American YouTuber “Coach Red Pill” Gonzalo Lira has had his detention extended by another 60 days without trial at a Dec. 21 hearing in Ukraine. The US embassy in Kiev declined to push for Lira’s release, and did not attend the hearing. Lira could not attend because he is suffering from pneumonia, a sign of prison abuse. Lira has alleged he was tortured and beaten in Kharkiv prison.
US and Chilean citizen Gonzalo Lira was arrested in May 2023, as The Gateway Pundit reported, and is accused of “promoting Russian aggression in Ukraine” and “spreading pro-Kremlin ideas on social media”, his father told British ex-Labour MP George Galloway for saying Ukraine would never win a war against Russia.
The Ukrainian secret police SBU claimed that Lira’s videos “denied Russian war crimes and justified Russian aggression,” his father said. Lira was briefly released in August but then rearrested as he tried to leave Ukraine on his motorcycle on August 1.
On Dec. 21, Ukraine held a 5-hour-long hearing on Lira’s case, which he was not able to attend in person because he is in the hospital, suffering from pneumonia, a sign he is being held in inhumane circumstances.
The Dzerzhynsk District Court of Kharkiv wrote that Lira “is married but undergoing divorce, has two minor children born in 2014 and 2015, is officially unemployed, is not registered with a psychiatrist or narcologist, has no disabilities, and does not possess any movable or immovable property in Ukraine or any other state. The individual resides in Kharkiv in an apartment owned by them, in Ukraine since 2017. The children are Ukrainian citizens and live with their mother in Uzhgorod.”
Gonzalo Lira is accused of ”production and dissemination of materials that justify, recognize as lawful, deny the armed aggression of the Russian Federation against Ukraine, started in 2014, as well as justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, and committing a criminal offense – a crime under Part 3 of Article 436-2 of the Criminal Code of Ukraine, namely, in the production and dissemination of materials that justify, recognize as lawful, deny the armed aggression of the Russian Federation against Ukraine, started in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, as well as justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, glorification of persons who carried out armed aggression of the Russian Federation against Ukraine, started in 2014, committed repeatedly.”
The court wrote that “while being subject to preventive detention with bail,” Lira “headed towards the state border of Ukraine with Hungary” and “attempted unsuccessfully to cross the state border at the checkpoint “CHOP” (Tysa) July 31.
The District Court of Kharkiv ordered an extension of preventive detention until February 19, 2024, without bail, and instructed Kharkiv City Medical “to continue conducting a medical examination” of Gonzalo Lira to determine and monitor the health condition of the latter and continue his proper treatment, if necessary.”
“Considering that the accused has a passport of a U.S. citizen and a passport of a Republic of Chile citizen, the existence of dual citizenships and passports significantly expands the individual’s opportunities to hide abroad in different countries worldwide to evade criminal responsibility,” the court wrote. “Moreover, the court believes that the risk of hiding from pre-trial investigation authorities or the court is proven, as after the accused provided bail, he violated the bail conditions and attempted to cross the border.”
According to local reports, 2 UN representatives were in the court at the Dec. 21 hearing. There were no representatives of the US embassy in attendance. The US embassy instead followed via a video link.
A spokesperson for the U.S. Embassy in Kiev told The Gateway Pundit: “We continue to be in frequent contact with Mr. Lira and his counsel regarding his detention, and we attend his court proceedings. The U.S. Embassy in Kyiv last spoke with Mr. Lira by phone on December 12. Additionally, the Embassy attended a court hearing December 21. We are monitoring the situation but have no further comment at this time.”
“One word from the US embassy would get him released,” George Galloway told Gonzalo Lira Sr.
on December 21, 2023
Case 638/5519/23
Dzerzhynsk District Court of Kharkiv
Case No. 638/5519/23
PROCEEDINGS No. 1-kp/638/1372/23
RESOLUTION
IN THE NAME OF UKRAINE
On December 22, 2023, the Dzerzhynsk District Court of Kharkiv, composed of:
Presiding judge, with the participation of: court session secretary, prosecutor, accused, defense attorney, interpreter – PERSON_1, – PERSON_2, – PERSON_3, – Lira Lopez PERSON_4, – PERSON_5, – PERSON_6,
having considered during a court session via video conference in the courtroom in Kharkiv the motion of the prosecutor of the Kharkiv Regional Prosecutor’s Office PERSON_3 for the extension of the term of the preventive measure in the form of detention in the criminal case registered in the Unified Register of Pre-trial Investigations under No. 22022220000000618 dated April 12, 2022, regarding the accused
PERSON_7, INFORMATION_1, a citizen of the Republic of Chile and the United States of America, born in Los Angeles, California, USA, married, officially unemployed, with two children, residing at: ADDRESS_1, previously not convicted,
for committing criminal offenses under Part 2 of Article 436-2, Part 3 of Article 436-2 of the Criminal Code of Ukraine,
ESTABLISHED:
Since June 7, 2023, an indictment in the criminal case registered in the Unified Register of Pre-trial Investigations under No. 22022220000000618 dated April 12, 2022, against PERSON_7, who is accused of committing criminal offenses under Part 2 of Article 436-2, Part 3 of Article 436-2 of the Criminal Code of Ukraine, has been under consideration by the judge of the Dzerzhynsk District Court of Kharkiv, PERSON_1.
On December 22, 2023, during a court session, the prosecutor filed a motion for the extension of the term of the preventive measure in the form of detention for 60 days without determining the amount of bail.
The motion is justified by the fact that PERSON_7 is accused of committing a criminal offense – a crime under Part 2 of Article 436-2 of the Criminal Code of Ukraine, namely, in the production and dissemination of materials that justify, recognize as lawful, deny the armed aggression of the Russian Federation against Ukraine, started in 2014, as well as justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, and committing a criminal offense – a crime under Part 3 of Article 436-2 of the Criminal Code of Ukraine, namely, in the production and dissemination of materials that justify, recognize as lawful, deny the armed aggression of the Russian Federation against Ukraine, started in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, as well as justifying, recognizing as lawful the temporary occupation of part of the territory of Ukraine, glorification of persons who carried out armed aggression of the Russian Federation against Ukraine, started in 2014, committed repeatedly.
By the decision of the investigative judge of the Kyiv District Court of Kharkiv on May 1, 2023, regarding PERSON_7, a preventive measure in the form of detention was applied until June 29, 2023, with the determination of bail in the amount of UAH 402,600.00. The obligations for a period of two months include: appearing at the investigator’s, prosecutor’s, and court’s first summons; not leaving Kharkiv without permission from the investigator, prosecutor, or court; notifying the investigator, prosecutor, or court of a change in residence at ADDRESS_1; wearing an electronic monitoring device.
By the decision of the Kharkiv Court of Appeals on May 30, 2023, the decision of the Kyiv District Court of Kharkiv dated May 1, 2023, was upheld without changes.
By the decision of the Dzerzhynsk District Court of Kharkiv on June 26, 2023, the validity of the preventive measure in the form of detention, chosen for the accused PERSON_7, was extended until August 24, 2023, with the possibility of applying an alternative preventive measure in the form of bail, in the amount determined in the decision of the investigative judge of the Kyiv District Court of Kharkiv on May 1, 2023, reviewed by the Kharkiv Court of Appeals, namely, in the amount of UAH 402,600.00. Upon payment of the specified bail amount, PERSON_7 is to be released from custody, with the imposition of obligations for a period of two months: appearing at the investigator’s, prosecutor’s, and court’s first summons; not leaving Kharkiv without permission from the investigator, prosecutor, or court; notifying the investigator, prosecutor, or court of a change in residence at ADDRESS_1; wearing an electronic monitoring device; surrendering to the relevant authorities the passport for leaving the country or other documents granting the right to travel abroad.
The accused has provided bail, and as of July 6, 2023, he was released from custody.
By the decision of the Dzerzhynsk District Court of Kharkiv on August 4, 2023, the bail of UAH 402,600.00, deposited by the accused PERSON_7 based on the decision of the investigative judge of the Kyiv District Court of Kharkiv on May 1, 2023, reviewed by the Kharkiv Court of Appeals in case No. 953/2692/23, was turned over to the state revenue and credited to the special fund of the State Budget of Ukraine. The preventive measure in the form of detention was chosen for the accused PERSON_7 until October 2, 2023, without determining the amount of bail.
The decision of the Dzerzhynsk District Court of Kharkiv on August 4, 2023, was upheld unchanged by the appellate court.
By the decision of the Dzerzhynsk District Court of Kharkiv on November 8, 2023, the validity of the preventive measure in the form of detention was extended until January 8, 2024. The prosecutor supported the motion to satisfy the request, noting that ensuring the proper procedural conduct of the accused could only be achieved through the preventive measure of detention, and the risks had not ceased or decreased.
Lira PERSON_8 opposed the satisfaction of the motion in the court hearing. When asked by the judge about the possibility of holding a court hearing and considering the motion, given the unsatisfactory health condition of the accused, PERSON_7 stated that he wishes to participate in the court hearing and insists on its conduct.
Present at the court hearing, Doctor PERSON_9 from the Kharkiv City Medical Unit No. 27 of the State Institution “Health Care Center of the State Border Guard Service of Ukraine” of the Kharkiv and Luhansk regions, in response to the court’s clarifying questions about the accused’s health, mentioned that a medical examination of the accused had been conducted, and the diagnosis of “pneumonia, bilateral pneumonia” had been established. The accused receives necessary and sufficient medical care, supervision from specialists, and treatment. The accused’s health condition is unsatisfactory but does not prevent the conduct of the court hearing. There are no life-threatening conditions for the accused. The accused does not require hospitalization, and the conditions of the medical unit of the detention center are adequate and able to provide necessary and sufficient treatment for the accused.
During the court hearing, the defender of the accused PERSON_5 opposed the satisfaction of the motion, citing that the qualification of the accusation under Part 3 of Article 436-2 of the Criminal Code of Ukraine is unfounded. According to Part 2 of Article 32 of the Criminal Code of Ukraine, a repeated offense is considered to consist of two or more identical criminal acts committed at different times, united by a single criminal intent. Therefore, the actions incriminated to the accused should be classified as a repeated offense. The prosecutor did not prove the declared risks and requested to apply a preventive measure to the accused in the form of house arrest or detention with the right to bail.
Taking into account the opinions of the participants in the court hearing regarding the possibility of holding a court session considering the health condition of the accused and the explanation provided by the doctor regarding the accused’s health, the court concluded that it is possible to conduct a court hearing and consider the prosecutor’s motion.
Deciding on the expediency of extending the validity period of the preventive measure in the form of detention, the court is guided by the following.
In accordance with Part 1 and 3 of Article 331 of the Criminal Procedure Code of Ukraine, during the court hearing, at the request of the prosecution or defense, the court has the right to change, cancel, choose, or extend the preventive measure for the accused. In the presence of motions, during the court hearing, the court is obliged to consider the issue of the expediency of extending the preventive measure until the end of the two-month period from the date of its application. Following the consideration of the issue, the court, by its reasoned decision, cancels, changes, or extends the preventive measure for a period not exceeding two months. A copy of the decision is handed over to the accused, the prosecutor, and sent to the authorized official to the place of detention.
According to Part 2 of Article 331 of the Criminal Procedure Code of Ukraine, the court decides on the preventive measure in the manner prescribed by Chapter 18 of this Code.
In line with Part 4 of Article 199 of the Criminal Procedure Code of Ukraine, the court is obligated to consider the motion for the extension of the detention period until the expiration of the previous decision, following the rules provided for the consideration of motions for applying preventive measures.
Pursuant to Part 3 of Article 199 of the Criminal Procedure Code of Ukraine, the motion for the extension of the detention period, in addition to the information specified in Article 184 of this Code, must include:
An exposition of circumstances indicating that the claimed risk has not diminished or new risks have emerged justifying the detention of the person.
An exposition of circumstances hindering the completion of the pre-trial investigation before the expiration of the previous decision on detention.
As per Part 5 of Article 199 of the Criminal Procedure Code of Ukraine, the court is obliged to deny the extension of the detention period if the prosecutor or investigator fails to prove that the circumstances mentioned in Part 3 of this article justify further detention of the suspect or accused.
Therefore, the basis for extending the detention of a person includes, among other things, establishing that the claimed risk has not diminished or new risks have emerged justifying their detention.
Based on the materials of the criminal proceedings and the decision of the investigating judge of the Kyiv District Court of Kharkiv dated May 1, 2023, the accused PERSON_7 has been detained until June 29, 2023, with the determination of bail in the amount of 402,600.00 UAH.
The investigating judge, when choosing the detention period, considered that PERSON_7 might evade investigation or court proceedings, destroy or conceal any items or documents of substantial importance for establishing the circumstances of the criminal offense, or commit another criminal offense.
The Harvativskyi Appellate Court, in its resolution dated May 30, 2023, upheld the decision of the investigating judge of the Kyiv District Court of Kharkiv dated May 1, 2023, without any alterations.
During the pre-trial investigation stage, the appellate court confirmed the validity of suspicion and the presence of the aforementioned risks. The question regarding the legality of choosing an alternative preventive measure in the form of bail and its amount, decided by the investigating judge, was also addressed.
The accused, PERSON_7, provided bail, and on July 6, 2023, was released from custody.
By the decision of the Dzerzhynskyi District Court of Kharkiv dated August 4, 2023, the deposited bail of 402,600.00 UAH was transferred to the state revenue and credited to the special fund of the State Budget of Ukraine. The decision was based on the resolution of the investigating judge of the Kyiv District Court of Kharkiv dated May 1, 2023, reviewed by the Harvativskyi Appellate Court in the case № 953/2692/23. The preventive measure of detention under custody for PERSON_7 was extended until October 2, 2023, without specifying the amount of bail.
The resolution of the Dzerzhynskyi District Court of Kharkiv dated August 4, 2023, was left unchanged by the Harvativskyi Appellate Court in its resolution dated September 11, 2023.
By the decision of the Dzerzhynskyi District Court of Kharkiv dated November 8, 2023, the validity of the preventive measure in the form of detention under custody was extended until January 8, 2024.
LEGAL ANALYSIS AND CONCLUSION
The legal analysis of the situation involving PERSON_8 is outlined as follows:
Preventive Measure Application: According to Article 183, Part 2, Clause 4 of the Criminal Procedure Code of Ukraine, the preventive measure of detention under custody cannot be applied except to a previously non-convicted person suspected or accused of committing a crime punishable by imprisonment for more than five years. PERSON_8 is accused of committing offenses with potential sentences ranging from imprisonment up to five years and imprisonment from five to eight years.
Personal Circumstances: PERSON_8 is currently undergoing divorce, has two minor children, is officially unemployed, not registered with a psychiatrist or a narcologist, possesses no disabilities, has no movable or immovable property in Ukraine or any other state, has been residing in Kharkiv since 2017, and the children reside with their mother in Uzhgorod.
European Court of Human Rights (ECHR) Practice: The legal framework considers the severity of the crime and the potential future punishment as factors indicating the risk of flight or committing further offenses. The European Court of Human Rights emphasizes the rationality of considering the seriousness of the crime to assess the societal danger posed by the individual.
ECHR Principles on Severity of Punishment: The ECHR recognizes that the severity of the alleged crime is not an independent ground for detention, but when combined with other circumstances, it increases the risk of flight to a level that cannot be mitigated without taking the person into custody.
In light of the above, the court may argue that the severity of the accusations, when considered in conjunction with other relevant circumstances, justifies the continued application of the preventive measure in the form of detention under custody for PERSON_8. The court may assert that the severity of potential punishment indicates a higher risk of flight and that alternative preventive measures would not be sufficient to prevent this risk.
In addition, the European Court of Human Rights has repeatedly emphasized that the grounds for detaining a person should be assessed in each criminal proceeding, taking into account its specific circumstances.
Considering the information about the accused individual PERSON_7, the severity of the potential punishment in case of conviction, the absence of an official source of income and any property in ownership, the presence of dual citizenships, and other circumstances of the criminal proceedings, the court concludes that at this stage of the criminal proceedings, the risks of the accused committing actions envisaged by Article 177, Part 1, Clause 5 of the Criminal Procedure Code of Ukraine, which were the basis for choosing pre-trial detention during the pre-trial investigation and referred to by the prosecutor in the motion for the extension of the preventive measure in the form of detention, have not diminished. None of the other, milder preventive measures is capable of preventing them.
Considering that the accused has a passport of a U.S. citizen and a passport of a Republic of Chile citizen, the existence of dual citizenships and passports significantly expands the individual’s opportunities to hide abroad in different countries worldwide to evade criminal responsibility.
Moreover, the court believes that the risk of hiding from pre-trial investigation authorities or the court is proven, as after the accused provided bail, he violated the bail conditions and attempted to cross the border.
According to the letter from the Security Service of Ukraine in the Kharkiv region dated August 1, 2023, No. 70/1-7786 regarding the violation of the conditions of the preventive measure, Lira Lopez Gonzalo Anhel Quintilio on a BMW motorcycle with license plate NUMBER_1, voluntarily headed towards the state border of Ukraine with Hungary. While in the territory of the Zakarpattia region from July 31, 2023, to August 1, 2023, the aforementioned individual made an unsuccessful attempt to cross the state border at the checkpoint “Chop” (Tysa).
During the court hearing on the issue of choosing a preventive measure and appealing for state income bail, the accused provided explanations confirming the breach of the obligation not to leave Kharkiv without the court’s permission. He stated that he voluntarily headed towards the state border of Ukraine. While in the territory of the Zakarpattia region from July 31, 2023, to August 1, 2023, he made an unsuccessful attempt to cross the state border at the checkpoint “Chop.”
Considering the above, the court, in considering the motion to extend the preventive measure, believes that the risk of the accused hiding from the pre-trial investigation authorities or the court is present and fully proven. The accused’s attempt to cross the state border objectively indicates the risk of evasion from the court, and therefore, the defense’s claim of the lack of evidence of such a risk is unjustified.
In accordance with the practice of the European Court of Human Rights, the court’s decision must ensure not only the rights of the accused but also high standards of protection of public rights and interests. Ensuring such standards, as emphasized by the European Court of Human Rights, requires the court to be more stringent in assessing violations of societal values.
Taking into account the specific circumstances of the committed crime, which is attributed to the accused, namely being charged with crimes classified as offenses against peace, security of humanity, and international order, the court considers that there is a societal interest in this judicial proceeding. This interest lies in the necessity of protecting high standards of safeguarding the rights and interests of society.
When deciding on the extension of the preventive measure, the court takes into account the risks specified in Article 177, Part 1, Clause 5 of the Criminal Procedure Code of Ukraine. Additionally, by assessing the totality of circumstances, such as the gravity of the offenses established by the investigating judge and the appellate court during the pre-trial investigation stage (the justification of suspicion); the severity of the punishment that the accused may face in case of being found guilty of a serious criminal offense under Part 3 of Article 436-2 of the Criminal Code of Ukraine; information about the accused, who is not a citizen of Ukraine and can freely leave the territory of Ukraine, does not have property on the territory of Ukraine in ownership and an official source of income. The court believes that applying a milder preventive measure regarding PERSON_7 is insufficient to prevent the risks specified in Article 177, Part 1, Clause 5 of the Criminal Procedure Code of Ukraine.
Taking the above into account, with the aim of ensuring the accused’s compliance with procedural obligations, preventing evasion from the court, and committing other criminal offenses, the court at this stage of the judicial proceedings deems it appropriate to extend the duration of the preventive measure in the form of detention for PERSON_7 until February 19, 2024.
Additionally, considering the foregoing, the court concludes that there are no grounds at this stage of the judicial proceedings to change the preventive measure chosen for the accused.
Furthermore, the court has considered all the grounds and circumstances provided for in Article 178 of the Criminal Procedure Code of Ukraine, information about the individual, and evidence of the accused committing a criminal offense. The severity of the potential punishment in case of guilt and the circumstances stipulated in Articles 177 and 178 of the Criminal Procedure Code of Ukraine have also been taken into account. According to these articles, the court is entitled not to specify the amount of bail.
According to Part 3 of Article 183 of the Criminal Procedure Code of Ukraine, when issuing a resolution on applying a preventive measure in the form of detention, the court is obliged to determine the amount of bail sufficient to ensure the accused’s compliance with the duties prescribed by this Code, except in cases provided for in the fourth part of this article.
According to Part 4 of Article 183 of the Criminal Procedure Code of Ukraine, when issuing a resolution on the application of a preventive measure in the form of detention, taking into account the grounds and circumstances specified in Articles 177 and 178 of this Code, the court has the right not to specify the amount of bail in a criminal proceeding:
For a crime committed with the use of violence or the threat of its use;
For a crime that caused the death of a person;
Regarding a person for whom bail was already chosen in this proceeding but was violated by them;
For a crime provided for in Articles 255-255 of the Criminal Code of Ukraine;
For an especially serious crime in the sphere of trafficking in narcotic drugs, psychotropic substances, their analogs, or precursors. During the state of war, the investigating judge or the court, when issuing a resolution on the application of a preventive measure in the form of detention, considering the grounds and circumstances specified in Articles 177 and 178 of this Code, has the right not to specify the amount of bail in a criminal proceeding for a crime provided for in Articles 109-114-2, 258-258-6, 260, 261, 402-405, 407, 408, 429, 437-442 of the Criminal Code of Ukraine.
By the resolution of Dzerzhynsk District Court of Kharkiv dated August 4, 2023, it has been established, and the prosecutor has proven the existence of circumstances provided for in Part 4 of Article 183 of the Criminal Procedure Code of Ukraine, which is a legal basis for not specifying the amount of bail in this criminal proceeding. Specifically, the circumstance provided for in Part 3 of Part 4 of Article 183 of the Criminal Procedure Code of Ukraine
Considering the accused’s violation of the bail preventive measure, the court concluded that there are no grounds for determining the amount of bail.
The assessment of these circumstances indicates that the accused has violated the duties imposed on him by the resolution of Dzerzhynsk District Court of Kharkiv dated June 26, 2023, i.e., the bail preventive measure cannot ensure the accused’s compliance with the procedural obligations imposed on him.
In considering the motion to extend the preventive measure in the form of detention, the court believes that the preventive measure of house arrest will also be unable to prevent the proven risks presented by the prosecutor.
As a result of the overall examination of the materials of the criminal proceedings, the court concluded that neither bail nor house arrest can ensure the accused’s compliance with the procedural obligations imposed on him.
Considering that the case is at the stage of judicial review, and at the time of considering the court’s motion, the court has attached to the case materials the indictment documents, the court considers the prosecutor’s claim for the continued existence of the risk of destruction, hiding, or distortion of any objects or documents essential to establishing the circumstances of the criminal offense as not proven.
Regarding the arguments of the defense and the accused regarding disagreement with the qualification of the alleged criminal offense, at this stage of the court proceedings, these arguments cannot be considered as evidence that demonstrates the groundlessness of the charges, the absence of assessed risks by the court, and the presence of reasons to choose a milder preventive measure.
Issues related to the incorrect legal qualification of the crime are not subject to resolution before examining the indictment documents when considering a motion to extend the term of the preventive measure. The court is not empowered to assess the legal qualification of the accused’s actions during the consideration of this motion and at this stage, as these arguments are subject to the court’s evaluation after examining the indictment documents.
When deciding on the satisfaction of the prosecutor’s motion and the extension of the period of detention, the court takes into account the requirements of adhering to a reasonable period of detention. Considering this, the court deems it appropriate to extend the detention until February 19, 2024, which corresponds to the general provisions regarding reasonable periods as laid out in the legal position of the European Court of Human Rights in the case “Kharchenko v. Ukraine” dated February 10, 2011. According to this position, “the reasonableness of the period of detention cannot be assessed abstractly. It must be assessed in each individual case depending on the specifics of the particular case, the reasons stated in the decisions of national courts, the persuasiveness of the applicant’s arguments presented in his motion for release. The extension of detention can be justified only in the presence of a specific societal interest that, despite the presumption of innocence, prevails over the principle of respect for personal freedom.”
In accordance with the practice of the European Court of Human Rights, the court, through its decision, must ensure not only the rights of the accused but also uphold high standards for the protection of the general public’s rights and interests. Upholding such standards, as emphasized by the European Court of Human Rights, requires the court to be more stringent in assessing violations of societal values.
In the decision of the European Court of Human Rights in the case “Kalashnikov v. Russia” dated July 15, 2002, the court established that any system of mandatory detention is incompatible with the provisions of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. If the law establishes a presumption regarding circumstances related to the grounds for detention, it must convincingly prove the existence of specific circumstances that outweigh the rule of respect for personal freedom.
Therefore, the court considers the defense’s arguments regarding the violation of reasonable periods of detention as unfounded.
Individuals held in pretrial detention are provided with primary preventive medical care, including a doctor’s consultation, diagnosis, and treatment of common diseases, injuries, and poisonings, preventive measures, and referral of the accused for specialized and highly specialized care. Consequently, the issue of providing medical assistance to the accused in the event of an unsatisfactory health condition in pretrial detention is guaranteed.
In the court hearing, based on the explanations provided by the doctor, it was established that the conditions necessary for diagnosis, proper treatment, and prevention of possible complications or exacerbation of the disease are created in the State Institution “Kharkiv Pretrial Detention Center.”
However, when assessing the data on the accused’s unsatisfactory health condition, the court follows these principles:
According to Article 2 of the Criminal Procedure Code of Ukraine, one of the tasks of criminal proceedings is to protect the rights, freedoms, and legitimate interests of participants in criminal proceedings, including the accused.
Article 8 of the Criminal Procedure Code of Ukraine stipulates that criminal proceedings are carried out in accordance with the principle of the supremacy of the law, according to which a person, their rights, and freedoms are recognized as the highest values and determine the content and direction of the state’s activities.
In the decision of the European Court of Human Rights dated December 18, 2008, in the case “Ukhan v. Ukraine,” it is noted that Article 3 of the Convention places an obligation on the state to protect the physical health of persons deprived of their liberty. The Court acknowledges that medical care available in institutions of the penal system may not always be at the same level as in the best public medical facilities. However, the state must ensure proper health protection for detainees, including by providing necessary medical assistance (see the decision in the case “Kudla v. Poland” [GC], No. 30210/96, para. 94, ECHR 2000-XI; also see “Hurtado v. Switzerland,” decision of January 28, 1994, Series A, No. 280-A).
According to Part 5, Part 6 of Article 9 of the Criminal Procedure Code of Ukraine, the criminal procedural legislation of Ukraine is applied taking into account the practice of the European Court of Human Rights. In cases where the provisions of this Code do not regulate or ambiguously regulate issues of criminal proceedings, the general principles of criminal proceedings defined in Part 1 of Article 7 of this Code are applied.
Considering the above and guided by the principle of the rule of law and the practice of the European Court of Human Rights, with the aim of ensuring the accused’s right to receive proper medical care, the court deems it necessary to instruct the medical unit of the State Institution “Kharkiv Pretrial Detention Center” to continue conducting medical examinations of INDIVIDUAL_7 to determine and monitor his health condition and continue his proper treatment if necessary.
Guided by Articles 34, 183, 314, 331, 369-372 of the Criminal Procedure Code of Ukraine, the court
DECIDED:
To satisfy the motion of the prosecutor of the Kharkiv Regional Prosecutor’s Office INDIVIDUAL_3 to extend the term of the preventive measure in the form of detention in the criminal proceedings, entered into the Unified Register of Pre-trial Investigations under No. 22022220000000618 on April 12, 2022, regarding INDIVIDUAL_7, INFORMATION_1, accused of committing criminal offenses under Part 2 of Article 436-2, Part 3 of Article 436-2 of the Criminal Code of Ukraine.
To continue the preventive measure in the form of detention chosen in relation to the accused INDIVIDUAL_7, INFORMATION_1, in the State Institution “Kharkiv Detention Center” until February 19, 2024, without determining the amount of bail.
To instruct Kharkiv City Medical Unit No. 27 of the State Institution “Health Care Center of the State Penitentiary Service of Ukraine” in the Kharkiv and Luhansk regions to continue conducting a medical examination of Lira Lopez INDIVIDUAL_10 to determine and monitor the health condition of the latter and continue his proper treatment, if necessary.
The decision can be appealed in the appellate procedure by filing an appeal directly to the appellate court within five days from the date of its announcement. For INDIVIDUAL_7, the deadline for filing an appeal is calculated from the moment he receives a copy of this decision.
The decision is subject to immediate execution after its announcement.
Judge INDIVIDUAL_1
