The following is a summary of the objections of lawyer Krugovy to the motion of investigator Byrk, filed in the name of the Deputy Prosecutor General of Ukraine, Mr. Kasko, regarding the extension of the pre-trial investigation period to 6 months, as well as the full text of both documents.
The investigator requests an extension of the investigation period until June 12, 2020, citing the fact that it expires on February 12, but the investigation has not completed all necessary and possible investigative actions. He notes that it is necessary to complete 10 forensic examinations, of which the computer-technical one may last more than 4 months, identify other persons involved and bring them to suspicion, examine items and documents seized during searches, collect characteristics of the suspects, draw up an indictment, familiarize the suspects with the materials of the proceedings, etc.
In accordance with the requirements of Part 2 of Article 295 of the CPC of Ukraine, the application for an extension of the pre-trial investigation period shall, in particular, indicate the procedural actions, the conduct or completion of which requires additional time; the significance of the results of these procedural actions for the trial; the period required for the conduct or completion of procedural actions; and the circumstances that prevented these procedural actions from being carried out earlier.
Lawyer Krugovyi notes that contrary to the requirements of Part 2 of Article 295 of the Criminal Procedure Code of Ukraine The investigator’s motion does not contain any hints, even at the level of assumptions, about the significance of the results of the examinations for the trial, for example, the circumstances that the conclusions of these examinations are intended to confirm or refute, the involvement and roles of which persons should be substantiated by the relevant conclusions, how all this affects the circumstances that should be examined by the court (events, elements of the crime and the imposition of punishment). The period required to complete each procedural action is not separately indicated. Without any justification, it is only stated that “forensic computer technical examination belongs to the category of complex and its conduct may last more than four months”, however, this contradicts the current “Instructions on the appointment and conduct of forensic examinations…”.
In addition, according to the lawyer, the investigator did not indicate any circumstances that would prevent the specified procedural actions from being carried out earlier. Some of the relevant actions (for example, “collect characterizing materials on the suspects”, check the alibi), the investigation was obviously obliged to do before the service of the suspicion, some should have been done long ago (for example, conducting an inspection of things, objects, documents, video recordings seized during searches and inspections), and some (for example, “declassification”, which cannot last more than 10 days) do not last for months. Fulfillment of the requirements of Article 290 of the Code of Criminal Procedure of Ukraine with the suspects and their defense lawyers is not a circumstance that may lead to an extension of the terms of the pre-trial investigation, because accordingly to Part 3 of Article 219 of the Criminal Procedure Code of Ukraine The period for familiarization with the materials of the pre-trial investigation by the parties to the criminal proceedings in accordance with the procedure provided for in Article 290 of this Code is not included in the periods provided for in this Article.
The defense attorney considers the most important circumstance to be the groundlessness of the investigator’s statements about the need to wait for the results of the examinations. Part 6 of Article 295 of the Criminal Procedure Code of Ukraine clearly states that the basis for extending the pre-trial investigation period is the need to obtain evidence specifically for conducting or completing the examination, and not the expectation of its results in itself. The results of the examinations will not lose their evidentiary value if they are obtained after the case is transferred to the court.
Part 1 of Article 283 of the Criminal Procedure Code of Ukraine establishes that a person has the right to have the charges against him or her considered in court as soon as possible or to have them terminated by closing the proceedings.
Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that anyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article … shall be entitled to trial by a court within a reasonable time or to release pending trial. Such release may be subject to guarantees to appear for trial.
Mr. Krugovyi draws attention to the fact that Mr. Antonenko has been deprived of his liberty for 46 days, has given testimony as a suspect, has passed a DNA test, completely denies guilt and any involvement in the crime, and cannot provide any other information useful for the investigation, except for evidence of his own non-involvement. However, investigators constantly and systematically, including contrary to the ruling of the investigating judge dated 12/26/2019, evade providing him with materials of suspicion (video files) and the conclusion of the examination of the DNDKKC of the Ministry of Internal Affairs No. 9-2/56F dated 08/25/2016, together with an illustrative table on 6 sheets, which objectively refutes the fact of Mr. Antonenko’s presence at the crime scene. The systematic unlawful behavior of the investigation and prosecutors indicates that the authorities did not observe the principle of “special diligence” in the conduct of the proceedings (see paragraphs 152, 153 of the decision of the Grand Chamber of the ECHR of 06.04.2000 in the case of “Labita v. Italy”, application No. 26772/95)) and therefore there is no objective expectation of compliance with the requirement to transfer the case to court within a reasonable time under any conditions. According to the defense, the investigation, not having objective data to support the accusation, is now, contrary to the requirements of paragraph 3 of Article 5 of the Convention, part 1 of Article 283 of the CPC of Ukraine, only trying to start collecting evidence, and therefore using its authority to initiate the extension of time limits for a purpose other than that for which such authority was granted.
“Nothing prevents us from completing the pre-trial investigation right now, which would comply with the requirements of paragraph 3 of Article 5 of the Convention, part 1 of Article 283 of the Criminal Procedure Code of Ukraine,” the defense attorney believes.
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