En Ru Ua

20.01.2017

Crimean “court” doesn’t have any grounds for holding activist Baluch in pre-detention centre

CHRG experts analyzed the decision of “Razdolnenskiy District Court of the Republic of Crimea” from 27.12.2016, regarding the extension of the detention of Vladimir Baluch. The results indicate on gross violations of the Russian legislation de facto acting in Crimea made by the judge Abelyashev A.V.

The hearing on the extension of the preventive measure was held significantly ahead of a schedule in violation of procedural norms. On 12 December “court” chose measure of restraint for Baluch in the form of detention for a period of 30 days until 6 January 2017, but after 2 weeks, on 27 December the court extended a preventive measure until 5 February – even before the term of custody of the first decision has expired.

The judge decisions must be lawful, justified and motivated (Part 2, Article 7 of the Code of Criminal Procedure of the Russian Federation). However, the decision of the judge Abelyashev is not.

According to the explanations of the Plenum of the Supreme Court of the Russian Federation on 19 December, 2013 № 41 “On the practice of courts of law on preventive measures in the form of detention, house arrest and bail” when extending the period of detention in a criminal case the courts must check if at the time of consideration of the matter there is a reason to believe that the accused, a suspect: 1) evade an inquiry, preliminary investigation or trial; 2) may continue to be engaged in criminal activity; 3) can threaten a witness or other parties of the criminal proceedings, destroy evidence or otherwise obstruct the criminal proceedings (Art. 97 of the Code of Criminal Procedure of the Russian Federation).

The presence of these circumstances cannot be a judge’s conclusion, but must be confirmed by the evidence in court. But the court, proving its decision on the extension of detention of Baluch, did not have any necessary reasoning regarding its decision.

In addition, while making this decision the court had to take into account the severity of the crime, information about the accused, his age, health, marital status, occupation, and other circumstances (Art. 99 of the Code of Criminal Procedure of the Russian Federation). But these arguments are absent in the decision of the court. In its turn, the activist and his lawyer claimed the circumstances in court that give a reason not to extend the period of the detention. Baluch needs to take care of his sick elderly mother, his health rapidly worsened in prison, he has a permanent place of residence in Crimea, and so on. However, the court ignored these arguments.

In order to clarify the legality of the Court’s decision it is important to point out the position of the Plenum of the Supreme Court of the Russian Federation on 19 December, 2013 number 41, according to which the existence of reasonable suspicion (the charges) in the commission of the crime of a certain category by the person is a prerequisite for the rule of law during the original detention, but after time it is no longer sufficient.

The prosecution side didn’t provide the evidence to the court, which would have allowed drawing a conclusion about the involvement of Baluch in committing the alleged crime.

It is obvious that the court ignored the recommendation of the Plenum of the Supreme Court of the Russian Federation regarding the presence of the possibility to prevent the criminal proceedings in the early stages of the preliminary investigation may be the basis for a decision on the detention of the accused. However, the court must analyze the other relevant circumstances, such as the results of the investigation, the identity of the accused, his behaviour before and after the arrest, and other facts about whether or not a person can perform actions on the falsification or destruction of evidence, or has a different impact on the investigation of the crime.

During the consideration of the application regarding the extension of the period of detention of the accused in custody, court has not examined the validity of the arguments of the preliminary investigation (inquiry) about the impossibility of the completion of the investigation in time. In the case where a request for extension of the detention is raised in a court based on the need to perform investigative actions referred to the previous petitions, the court must find out the reasons why they were not performed before. If the reason (for the court’s opinion) is the inefficient organization of the investigation, it can be the basis for release from custody.

The need for further investigative action by itself cannot serve as the sole and sufficient grounds for extending the period of detention of the accused in custody.

Thus, the violations and the judge’s decision shows that the Court did not seek to establish the facts and the validity of the requirements to extend the period of detention was not objective. It reiterates that the prosecution of Ukrainian activist was politically motivated, and the court’s aim was not to release Vladimir Baluch.