Translated by Ollie Richardson & Angelina Siard
This article was originally published on “Nahnews” on 22nd July 2016, but we translated it in order to highlight that she has been detained in the same conditions, as described in this article, for more than 70 days as of 14th September 2016. Here are some other articles relating to the abuse of human rights in Ukraine:
It has been noted more than once that the current Ukrainian trialling of dissidents is terribly far from “European standards”, which the new post-Maidan government apparently seeks. The word “dissident” mechanically becomes synonymous with “political prisoner”.
In light of the Convention
The Court of Appeals of the Kharkov region has repeatedly considered the appeal against the decision of the court at first instance on the election of a measure of restraint to the former MP Alla Aleksandrovskaya.
Specialist on the European Court of Human Rights Elena Leshenko commented to “Nahnews”, having analyzed the decision of the Kiev district court with an eye on the relevant practice of the ECHR. The expert clearly detailed, citing examples of Western justice: from the very beginning the trial of Aleksandrovskaya is contrary to European standards.
“Detention refers to article 5 of the Convention, the main purpose of which is to prevent arbitrary and unjustified deprivation of liberty. The ECHR in its practice noted that arbitrariness can occur if there is an element of dishonesty or fraud from the part of the authorities; if the decision on deprivation of freedom and the implementation of this decision is not consistent with the purposes of the limitations provided for in the Convention; if the proportionality between the grounds for trial and detention and the reviewing of these ground are not observed. (James, Wells, and Lee vs the United Kingdom, §§ 191-95; and Saadi V. the United Kingdom [GC], §§ 68-74),” said Elena Leshenko
The expert on the ECHR emphasizes that in cases with the deprivation of liberty, it is necessary to ensure compliance with the principle of legal determinacy. The detention of a person in connection with the arraignment in the absence of any specific grounds, provided for in national legislation or legal practice, is a violation of paragraph 1 of article 5 (v Baranowski. Poland, §§ 50-58).
The expert recalled that in the case of the Aleksandrovskaya the prosecution accuses her of committing crimes under part 2 of article 110 and part 3 of article 369 of the criminal code. This is a severe crime that carries imprisonment, respectively, for a period of 5 till 10 years with confiscation of property or without it and for a period of 4 to 8 years with confiscation of property or without it. Given the severity of the alleged charges, the bodies of preliminary investigation had to gather enough evidence to justify suspicion. And the court, in turn, had to explore the validity of such suspicions in the election of the strictest preventive measure — detention.
“In light of the practice law of the ECHR, the term “justified suspicion” of committing a criminal offence involves the existence of facts or information sufficient for an objective observer could come to the conclusion that the person has committed a crime (v Ilgar Mammadov. Azerbaijan, § 88; v Erdagdz. Turkey, § 51; Fox, Campbell and Hartley V. the United Kingdom, § 32). Thus, if the judiciary did not properly research the main facts of the case to verify the grounding of the suspicion, it is a violation of paragraph 1 of article 5 of the Convention (Stepuleac V.Moldova, § 73; Elqi and Others V. Turkey, § 674),” indicates the expert.
The mythical risks
The court of first instance in its decision noted the validity of the suspicions in the case of the Aleksandrovskaya, but offered no specific facts or information that would allow such a conclusion. Elena Leshenko considers the decision of the Kiev district court to be groundless. Because the arguments for and against release must not be “general and abstract” (Boicenco v. Moldova, § 142; Khudoyorov V. Russia, § 173), but should contain substantiated facts and the personal circumstances of the claimant, which justifies her detention (Aleksanyan V. Russia, § 179). There are no such fats in the case of the Aleksandrovskaya. And from her personal circumstances it is known that this elderly woman, who has no criminal record, has chronic diseases, has a stable social contact, permanent residence, and an impeccable reputation.
“However, the Kiev district court considers as established the existence of risks specified under national legislation. Let’s consider these risks in light of the Convention. The ECHR formulated four principal reasons for refusing bail: the risk that the accused does not appear before the court; the risk that, if released, the accused will commit actions that impede the administration of justice; commit a new offense; cause public disorder (Tiron v. Romania, § 37; Smirnova v. Russia, § 59; Piruzyan V. Armenia, § 94),” continues Leshenko.
The expert stressed that the risk of escape must be determined in light of several relevant factors, which can confirm that such a risk exists. These factors are the nature of a person, their moral principles, place of residence, work, income, family connections, and any other connections with the country where there are criminal proceedings against them (Becciev V. Moldova, § 58). Otherwise, the risk is small and there is no need for pre-trial detention (Panchenko v. Russia, § 106). The risk of escape of Aleksandrovskaya, taking into account all factors and personal circumstances, wasn’t investigated by the court.
Besides this, even if the severity of punishment is a proper consideration when assessing the possible escape of the accused, the gravity of the charges cannot serve as justification for long pre-trial detention (Idalov V. Russia [GC], § 145; Garycki V. Poland, § 47; Chraidi V. Germany, § 40; Ilijkov V. Bulgaria, §§ 80-81). But in the case of Aleksandrovskaya, this court’s assessment we see as the second main reason for preventive detention for a period of 60 days.
According to experts, the claim that granting Aleksandrovskaya bail will prevent the proper conduct of the trial does not stand up to scrutiny. Such a risk cannot be assessed in abstract, but must be supported by factual evidence (Becciev V. Moldova, § 59). But actual evidence of how Aleksandrovskaya could obstruct justice was also not provided.
The risk of committing other offences is no less dubious an argument. It is essential that the risk was obvious, given the past and the personality of the accused. But the court didn’t pay attention to neither one nor the other.
The last risk of causing public disorder may be considered as proper and sufficient reason only in the presence of evidence that the release of the accused could lead to public disorder (Letellier v. France, § 51; I. A. V. France, § 104; Prencipe v. Monaco, § 79; v Tiron. Romania, §§ 41-42).
Thus, after analyzing the practice of ECHR and the position of the national court in this case, we can come to a conclusion about the groundlessness of the decision because the court has neglected to study the risks, taking into account all appropriate factors and personal circumstances of the suspect. The court improperly examined the evidence and has wrongly recognized the suspicion in this case is justified, which indicates the arbitrariness in the light of the Convention and case-law of the ECHR.
“Errors” of the court of appeal
Besides this, an expert on the ECHR also noted the obvious mistakes and delays in the next court session. The court of appeal (which began reconsideration regarding the legality of the decision of the Kiev regional court on remanding in custody), on 15th July unjustifiably delayed the hearing and, as a result, left A. Aleksandrovskaya in custody for another week without the provision of proper medical care.
“The efficiency with which national courts may review the decisions on detention, is another important aspect when determining whether detention is arbitrary (Mooren V. Germany [GC], § 80). Thus, paragraph 4 of article 5 of the Convention guarantees detainees the right to appeal the legality of their detention, and also secures their right, upon the institution of such proceedings, on a non-delayed decision on the issue concerning their detention. And if detention is deemed illegal — immediate release (Idalov V. Russia [GC], § 154; Baranowski V.Poland, § 68),” emphasizes Leshenko.
The question of urgency is considered by the ECHR in different cases in different ways. But if we are talking about freedom of a person, the ECHR focuses on rather strict standards in compliance with government requirements to urgently review the legality of detention. For example, in the case of Kadem v. Malta, §§ 44-45, ECHR decided that a period of 17 days during the investigation into the legality of detention of the claimant was extremely long.
“In the case of the Aleksdrovskaya the appeal proceedings concerning the lawfulness of her detention had already lasted 20 days, which indicates improper behaviour from the part of the judiciary body, and violates the requirement of urgency in the light of paragraph 4 of article 5 of the Convention. Also, I remember that neither excessive workload or vacation can justify the inactivity of the judicial authorities (E. V. Norway, § 66; Bezicheri v. Italy, § 25),” concludes the expert.
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