kosolap A. P. and his defense

counsel objected to the prosecution’s petitionand stated that there were no grounds for keep-ing him in custody. Moreover, the lawyer ofthe accused Kosolap A.P. drew the court’s at-tention to the fact that the prosecutor filedthe petition prematurely, because the term ofthe measure of restraint had not yet endedand should continue until November 27, 2020.Therefore, the submission of premature mo-tions before the expiration of the previouscourt decisions, in his opinion, violates hisright to access to justice, in particular, theappeal against orders to extend the term of ameasure of restraint.In addition, the defense lawyer of the ac-

cused Plavak A.D. stated that the risks re-ferred to by the prosecutor in his petition didnot exist, the prosecutor could not ensure theappearance of witnesses from the prosecution,arguing that the place of residence of the wit-nesses was unknown, they were taking thenecessary measures to establishing the where-abouts of witnesses and they will be mandatorypresent at the hearing.The court supported the defense, agreeing

with the opinion of the defense that there areno risks regarding pressure on witnesses, whichthe prosecutor indicated in his petition, butgranted the prosecutor’s petition in full andassigned each accused, concerning which theissue of extending the period of detention wasconsidered, bail in the amount of 192 thousand100 UAH.

The ISHR Expert Council is concerned thatthe extension of the terms of detention in thiscase may be automatic due to insufficient rea-soning by the prosecutor of the need to extendthe exceptional measure of restraint. For morethan 2 years the accused have been in custody.

Regarding this issue, the European Court ofHuman Rights argues that the national courtsmust, in the first place, ensure that, in a partic-ular case, the imprisonment of an accused doesnot exceed a reasonable time. To this end, theymust, taking due account of the principles ofthe presumption of innocence, examine all thecircumstances of the case that may confirmor deny the existence of a public need thatjustifies deviations from the requirement torespect individual liberty, and indicate this intheir decisions to extend the term of detention(“IA v. France”, para. 102).

The ECtHR points out that at the initialstages of the investigation, the possibility ofobstruction of justice by the accused justifiesthe detention of such an accused. However,once evidence is gathered, this rationale be-comes less convincing. In particular, as regardsthe possibility of putting pressure on witnesses,the Court reiterates that the domestic courtsmust show that during the relevant period ofthe applicant’s detention there continued to bea substantial risk of intimidation of witnesses,it is not enough to rely only on some abstractpossibility not supported by any evidence. Thecourt must also analyze pertinent factors, suchas progress in the investigation or proceedings,the applicant’s personality, his behavior beforeand after arrest, and any other specific factorsto justify the risks that he might abuse thereturned freedom by acting in for the purposeof falsifying or destroying evidence, or puttingpressure on victims (“Sokurenko v. RussianFederation”, para. 88).

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As mentioned above, the prosecution refersto the initial risks in its applications for the ex-tension of the measure of restraint, namely thepressure on the witnesses. However, it is thedefense that does not ensure the attendanceof witnesses. Such actions of representativesof the prosecutor’s office contradict the princi-ples of the Convention and may be the basisfor recognizing a violation of the rights of theaccused under Art. 5.

It should be noted that the accused KosolapA. P. at the hearing on 11.20.2020, behavedaggressively, shouted and swore, used profanitytowards the court and representatives of theprosecutor’s office. This behavior demonstratesa social danger to society and may be one ofthe reasons for the extension of detention.In addition, the International Society for

Human Rights is concerned about the timingof the consideration of case No. 164/309/19.The indictment was submitted to the court onFebruary 14, 2019. Thus, the case of VoitenkoM.S., Plavak A.D., Kosolap A.P., BogaychukR.V, Sidoruk V.M. has been considered incourt for almost 2 years.

Art. 6 of the Convention for the Protectionof Human Rights and Fundamental Freedomsrecognizes for every person prosecuted in acriminal case the right to receive, within areasonable time, a final decision on the justi-fication of the charges against him, or ratherto ensure that the accused do not remain fora long time under the weight of the chargesand that a decision be made on the validity ofthe charge (“Wemkhov v. Germany”, para. 18,“Giulia Manzoni v. Italy”, para. 25, “Broganand Others v. United Kingdom”, para. 65).

In its judgments, the ECtHR indicates thatthe accused in criminal proceedings shouldhave the right to have the proceedings in hiscase carried out with particular care, especiallyin the case of any restriction of freedom fora period until the end of the proceedings. Ar-ticle 6 of the ECtHR requires courts to useall available procedural means to establish theguilt or innocence of a person without unduedelay. This requirement is intended to ensurethe earliest elimination of uncertainty regard-ing the legal fate of the accused, who remains

in a state of uncertainty throughout the entireperiod of the proceedings, despite the fact thatthe proceedings are ongoing or have been sus-pended (“Doroshenko v. Ukraine”, para. 41).

The next court session was scheduled for De-cember 21, 2021. The participants during thetrial could not decide on the dates of the nexthearings. They considered options to sched-ule a hearing for January. However, the courtnoted that the accused are in custody and itis necessary to choose an earlier date.Thus, the International Society for Human

Rights believes that the main reason for de-lays in the consideration of a case may notbe the actions (inaction) of the court, but theimproper performance of its powers by theprosecution, which cannot ensure the appear-ance of witnesses. In addition, the defense sidealso has difficulties in establishing the dateof the hearing, which undoubtedly leads to adelay in the consideration of the case.

3.69 The trial of AlexanderVolkov

Monitoring the case of Alexander Volkov(hearing 04/03/20)

On April 3, 2020, the Kiev Court of Appealopened the proceedings on the appeal of the de-fender of the accused Alexander AnatolyevichVolkov, lawyer L. Kalenichenko to the decisionof the Borispol district court of the Kiev regionof 03/17/2020, by which the accused continuedto be held in custody for another 60 days.Alexander Volkov is charged with criminal

offenses under Part 3 of Article 255 (creationof a criminal organization), Part 3 of Article27 (types of accomplices), Part 3 of Article146 (illegal imprisonment or kidnapping), Part3 of Article 27, part two of Article 127 (tor-ture), part 3 of article 27, article 340 (unlaw-ful obstruction of the organization or holdingof meetings, rallies, marches and demonstra-tions), part 3 of article 27, paragraphs. 3, 12,part 2, article 115 (intentional murder of ahostage or a kidnapped person, committed byprior conspiracy by a group of persons) of theCriminal Code of Ukraine.

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Volkov A. was detained in July 2017. Theprosecutor’s office accuses him of organizingthe abductions, as well as of relations withthe person who ordered the abduction of ac-tivists of the events of 2014 that took placeon “Maidan” in Kiev, Yuri Verbitsky and IgorLutsenko in January 2014.

According to the investigation, the attackersattacked I. Lutsenko and Yu. Verbitsky on Jan-uary 21, 2014. The latter were taken to a forestin the Kiev region, where they were beaten,and demanded to provide some information re-lated to the Maidan. Subsequently, they weretaken to a deserted area and released. As aresult of torture, Y. Verbitsky died. AlexanderVolkov faces life imprisonment.

This proceeding was selected by the Inter-national Society for Human Rights due to thecomplication of the case of monitoring the ob-servance of the right to a fair trial during thequarantine period.To begin with, that defender Yemets S.M.

objected to the satisfaction of the prosecutor’srequest and appealed the court’s decision (asof the time of writing the report, the appealproceedings had already been opened on thecomplaint).Lawyer Kalenichenko L.S. fully supported

the objections of her colleague. They believethat the prosecutor’s arguments do not con-tain a reasonable justification for the statedrisks. In addition, the defender noted specialcircumstances in the country, and the fact thatbeing in custody could bring the accused tocritical health, and therefore asked the courtto change the measure of restraint to a milderone, namely house arrest. The defendant alsoobjected to the extension of his detention. Inaddition, he noted that the prosecutor presentsfacts that are not clear to him.At the previous session, the prosecutor re-

quested the court to extend the measure ofrestraint in the form of detention. One of thekey circumstances that, in the opinion of theprosecution, proves the validity of the appli-cation of an exceptional measure of restraintto A. Volkov in the crimes he is charged with,is the risk that the accused will escape fromjustice.

In this petition, the prosecutor drew atten-tion to the behavior of the accused A. Volkov,who in his repeated appeals insisted that therisk of his escape, which the prosecution insistson, is unreasonable, since he traveled to theRussian Federation for business purposes, andthe city of his departure is completely territori-ally not associated, in particular, with Moscow.At the same time, when the prosecution pro-vided evidence to the contrary, he ceased todeny this fact. By April 2014, the accused didnot make any trips to the Russian Federation.But, the amount of these trips increased im-mediately after other suspects in the case leftthe territory of Ukraine.

According to the prosecutor, the risk of hid-ing from the court in this case is clearly con-firmed by the behavior of other accomplices ofthe alleged crimes.She believes that there is a need to extend

the period of detention, which is related to thefact that any other measure of restraint notrelated to detention will not be able to ensurethe fulfillment of the procedural obligationsassigned to him.

Therefore, the prosecutor argues that if thedefendants try to escape, it will be impossibleto further the trial and implement the generalprinciples of criminal proceedings.

A similar situation was analyzed by the Eu-ropean Court of Human Rights in the case of“Fedorenko v. Russia”. In paragraph 70 of thejudgment of September 20, 2011, the Courtindicated that “. . . the conduct of an accom-plice in a crime cannot be a decisive factorin assessing the risk of a prisoner escaping.Such an assessment should be based on thepersonal characteristics of the prisoner,” thatis, violations of the regime by other accusedcannot worsen the situation or blame others.Including, in relation to the risk of hiding fromthe investigation and the court (clauses 22-25“Neumeister v Austria”).

The Court also emphasized that “the ex-istence of a common risk as a result of theorganized nature of criminal activity can betaken as a basis for detention at the initialstages of the proceedings. However, the Courtcannot agree that the nature of the indicated

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activities may constitute grounds for decisionson detention at further stages of the proceed-ings” (paragraph 78 of “Artemov v. RussianFederation”).

It is worth noting that earlier the defense hasalready asked the court to change the measureof restraint to house arrest several times, but tono avail. The International Society for HumanRights considers it necessary to pay attentionto the fact that the prosecutor’s requests foran extension of the measure of restraint in theform of detention for a long time are duplicatedand the risks remain the same and are notsupported by new evidence.In accordance with the Code of Criminal

Procedure, the term of a determination on de-tention in custody or on the extension of suchdetention may not exceed 60 days. However,according to paragraph 3 of Art. 5 of the Con-vention for the Protection of Human Rightsand Fundamental Freedoms, after a certain pe-riod of time, the mere existence of reasonablesuspicion does not justify deprivation of lib-erty, the courts must give other reasons for theextension of detention (“Borisenko v. Ukraine”,para. 50).It can be noted that quite often the trial

is delayed, the court constantly extends themeasure of restraint and the person is in cus-tody for a long time, which essentially violateshis rights. Or, the consideration of the appealis appointed in violation of the terms when anew court ruling on the measure of restrainthas already been adopted, which has alreadybeen repeatedly noted in the case of A. Melnikand others, as well as in the case of lawyer A.Chibirdin.According to the ECtHR case law, deten-

tion can only be justified if there is a specificpublic interest, which, despite the presump-tion of innocence, prevails over the principle ofrespect for individual freedom (“Kharchenkov. Ukraine”, para. 79).

Since A. Volkov is accused of committingcrimes against participants in protests on theMaidan, as well as of participating in the mur-der of one of such participants, this case canreally cause a public outcry in Ukraine. Firstof all, this can be confirmed by the fact that it

is constantly being covered both by the mediaand by online broadcasts. Nevertheless, eachof the risks that underlie both the petition ofthe prosecution and, undoubtedly, the basisof the court ruling on the extension of themeasure of restraint in the form of detentionshould be fully justified and supported by thenecessary evidence, which excludes the risk ofunjustified detention guarded. In addition, theInternational Society for Human Rights hasrepeatedly emphasized the fact that accordingto the CPC, the prosecutor is also obliged toprove to the court that no alternative mea-sure of restraint can prevent the accused fromcomplying with his procedural obligations andprevent the risks for judicial review.

3.70 The trial of Pavel Volkov

Monitoring the case of journalist PavelVolkov (hearing on 02.25.2020)

On February 25, the Supreme Court helda hearing in the case of journalist from Za-porozhe Pavel Volkov.On September 27, 2017 Pavel Volkov was

arrested. Along with this, searches were car-ried out illegally in the apartments of his wifeand mother. The journalist is charged undertwo articles of the Criminal Code of Ukraine,namely, part 2 of article 110 of the CriminalCode of Ukraine - encroachment on the terri-torial integrity of Ukraine, as well as Article258-3 - other aiding to terrorists. He spent 13months in jail. After lengthy court hearings onMarch 27, 2019, the court fully acquitted PavelVolkov. Later, the Zaporozhe prosecutor’s of-fice filed an appeal against the acquittal, butthe Court of Appeal upheld it. The prosecu-tor’s office further complained to the SupremeCourt because the acquittal was allegedly im-posed by a biased court. The defense notedthat most likely the prosecution is trying toappeal the decisions of the courts of previousinstances only because the investigator and theprosecutor fear disciplinary liability, as duringthe whole proceeding a number of proceduralviolations were committed on his part. Amongother things, ISHR observers have repeatedly

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noted the abuse of procedural rights by theprosecution.Article 30 of the Universal Declaration of

Human Rights establishes as a priority goodfaith behavior and disposition by all partici-pants. This provision is duplicated in Article17 of the ECHR, which not only establishesa ban on abuse of rights, but puts this provi-sion in the universally recognized Conventionprinciple of law - the principle of fair use ofrights, organically covering the scope of fairuse of procedural rights.

So, at the beginning of the court session, thepanel of judges stated that the considerationof the case should be postponed due to the factthat one of the judges went on vacation in themorning. ISHR experts express their concernabout the organization of the trial, as represen-tatives of both parties do not live in Kiev andtravel to a hearing for more than 500 km. Notethat according to the lawyer of Pavel Volkov,the prosecution knew in advance about thissituation, therefore, the prosecutor requestedto participate in the video conference.Poor organization of the trial is one of the

factors that violates the principle of reason-ableness of the deadlines for judicial review.The ECtHR has repeatedly drawn attention tothe importance of adhering to this principle incriminal proceedings. In its case-law, the Courtformulated the main criteria, guided by whichit is possible to correctly resolve the issue of thereasonableness or unreasonability of the timelimits for legal proceedings. In determiningwhether the length of the criminal proceedingswas reasonable, the Court takes into accountsuch factors as: the complexity of the case, theapplicant’s conduct and the actions of the rel-evant administrative and judicial authorities(“Koenig v. Germany”, para. 99; “Nijmeisterv. Austria”, para. 21; “Ringeisen v. Austria”,para. 110). Undoubtedly, judges, like all otherpeople living in the territory of Ukraine, la-bor legislation guarantees the availability ofannual vacation, and the judge has the rightto go on leave at any time, but one shouldnot forget about the obligation of the court toduly notify the appointment and adjournmentof the court session.

The ECtHR in the case of “Smirnov v.Ukraine”, noted that the inability of the courtto effectively counteract barriers to the move-ment of the case in bad faith created by theparticipants of the case is a violation of Part 1of Article 6 of the Convention. From this legalposition, we can conclude that the court, as aparticipant in the proceeding, can also createunscrupulous barriers to the movement of thecase and thereby violate Part 1 of Article 6 ofthe Convention.

3.71 The trial of ViktorYanukovych

Monitoring the trial of V. Yanukovych(court hearing 01.20.2020)

On January 20, a hearing was held in the KievCourt of Appeal in the case of ex-president ofUkraine V. Yanukovych. A year ago, on Jan-uary 24, 2019, the Obolonsky District Courtof Kiev passed a verdict on ex-President ofUkraine V. Yanukovych, convicting him of hightreason (Article 111 of the Code of CriminalProcedure) and complicity in the planning,preparation and conduct of an aggressive war(Articles 27, 437 of the Code of Criminal Pro-cedure).The session began with a slight delay due

to the employment of the board in anothertrial. At this session, as at the previous ones,the court listened to the legal position of thedefense, asking clarifying questions.Lawyers raised the issue of violation of the

terms of the pre-trial investigation. It shouldbe noted that the case of V. Yanukovychwas separated from another criminal proceed-ing, therefore, the defense believes that thecountdown began from the moment the state-ments were submitted to the Unified Rosterof Pretrial Investigations, and not from themoment the materials of the case were allo-cated and the notice of suspicion was handedto V. Yanukovych. The prosecution did notagree with this position, and noted the fol-lowing among its arguments: the UkrainianCriminal Procedure Code as amended in 2016did not contain a peremptory norm that would

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regulate the matter of counting the terms of apre-trial investigation depending on the alloca-tion or combination of case materials, thereforeprosecutors believe that the countdown of thepre-trial investigation began from the momentthe materials of the case were allocated.

Further, lawyers raised the issue of viola-tion of the principle of a fair trial, in par-ticular, pressure on the court. Thus, the de-fense believes that the ex-Prosecutor Generalof Ukraine knew about the composition of theboard of the court, which will consider thiscriminal proceedings, even before the auto-mated distribution of judges, since Y. Lutsenkoconfirmed the information of a Ukrainian jour-nalist who published an article with the namesof the future board of the judges. According toarticle 6, paragraph 1, of the European Con-vention on Human Rights and FundamentalFreedoms, anyone charged with the criminallaw “has the right to a fair hearing. . . an impar-tial tribunal. . . ”. ISHR experts express theirconcern about the possible violation of theprinciple of a fair trial, since compliance withthis principle is an integral element of any legalstate, in addition, this principle acts as a kindof guarantee that the accused will be able touse the vast majority of his criminal procedurerights, as “Fair trial” includes the presumptionof innocence, the right to a defense, etc. Theright to a fair trial, according to Article 6 §1 of the Convention, requires that the casebe examined by an “independent and impar-tial court” established by law. This expressionreflects the rule of law, which is an integralpart of the protection system established bythe Convention and its Protocols (“Jorgich v.Germany”, “Rickert v. Poland”). “Law” withinthe meaning of paragraph 1 of Article 6 in-cludes, in particular, legislation governing theestablishment and competence of the judiciary,as well as any other provision of national lawthat, if violated, will make it illegal for oneor more judges to take part in the proceed-ings (“Gorgiladze v. Georgia”, “Panjikidze andOthers v. Georgia”).

In addition to all of the above, the courtconsidered the issue of abuse of the right bylawyers. The presiding judge asked the defense

a number of questions about the grounds for asignificant number of challenges of the panel ofthe court of first instance in order to determinewhether the challenges had the ground or werea manifestation of an abuse of the right (as oneof the judges of the Obolonsky district courtstated at one time). It is worth noting thatthe category of abuse of rights is known notonly to Ukrainian judicial practice, but alsoto international law and the practice of theECtHR. So, in article 17 of the “Conventionfor the Protection of Human Rights and Fun-damental Freedoms” dated 04.11.1950r. ETSN 005 “Prohibition of abuse of rights” providesthat “Nothing in this Convention shall be con-strued as giving any state, group or person theright to engage in any activity or to performany action aimed at the abolition of any rightsand freedoms recognized in of this Conven-tion, or to limit them to a greater extent thanprovided for in the Convention”.

Monitoring the case of Viktor Yanukovych(session May 12, 2020)

On May 12, 2020, a continuation of the courtsession in the case of the ex-president ofUkraine V. Yanukovych, accused of opposingthe Maidan in 2014, took place in the Pecher-sky District Court of Kiev.

IV President of Ukraine Viktor Yanukovychis suspected of organizing the persecution andkillings of participants in mass protests fromFebruary 18 to February 20, 2014 in Kiev andother Ukrainian cities. He is charged with part3 of article 28 - commission of a crime by agroup of persons or a criminal organization byprior conspiracy, part 1 of article 109 - seizureof state power, part 2 of article 115 - intentionalkilling of two or more persons in a manner dan-gerous to many people by way of preliminaryconspiracy as part of an organized group, part2 of article 121 - intentional grievous bodilyinjury, article 340 - illegal obstruction of theorganization or holding of meetings, rallies,demonstrations, part 3 of article 365 - abuseof power or authority.

At this session, the investigator’s request fora measure of restraint in the form of detention,which the prosecutor read out, was considered.

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The hearing began with the fact that oneof the lawyers filed a motion to return theprosecution in question, as he is convincedthat the terms of the pre-trial investigation ofthe case have long been completed, referringto the norms of the law (part 1 of article 5,article 294, article 295 Code of Criminal Pro-cedure of Ukraine). The lawyers also believethat the prosecution, using political motives tocontinue the consideration of the case, referredit to the court much later than the CPC pro-vides. Advocates note that the actions of theprosecutor’s office are illegal, and it exceedsits authority.The prosecutor indicated that he had re-

quested the Deputy Prosecutor General tocount and extend the length of the pre-trialinvestigation to 12 months. At the time of theapplication and the decision, the total periodof pre-trial investigation was 8 months and 25days. And due to the need for procedural ac-tions, there was a need to extend the pre-trialproceedings.

The ECtHR has repeatedly stated that thereasonableness of the proceedings should beassessed in the light of the circumstances ofthe case and with reference to the followingcriteria: the complexity of the case, the ap-plicant’s conduct and the conduct of the rel-evant authorities (para. 38 of the “Golovkinv. Russia” case, para. 67 of the “Pelisier andSassi v. France” case, para. 99 of the “Konigv. Germany” case, para. 21 of the “Nijmeisterv. Austria” case, para. 110 of the “Ringeisen v.Austria”).

It should be noted that the ISHR observersbegan monitoring this case in November 2017(the case itself has been under considerationsince 2014) and its consideration is still at thepre-trial stage. In the decision in the “Merit v.Ukraine” case dated March 30, 2004, the EC-tHR noted that the countdown of the criminalcase to resolve the issue of its “reasonableness”in the sense of Part 1 of Article 6 of the Con-vention begins with the identification of theattitude of state bodies to a person as a sus-pect or as an accused of a crime. In particular,the countdown of the proceedings may beginfrom the day: the person is taken into cus-

tody; notifications of his initiation of criminalproceedings against him; start of pre-trial in-vestigation. Thus, the only known period forthe review of this case is 31 months (sinceNovember 2017).

Also, the defense noted that at the first hear-ing on this production the issue of the necessityof involving victims in this case was raised. Butfor today, the victims did not appear at thehearing. The defense believes that it is impor-tant that they or their representatives arrivein order to find out the whole truth about theMaidan in 2014, based on the materials avail-able as well as those investigated during thecourt hearing, and not through media state-ments or social media posts. Therefore, lawyersbelieve that without the participation of vic-tims, the prosecutor’s office failed to attend, itis impossible to listen to this case. The prose-cutor objected to the petition of the lawyers,referring to the fact that the Criminal Proce-dure Code of Ukraine does not provide for theparticipation of victims in the examination ofthe petition for the application of a measureof restraint (Article 193). He also noted thatthe victims know about this hearing, and thecourt provided the broadcast, that is, they didnot restrict anyone in knowing the truth. Thecourt refused to satisfy this petition in the waythat the broadcast was ensured, and the CPClimits the circle of participants in the hearingwhen considering the petition for choosing ameasure of restraint.

The judge also dismissed the defense’s mo-tion to challenge the prosecutors, as he re-garded it, and other motions as unfounded.In support of its decision, the court referredto the presence of abuse of procedural rightscommitted by lawyers earlier. It is necessary todwell separately on the issue of abuse of proce-dural rights by lawyers. For example, in March2018, the Ukrainian National Bar Association(UNBA) already considered the issue of abuseby V. Yanukovych’s lawyers of their procedu-ral rights in this case. Member of the Parlia-ment of Ukraine M. Nayyem accused lawyersof pressure on “public defender” I. Angelin(in connection with which a criminal case wasopened against the lawyers of the ex-president),

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however, representatives of the UNBA statedthat information about the pressure was notconfirmed. On the contrary, at a meeting ofthe UNBA committees revealed facts of pres-sure on the lawyers of V. Yanukovych by theGeneral Prosecutor’s Office. Moreover, on De-cember 29, 2018, the aforementioned criminalcases against the ex-president’s lawyers wereclosed. Nevertheless, at a session on May 12,2020, the judge reiterated that there had beenabuses by lawyers in the past, although, aspractice shows, such charges were usually re-futed in a detailed and objective examination.

Later, the defense announced two more mo-tions: to summon V.F. Yanukovych and hisparticipation in the hearing in the mode ofvideoconference. Lawyers continue to insist onthe participation of the suspect (he himselffiled the application) in a video conferencemode. In accordance with international stan-dards and obligations of Ukraine, the suspecthas the right to speak remotely and answer allquestions, allegations, as well as testify. Thejudge refused to satisfy these requests, alsoconsidering them unsubstantiated. Accordingto the judge, in accordance with Article 193 ofthe CPC, these applications should not be con-sidered when choosing a measure of restraint.According to Article 6 of the Convention,

everyone has the right to a fair trial. In its judg-ment, the European Court of Human Rightsnoted that Article 6 of the Convention guaran-tees the person charged with criminal offencethe right to an effective participation in thetrial. This right implies, among other things,the opportunity not only to attend the trial,but to hear and understand what is happeningduring the trial (para. 26 of the case “Stanfordv. The United Kingdom”, para. 78 of the case“Barbera, Messeg and Yabardo v. Spain”).

Lawyers, disagreed with Judge Sokolov, andfiled a motion to challenge the judge. The de-fense justified this by the fact that the courtignores their requests to attract victims, toensure the participation of V. Yanukovych inhearings and so on. They note that this isnot an abuse of procedural rights, which thecourt referred to each time after refusing tosatisfy the applications submitted. The judge

again dismissed the request for his challenge,regarding it as an abuse of the right to chal-lenge. The ISHR has repeatedly written that incases against V. Yanukovych, courts systemati-cally ignore Ukraine’s international obligationsregarding the provision of videoconferencingwith a defendant outside Ukraine. In this con-nection, the ex-president is deprived of theopportunity to participate in court hearings.

The prosecutor continued to declare a peti-tion in which he drew attention to the mostrelevant risks, justifying them with the socialties of the suspect, as well as the fact thatthere are circumstances (risks) that alreadytake place: - concealment from pre-trial investi-gation bodies and the court; - risk of unlawfulinfluence; - committing obstruction of crimi-nal proceedings in another way, in particular,staying outside Ukraine, as well as evadingparticipation in procedural actions.In accordance with the case law of the Eu-

ropean Court of Human Rights, a good reasonfor deciding on the need for a pre-trial deten-tion of a person is the risk of obstructing theestablishment of the truth in the case and ofhiding from justice. It is noted that the dangerof obstructing the establishment of the truthin the case and hiding from justice can bemeasured by the severity of the possible pun-ishment in conjunction with the availabilityof data on the material, social situation of aperson, his relations with the state in which heis persecuted and international contacts (para.85 of the case “Satretdinov v. Russian Federa-tion”). It is worth paying attention to the factthat the location of V. Yanukovych is knownand he himself filed a statement of desire toparticipate in the hearings.

Lawyers also drew attention to the fact thatthe prosecutor used only 15% of all evidence(out of 15 volumes) in the petition, thereforethey believe that the prosecutor’s office con-ceals Maidan’s crimes using it official powersstarting from the petition filed with the courtand materials, positions, which they declare.The investigating judge considered proved

the presence of risks under paragraphs 1, 3, 4of Part 1 of Article 177 of the Code of CriminalProcedure of Ukraine, namely the fact that V.

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Yanukovych being at liberty may attempt tohide from the preliminary investigation bodiesand the court, influence witnesses, and alsootherwise impede criminal proceedings, whichindicates the existence of reasonable risks un-der Article 177 Code of Criminal Procedure ofUkraine.

The court granted the request for a measureof restraint in the form of detention withoutthe right to deposit bail. The International So-ciety for Human Rights will continue to moni-tor and refine the details of this proceeding.

Monitoring of criminal proceedings ofViktor Yanukovych (hearing 12/09/2020)

On December 9, 2020, the Pechersk DistrictCourt of Kiev continued the consideration ofthe case of ex-President of Ukraine ViktorYanukovych, suspected of opposing the 2014Maidan.

IV President of Ukraine Viktor Yanukovychis suspected of organizing the persecution andmurder of participants in mass protests in theperiod from 18 to 20 February 2014 in Kievand other cities of Ukraine. He is charged withPart 3 of Art. 28 - commission of a crime by agroup of persons or a criminal organization byprior conspiracy, Part 1 of Art. 109 - seizureof power, Part 2 of Art. 115 - willful murderof two or more persons in a way dangerous formany people, by prior conspiracy as part ofan organized group, Part 2 of Art. 121 - inten-tional grievous bodily injury, Art. 340 - illegalobstruction of the organization or holding ofmeetings, rallies, demonstrations, Part 3 ofArt. 365 - abuse of power or official authority.

The subject of this court session on Decem-ber 9, was the consideration of the petition forthe selection of a measure of restraint. Let usremind that on May 12, 2020, the PecherskDistrict Court of Kiev granted the petition ofthe prosecutor’s office to choose a measure ofrestraint for V. Yanukovych in the form of de-tention. But on November 16, the Kiev Courtof Appeal overturned this decision and sentthe case file for consideration to the court offirst instance.

However, the hearing began with an entirelydifferent motion. Prosecutor Y. Simonov filed

an application through the office of the courtto dismiss the lawyer A. Goroshinsky, but sincehe could not appear at the hearing, due to par-ticipation in another proceeding, a group ofprosecutors of this criminal proceeding askedthe court to consider and support the applica-tion.

The statement is motivated by the fact thatthe lawyer has a conflict of interest, since in the“the Maidan case” he represents the defense ofthe suspect V. Yanukovych, and also protectsthe victim Voloshina, the wife of a law enforce-ment officer V. Bulitko, who died on February18, 2014, and at the same time is a representa-tive and defender of two ex-policemen of thespecial unit “Berkut” A. Marinchenko and P.Ambroskin in the Svyatoshinsky district courtin the case against the officers of the “Berkut”.The defense lawyers also asked the court

to give them time to familiarize themselveswith this application, which was filed in a suf-ficiently large volume together with the proce-dural documents, in order to ensure the properright to defend their client.After consulting on the spot, the court an-

nounced a break for one hour in order to pro-vide time for familiarization with the state-ment on the challenge of the defense.

Immediately after the end of the break, theprosecution filed a motion to add new evidenceto the application for recusal, including a CD.The prosecution also referred to Paragraph 1of Part 2 of Article 78 of the current CriminalProcedure Code of Ukraine, which indicates adirect imperative prohibition on the right ofa person to participate in the same criminalproceedings as a defender or representativein the event that he provides or previouslyprovided legal assistance to a person whoseinterests are contrary to the interests of theperson who has applied for legal assistance.It should be noted that since the court has

the right to take into account only those doc-uments and materials with which the partic-ipants and parties of the proceeding are fa-miliar, it is not clear why the prosecutors forwhich this evidence was not presented simul-taneously with the application for recusal.

Having heard the opinion of the parties, the

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court was forced to re-adjourn to provide thedefense with an opportunity to get acquaintedwith the new evidence.

After familiarizing themselves with the pre-sented materials, the lawyers filed a petition tosummon the wife of the deceased law enforce-ment officer V. Bulitko (whom the prosecutioncalled the victim) to the court session to clar-ify her legal status in this criminal proceeding,since the lawyer A. Goroshinsky argued thatthis person is a victim in a completely differentcriminal proceeding, where he represents her.Thus, according to the defense, the argumentsof the prosecution do not correspond to thereality and the factual circumstances of thecase, and the classification of this situation inaccordance with Paragraph 1 of Part 2 of Ar-ticle 78 of the CCP, to which the prosecutorsrefer, is incorrect.

In addition, the lawyers stated that the issueof a conflict of interest, if it arises, should beresolved directly by the client and his lawyer,and not by the representatives of the prose-cutor’s office, since according to Article 9 ofthe Rules of advocate ethics approved by theCongress of Lawyers on 06/09/17, if the in-formation from a client to whom he providedprofessional legal assistance is related to theinterests of a new client in the provision of le-gal assistance, the lawyer is obliged to obtainthe written consent of clients between whoma conflict of interest has arisen.In confirmation of compliance with the

norms of the abovementioned law and refu-tation of the arguments of the prosecutionabout the challenge, A. Goroshinsky was pro-vided with the conclusion of the Council ofAdvocates of Ukraine that he had no conflictof interest in relation to these persons and acertified statement from V. Yanukovych, whichsays that he does not see a conflict of interest inthis situation and does not object to the lawyerrepresenting the interests of A. Marinchenkoand P. Ambroskin. A similar application wasfiled on behalf of former Berkut officers, whichcontained information about permission to rep-resent their interests and awareness of thissituation.

After consulting, the court decided to refuse

to satisfy the prosecutor’s motion to dismissthe lawyer A. Goroshinsky and, therefore, didnot satisfy the defense’s motion to summon thewife of the deceased law enforcement officer V.Bulitko for interrogation.After this decision was made, the defense

side filed a response motion to disqualify prose-cutors A. Donsky and D. Ivanov, arguing thatthe defense doubted their impartiality. Accord-ing to the prosecution, this behavior of thelawyers is evidence of their abuse of the rightto challenge. The court also decided to refuseto satisfy this petition.Moreover, the court also refused to involve

the victims in the proceeding, which was re-quested by both the prosecution and the de-fense. It is worth noting here that the defensehas already repeatedly asked to involve thevictims in the proceeding, which, in their opin-ion, is necessary to ascertain the authenticityof all the circumstances of the case. This posi-tion of the court can be regarded as unwilling-ness to understand the true essence of whatis happening, and unjustified haste regardingthe decision of the case. Moreover, the courtrefused due to the fact that this session is in-tended only to resolve the issue of a measureof restraint.As for the petition to choose a measure of

restraint, the prosecutors on this issue asked toattach documents on the international searchfor V. Yanukovych to the materials of the pe-tition.It is important to note that in the current

Criminal Procedure Code of Ukraine, Para-graph 2 of Article 184, in this regard meansthat a copy of the petition and materials thatjustify the need to apply a measure of restraintis provided to the suspect, the accused no laterthan 3 hours before the start of the consider-ation of the petition. But, despite this, thecourt considered the materials provided by theprosecution as not new to the defenders, there-fore, decided to grant the petition. Accordingto the observer of the ISHR, this is a direct vi-olation of procedural rules and the principle ofequality of arms, guaranteed both by nationallegislation and by the ECtHR.The European Court of Human Rights re-

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calls that one of the requirements of a fair trialis equality of arms, which implies the obliga-tion to provide each party with a reasonableopportunity to state their position in condi-tions that do not place them at a clear disad-vantage compared to their opponent (“Mahfiv. France case”, par 26); In the case of “Ruiz-Mateos v. Spain”, para. 63 states that the rightto a competitive proceeding means an oppor-tunity for the parties to know and commenton the observations provided or the evidencemade by the other party.

In addition, lawyers of V. Yanukovych fileda petition demanding to ensure his personalparticipation in the hearing by videoconfer-ence. The prosecutors, in turn, opposed thegranting of this request, continuing to talkabout the impossibility of carrying out such aprocedure, due to the fact that the suspect ison the wanted list, and the Russian Federationrefuses to provide legal assistance on this issue.Lawyers, on the other hand, continue to insiston the real availability of information aboutthe whereabouts of V. Yanukovych and hispersonal desire to take part in the hearing viavideoconference (It should be noted that backin 2016, V. Yanukovych was given the opportu-nity to testify via videoconference in court inthe case of the shooting on the Maidan, afterwhich any statements by the defense about hisparticipation in the court hearings are rejected,although the location has not changed).

At this hearing, the court also ruled on thespot to refuse to satisfy this request, referringto Paragraph 6 of Art. 193 of the CriminalProcedure Code of Ukraine: the investigatingjudge, the court may consider a petition forchoosing a measure of restraint in the formof detention and choose such a measure ofrestraint in the absence of the suspect, theaccused, only if the prosecutor, in addition tothe existence of the grounds provided for inArt. 177 of this Code, proves that the suspect,the accused is on the international wanted list.When making the decision, the court notedthat the right to fair trial is not violated inthis way, but will be realized through repre-sentatives.It is important to clarify here that in ac-

cordance with international norms and obli-gations of Ukraine, a suspect has the right tospeak remotely and answer all questions, accu-sations, and also give testimony, especially ifthe suspect himself asks about it, and besides,this is not the first time (at the session dated12.05.2020, the court also refused to satisfy therequest for V. Yanukovych’s participation inthe session in the video broadcast mode whenconsidering the issue of choosing a measureof restraint, similarly referring to the norm ofArt. 193 of the Criminal Procedure Code).

Article 6 of the Convention recognizes forthe accused the right to real participation inthe proceeding. This implies, among otherthings, the right not only to be present atthe proceedings, but also the right to be heardand to participate in the debate. Inherent inthe very concept of an adversarial proceed-ing, these rights may equally derive from theguarantees set out in Parts c), d) and e) ofArticle 6 par 3: the right to “defend oneselfin person”, “to interrogate witnesses testifyingagainst him or to have the right to have thesewitnesses questioned”, “use the free help of aninterpreter if he does not understand the lan-guage used in court, or does not speak thislanguage.” (“Stanford v. the United Kingdom”,para. 26).Moreover, as mentioned above, V.

Yanukovych has already taken part inthe court session via video link (in thecase against the ex-Berkut officers), whichconfirms the real opportunity to grant himthe right to appear directly before the courtand personally participate in the trial in theformat of a video conference.Thus, the ISHR once again notes the prob-

lem with the exercise of the right to personalparticipation in the court, which arose in con-nection with the unregulated format of V.Yanukovych’s participation in this proceeding.The regularity of this problem in cases againstV. Yanukovych may indicate a violation of theright to a fair trial, despite the judge’s assur-ances that there is no such violation (sincewhen choosing a measure of restraint, the sus-pect is not even allowed to be heard and togive appropriate arguments in his defense).

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In addition, according to the observer, theactions of the court that violate the norms ofinternational law testify to the dependence ofthe judicial proceeding on the political situa-tion.The suspect’s lawyers insisted on giving

them time to familiarize themselves and thepossibility of preparing substantiated writtenobjections to the materials submitted by theprosecution. In this regard, the court againannounced a break for 3 hours to provide thedefense party with such a right. But at thesame time, it should be noted that the courtsession lasted more than eight hours, and thebreak was announced at 9:45 pm to 00:45 am,which directly contradicts the norm of Para. 1of Art. 322 of the CCP, which says that thetrial takes place continuously, except for thetime of rest. The indicated time clearly cannotbe called a working time, which in itself is adirect violation of procedural norms.Referring to the practice of the ECtHR, it

should be noted that the European Court ofHuman Rights considers it important that notonly the accused, but also their defenders havethe opportunity to follow the course of thetrial, answer questions and make statementswithout being overly tired. Likewise, it is im-perative that judges exercise their full capacityfor concentration and attention to follow theproceeding and be able to make an informeddecision. Thus, for example, in the “Mahfi v.France” case, para. 40, the applicant argued,in particular, that the late hour at which hislawyer had to appear before the jury and thelength of the trial violated his defense rightsunder Para. 1 and 3 of Article 6 of the Conven-tion. The Court also held that, in this situation,there had been a violation of para. 3 of Article6 of the Convention taken in conjunction withpara. 1.Due to the late time and the impossibility

of technically preparing to discuss the issue ofa measure of restraint, as well as agreeing ontheir legal position with the client, the lawyerssent a corresponding request to the court’semail address with a request to determine thedate of the next court session at the properworking time.

But after about an hour, the panel of thecourt and the prosecution returned to thecourtroom to continue the consideration of thecase. The court, however, without any exami-nation of the reasons for the non-appearanceof the lawyers, promptly made a decision to in-volve the public defender in the considerationof the petition. At the same time, accordingto the lawyers, they were not even notified ofthe change in the length of the break. And thedefense lawyers never received an answer totheir petition to set a different time for thehearing.

The International Society for Human Rightshas repeatedly written about the tendencyin criminal cases to replace “inconvenient”lawyers with passive “public defenders”. Thisproblem can be traced not only in the casesagainst Viktor Yanukovych, but also in manyothers, for example, in the case of Alexan-der Filtsev, when considering a petition for ameasure of restraint, the lawyers did not physi-cally have time to appear in court (through thefault of the court itself, which notified themof the hearing just a few hours before it be-gan), against the will of the accused himself,the judge ruled to appoint a public defender,thereby violating the right to defense.

In the report “Monitoring the observance ofthe right to a fair trial in Ukraine” for 2017, theISHR has already indicated that the abuse ofthe public defenders is one of the main negativetrends that hinder the realization of the rightsof defendants and accused.

Monitoring of the case of V.F. Yanukovych(from 12.22.2020)

On December 22, 2020, a hearing on the caseof the fourth President of Ukraine Viktor Fe-dorovich Yanukovych (No. 757/16624/20-k)supposed to be held in the Pechersky DistrictCourt of Kiev.A series of proceedings related to the mass

protests on the Maydan in Kiev in 2013-2014are still being investigated and considered. Inparticular, several cases were opened againstV.F. Yanukovych. This proceeding, which isstill at the pre-trial stage, is based on theex-president’s suspicion of organizing the per-

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secution and murder of participants in massprotests in Ukraine from February 18 to 22,2014. He is charged with Part 1 of Art. 109(seizure of state power), Part 2 of Art. 115(deliberate murder of two or more personsin a manner dangerous for many persons byprior conspiracy as part of an organized group),Part 2 of Art. 121 (intentional grievous bod-ily harm), Art. 340 (illegal obstruction of theorganization or holding of meetings, rallies,demonstrations), Part 3 of Art. 365 (abuse ofpower or official authority).On December 22, the court was supposed

to consider the petition of the prosecutors tochoose a measure of restraint for the suspectV.F. Yanukovych, but before the hearing itselfit became known that the prosecutors also fileda petition to clarify the decision of the KievCourt of Appeal, after which all the materialsof the case were submitted to appeal (recallthat the petition for the selection of a measureof restraint was sent back at the end of April2020. On May 12, a decision was made toarrest V.F. Yanukovych in absentia, but onNovember 16, 2020, the decision was canceled).

The lawyers believe that the reason for such“disruption” of the session by the prosecutorswas that at the previous session the prosecu-tors again filed a motion to choose a measureof restraint, however, in order to do this pro-cedural action in the absence of the suspect,except for the grounds provided for by Article176 of the CCP, it is necessary to prove thathe is on the international wanted list and, ac-cordingly, the investigating judge demandedevidence from the prosecution as required bythe procedure of special pre-trial investigation.

In accordance with the legislation, the deci-sion to declare a person on the internationalwanted list on the basis of a request from theNational Central Bureau (NCB) of Interpol inUkraine is made by the General Secretariatof Interpol or the NCB of Interpol of the re-spective country. The provisions of Art. 281of the Criminal Procedure Code of Ukraineprovide that information on the declarationof a person on the international wanted listmust be entered in the Unified Register ofPre-trial Investigations. But, since there is no

note in the Register that V.F. Yanukovychis on the international wanted list, then, ac-cordingly, the prosecutor’s office was unable tocollect information and submitted materialsthat are already in the case, as the defendernotes. And in the ruling of the Kiev Court ofAppeal of November 16, 2020, which canceledthe arrest in absentia of V.F. Yanukovych, itis also indicated that the suspect is not on theinternational wanted list.It should be noted that this criminal pro-

ceeding was opened on February 25, 2014 andis still at the stage of pre-trial investigation (formore than six years), while Part 2 of Art.219of the Criminal Procedure Code of Ukrainefor this kind of proceeding provides only eigh-teen months for a maximum period of pre-trialinvestigation. That is, in spite of everything,the problem of violation of reasonable timelimits, which was noted by the ISHR observersin many reports, as well as highlighted in the2019 Report, continues to exist.

According to the decisions of the ECtHR,the reasonableness of the length of the pro-ceedings is determined taking into account thecircumstances of the case, which require an as-sessment in aggregate (“Boddaert v. Belgium”,para. 36). In determining whether the lengthof the criminal proceedings was reasonable,the Court shall take into account factors suchas the complexity of the case, the applicant’sbehavior and the actions of the relevant ad-ministrative and judicial authorities (“Konig v.Germany”, para. 99; “Neumeister v. Austria”,para. 21; “Ringeissen v. Austria”, para. 110;“Pelissier and Sassi v. France”, para. 67, “Ped-ersen and Baadsgaard v. Denmark”, para. 45).The complexity of the case may be due, for ex-ample, to the number of charges, the numberof witnesses and defendants participating inthe proceedings, or the international aspect ofthe case (“Neumeister v. Austria”, para. 20).But, nevertheless, the ECtHR also notes thatalthough the case may be quite complex, theCourt cannot consider long periods of unrea-sonable inaction as “reasonable” (“Adiletta v.Italy”, para. 17).

According to para. 1 of Art. 6 of the HumanRights Convention, everyone has the right to

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a fair and public hearing within a reasonabletime by an independent and impartial tribunal.This right is violated and even though someprocedural actions are being taken, anywayone of the reasons for such a lengthy consid-eration may be the situation that prosecutorsvery often submit groundless petitions, for ex-ample, about the recusation of judges or therecusation of defenders of V.F. Yanukovych(again filed and will be considered by the courtat the next hearing), which entails an unrea-sonable significant delay in the investigation ofcriminal proceedings. The European Court ofHuman Rights only takes into account delaysin its decisions, sometimes referred to as “signif-icant periods of inactivity”, which are believedto be the fault of the authorities. Delays dueto the applicant’s fault, whether intentionallyor not, are not taken into account in assess-ing a “reasonable time” (“H. v. The UnitedKingdom”, para. 45).

3.72 The trial of AlexeyYarkovoy

Monitoring the case of Alexey Yarkovoy(session on January 31, 2020)

On January 31, 2020, a session was held in theZhovtnevy District Court of Zaporozhye in thecase of Yarkovoy Alexei, accused of committingcriminal offenses under Part 1 of Article 307and Part 2 of Article 309 of the Criminal Codeof Ukraine (illegal production, manufacture,acquisition, storage, transportation, transfer orsale of narcotic drugs, psychotropic substancesor their analogues and illegal production, man-ufacture, purchase, storage, transportation ortransfer of narcotic drugs, psychotropic sub-stances or their analogues without the purposeof sale).During the trial, the prosecutor filed re-

quests for an examination of the drugs foundon the defendant, as well as for the inclusionin the case file of the results of the search,inspection of telephones, SIM cards, memorycards and other documents. All requests weregranted by the court, no objections from thedefense were received.

Due to the need to familiarize themselveswith the new evidence attached, the court de-cided to check the video, which is on the mem-ory card provided by the prosecutor. But dueto technical problems in this court session,the parties could not study the informationfrom the video. To ensure the possibility of re-searching video materials, the court announceda break.In this hearing, there were no violations of

the lawfulness of the trial and the right to afair trial of the participants in the trial.

3.73 The trial of Zinchenkoand others

Monitoring of the trial of S. Zinchenko, P.Ambroskin, A. Marinchenko, S. Tamtura,O. Yanishevsky (session on 03/17/2020)

On December 29, 2019, under the Normanformat, an exchange took place betweenUkraine and the Uncontrolled regions of East-ern Ukraine. Five ex-officers of riot police unit“Berkut” (S. Zinchenko, P. Ambroskin, A. Mar-inchenko, S. Tamtura, O. Yanishevsky) also goton the exchange lists. The International Soci-ety for Human Rights has been monitoring thecase for two years. On February 8, two of them(A. Marinchenko, From Tamtura) returned toUkraine. Their lawyer A. Goroshinsky pub-lished on social networks an open appeal ofhis clients to the President of Ukraine V. Ze-lensky in which ex-Berkut officers asked todeclare unconstitutional the Law of Ukraine“On Preventing Persecution and Punishmentof Persons About Events that Occurred Dur-ing Peaceful Meetings”, and also adopt a law,which would exempt from the responsibility ofboth protesters and law enforcement officials.It is worth noting that the ex-policemen

commented on their consent to the exchangeas follows: “We agreed to the exchange onlyso as not to disrupt it. A measure of restraintin the form of round-the-clock house arrestwas applied to us (A. Marinchenko, S Tam-tura), and our comrades (3 other accused inthis case) were detained. The exchange of ‘allfor all’ was an opportunity for their release”.

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In addition, the returning defendants statedthat they would continue to take part in courthearings, as they wanted to restore the honestname of the “Berkut” special police unit.It is important to highlight the fact that

before the exchange in the framework of theNorman format took place, for all the suspectsand accused who participated in this exchange,the court changed the measure of restraint toa personal obligation. ISHR experts expresstheir concern about this fact, since a measureof restraint in the form of a personal obliga-tion implies a certain list of those obligationsthat are imposed on the accused, among otherthings, to come to court upon request. Consid-ering that the criminal cases were not closed,which means that they will continue to be con-sidered in court, the question arises, how, infact, they will be considered without the par-ticipation of the accused. Suppose a hearing isscheduled, the parties are called, including theaccused, the latter did not appear for objectivereasons, and thereby violated the obligationsimposed on them, a possible logical proceduralresult is the announcement of the accused asmissing. That is, it turns out that the courtknows where the accused are located, the courtitself gave tacit consent to this, changing themeasure of restraint to the accused, and thecourt now has no choice but to put the ac-cused on the wanted list to smooth out thisprocedural conflict. The ISHR experts triedto find out from representatives of the legalprofession and the judiciary how to process theexchange of “all for all” in order to avoid theabove situation, but no one was able to answer

this question because it is not regulated at thelegislative level.

Let us return to the circumstances of thecase and recall that this criminal proceedinghas been examined for more than 5 years andduring almost all this time all five accused werein jail. For A. Marinchenko and S. Tamtura themeasure of restraint was changed only in thesecond half of 2019. Such a lengthy trial usinga measure of restraint restricting the freedomof the accused may raise doubts from an inde-pendent observer regarding the reasonablenessof the time of both the criminal investigationitself and the stay of the accused in jail. Un-doubtedly, this is a resonant case for Ukraine,our judiciary has never encountered cases ofsuch complexity, we note that the complexityof the case is one of the criteria of the EC-tHR in determining whether the length of thecriminal proceedings was reasonable (“Konigv. Germany”, para. 99), but, for example, inthe case of “Rui v. France”, paragraph 29, theECtHR concluded that despite the complexityof the case due to the number of persons tobe interrogated and technical materials to beexamined in the case, the reasonable time forconsideration of the criminal proceedings wasexceeded (the case was considered for 5 yearsand 11 months).

On March 17, the Svyatoshinsky DistrictCourt of Kiev was to hold the first court hear-ing after the return of the two accused, butin connection with the quarantine announcedin Ukraine, the court decided to postpone thehearing until June 4.

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The Report is prepared by

Anton Alekseyev Director of the Information and Analytical Center of the ISHR, coordinatorof the project “Strengthening the Rule of law in Ukraine”;

Anastasiia Alekseyeva Coordinator of the monitoring group of the ISHR, expert of theInformation and Analytical Center of the ISHR;

Ilya Dikarev Researcher at the Institute of Optimization of the Brandenburg Technical Uni-versity;

Lyudmila Korol lawyer, member of the monitoring group of the ISHR.

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

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THE RIGHT TO A FAIR TRIAL IN UKRAINE

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