Antonenko v. Ukraine. ECHR Application

The European Court of Human Rights has confirmed the receipt of an application from Mr. Antonenko v. Ukraine dated June, 23, 2020.

The application Antonenko v. Ukraine is assigned no. 29341/20.

Andriy Antonenko an two others were detained on 12.12.2019 being indicted on murder after a pompouse briefing help by highest officialls. Subsequently the pleged evidence turned out to be allegations and slander. 

The application was made due to Ukraine’s violation of Article 5 and §2 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Lawyer Dmytro Kruhovyi revealed the content of its main provisions.

61 Article invoked

Explanation

Article 5 § 1 due to the unlawfulness of the arrest, i.e. the detention is not

“in accordance with the procedure prescribed by law”

(from 15:10 12.12 .2019 to 3:31 14.12.2019)

The applicant was actually detained on 12.12.2019 not later than 15:10, but the time of detention was documented as 23:05. The applicant was detained with reference to the investigating judge’s decision at 6:40 p.m. During the trial on the initial detention, the prosecutor told the judge false information that the applicant was fugitive, although it was clear at the time that this was not the case on live TV. Therefore, the requirements of national law (Part 4 of Article 189 of the CPC) were not met. By 6:40 pm the applicant had been apprehended without the decision of the investigating judge, and later on the basis of a decision issued under the influence of deception. This violation is both independent as well as considered in connection with further imprisonment, as the applicant was thus deprived of the opportunity to come to the judge on his own, freely, without handcuffs, the next day, thus demonstrating his good will and lack of intent to hide.

Article 5 § 1 (c) for lack of “reasonable suspicion”.

(In general, for the entire period of imprisonment) 

The suspicion was clearly unfounded, as it was based solely on the similarity in the manner of walk with the alleged criminal in the video. The applicant was not acquainted with nor in any way connected with the victim, and was not acquainted with the other suspects. He was not involved in other offenses and was not associated with terrorist or extremist organizations, nor did he have any military or technical skills. The Nazi motive (the applicant is of Jewish origin) was put forward arbitrarily for the purpose of public discrediting and “CopyPasted” from another case. The applicant is 8-10 cm higher than the person in the video, and under the condition of maximum error in the worst condition for defense – at least 2.5 cm. Despite the availability of such important objective information, the applicant’s height was not established by the investigation until 12.12.2019 and height measurement performed during admission to the detention center on the morning of 12/13/2019 – was kept secret. All warnings about the unscientific and inaccurate nature of the identification were ignored.

The applicant assures the Court that he is not attempting to obtain a comprehensive comparative assessment of the evidence, but asks for an examination of the mechanism by which the Ukrainian authorities distort the “reasonable suspicion” standard (eg § 32 FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM). This standard is that an “objective observer” should be aware of all available facts, not just those that are beneficial to the prosecution by concealing the rest from the defense and the investigating judge. Concealment of the data of examinations of the height of persons on video until 16.02.2020, as well as delay and failure to provide measurements of the applicant’s height is beyond the scope of a bona fide error.

Article 6 § 2 through statements by the first persons of the State that the applicant had committed murder.

Statements by the President of Ukraine and the Speaker of Parliament (who thanked the police and said there are almost all the answers of the case except the person/or persons who commissioned the act), the Prosecutor General (“identified perpetrators”), the Minister of the Interior and his Deputy (regarding the applicant’s possession of explosives, ” which can kill a large number of people “), the Deputy Chief of the National Police (” known to us for past crimes “), etc. can not be considered cautious and aimed at informing the public about the activities of law enforcement agencies. They were purely propagandistic in nature and, given the position of the speakers, significantly influenced the decision on precautionary measures.

In addition, a large number of statements reported as indisputable facts by state officials were gossipy and completely devoid of factual basis (only as an example – the applicant’s involvement in other explosions and the constant generalization of the use of the noun “they” to the applicant together with unknown suspects) , the applicant considered the extrajudicial influence on the judges who had decided to imprison him.

The applicant considers this as a separate violation of the presumption of his innocence under Art. 6 of the Convention, and the direct influence on investigating judges in the future, which resulted in their bias and violation of Article 5 § 3 of the Convention, in the sense of “immediately appear before a judge”, because “judge” no longer represented an independent body.

Article 5 § 3 due to unlawful influence on judges and violation of the presumption of innocence, concealment of evidence

(in general, for the entire period of imprisonment)

The circumstances of the gross violation of the presumption of innocence – so numerous that it makes it impossible to conclude that the investigating judges are independent and impartial. In addition, there is a public statement by the Minister of Internal Affairs on TV on December 13, 2020, where he claims that investigator Judge Vovk was informed out of court (“we told him more”) and in the same TV show – the audience’s live broadcast on the validity suspicion before the investigating judge decides to arrest. As noted above, the argument of height mismatch has been ignored all along, and documents on this subject (contrary to national law) have not been sought or examined despite the defense’s claims. Recently, on February 14, 2020, prosecutors began to explain the disregard for this argument by the fact that the prosecution found an expert who was unable to determine the height of people from the video. However, judges never evaluated this either.

The applicant understands that at this stage of the proceedings the investigator is not obliged to disclose all the evidence, but in this case the concealment of circumstances that nullify the whole construction of suspicion has no explanation other than bad faith.

Article 5 § 3 because of the unmotivated decisions on the selection and continuation of pre-trial detention and the unjustified duration of imprisonment. The applicant did not appear in court within a reasonable time and was not released pending trial.

The choice and continuation of precautionary measures was unjustified, as it was based solely on the gravity of the charge, and only on this basis were considered the risks of absconding, influencing witnesses, and so on. During the continuation of detention on 04.02.2020 and the appellate review on 12.03.2020, the judges arbitrarily established a “risk of committing new crimes”, which the prosecutor not only did not substantiate, but did not state at all. The arguments of the defense regarding bail, impeccable reputation, strength of social ties, the presence of two children, one of whom suffers from a chronic illness, were not evaluated in the judges’ decisions. The Letellier Principle has never been applied.

The term of the pre-trial investigation also cannot be considered reasonable, as the case was not complicated. During the applicant’s detention, virtually no truth-seeking investigative actions were carried out. 

In addition, the investigating judges have consistently stated in their decisions that, for the first time, the established validity of the suspicion has the force of res judicata and should not be further verified by them.

The judgments of 14.12.2019, 05.02.2020 and 25.05.2020 were generally exact copies, including a gross error in quoting Article 5 § 3 of the Convention (instead of “entitled to release pending trial” it reads “entitled to exemption from trial”).

Article 5 § 4 

review of habeas corpus on the merits never took place

Motions to change the measure of restraint of 22.01.2020, 06.05.2020 were not considered by the judges on the merits. Relevant decisions of 20.02.2020 of 12.05.2020 were issued in violation of the term established by national law and referred to the fact that the defense did not cite new circumstances, although under Art. 201 of the CPC, on the contrary, the prosecutor must prove the duration of the risks. The petition of 16.03.2020 was wrongfully combined with other proceedings and considered by an improper judge, which was established by the Court of Appeal on 05.05.2020.

Article 5 § 5

Effective implementation of the applicant’s right to compensation was not provided with sufficient certainty as required by § 5 of article 5 of the Convention, the national authorities did not recognize the violation of any of the other paragraphs of Article 5, which would allow the applicant to demand compensation for damages in accordance with paragraph 5.

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