Update after Gonzalo Lira's November 10 court date.
DERZHIN REGIONAL SUD M.HARKOV
UHWAL
Construction No. 1-kp/638/1372/23
08 November 2023 Dzerzhinsky District Court Kharkiv in the composition:
Chairman's judge with participation: secretary of the court session of the prosecutor of the accused defender of the translator -OSOBA_1, -OSOBA_2, -OSOBA_3 , -Lira Lopez Person_4 , -OSOBA_5 , -OSOBA_6 ,
Looking at the court session in the courtroom in m. Kharkiv petition of the prosecutor of the Kharkiv Regional Prosecutor’s Office of the Prosecutor’s Office_7 on the extension of the preventive measure in the form of detention in criminal proceedings, entered in the Unified Register of Pre-Trial Investigations No. 22022220000000618 dated April 12, 2022, in respect of the accused
Person_8 , INFORMATION_1, citizen of the Republic of Chile and the Federal Republic of the United States of America, native of m. Los Angeles, California United States of America, married, officially unemployed, who has two children, actually lives at: APRESS_1, previously not convicted,
criminal offences provided for by time. 2 tbsp. 436-2, h. 3 tbsp. 436-2 of the Criminal Code of Ukraine,-
From June 7, 2023 in the proceedings of the judge of the Dzerzhinsky District Court in the city. Kharkiv Personion_1 is an indictment in criminal proceedings entered in the Unified Register of Pre-Trial Investigations under No. 22022200000000018 dated April 12, 2022 regarding the Person_8, which is accused of committing criminal offenses provided for in part. 2 tbsp. 436-2, h. 3 tbsp. 436-2 of the Criminal Code of Ukraine.
On September 12, 2023, in a court session, the prosecutor filed a request to extend the preventive measure in the form of detention for a period of 60 days, without determining the pledge.
The complaint is justified by the fact that the prosecution of the criminal offense is accused of committing a criminal offense - a crime provided for in Part 2 of Article 436-2 of the Criminal Code of Ukraine, that is, in the manufacture and distribution of materials that contain justification, recognition as legitimate, denial of the armed aggression of the Russian Federation against Ukraine, initiated in 2014, as well as justification, recognition of the lawful occupation.denial of the armed aggression of the Russian Federation against Ukraine, launched in 2014, including by representing the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, justifying, recognizing the temporary occupation of part of the territory of Ukraine as legitimate, as well as justification, recognition of the temporary occupation of part of the territory of Ukraine, the glorification of persons who carried out the armed aggression of the Russian Federation.
The decision of the Kyiv District Court.Kharkiv dated 01 May 2023 in respect of the OSOBA_8 elected a preventive measure as a state of maintenance under-the-art of 2023 with a determination of the amount of pledge in the amount of 402600, 00 UAH, imposed on a period of two months of duty: arriving at the investigator, prosecutor, court on the first call; Kharkiv without the permission of the investigator, prosecutor or court; to inform the investigator, prosecutor or court about the change of its place of residence at: APRESS_1 ; wear an electronic means by counter.
The decision of the Kharkiv Court of Appeal of May 30, 2023 the decision of the investigating judge of the Kyiv District Court of Kyiv District Court. Kharkiv from May 1, 2023 was left unchanged.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated June 26, 2023 extended the preventive measure in the form of detention, elected against the accused Person_8 for a period until August 24, 2023, with the possibility of applying an alternative preventive measure in the form of collateral, in the amount determined in the decision of the investigating judge of the Kyiv District Court of Kyiv District Court. Kharkiv dated May 1, 2023, revised by the Kharkiv Court of Appeal, namely UAH 402600,00. When making a certain amount of pledge, the DECOB_8 should be released and put on it for a period of two months of duties: to arrive at the investigator, prosecutor, court on the first call; not to withdraw from m. Kharkiv without the permission of the investigator, prosecutor or court; to inform the investigator, prosecutor or court about the change of their place of residence at the address: APRESSA_1 ; wear an electronic means by counter; to deposit a passport to the relevant state authorities for traveling abroad or other documents that provide the right to travel abroad.
The accused were bail, and was released from custody on July 6, 2023.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated August 04, 2023 was returned to the state income and credited to the special fund of the State Budget of Ukraine in the amount of UAH 402600.00, made by the accused on the basis of the decision of the investigating judge of the Kyiv District Court of Ukraine. Kharkiv of May 1, 2023, revised by the Kharkiv Court of Appeal in case No. 953/2692/23. The accused Person_8 , INFORMATION_1, preventive measure in the form of detention for a period of up to October 02, 2023 without determining the size of the pledge.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated August 04, 2023 was left unchanged by the court of appeal.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated September 12, 2023 extended the preventive measure in the form of detention until November 10, 2023.
The prosecutor supported the request, asked to satisfy. He noted that to ensure the proper procedural behavior of the accused is only a preventive measure in the form of detention, the risks have not ceased to exist and have not decreased.
Lira Personba_9 in court against the satisfaction of the petition denied.
The defense of the accused Person_5 in a court hearing against the satisfaction of the petition denied, referred to the fact that the qualification of the prosecution under Part 3rd. 436-2 of the Criminal Code of Ukraine is unfounded. According to Part 2 p. 32 of the Criminal Code of Ukraine is not a repeatable crime consisting of two or more identical criminal acts committed at different times, united by a single criminal intention. Given that the actions that are criminalized should be qualified as an continued crime.The prosecutor has not proven the claimed risks. He asked to apply a preventive measure to the accused in the form of house arrest or detention with the right to make bail.
Deciding the issue of expediency of extending the validity of the preventive measure in the form of detention, the court is guided by the following.
According to the time. 1, 3 of Article 331 of the CPC of Ukraine during the judicial review of the court of the prosecution or defends the right-wing decision to change, to remove or continue the preventive measure of the accused. In the presence of petitions, the court during the trial is obliged to consider the feasibility of extending the preventive measure until the expiration of the two-month period from the date of its application. As a result of the consideration of the issue, the court cancels, changes the preventive measure with its motivated decision or extends its validity for a period that cannot exceed 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 imprisonment.
According to Part 2 p. 331 of the CPC of Ukraine, the decision of the court on preventive measure is in the manner prescribed by Chapter 18 of this Code.
According to the time. 4st. 199 of the CPC of Ukraine, the court is obliged to consider a request to extend the period of detention until the expiration of the previous decision in accordance with the rules provided for consideration of petitions for the application of preventive measure.
According to the time. 3 tbsp. 199 of the CPC of Ukraine of Ukraine of the request to extend the term of detention, in addition to the information specified in Article 184 of the Code, should contain: 1) a statement of circumstances that indicate that the stated risk has decreased or novirisms have appeared, which justify the detention of a person in custody; 2) the statement of circumstances that prevent the completion of pre-trial investigation before the end of the previous decision.
Part 5th century. 199 of the CPC of Ukraine is obliged to refuse to extend the period of detention if the prosecutor, the investigator, the investigator, proves that the circumstances specified in part three of this article justify further detention of the suspect, accused in custody.
Thus, the reason for the continuation of the detention of the person is, in particular, the establishment that the stated risk has not decreased or new risks have appeared that justify the detention of the person.
According to the materials of criminal proceedings, the Kyiv District Court.Kharkiv from 01 May 2023 OSOBA_8 elected a preventive measure of detention until 29 June 2023 with the determination of the amount of pledge in the amount of 402600, 00 UAH.
Choosing a term-prevention measure in the form oftaining, the investigating judge is taken into account that the Person should be hidden from the pre-trial investigation or court, destroy, hide or distort any of the things of documents that are of significant importance for establishing the circumstances of criminal offense, commit another criminal offense.
The decision of the Kharkiv Court of Appeal of May 30, 2023 the decision of the investigating judge of the Kyiv District Court of Kyiv District Court. Kharkiv from May 1, 2023 was left unchanged.
The court of appeal at the stage of pre-trial investigation established the validity of suspicion, the presence of the above risks, decided the issue of the legality of the election of an alternative preventive measure by the investigating judge in the form of a pledge and its size.
The accused were bail, and was released from custody on July 6, 2023.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated August 04, 2023 was returned to the state income and credited to the special fund of the State Budget of Ukraine in the amount of UAH 402600.00, made by the accused on the basis of the decision of the investigating judge of the Kyiv District Court of Ukraine. Kharkiv of May 1, 2023, revised by the Kharkiv Court of Appeal in case No. 953/2692/23. The accused Person_8 , INFORMATION_1, preventive measure in the form of detention for a period of up to October 02, 2023 without determining the size of the pledge.
The decision of the Dzerzhinsky District Court of M. Kharkiv dated August 04, 2023 was left unchanged by the decision of the Kharkiv Court of Appeal of September 11, 2023.
According to p.4 2 tbsp. 183 of the CPC of Ukraine a preventive measure in the form of detention cannot be applied, except for a previously non-trial person suspected or accused of committing a crime, for which the law provides for punishment in the form of imprisonment for a period of more than five years.
Lyra Personba_9 is accused of committing a minor and serious crime, for which a sentence of imprisonment for up to five years and imprisonment for a period of five to eight years is provided.
The court established that the Person of the_8 is married, but is in the process of divorce, has two young children in 2014 and 2015, officially unemployed, does not have any disabilities in Ukraine or another state, lives in m. Kharkiv in an apartment that belongs to him on the right to use, in Ukraine lives since 2017, children are citizens of Ukraine, live with their mother in the city. Uzhgorod.
As seen from the conclusions on the application of the norms of law set out, in particular, in the Supreme Court resolutions of 20.06.2019 in case No. 166/313/17, dated 13.08.2020 in case No. 674/1202/19, dated 27.02.2019 in case No. 0503/10653/2012, the awareness of the probability of recognition of the guilt of a person on the charges brought to it and the pressure of the burden of possible punishment is.
According to St. 7-9 of the CPC of Ukraine is applied to the practice of the European Court of Human Rights.
In a judgment in W v. Switzerland of 26 January 1993, the European Court of Human Rights indicated that taking into account the severity of the crime has its rational content, since it indicates the degree of social danger of that person and allows for a reasonable degree of probability of his conduct, taking into account that future punishment for a serious crime increases the risk that the suspect may be.
In understanding the practice of the European Court of Human Rights, the severity of the prosecution is not an independent basis for keeping a person in custody, but such an accusation, together with other circumstances, increases the risk of escape so much that it cannot be turned away without taking a person into custody. In Iliikov v. Bulgaria No. 33977/96 of 26 July 2001, the ECHR noted that “the severity of the imposed punishment is an essential element in assessing the risks of hiding or re-offing crimes.”
In addition, the European Court of Human Rights has repeatedly stressed that the presence of grounds for the detention of a person should be evaluated in each criminal proceedings taking into account his specific circumstances.
Taking into account the identity of the accused Person_8 , the severity of the punishment that threatens him in case of pleading guilty, the absence of an official source of income and any property on the right of ownership, the presence of two citizenships of other countries, the other circumstances of criminal proceedings, the court concludes that at this stage of criminal proceedings the risks of the actions provided for by paragraph. 1, 5 h. 1st century 177 of the CPC of Ukraine, which were the basis for election of the accused preventive measure in the form of detention at the pre-trial investigation stage and referred to by the prosecutor in the request for the continuation of the preventive measure in the form of detention, has not decreased and none of the other, more softer precautions, is unable to prevent them.
Given that the accused has a passport of a US citizen and a passport of a citizen of the Republic of Chile, the presence of two stateships of passports significantly expands the ability of a person to hide abroad, in different countries of the world in order to evade criminal liability.
In accordance with the practice of the European Court of Human Rights, the court must ensure not only the rights of the accused, but also high standards of protection of public rights and interests. Ensuring such standards as the European Court of Human Rights emphasizes requires the court to be more strict in assessing violations of society's values.
Given the specific circumstances of the crime, which is incrowned to the accused, namely that he is accused of committing crimes that are classified as crimes against peace, security of mankind and international law and order, the Court considers that there is a public interest in this judicial proceeding, which is the need to protect high standards of protection of the rights and interests of society.
The Court takes into account the fact that the accused, being under the action of a preventive measure in the form of detention with bail, voluntarily sent to the state border of Ukraine with Hungary. While in the Transcarpathian region in the period from July 31, 2023 at August 1, 2023, the accused made a failed attempt to cross the state border at the checkpoint "ChOP" (Tisa).
The accused’s attempt to cross the state border objectively indicates the existence of a risk of hiding from the court, and therefore the claim of the defense party to lack of evidence of such a risk is unjustified.
In deciding the issue of the continuation of the preventive measure, the court takes into account the presence of risks provided for in paragraph 1. 1, 5 h. 1st century 177 of the CPC of Ukraine, as well as assessing the set of circumstances, namely: the weight established by the investigating judge and the court of appeal at the stage of pre-trial investigation of the available evidence of the commission of the OSOBA_8 criminal offenses (the validity of suspicion); the severity of punishment that threatens him in case of being found guilty of serious criminal offense. 436-2 of the Criminal Code of Ukraine, data on the person of the accused who is not a citizen of Ukraine, can leave the territory of Ukraine without hindrance, has no proper property and official source of income in Ukraine, believes that the application of a softer preventive measure against the OSOB_8 is insufficient to prevent the risks provided for by paragraph. 1, 5 h. 1st century 177 CPC of Ukraine.
Taking into account the above, in order to ensure the performance of the procedural duties imposed on the accused, the prevention of hiding from the court, the court at this stage of the proceedings considers it expedient to extend the validity of the preventive measure in the form of detention in respect of the Person_8, for a period until January 6, 2023.
Also, taking into account the above, the court concludes that there are no grounds for changing the preventive measure chosen against the accused at this stage.
In addition, the court takes into account all the grounds and circumstances provided for in Article. 178 of the CPC of Ukraine, information about the person and the available evidence of the accused’s commission of a criminal offense, the severity of punishment that threatens him in case of pleads and the circumstances provided for in Article. 177, 178 of the CPC of Ukraine, according to which the court has the right not to determine the amount of the pledge.
According to Part 3 p. 183CPC of Ukraine, the court, when deciding on the application of a preventive measure in the form of detention, is obliged to determine the amount of the pledge sufficient to ensure the performance of the obligations provided for by this Code, except in cases provided for by part of the fourth article.
According to Part 4 p. 183 of the CPC of Ukraine, the court, when deciding on the application of a preventive measure in the form of detention, taking into account the grounds and circumstances provided for in Articles 177 and178 of the Code, should determine the legal size of the pledge of criminal proceedings: regarding the crime committed by the use of violence or threat-threatening use;255-255 Criminal Code of Ukraine; especially severe crime of the military of circulation-drugs,psychotropid substances, their analogues or precursors. During the martial law, the investigating judge, the court when deciding on the application of a preventive measure in the form of detention, taking into account the grounds and circumstances provided for in Articles 177 and178 of the Code, has the right not to determine the amount of the pledge in criminal proceedings regarding the crime provided for in Articles 109-114-2,258-258-6,260,262,26,240,240,240,240,240,240,240,240,240,248-258-168-6,260,240,2,2,2,2,2,258-258-6,2,2,2,2,2,2,2,2,2,2,2,2,2,2,2,2,2,2,2,4,4,4,4,4,4,4,4,4,4,4,4,4,4,4,4,4, and the circumstances of the Convention, the criminal,2, the two-54,2, the two-of-the-art of the law is in
The decision of the Dzerzhinsky District Court of M. Kharkiv dated August 04, 2023 established, and the prosecutor proved the presence of circumstances provided for in Part 4 of Article. 183 of the CPC of Ukraine, which is the legal basis for non-determining the amount of pledge in this criminal proceedings. The fact is provided by p. 3 h. 4 p. 183 CPC of Ukraine.
Given the violation of the preventive measure in the form of a pledge, the court concluded that there was no grounds for determining the size of the pledge.
The assessment of these circumstances indicates that the accused violated the duties imposed on him by the decision of the Dzerzhinsky District Court of M. Kharkiv dated June 26, 2023, that is, preventive measures in the form of pledge are not able to ensure the performance of the procedural duties assigned to him.
Considering the request to continue the preventive measure in the form of detention, the court believes that the preventive measure in the form of house arrest will also not be able to prevent the risks proved by the prosecutor.
According to the result of the materials of criminal proceedings investigated, the court concluded that the preventive measures in the form of pledge are not able to ensure the performance of the procedural duties assigned to him.
Given that the case is at the stage of trial and as of the time of consideration of the request by the court documents are attached to the case materials, the court considers the unproven prosecutor to continue the risk of destruction, hiding or distorting any of the things or documents that are essential for establishing the circumstances of a criminal offence.
As for the arguments of the defender and the accused regarding non-condiliation with the qualification of an incriminal criminal offence, at this stage of the trial, these arguments cannot be considered as such as indicating the unsubstantial of the prosecution, the absence of risks established by the court and the presence of grounds for the election of a softer preventive measure.
Issues of incorrect legal qualification of the crime are not subject to resolution before the study of the prosecution documents when considering a request to extend the period of preventive measure. The court is deprived of the opportunity to assess the legal qualifications of the accused's actions during the consideration of this application and at this stage, since these arguments are subject to evaluation by the court after the study of the prosecution documents.
Guided by st. 34, 183, 314, 331, 369-372 of the CPC of Ukraine,-
The appeal of the prosecutor of the Kharkiv Regional Prosecutor’s Office of the Prosecutor’s Office_7 on the extension of the preventive measure in the form of detention in criminal proceedings, entered in the Unified Register of Pre-Trial Investigations No. 22022220000000618 dated April 12, 2022 regarding the DECOB_8 , INFORMATION_1 that is accused of criminal proceedings. 2 tbsp. 436-2, h. 3 tbsp. 436-2 of the Criminal Code of Ukraine - to satisfy.
Continue the preventive measure in the form of detention chosen against the accused Person_8 , INFORMATION_1, for a period up to January 6, 2024, without determining the size of the pledge.
The approval may be appealed in the appellate order by submitting an appeal directly to the court of appeal within five days from the date of its announcement. For the Person_8, the deadline for filing an appeal is calculated from the moment of delivery of a copy of this decision.
The approval is subject to immediate execution after its announcement.
Judge Person_1
Date of decision 07.11.23
