Jail or bail? Why courts do not appoint bail in "political" cases

Author: Natalya Natalina

The head of the board of the “Uspishna Varta” human rights organization

This week the Security Service of Ukraine made another "sensational" exposure of a "FSB agent" in Ukraine. According to the special services, this "FSB agent" is the well-known public figure Timofey Nagorny. The resonating character of this case against the background of news about another increase in gas tariffs is already not that surprising. In four years Ukrainian society has got used to continuous the "exposures" of so-called "agents of the Kremlin" in the person of journalists, public figures, and even politicians of the first echelon.

Concerning this case another aspect is interesting to human rights activists. Nagorny is suspected of committing criminal offenses under part 1 of article 111 (state treason) and 190 (fraud) of the Criminal Code of Ukraine. On October 4th the investigative judge of the Pechersky district court of Kiev imposed a measure of restraint on him in the form of detention (this decision isn't available to read in open access) and determined the amount for bail (about $20,000), which Nagorny paid and then left the pre-trial detention center. Thus, the investigative judge, without violating the requirements of the Criminal Procedure Code of Ukraine, presented to the party of defence the opportunity to choose a measure of restraint. Later, on October 22nd the Kiev Court of Appeal cancelled the ruling of the Pechersky court and put Nagorny under arrest until November 30th, without the right to bail. And what is interesting is that, after making this ruling, the judge of the Pechersky court Lyudmila Tsokol was unexpectedly discharged from the judicial practice. By the way, this is the same judge who ruled in December, 2017 to release the oppositional politician Mikheil Saakashvili.

The ruling of the Pechersky court from October 4th to bail the suspect under article 111 of the Criminal Code of Ukraine became in fact an unprecedented case in recent years. The court of first instance recognised that the suspicion under article 111 was groundless, and bail was determined under article 190 (fraud). Anyway, the "Uspishna Varta" human rights platform carries out the monitoring of many criminal proceedings within the framework of which charges are pressed in accordance with articles from the section of the Criminal Code of Ukraine "Crimes against the foundations of the national security of Ukraine". According to our data, dozens of people have been in a pre-trial detention centre for several years without an alternative and without the right to post bail, and actually without consideration of their cases in essence. The court prolongs the measure of restraint in the form of detention every two months, and in such cases there isn't even a mention of any bail. These are the cases of the journalists Vasily Muravitsky, Kirill Vyshinsky, and Pavel Volkov, the sportswoman Dariya Mastikasheva, the civil servant Stanislav Ezhov, and many other "political" defendants. The judges in such cases are put in such a situation where they can't release the specified persons even if the prosecutor's office has no proof of their guilt. In this situation in fact both the accused and the judges become the hostages of such cases, which are being heard over many years.

In the majority of proceedings where a measure of restraint in the form of detention is chosen without an alternative (without a definition of bail), a "guilty" verdict is handed down to the accused as a result. Even having passed through ostentatious decommunization, both our society and our judicial system more are more deeply incorporates the Soviet practice. At the times of the USSR it was much more difficult for a person who is in custody to prove their innocence or to receive a punishment that isn't connected to imprisonment.

HOW MANY "POLITICAL CASES" ARE THERE IN UKRAINE?

The exact number of political prisoners in Ukraine isn't known. In a number of cases law enforcement bodies don't publicise the names of detainees. And the accused prefer to reach a deal with the investigation and to admit their guilt without publicity. From those cases that are known to the "Uspishna Varta" human rights platform, "political" cases against journalists, public figures, and politicians are being initiated as a rule under the articles of the section of the Criminal Code of Ukraine "Crimes against the foundations of the national security of Ukraine". This concerns the following articles:

  • Article 109. Actions aimed at forceful change or overthrow of the constitutional order or take-over of government;
  • Article 110.Trespass against territorial integrity and inviolability of Ukraine;
  • Article 110-2. Financing actions for the purpose of violently changing or overthrowing the constitutional system or capturing state power, changing the borders of the territory or frontier of Ukraine;
  • Article 111. High treason;
  • Article 112. Trespass against life of a statesman or a public figure;
  • Article 113. Sabotage;
  • Article 114. Espionage;
  • Article 114-1. Hindering the lawful activity of the Armed Forces of Ukraine and other military formations.

Also the prosecutor's office often adds article 258-3 of the Criminal Code of Ukraine (Creation of a terrorist group or terrorist organisation) to these other "political" articles.

According to the data on the website of the Prosecutor General's Office, from September 2015-2018 1454 offenses were registered under the "national security" articles, and the suspect was given a notice of suspicion in 560 of these cases. In 4 years the prosecutor's office sent 393 cases to court with an indictment.

Data taken from the website of the Prosecutor General's Office of Ukraine https://www.gp.gov.ua/ua/statinfo.html

If to consider the brought charges in the context of articles of the Criminal Code of Ukraine, article 110 (infringement of territorial integrity) became the "favourite" article of the prosecutor's office over the last 4 years. 47% of all charges (261 cases) were brought under this article. Article 111 (state treason) is in second place in terms of "popularity" - 157 charges (or 28%). Article 109 (Actions aimed at forceful change or overthrow of the constitutional order or take-over of government) also entered into the top 3. Under this article 78 suspicions were handed down in 4 years, or 14% of all "national security" cases.

Data taken from the website of the Prosecutor General's Office of Ukraine https://www.gp.gov.ua/ua/statinfo.html

From all the criminal proceedings sent to court Article 110 is also the leader – 213 cases or 54% of all crimes against national security.

Data taken from the website of the Prosecutor General's Office of Ukraine https://www.gp.gov.ua/ua/statinfo.html

The majority of charges under the specified articles that the legal team of "Uspishna Varta" had the opportunity to study are based on "formal suspicion (charge)" without the corresponding evidential base and with violations of the norms of procedural law. Pre-judicial investigations under these articles later put the court in front of the difficult question of how to consider the specified proceedings. At the same time, in such judicial processes as a rule the authorities and so-called public ("activists") - mainly right-wing radical in nature - exert pressure.

As the result, the court case in such processes lasts for years. The accused whose guilt hasn't been proven by court, are in a pre-trial detention center during all this time. The court prolongs detention every two months.

In cases when the court nevertheless makes a decision, in the appeal instance concerning such cases we observe the cancellation of the conviction and the sending of the case for new consideration at the preliminary hearing stage. This is what happened, for example, in the case of the journalist Dmitry Vasilets and his colleague Evgeny Timonin, who were detained by the SBU in November, 2015 and are accused of informationally assisting terrorism under article 258-3 of the Criminal Code of Ukraine. After the accused had spent two years in a pre-trial detention center, later, in September 2017, the court rendered a guilty verdict and D. Vasilets and E. Timonin were condemned to 9 years of imprisonment. In February, 2018 the sentence was cancelled in the appeal instance, and the case was sent for consideration in the court of first instance. In October, 2018 the court returned the indictment to the prosecutor's office for completion, referring to numerous violations during the pre-trial investigation, the incorrect preparation of the register of the pre-trial investigation materials that were supplemented to the indictment, and also discrepancies between the indictment and the requirements of the Criminal Procedure Code.

WHY DON'T THE COURTS APPLY BAIL IN CASES THAT CONCERN "NATIONAL SECURITY"?

"Uspishna Varta" continuously monitors cases that are similar to Nagorny's case where the judges are guided by the same norms of the procedural and substantive law. However, they don't consider the possibility of bail.

For example, earlier we highlighted the motion concerning Farukh Kamalov under article 111 of the Criminal Code of Ukraine. This Crimean Tatar was arrested on February 8th, 2018 by the investigative judge of the Kherson city court without a determination of the amount for bail, and was groundlessly kept in a pre-trial detention center up to sentencing. This groundlessness lies in the fact that according to the results of the judicial review of the indictment - article 111 of the Criminal Code of Ukraine (state treason) wasn't confirmed and was changed to the softer article 110 of the Criminal Code of Ukraine (trespass against territorial integrity and inviolability of Ukraine). As result, an agreement with the prosecutor was concluded, in accordance with which Kamalov was given a suspended sentence.

The same laws, the same judicial system, but different decisions.

As a reminder, on October 7th, 2014 a fifth part was added to article 176 of the Criminal Procedure Code of Ukraine - a measure of restraint in the form of a personal commitment, personal warranty, house arrest, or bail can't be applied to persons who are suspected or accused of committing crimes stipulated by articles 109-114/1, 258-258/5, 260, and 261 of the Criminal Code of Ukraine. This is precisely that category of cases which are usually referred to as political.

At the same time, the fourth part of article 183 of the Criminal Procedure Code of Ukraine notes that the court, when rendering a decision on the imposition of custody as a measure of restraint, HAS THE RIGHT not to determine the amount for bail in criminal proceedings:

1) in the matter of a violent offence or one involving threat of violence;

2) in the matter of an offence causing death of an individual;

3) in regard of the person who has violated the terms of a bail selected earlier as a measure of restraint, within the same set of proceedings.

Proceeding from the specified requirements of article 183 and taking into account the circumstances of the case, if the suspicion/charge doesn't contain references that the crime was committed with the use of violence/threat of its use or caused the death of a person, as well as violations of the terms of a measure of restraint, then the court CAN when electing a measure of restraint in the form of detention determine the amount for bail. In both Nagorny and Kamalov's cases the essence of the put-forward suspicions doesn't testify that the restrictions specified in article 183 of the Criminal Procedure Code of Ukraine are reflected in their actions.

Besides this, NOT CHOOSING BAIL when electing a measure of restraint in the form of detention is the RIGHT, AND NOT THE OBLIGATION OF THE COURT.

However, as we wrote earlier, choosing bail in "political" cases is known to us only in the case of Nagorny. Moreover, there are examples where the investigator/prosecutor intentionally imputes the heaviest article that contains references to the study requirements in article 183 of the Criminal Procedure Code of Ukraine. This is what happened concerning the journalist Pavel Volkov, who for already over a year has been in a pre-trial detention center in Zaporozhye. The case is now being heard in the Shevchenkovsky district court of Zaporozhye in regards to part 2 of article 110 of the Criminal Code of Ukraine - trespass against territorial integrity and inviolability of Ukraine (by a group of persons); article 258-3 of the Criminal Code of Ukraine - other assistance to terrorists. In the specified articles there is no direct reference to "violence" or to the "death of an individual". As a reminder, we don't give an assessment of evidence, we only study the procedural documents.

However, when the measure of restraint was chosen, part 3 of article 110 of the Criminal Code of Ukraine was imputed to Pavel, which added the qualifying sign "...an offence causing the deaths of people..." (as it is specified in the decision of the Court of Appeal). Of course, concerning such "heavy" suspicion (punishment of 15 years of imprisonment under part 3 of article 110 of the Criminal Code of Ukraine), the investigative judge had the grounds to choose detention without determining the amount for bail. However, there is a question: did the investigative judge really investigate the validity of suspicion? The indictment came to court already without part 3 of article 110 of the Criminal Code of Ukraine, however formally "other assistance to terrorists" was added. If the investigative judges/court had applied a measure of detention with a determination of bail, Pavel could've spent this year at home (taking into account limiting factors - family and work).

Instead, since September 27th, 2017 the court prolongs Pavel's measure of restraint in the form of detention every two months. At the same time, restrictions on changing the measure of restraint from detention to any other one not connected with imprisonment are absent in legislation.

A similar situation also arose in the case of Stanislav Ezhov, the deputy head of protocol and assistant to the Prime Minister of Ukraine Vladimir Groisman. Stanislav was detained on December 20th, 2017 by employees of the SBU at his workplace, and since then he has been in custody in the Lukyanovsky pre-trial detention center in the city of Kiev without an alternative. He is accused of state treason (part 1 of Article 111 of the Criminal Code of Ukraine). Ezhov faces from 12 to 15 years of imprisonment with the possible confiscation of property. An example of the evidence of "espionage" that the prosecutor's office presented in court is: the prosecutor read out on camera a conversation between the Prime Minister Vladimir Groisman and the High Representative of the Union for Foreign Affairs and Security Policy Federica Mogherini that allegedly contained information that is valuable to Ukraine and was transferred by Ezhov during correspondence. Besides this, during the trial the prosecutor read out printouts of articles written by Ukrainian analysts and political scientists that were allegedly sent by Ezhov. In addition, the prosecutor attached a shorthand report of a domestic conversation between Stanislav Ezhov and his wife and parents in which the accused mainly discussed household topics and also argued with his parents on historical topics, such as Holodomor, genocide, and May 9th.

The case of Vladimir Bik, who was the head of the department of counterintelligence of the SBU, is also similar. He is accused of transferring to FSB employees links to videos which at that time were and still are publicly accessible on the Internet, and which allegedly distort information about the events that took place on Maidan in the winter of 2013-2014 and discredit Ukraine and its Euro-integration aspirations in the opinion of world community. This information, according to the assumption of the investigation, was intended for use to the detriment of the people of the country and the reputation of the state. Vladimir Bik was detained by the SBU in November, 2014 on a charge of state treason (Article 111) and was in custody in a pre-trial detention center for 3 years, and only in October, 2017 during another court session was the measure of restraint changed to around-the-clock house arrest, despite the requirements of part 5 of Article 176 of the Criminal Procedure Code of Ukraine (a ban on the use of other measures of restraint besides detention).

Dariya Mastikasheva, the three-time Taikwondo champion of Ukraine and the junior silver medal European Championship winner, has spent already 15 months in a pre-trial detention center. Employees of the SBU kidnapped Dariya on August 15th, 2017, she was tortured for several days until it was succeeded to beat out a recognition from her on camera, which was subsequently presented at a press conference by the head of the SBU Vasily Gritsak. This video also formed the basis of her charge, after which she was put into an investigation isolator, where she has been up to this very day. Dariya is suspected of state treason (Article 111 of the Criminal Code of Ukraine) for recruiting veterans of the anti-terrorist operation in the East of Ukraine (ATO) for the purpose of imitating the preparation of acts of terrorism in Russia, which the Russian special services could use to discredit the Ukrainian authorities. The woman isn't allowed to meet her child, and the last time she saw the child was in August of last year. Despite the international publicity of this case and the numerous procedural actions of the lawyer, it still hasn't been managed to accelerate consideration of this case.

This is not a complete list of those citizens of Ukraine who the special services accuse of state treason and interweave into a "secret-service network of the FSB". The full list of such people is not known for certain. At the same time, as a rule, the prosecutor's office uses long stays in a pre-trial detention center as a way of putting pressure on a person so that they admit their guilt and opt to reach an agreement with the investigation. In past material we have written in detail about such a practice in relation to users of social networks who are accused of distributing so-called "anti-Ukrainian propaganda".

WHAT DOES INTERNATIONAL LAW SAY?

Article 9 of the International Covenant on Civil and Political Rights and article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereon in - the European Convention) guarantees the right of everyone to have their case considered in a reasonable time. The body of principles of defending all persons subjected to detention or imprisonment in any way, adopted by the United Nations General Assembly on December 9th, 1988, also stipulates that a person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.

A long unjustified delay of the process is almost equivalent to a denial of justice. There is a large number of explanations and generalisations of national courts and the practice of the European Court of Human Rights concerning this matter, including two cases of "Lutsenko against Ukraine" - nowadays the head of the Prosecutor-General's Office of Ukraine. In light of this, it would seem that the courts must approach the solving of issues concerning the measure of restraint in the form of detention in a more balanced and careful manner. However this isn't so.

We observe how the Ukrainian courts ignore the provisions of point 75 of the decision of the European Court of Human Rights (hereon in – ECHR) in the case of "Kharchenko against Ukraine". In this decision it is clearly defined that long-term detention without the determination of the relevant grounds in a court decision is incompatible with the principle of protection against arbitrariness, which is enshrined in point 1 of Article 5 of the European Convention.

In political cases the courts as a rule appeal to such formulations as: "due to the weight of the punishment that threatens a person if found guilty". "Uspishna Varta" continuously monitors the case of the Kharkov doctor Igor Dzhadan, who in April, 2015 was kidnapped by the SBU, and only three weeks later was he officially detained. Criminal proceedings on Igor Dzhadan's charge, which contains a whole "bouquet" of articles of the Criminal Code, including part 2 of Article 110, is being heard in the Dzerzhinsky district court of Kharkov. The main charge is the creation of a terrorist organisation. The case has been considered for more than three years, and no evidence has been provided. In 2017 the "accomplices" in Dzhadan's crime were exchanged under the "Minsk Agreements". Igor Dzhadan states his innocence and is ready to defend his position in court. During all this time and up to this very moment he has been in custody in a pre-trial detention center without any alternative.

Every time Dzhadan's measure of restraint is prolonged, such reasoning is given in the court's decision:

“During consideration of the matter, the court studied the possibility of not extending the term of the detention of PERSON 2, PERSON 3, and PERSON_4 in custody and the election of a less harsh preventive measure. However, taking into account that the risks specified in article 177 of the Criminal Procedure Code of Ukraine, which were present during the pre-trial investigation of criminal proceedings and were taken into account by the Kievsky district court of Kharkov when extending the terms of detention currently, continue to exist, namely: due to the weight of the punishment that threatens them if found guilty of the criminal offenses they are suspected of committing, given that the actions committed by the defendants that led to a suspicion being reported have a character of an especially heavy criminal offense against public safety, at the present moment the court doesn't see sufficient grounds for replacing or abolishing the previously chosen preventive measure - in the form of detention, and therefore extends the period of detention for 60 days.

On the basis of the aforementioned, guided by Article 314-316 and 369 of the Criminal Procedure Code of Ukraine,

it is decided:

To extend for PERSON_2, INFORMATION 1 the period of detention for a period of 60 days, i.e., until 08.10.2017,

and for PERSON 3, INFORMATION 2, to extend the period of detention for a period of 60 days, i.e., until 08.10.2017,”

Such grounds for extension were given in more than 20 court sessions on the case of Dzhadan where the issue of the measure of restraint was being decided. Over the past year no procedural actions concerning his case occurred.

There is a similar situation with the case of Nikolay Sidorenko, who was detained in 2017. The judicial decision is based exclusively on the terms specified in the Criminal Procedure Code of Ukraine without an indication of circumstances, risks, state of health, and the limit of a reasonable term. Sidorenko received a disability during the time he spent in a pre-trial detention center.

In these cases, the court relies only on the legal qualification of the act provided by the prosecution, which is not sufficient for a lawful judicial decision for further detention.

A court decision without reasoned grounds for its adoption violates the right to protection against arbitrariness, which is an important element of the "legality" of detention in the understanding of article 5 of the European Convention.

In accordance with the requirements of article 5 of the European Convention (the legal position of the ECHR stated in point 60 of the decision of 06.11.2008 on the case "Eloyev against Ukraine"), after a certain period (pre-judicial investigation, judicial proceedings) even a reasonable suspicion of the commission of a crime can't be the only justification of the suspect's detention. And therefore the court, should the motion for the election or extension of the term of the imposition of a measure of restraint in the form of detention be granted, must clearly specify in the judicial decision whether or not there are other grounds or risks stipulated by article 177 of the Criminal Procedure Code of Ukraine.

Along with international legal acts, the requirement about the implementation of criminal proceedings in a reasonable time is also enshrined in the national criminal procedure legislation. Thus, one of the grounds for criminal proceedings according to point 21 of part 1 of article 7 of the Criminal Procedure Code of Ukraine is the rationality of terms, the contents of which are detailed in article 28 of the Criminal Procedure Code of Ukraine. The strict observance of the provisions of this article, which, among other things, assigns to the court an obligation to ensure the carrying out of judicial proceedings in reasonable terms, is a necessary condition for the fulfilment of tasks in criminal legal proceedings and the observance of fundamental human rights at all its stages.

The "Uspishna Varta" human rights platform continues to carry out the monitoring of the aforementioned and another cases. We consider that if Ukraine lays claim to the status of a lawful state, then the selectivity of justice and the abuse of the criminal legal system, which violates article 6 of the European Convention, must be eliminated.


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