In every motion to determine pretrial restriction, prosecutors refer to the practice of the European Court to justify human rights violations. They, actually, refer not really to the practice of the European Court of Human Rights, but rather to some phrases taken out of context. The case against Andriy Kobolev is not an exception.
The European Convention on Human Rights was established to protect an individual from a state, not vice versa. The Convention on Human Rights as well as the practice of the European Court of Human Rights cannot be used to justify human rights violations.
Yet, justifying a pretrial restriction determined, NABU and SAPO regularly refer to the decision of the European Court in ‘Mangouras v. Spain’ and ‘Ambruszkiewicz v. Poland’ cases. What are these cases about?
Detectives and prosecutors state that the decision of the European Court in ‘Mangouras v. Spain’ case allowed imposing a bail that greatly exceeded the applicant’s real financial capacity in order to make sure the latter would not escape the punishment.
What did the Court really state in its decision? To figure this out, we might need to have a brief look at the case itself.
Mr. Mangouras was formerly the captain of the oil tanker which sank near the Spanish coast and leaked 70,000 tons of fuel oil leading to one of the biggest ecological catastrophes. The Court remanded the applicant in custody with bail fixed at three million euros.
The bail was posted by the insurance company of Mr. Mangouras’ employer. For some time, the applicant had stayed in Spain. Later, Mr. Mangouras was even allowed to return to Greece with the obligation to attend court hearings. Still, Mr. Mangouras complained that the size of the bail was excessive for him.
The European Court admitted that the bail did exceed the financial capacity of the applicant, but the court was assured that the insurance company would be able to post €3 000 000 bail for Mangouras taking into consideration insurance practices for oil tankers. So, by imposing the bail, the Court knew that the applicant wouldn’t be held in custody.
This practice of the European Court cannot be referred to when NABU and SAPO explain their bail requests in the case of Andriy Kobolev. While analyzing the HACC appeal, I didn’t find any sign of a person or an organization who could potentially have posted 229 million UAH bail for Andriy Kobolev.
Another absurdity is to refer to the Court’s decision in the ‘Ambruszkiewicz v. Poland’ case.
Detectives/prosecutors state that since Andriy Kobolev is suspected of committing a crime that provides for up to 12 years of imprisonment, the applicant might attempt to abscond, so he should be held in custody for 2 months.
As a justification, detectives/prosecutors refer to the second sentence of paragraph 29 in the mentioned above decision:
‘The Court does not question the fact that keeping an applicant in detention may be, under exceptional circumstances, the only way to guarantee the proper conduct of the criminal proceedings and the applicant’s presence during the course of the proceedings, taking into consideration the applicant’s particular status or crime committed as well as the severity of the potential sentence.’
Yet, the investigation decided not to mention the rest of the paragraph:
‘However, the reasons given by the authorities to justify the application of a custodial measure must be supplemented by actual facts which are related to the applicant. In other words, the reasoning invoked by the authorities must be, considering the circumstances of the case, convincing and relevant.’
Since no specific facts, that prove the need of holding an applicant in custody, were mentioned in the Kobolev case, detectives/prosecutors decided to ‘drop’ this part of the paragraph.
Almost in every motion for determining/changing pretrial restriction, the reasoning behind the risks comes down to the fact that an applicant has legs, arms, and a head, so he/she might attempt to abscond, destroy evidence, pressure witnesses, and commit new crimes.
The motions are based not on the circumstances of the specific case, but on the presumption of guilt.
I know of only a few decisions where the European Court of Human Rights agrees that holding an applicant in custody during the initial stage of proceedings could be based on such assumptions, one of the cases is ‘Harutyunyan v. Russia’.
Do you know the difference between this case and the majority of NABU cases?
Mr. Harutyunyan was a well-known ‘thief-in-law,’ so the Court agreed that his status in the criminal world might allow him to easily abscond, go into hiding, pressure witnesses and commit other crimes.
In brief, this case [Kobolev case] is not much different from lots of other NABU cases where excessive bail is posted to force an applicant to cooperate and reach for settlement not because of the undeniable evidence but due to a simple & clear wish to avoid spending next several years in custody.
What is really different about this case is an attempt to punish Andriy Kobolev for his wide public support which can draw the attention of the community to the way law enforcement officers work.