Speech of defender Vasily Muravitsky, lawyer Andrei Gozhyi in Court of Appeal of Zhytomyr region
Lawyer Andrei Gozhyi
In a democratic society, a court should not become a lever of political violence. It is important to move the decision-making center from Bankova Street, from the office of the Security Service and the Prosecutor to the advisory room of the Court of Appeal, where the judges, assessing the pros and cons, based on their internal conviction, which is expressed in the phrase «I take this decision because I am internally convinced in its correctness, because it is based on facts that correspond to reality, I have investigated and verified «- will take not only a legitimate, but a fair decision.
Not to mention the «politicized» nature of the case and the degree of incandescence around it created by the media, all the more so without going over to assessing the evidence collected by the pre-trial investigation and not raising the question of my client’s innocence, we will show to the Court the fundamental absurdity of the suspicions raised, as well as the violation of the principles of the national and international law when choosing a preventive measure in the form of detention.
Considering the issue of choosing a preventive measure, the investigating judge came to the matter purely formally and mathematically, without considering the nature of the incriminated acts, the significance of the evidence and the adequacy of the preventive measure, the personality and the possibilities of the suspect, thereby violating the prescriptions of Ukrainian and European law (arts. 178, part 1, 183 of the Code of Criminal Procedure, decided by the ECHR «Timoshenko vs. Ukraine» of 30.04.2013). Indeed, the European Court clearly and unambiguously points out that in assessing the legality of any deprivation of liberty, the Court does not confine itself to the proclaimed apparent goals of capture and detention in question, but also considers the true intentions and goals behind them. Moreover, in order to ensure that deprivation of liberty is not considered a «welcome» in the understanding of Article 5 § 1 of the Convention, the very fact that this measure is applied in accordance with national legislation that conforms to the above standards is still insufficient — it, deprivation of liberty, must also be necessary under the given circumstances (paragraphs 263-265 of «Timoshenko vs. Ukraine», Article 5 of the European Convention, 1950).
Therefore, to refer to unproven risks and only to approach bureaucratically to a topic such as personal freedom, there is a gross violation of human rights and freedoms. In reality, the investigating judge simply copied the text from the prosecution’s request in its definition, which is evident even in the use of phrases, the affirmative statement about Muravitsky’s guilt, the proof of guilt, and, trivially, the use of punctuation marks, spaces and text structure.
But the investigating judge is not only unconnected with the conclusions of the investigative bodies and the prosecutor, but also is obliged to verify their correctness and validity and, especially, the acts of these bodies (investigation and supervision), cannot be equated with acts of justice (Article 124 of the Constitution). But in the definition of the investigating judge, we see an example of the opposite, when the claims of the Security Service and the prosecutor, as a conveyor, fall into the court’s decision.
Let me remind the parties to the process and the reputable Court of Appeal that the norms of international law, as well as the European Convention on Human Rights, and the decisions (precedents) of the Strasbourg court have not only binding force, but also priority over the domestic legislation of Ukraine (art.9 of the Constitution, art.8 part 2 of the Criminal Procedure Code, art. 3 part 1 of the Criminal Code, art. 19 part 2 of the Law on international treaties of Ukraine, art. 17 of the Law on implementation of decisions and application of the practice of the European Court of Human Rights).
With the agreement on the Association with the EU (fully in force on September 1, 2017) Ukraine has undertaken a number of obligations to introduce the principles of the rule of law, fair trial, European standards of freedom of speech and justice (Article 1, Part 1, «e» , 4 p.2 «e», 6, 14, 24 of the Association Agreement with the EU).
Whether Ukraine will pass the exam for «Europeanism» depends on your present decision.
Absurdity of the charges.
Declaring the crimes disclosed, and Vasily Muravitsky is suspected of grave and grave articles of the Criminal Code (art. 110 part 2 (separatism), art. 111 part 1 (high treason), art. 161, part 2 (inciting ethnic hatred), Art. 158-3 part 1 (work for a terrorist organization) of the Criminal Code of Ukraine, the prosecution side operates with the following concepts: «subversive activities», «assistance of the information organization MIA «Russia Today», «psychological manipulation of consciousness», «manipulated consciousness through the dissemination of unreliable information»,»he helped support the activities of terrorist organizations of the People’s Republic of Donetsk and the People’s Republic of Lugansk» and so on.
And the phrase «negatively illuminated the activities of the current authorities in Ukraine and military formations» seems to be included in the annals of domestic proceedings.
All the above concepts are not legal neither in meaning nor in content. The investigation, the prosecutor and the court cannot reason with information and television stamps. We understand that there is an information policy of the state, which turned out to be in a difficult situation and there is a love of siloviki (security officials) for cheap sensations and brave reports on social networks. But there is also the Law! And when the fate of a person, a citizen of Ukraine and a journalist is decided, it is necessary to follow the strict letter of the law, strictly in fact and strictly under the document.
Not to mention the subjectivity and value of the opinions used by the prosecution and the investigating judge, especially the reliability and incompleteness of the information put forward by Muravitsky in his allegedly criminal publications, the main thing that my client is charged with is the work for a legitimate and official news agency that is on the territory of the Russian Federation, the writing of articles and editorial policy aimed at criticizing the current regime. Clear.
Now we determine and we will find «the enemy Muravitsky worked for». Can the prosecution party name at least one mandatory regulatory act, according to which we have with Russia not only a war, but some special negative situation? The reference of the investigation, the prosecutor and the court to the presidential decree on the national security strategy (from 26.05.2015 № 287/2015), in which the «aggressive actions of Russia» are listed, is not correct from the legal point of view, since this is just a declarative plan, which cannot lead to criminal liability for my client. There were a number of resolutions of the Supreme Council, etc., but they did not go further the recommendations and the political statement of the matter.
Let’s tell the prosecution the following: it turns out that the legal basis of Ukrainian-Russian relations for today is 358 international documents regulating a wide range of issues of bilateral interaction of states, including trade and economic, scientific and technical, humanitarian, law enforcement and other spheres. The most important international legal act is the Treaty on Friendship, Cooperation and Partnership between the Russian Federation and Ukraine (1997). So, according to this document, the Russian Federation and Ukraine are strategic partners and cannot use each other’s territory to the detriment of the security of both sides. The Treaty of Friendship with Russia has not been denounced by The State of Ukraine. To this day, de jure (Article 9 of the Constitution), it is recognized that Russia is not just a friendly state and a strategic partner of Ukraine, but our countries jointly pursue a policy of security and peace, refrain from encroachments on sovereignty and territorial integrity, do not conduct against each other so-called «Subversive activities» (Articles 4-6 of the Treaty). Moreover, the parties develop relations in the military sphere (Article 8), by the way, which is evident from the constant trade relations with Russia, incl. in the field of armament, de facto! The defense does not intend to quote this Treaty in its entirety, but only this bilateral act, each of its articles, refutes all that information husks that are put in the grounds of suspicions brought against Muravitsky.
So do we have a war with Russia or the peace? Is the state accusation ready to answer the question about the level and status of diplomatic relations between the warring RF and Ukraine? In the documents of the investigation, supervision and the court there is not a word about this. But in vain, because between Ukraine and Russia, the highest possible degree of diplomatic relations is established at the level of extraordinary and plenipotentiary ambassadors. At present, the Russian Federation has an embassy in Kiev and general consulates in Kharkov, Odessa and Lviv. Ukraine has an embassy in Moscow and general consulates in St. Petersburg, Novosibirsk, Yekaterinburg and Rostov-on-Don. Let’s just say, very strong relations for howling countries.
We can quote whole volumes of various conventions, declarations, documents on mutual legal assistance between the two countries. The main thing to understand is that «temniki» (people undercover), broadcasted with the help of the Ministry of Information Policy and a number of mass media, is not the rule of law!
The role of Russia in the conflict in the East of Ukraine? We continue to speak with the language of law and we turn to the Minsk agreements. So, this document was signed in February 2015 by a contact group consisting of representatives of Ukraine, Russia, the OSCE and the unrecognized Donetsk and Lugansk People’s Republics. Then it was approved by a joint declaration of the President of the Russian Federation, the President of Ukraine, and the President of the French Republic and the Chancellor of the Federal Republic of Germany in support of the Set of Measures to Implement the Minsk Agreements. And the apogee of the Minsk process was the international legalization of these documents by the UN Security Council Resolution of February 17, 2015.
The prosecution, will you please show in these documents at least one mention of the war with Russia, aggression and terrorism! Moreover, Russia, on the international stage, and with the approval of Ukraine in general, and President Poroshenko in particular, is represented as an intermediary and guarantor of the settlement of the conflict in the east of our country. The rhetorical question: why have not all these «manipulators of public consciousness» been arrested so far, who tell the people of Ukraine one thing, and sign quite another!?
International law does not operate with the notions of «terrorism» and «war» in relation to Ukraine, but so-called «Російські найманці» (Russian soldiers of fortune) in p.2 of the Minsk agreements were called «armed formations of certain regions of Donetsk and Lugansk regions of Ukraine». Not a word about illegality, illegitimacy, banditry and terrorism! Interestingly, the prosecutor does not want to interrogate Kuchma, Poroshenko, the representative of Ukraine in the UN, who put their signatures on this matter? Do the SBU have no suspicions about the «derzhavna zrada» (high treason)? Or since the establishment of criminal proceedings on Muravitsky, the political conjuncture has changed, and the investigative-prosecutor’s, heavy and bureaucratic machine does not know how to slow down in time?
With Russia we sorted it out! Let’s pass to the phrase of charge, simply copied into the definition of the court: “…criminal intentions of the operating in the Donetsk and Lugansk regions of the terrorist organizations of the «DPR» and «LNR». What a passage, fine. The investigation and the court must rely on the right, and not on the phrases from the TV. Is the side of the state prosecution ready to refer to at least one generally binding normative legal act of Ukraine, a foreign state and (or) the international community in which the LNR-DPR is recognized as a terrorist organization?
Defense, tried to find such a document, but it did not work out. Can a group of prosecutors, investigators and operatives who have been investigating this resonant case for two years, as well as the investigating judge did it? Something in the documents (notification of suspicion, petition for taking into custody, determination of the court) submitted to the Court of Appeal, we don’t see it! The documents of the UN, the Council of Europe, the European Union and Western countries speak only of the condemnation and partial illegitimacy of referendums in the NDP-LNR. Ukrainian law does not even name terrorists (we are not talking about declarative documents), but, moreover, conducts trade with these organizations, talks and talks only about «armed formations» (p. 2 of Minsk agreements). Signing documents with unrecognized DNR and LNR (contact group) Ukraine does not simply not consider these organizations as terrorists, but, take it above, recognizes their legal personality, the opportunity to participate in negotiations and agreements (Article 2, Part 1, «a», «g» «, Articles 6, 7, 11 of the Vienna Convention on the Law of Treaties, 1969). And yes, in the same Convention it is clearly stated that a participant cannot refer to the provisions of his internal law as an excuse for not fulfilling his contract. The State has no right to invoke the circumstance that its consent to be bound by the treaty was expressed in violation of a provision of its internal law concerning the competence to conclude treaties as the basis for invalidity of its consent, unless the violation was clear and did not concern norms of its internal law of especially important value (articles 27, 46). Thus, taking into account the priority of international law, the Minsk Agreements and the Treaty of Friendship with Russia over a series of only populist and declarative statements by Ukrainian politicians, it is impossible to speak of the terrorism of the People’s Republic of Donetsk and the People’s Republic of Lugansk, as well as of Russia’s aggression in the east of Ukraine.
Moreover, even the Supreme Court of Ukraine, in its letter of 25.10.2016. № 5-227сі16, recognized that the LNR and DNR terrorist organizations were not recognized. The question is removed!
Indeed, with the legal justification, the prosecution has big problems. As a remark (a question) about fomenting ethnic hatred between Tatars and Ukrainians, which, it seems, is established by the investigation, at least, it is cynically declared about the disclosure of this crime. And do gentlemen know about the existence of, for example, the resolution of the Supreme Council of Crimea of October 8, 1992, No. 167-1, in paragraph 1 of which the activity of the Majlis of the Crimean Tatar people, its structures in the field and the Organization of the Crimean Tatar National Movement (JNRN) (Yarmolenko M. І., National minorities of southern Ukraine in ethnopolitical processes of the late 1980s and early 1990s. Scientific Bulletin of the Izmail State Humanitarian University. Series «Historical Sciences», issue no. 34, pp. 161-162). Have you studied the question? You want to imprison a person for 15 years, but you cannot answer whether this ruling has been revoked or is still in force to this day? After all, the Crimea is Ukraine!
We did not find the enemy and terrorists. Let us now look at the objective actions of my client. I will make a reservation that now we are not talking about the proof of what Muravitsky wrote, where he posted, about the authenticity of materials, etc.
What actions the prosecution wants to present, as a perfect crime — manipulation of information, criticism of the current government, journalistic work on the Russian news agency, in appeals and fund-raising for the so-called «homeguardsmen of Donbass»?
So, is it forbidden for a Ukrainian to work in Russia or on a business entity registered in the territory of the Russian Federation? No, it is not forbidden, moreover, it is even allowed. Everyone has the right to work (art. 43 part 1 of the Constitution, art. 10 of the Treaty of Friendship between Ukraine and the Russian Federation). Is it forbidden for Muravitsky to be a freelance journalist and earn a living in Russia? No, more than that, it’s allowed. Everyone has the right to engage in entrepreneurial activities that are not prohibited by law (articles 42 part 1, 48 of the Constitution). Muravitsky received money for this at his own expense in the bank! Legally! The bank has a license of the NBU, it works legally! Other questions? Deep conspiracy of a «foreign agent»? Nothing to say, probably, to open such a spy cost a colossal effort!
Now, what is the manipulation of information and consciousness? What kind of category is this and where is it even a fraction of the law? Crime is a concrete deed! Where is the specifics in this empty and pompous phrase?! Take an explanatory dictionary and clarify for yourself, manipulation is a complex action with anything, or fraud (Ozhegov’s explanatory dictionary). So, is it forbidden to manipulate information in Ukraine? No, it’s allowed! Everyone has the right to freely collect, preserve, use and disseminate information verbally, in writing or in other ways at his own discretion (Article 34 part 2 of the Constitution). Even if a person frankly lies, is criminal responsibility established for this? No. Does the SBU manipulate information by disseminating pre-trial investigation data in the media and social networks? Does the President manipulate information, speaking of Russian aggression and terrorists and signing completely opposite documents? Wives manipulated with their husbands and children with parents, advertising companies with buyers, but put them in prison, to put it mildly, is an unsuccessful idea, which came to mind only to Zhytomyrs sbushniki (SBU-people) and prosecutors. And the investigating judge went with them on leash.
State treason (art. 111 part 1 of the Criminal Code) is an act deliberately committed by a citizen of Ukraine to the detriment of sovereignty, territorial integrity and untouchability, defense, state, economic or information security: the transfer to the enemy in emergency or military conditions, conflict, espionage, providing foreign assistance to subversive activities against Ukraine. So, what exactly «state-defectively» did Muravitski — he wrote articles for the order of his official employer? Are you seriously? Where is subversive activity? Weapons, ammunition, psychotropic and poisonous substances, assistance to residents of intelligence, contacts, appearances, passwords? Where is the collection of military, state secrets, recruitment, surveillance, concealment and assistance to saboteurs? Where is the illegal, namely, informationally illegal activity? Transfer of sensitive information, device caches, server hacking, creating viruses, etc.? This is what the court practice calls subversive activities! What kind of language is it: «he disseminated not full and not reliable information …», «he criticized the authorities …», «he psychologically manipulated consciousness»?! «He helped the Russian media in writing articles …»
The Constitution, dear prosecutors! There is no one right opinion in the country, no ideology can be recognized by the state as mandatory! Censorship is prohibited! (Article 15 of the Constitution). Or maybe we are already prohibited from criticizing the authorities? The defense did not hear about the abolition of the provision of Article 34 part 1 of the Constitution, where black and white indicates that everyone is guaranteed the right to freedom of thought and speech, to freely express their convictions and views! You see, beliefs and views, even if someone does not like them, cannot be the grounds for criminal liability. Propaganda of ideas and agitation in Ukraine is not forbidden, and freedom of literary creativity is guaranteed (Article 54 of the Constitution)!
The generally recognized norms of international law also apply to the sources of criminal and criminal procedural law (art. 3, part 1 of the UC, art. 8, part 1 of the Code of Criminal Procedure). For democratic societies, the USA is considered a kind of light and a pointer to the level of freedom of speech. I believe that the prosecution will not deny this universally recognized fact. And here are the positions of the US Supreme Court regarding freedom of speech (quotes: Anne F. Ginger, Supreme Court and Human Rights in the USA, Moscow: Juridical Literature, 1981, 392 pp.). «The peaceful expression of unpopular views cannot be considered a crime. The function of freedom of speech … is to invite discussion. Indeed, freedom of speech can best serve its high purpose when it causes a state of anxiety, creates dissatisfaction with existing conditions, or even stirs up anger»(the case of Terminello v. Chicago). The opportunity for a free political discussion should be preserved, and «the legislative act that allows punishment for the conscientious use of this opportunity contradicts the guarantee of freedom …» (Stromberg v. California case). And, «… the discussion of public problems should be unrestricted, sound and broad. It does not exclude the possibility of hot, sarcastic, and sometimes unpleasantly harsh criticism of the government and officials…». «The unconditional right to freely talk about public affairs … this is the minimum guarantee…» (case of the New York Times Company against Sullivan).
From the universally accepted standards we pass to the law of the normative, mandatory for the Ukrainian investigation and the court. Let’s go around the side of the UN, EU, Council of Europe acts on freedom of speech and guarantees of this freedom, delaying for a second on the document that as a litmus paper determines the place of the state in the family of civilized nations. The International Covenant on Civil and Political Rights, 1966, says that everyone has the right to hold opinions and convictions unhindered. Everyone has the right to freedom of expression; this right includes the freedom to seek, receive and impart all kinds of information and ideas, regardless of frontiers, orally, in writing or through the press or artistic forms of expression, or by other means of one’s choice (art. 19 part 1, 2).
And now, the accusation, ignored and forgotten by the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was widely beloved by the party, was adopted in Rome in 1950, and the practice of the Strasbourg Court.
Articles 9, 10 and 14 of the Convention guarantee the right to freedom of thought, expression, prohibits discrimination on political grounds. Any intervention by the state to force a person to have certain views or other beliefs will directly contradict Article 9 of the Convention. Freedom of expression of one’s thoughts is the foundation of a free society and consists of 3 forms: freedom to hold one’s opinion; freedom to receive information and ideas; freedom to disseminate information and ideas. One cannot attribute a certain opinion to a person (for example, on the basis of his publications), and then, on the basis of this, to bring to justice, because pressure to force a person to express his opinion contradicts Article 10 of the Convention (case Vogt v FRG, 1995).
The duty of the journalist to disseminate information on all matters of public interest, and the public has the right to receive such information (De Haes and Gijsels v Belgium, 1997; Thor Thorgersson v Iceland, 1992).
The prosecution and the Court of Appeal would like to quote the position of the Strasbourg Court regarding the so-called «incomplete, twisted and manipulative information». In the obiter dictum of the judgment in Thor Thorgersson v Iceland, 1992, it is said that the press has a duty to disseminate information and ideas of public significance. The punishment for the dissemination of such information may prevent free discussions on issues of public interest. If it were otherwise, the press could not fulfill its role as a «watchdog of democracy». And most importantly, what the European Court drew attention to and what the investigators, the prosecutor and the investigating judge do not know, the European Court pointed out that the proof of the truth in such cases can be simply impossible. If only proven facts were allowed to be published, the media would not be able to publish anything at all!!!
Freedom to receive information includes the right to collect it from any legitimate sources (Autronic v Switzerland, 1990). Muravitsky worked only with open information, only from open sources and only to fulfill his journalistic duty. Legitimate work, discussion with the editor and colleagues of editorial moments — do you consider this a betrayal of the state?
The prosecution’s position on the negative responses about the authorities and the armed forces do not stand up to criticism either from the point of view of law or from the point of view of the adequacy of existence in the modern state. But we will add more! In the case of the Ukrainian Press Group v. Ukraine, 2005, the Court pointed out that the boundaries of acceptable criticism of politicians are wider than for private individuals. The politician is consciously open to a meticulous analysis of every word and deed on the part of journalists! If the current political regime wants to remain «handshake» in the society of civilized countries, then European requirements must be strictly observed.
SBU, the prosecutor, and behind them under a carbon copy and the investigating judge speak about national information security. The task of law enforcement and counterintelligence to ensure this security, neutralize enemy scouts, to stop the leakage of sensitive and confidential data, and not to arrange a witch hunt.
I advise that, not to step on the old rake, the aforementioned bodies should pay attention to the ЕСПЧ’s decision «Observer and Guardian v UK, 1991», referred to as the «spy catcher case»: the state cannot prohibit the publication of sharp materials only by referring to «national security issues» . Such restrictions can be imposed on classified information, and the duty of non-disclosure only to employees. If a person legally received any information, then the state may impose restrictions before it is published, but not after. What can we now talk about in the context of the Muravitsko case? What kind of criminal punishment can we talk about as a kind of «prejudiced and incomplete information»? Such wording does not go in the wrong way with the European law, but with common sense. The Strasbourg court stated unequivocally that the government should show restraint when the issue of criminal prosecution arises, especially when there are other means of answering even unjustified attacks and criticism from its opponents in the media (Castels v. Spain, 1992). An excellent demonstration of regime restraint, when they want Muravitsky to be imprisoned for 15 years, while having an existing whole Ministry of Information Policy and spending billions on propaganda!
In a democratic society, the action or inaction of the government should be the subject of close scrutiny not only of the legislative and judicial authorities, but also of the press and public opinion, the ECHR does not tire of repeating (Castels v. Spain, 1992).
The second set of charges brought forward by journalist and blogger Vasily Muravitsky is public appeals for the purpose of changing the borders of Ukraine, combined with inciting ethnic and religious discord and, in the opinion of the investigation and the prosecutor, Article 110 part 2 of the Criminal Code requires even further qualification and under art. 161, part 2, namely inciting hatred, humiliation of dignity on a national basis committed with the use of violence, deception and threats. And no less! Having a qualified composition of art. 110 part 2 of the Criminal Code, let’s throw him another art. 161, part 2 on the whole? The more articles, the more terrible the accusation is — a common practice for punitive bodies, but in no way for Europe.
On this block of suspicion, the investigation and prosecutors threw the basic blow of the evidence base, and the investigating judge rewrote the pseudo-established evidence in his definition, which allowed the petitio principii to make an unpardonable one from the point of view of formal logic and law. Anticipation of the foundation. Logical error, consisting in the hidden assumption of an unproven premise for the foundation. Since the investigating judge, I repeat, simply copied the charges into his decision and did not fail to conduct that superficial investigation, but even review the evidence provided. All definitions are a continuous undue error. Considering the requirements of Article 178 part 1 of the Code of Criminal Procedure and the practice of the ECHR, it is necessary to dwell on the brief analysis of these, as it were, proofs.
Article 110 of the Criminal Code is an example of a dead article that cannot be used in principle. So, the encroachment on the territorial integrity of Ukraine, which, in the opinion of the investigation, was expressed in deliberate actions to change the borders of the territory or state border of Ukraine in violation of the procedure established by the Constitution of Ukraine, as well as public appeals and the dissemination of materials with calls to commit such actions (art. 110). Plus part two: committed with inciting ethnic hatred.
Any crime is a wrongful act. Article 110 specifies that the encroachment on the procedure established by the Constitution of Ukraine will be unlawful. Thus, the object of legal protection is this very order. Hence, to change the boundaries of Ukraine in the manner prescribed by the Basic Law, you can! And to call for such changes (in the order provided by the Constitutions), it is also possible. So we came to the question, whether is foreseen such a procedure provided for by the Constitution of Ukraine? Can the investigators or the prosecutor open it and quote?
Either the defense read the Constitution inattentively or there is no such order at all! And the object of a crime is what a person committing a criminal act encroaches upon and what harm is caused or can be caused as a result of a crime.
And if this kind of order does not exist. If there is no lawful way to change the border, there will be no wrongful act. On the face of the legislative gap and it is not necessary to talk about the truisms that there is no composition — there is no crime. You cannot bring to criminal liability by analogy, there is no criminal liability without a clear indication of that in the Law (articles 2, 11 of the Criminal Code). Crime is always an unjustified act, that is, something that goes against the requirements of the law. And in contradiction with what to go to the calls, if any, will be proved, when there is not this very constitutional order.
In violation of the law, the investigating judge rewrote his definition and the subjective side of the crime: about intent, guilt and motives. Again allowing petitio principii. How can the court talk about direct intent, guilt and selfish motive, if, first of all, the objective side of the crime (the object of protection and the form of infringement) is established and only on its basis is the subjective side of the crime and a conclusion is drawn about the intentions, motives and goals of the person.
So, the evidence provided by the investigation to decide on the issue of choosing a preventive measure, indicating, in their opinion, the committed crime can be grouped as follows: an agreement with news agency and related materials (editorial correspondence, calculations, negotiations); expertise (psychological, linguistic); Protocols of secret investigative measures (mainly the examination of pages on the Internet); and the testimony of Nazaryi Tomchuk’s witness. Speaking about the evaluation of these evidences, we remember that the accusation cannot be based on assumptions, and all doubts are interpreted in favor of the suspect and the accused (Article 42, part 2 of the Constitution) person.
— The contract, correspondence and calculations on an equal basis do not prove anything at all. Moreover, they justify my client. Is it a crime to go to work in a legitimate information institution that has its representations around the world, also in the EU and the US? Is it a crime to conclude an official contract «in white» and open an account with a bank? Be ready to declare your income and pay taxes to the budget of Ukraine? SBU would have been better dealt with by businessmen who pay taxes to the RF budget, if this service is so concerned about this process. But, alas, I did not find this very «contract» that the Security Service showed on Facebook and on television, I did not find it in the materials. Maybe because of inattention, but maybe the investigator forgot to put it there? So, I think the contract, correspondence with editors (not with the GRU, not with the FSB, etc.), but, I emphasize with the editors and the legal transfer of the fee by the evidence that the investigation and the prosecutor are required to bring to court and defense. The prosecution cannot conceal or not provide the accused with the materials at his disposal that can help the accused to be released from liability (Art.91 part 1, pp. 5-6 of the CCP, decided by the ECHR Jaspers v Belgium, 1981). In the United States, this principle is called the «Brady rule» and it says that the prosecutor is obliged to provide the defense with all the justifying materials (the decision of the Supreme Court of the USA Brady v Maryland, 1963). Thus, we demand that a cooperation agreement between Vasily Muravitsky and MIA «Russia Today» be made available to the court, if not previously provided.
— Examinations in our political business were conducted by the units of the Security Service, the Ministry of Internal Affairs, and the Ministry of Justice. The evidence is clearly biased and political, highly probabilistic and evaluative. Experts are trying to find out what Muravitsky meant, what he invested in and what it could lead to, or cannot, or did not, or did not mean. Textology is the science of the structure of texts, semantics about the meaning of symbols, and psychology in general is a set of different theories and interpretations about the inner world of man and the theory are so different and contradictory that they refute each other (Freud’s psychoanalysis, Hume’s behaviorism, associative psychology, sensualism etc.). Too shaky ground for examination, especially since materials for examination selectively selected the investigation. Removed from the context of the phrase humanitarian experts reinforced their comments and conclusions, moving into the field of law and legal assessment. The law prohibits an expert examination to clarify the issues of law (art. 240 part 1 of the Code of Criminal Procedure). But the main thing in the examination is the methodology. Esteemed Court, 95% of the methodical grounds, by using which experts searched for ethnic discord and separatism, are Soviet and Russian sources, and in psychological expertise, so in general, one of the methodological sources of 1920. Are these standards used by experts? The USSR and Russia, simply in the vanguard of freedom of speech! It’s good that the instructions to the Revolutionary Tribunal were not found there. Textology, linguistics, and even more so, psychology — the sciences are not exact. Each phrase of the expert in these documents is controversial, has an estimated and probabilistic nature. Thus, it cannot be permissible, relevant and proper evidence (articles 81, 87 of the Code of Criminal Procedure, Decision of the ECHR of 31.07.2012, p. 58).
— Survey of pages on the Internet. The servers on which the sites are located: Great Britain, Germany and Russia. All sites are located in the territory of friendly countries. Inspection is neither a direct, nor an indirect proof of the compilation of the content of Muravitsky. The Internet allows you to copy, change, add data and place your material anywhere without the author’s knowledge. Two years to spend on the collection of screenshots criticizing the authorities. A colossal, but meaningless work, for the connections are not protected — Muravitsky did not sign the material with the digital signature, and he is not responsible for the further placement and use! Documents to inspect the information space to prove nothing is possible! And if you rely only on the names of articles from the Internet, as did the investigating judge, then you can go only to a legal dead end! Administration of the site is also not a proof, since the LDP-DNR and, especially, all the residents of temporarily uncontrolled territories by terrorists are not recognized, as discussed above.
— Testimony of Nazarye Tomchuk’s witness. I do not want to touch on the moral side of the issue, but I had legitimate legal doubts. That’s how it was, Tomchuk and Muravitsky filmed videoblogs together, but one suspect and another witness. Pay attention, dear court, to the testimony of Tomchuk. They represent the «boiling of an indignant mind» that Muravitsky does not like the Revolution of Virtue … So he does not have to! In the testimony of the witness, neither facts, nor data, but some emotions and such that went beyond the pre-trial investigation. Nazarii Tomchuk «lit up» as an angry exposer on a number of local and national channels, in the media and social networks. Such an engaged witness, is not directly a witness, but a voluntary assistant to the special services. Well, what cannot you do not to be in Muravitsky’s place. And about the witness who wrote the statement to the Prosecutor General that he was being forced to testify against Muravitsky, the prosecutors are silent! It seems they are embarrassed…
Journalistic activities and inciting ethnic hatred, humiliation of national dignity — a subject that is creatively difficult, but in some cases necessary for the recovery of society from racial and national warnings. ECHR in 1994 examined the case of Jersild v Denmark. The case involved a journalist who admitted racist statements in the program in order to demonstrate the severity of the problem, its availability and invite the public to a discussion. The journalist in Denmark was found guilty of complicity in the dissemination and incitement to racist statements. Frankly speaking, Jersild was not set for 15 years, and sentenced to a fine. Strasbourg also recognized the conviction of the journalist as a violation of Article 10 of the Convention (freedom of expression) and pointed out that «methods of objective and balanced reporting can vary significantly depending on the characteristics of the media. …it is not appropriate for national courts to substitute for their own views, in this matter, the judgment of the press as to which reportage technique should be used by journalists. «Do not the problems of national conflicts exist in Ukraine? Should we silence it by following the practice of the DPRK and Iran? We have not signed the association with Kim Jong-no if it is known to the prosecution. And to suspect and draw conclusions, referring only to the title of the articles is simply absurd. But this absurdity is put in the basis of the court’s decision to select the measure of restraint to Vasily Muravitsky.
Terrorism. Article 258-3 of the Criminal Code, the creation of a terrorist group or terrorist organization, the management of or participation in such a group and organization, as well as organizational or other assistance in the establishment or operation of a terrorist group or organization. So which groups did he create, in which he participated and helped, than Muravitsky helped?
The investigation and the investigating judge, without understanding, attributed to the terrorist organizations the People’s Republic of Donetsk and the People’s Republic of Luganst, which are not according to the signed agreements signed by Poroshenko and the Minsk Agreements approved by the UN. It was already said above. Moreover, the law establishes the individualization of criminal punishment (Article 18 part 1 of the Criminal Code). Declare them criminals all, who lives and works in the territory of self-proclaimed NDP and LC, to put it mildly, is not legal.
Muravitsky’s terrorism is accused of the publication of «Humanitarian war against Donbass and humanitarian aid to the region» under his name. And this article was posted by a website located in Russia, which is friendly to us. However, the Russian Federation is an intermediary in the settlement of the conflict in Ukraine, the DNR and LNR are not recognized as terrorist organizations. Moreover, their legal personality is legalized. Ukraine is negotiating also on granting a special status to the Donbass and full unconditional amnesty. In the publication (it is not proven that Muravitsky wrote and is not changed), there is a call for humanitarian assistance, which is constantly provided by the Red Cross and Rinat Akhmetov’s Headquarters! The Russian Federation sends humanitarian convoys to uncontrolled territories, but Ukraine does not consider this a violation of sovereignty for which it would be possible to break diplomatic relations, the Treaty of Friendship and declare war or provide an armed cessation of the delivery of these convoys. It is true, with a single journalist to fight you don’t need a lot of courage. Unlike the Russian army!
What and how did Muravitsky help terrorists? What group did he create and participate in as a single journalist? A group is a stable formation of two or more persons united for the commission of one or more crimes. Terrorist activity is characterized by direct anti-state intent. When it is committed, a person always pursues a special goal — to undermine or weaken the legitimate authority. Terrorism has political, compelling goals and is always expressed in the form of violence. A terrorist is a person who takes a direct part in terrorist activities (art. 1 part 1 of the Law on Combating Terrorism)!
Full disclosure of the crime means the establishment of all the circumstances involved in the subject of proof in criminal proceedings: an event (place, time, method), guilt (purpose, motives, guilt), the type and amount of damage, circumstances affecting the severity, etc. (art.91 part 1 of the Code of Criminal Procedure).
So what is Muravitsky’s terrorism? Where is the organization, victims, preparation of terrorist acts, structure, weapons, plans, financing, spending control? What money is collected, by whom, what is spent, what is purchased, what is used, where it is sold? Do you want to accuse Muravitsky of terrorism for one article signed by his name, calling for humanitarian aid and reprinted on several websites? It just goes beyond even the basic principles of criminal law! The version is version. It has not been verified in detail during the two-year pre-trial investigation. It can either be admitted or excluded, but in no case should it be included in suspicion, and even more so in the definition of the court as a proven fact.
The prosecution spent two years spending budget money to conduct an investigation, and the elementary questions do not answer! Why did the suspicion put forward by Muravitsky be supplemented with art. 258-3 of the Criminal Code? «Add to the heap to have more?!»
In Soviet times, there was such a technique — to qualify a crime with a «margin of severity». Evidently, the vicious practice has been preserved in our reformed and European security service and the prosecutor’s office.
International law completely refutes the charges brought against Vasily Muravitsky under Article 258-3 of the Criminal Code — organizational or any other assistance to the creation or activities of a terrorist group or organization. It is clear that the actions attributed to Muravitsky (the writing of the article) do not fall under any of the definitions of international law established for terrorist activity, namely such acts as the 1963 Convention on crimes and certain other acts committed on board aircraft; Convention of 1970 on combating illegal seizure of aircraft; Convention of 1971 on combating unlawful acts against the safety of civil aviation; Convention of 1988 on combating unlawful acts aimed against the safety of maritime navigation; Convention of 1979 on the fight against hostage-taking; Convention of 1980 on the physical protection of nuclear material; Convention of 1973 on the prevention and punishment of crimes against persons enjoying international protection, incl. diplomatic agents; Washington Convention of 2 February 1971 on the prevention and punishment of acts of terrorism, taking the form of internationally significant crimes against the individual and related to this extortion; The European Convention on the Suppression of Terrorism, 1976, Dublin Accord 1979 on the application of the European Convention on the Suppression of Terrorism.
Terrorism in any form is a complex, organizational, and a financial crime characterized by planned and direct intent. Where is this in the actions attributed to Muravitsky? Do not forget about the indication of the Ukrainian law on the importance of an act, which in this way cannot be considered a crime (Article 11, part 2 of the Criminal Code, the definition of the MAT of 19.12.2002).
Yet there is one article of criminal law that could be applied to Vasily Muravitsky. Article 62 of the Criminal Code of the Ukrainian Soviet Socialist Republic, anti-Soviet agitation and propaganda, which is expressed in the dissemination of slanderous fabrications defaming the Soviet state and social system! This article is trying to reanimate the accused party! How her disposition reminds the essence of the alleged suspicions! Yes, only the norm on anti-Soviet agitation and propaganda was abolished even in distant perestroika times, and they gave for this crime for 1 to 7 years of imprisonment, and not to 15, as the investigation and the prosecutor wants in an independent, European Ukraine with the Constitution and the Convention for the Protection of Human Rights!
Violation of the law when choosing a preventive measure.
On August 2 of this year, the investigative judge of the Korolyovsky district court, at the request of the prosecution (UAS in Zhytomyr region, Zhytomyr oblast prosecutor’s office), for Muravitsky Vasily Alexandrovich was chosen without alternative a preventive measure in the form of detention without the possibility of making a pledge.
The court for a few minutes rewrote in its definition the data from the prosecution of the prosecution, deciding the fate of a person, hiding him behind bars.
What facts and evidence, brought by the prosecution, investigated the court, what risks were unequivocally established so that Judge Galasyuk identified a person in jail for 60 days? No facts!
The court did not even bother to substantiate its decision. I quote the motivation part:
«… in order to decide on the application of a preventive measure in accordance with the requirements of international and national legislation, due consideration must be given to the nature of the case, the severity of the alleged criminal offense, and the consequences of the commission of unlawful acts.
Proceeding from the aforementioned evidence in the course of consideration of the application, the investigating judge, on the basis of the materials provided by the criminal proceedings, is convinced that a milder preventive measure regarding Muravitsky V.O. will not be sufficient to prevent the risks brought by the investigator and the prosecutor.
Therefore, in addition to the above, taking into account the nature and severity of the crimes committed by Murovitsky V.O., the investigating judge concludes that there are grounds for applying for a suspected preventive measure in the form of detention. (and now just thrash — note A.G.) The arguments of the defense counsel and the suspect about the possibility of electing the last one, a milder preventive measure, are not supported by evidence.»
And this is a court decision in the twenty-first century, in Europe and in a state that has a Constitution! I do not know exactly which side to take up this example of legal nihilism and absurdity! Had the judge heard of the presumption of innocence and the burden of proof, had he heard of the principle of the legality and validity of judicial decisions, had he ever seen the Constitution of Ukraine from afar, let alone the European Convention on Human Rights?
As the judge assessed all the circumstances and the nature of the case, we showed above. A rewritten notification of suspicion plus read by me three paragraphs — that’s the whole judicial decision!
A fair trial plays an exceptional role in a democratic society (case De Cubber v Belgium A 86 §30 (1984), the right to justice must be real and effective (case Airey v Ireland A 32 (1979).
If the specific issue of the trial has a role in the outcome of the case, the court must reflect it in making its decision, in case of non-compliance with this requirement, the European Court of Human Rights recognizes a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (case of Ruiz Torija v Spain A 303-A §30 (1994).
The defense will prove and show that during the arrest, the selection of the preventive measure and the conduct of the initial investigative actions, Ukrainian and international law was violated.
Vasily Muravitsky was detained in the hospital, after 16 hours of his wife’s birth, in front of relatives and staff, and only had a glimpse of his newly born son. After his arrest, he was examined at the TMO hospital No.1, where he was diagnosed with bronchitis. But the treatment was not provided!
And they interrogated Muravitsky when he had a fever and the disease was in full swing, and in fact the interrogation is the most important stage that influences the entire future trial. And if you do not defend your rights at this stage, you can lose them forever (Decision of the US Supreme Court in the case of Escobedo v. Illinois, 1964).
What was the SBU’s calculation? To a state of shock, a desire to see his wife and child as soon as possible, to weakness by illness? With Muravitsky they began to conduct investigative actions: interrogation, search and seizure. They offered to write a statement for an exchange, in order to actually break a man, forcing him to make such an imitation of sincere recognition. After all, someone like the SBU does not know the provisions of Article 25 part 2 of the Constitution, that citizens of Ukraine are not subject to expulsion and extradition beyond the borders of Ukraine and another state.
Defender for two days could not get to Muravitsky, on the fact that the SB Zhytomyr City National Police is conducting an investigation of criminal proceedings. The statement about the meeting with the priest was also ignored by the investigation.
Vasily Alexandrovich found the strength to resist, not to break down, not to succumb to persuasion for an early pardon, release and a suspended sentence despite the fact that it is contained in a cell full of bugs and insects measuring 40 sq. m with 12 other prisoners.
Honor and dignity of a person belongs to the highest social values. Everyone has the right to respect for his dignity. No one can be subjected to cruel or degrading treatment (articles 3 ch.1, art.28 part 1-2 of the Constitution). It is prohibited to expose a person to inhuman or degrading treatment during criminal proceedings, to keep a person in degrading conditions (art. 11, part 2 of the Code of Criminal Procedure). No one shall be subjected to torture or inhuman or degrading treatment (Article 3 of the European Convention). Under torture, Strasburg understands «deliberate inhuman treatment, causing very serious and cruel suffering.» The purpose and form of causing these sufferings does not matter (Ireland v UK, 1978). The forms in which inhuman treatment can be expressed are manifold: psychological pressure, detention in very poor conditions, the threat of deportation, and non-provision of medical care (ECHR Kalashnikov v. Russia, 2002, Franko v Finland, 1994). Treatment of a person is considered «degrading» if it causes a «feeling of fear, suffering, inferiority» in the victims of such treatment, which makes them feel humiliated and trampled (Kudla v Poland, No. 30210/96, 92, ECHR 2000-XI).
Here is the face and violation of the basic principles of the convention. Has the investigating judge figured it out? No!!!
The detention and arrest of Muravitsky was accompanied by a powerful information campaign in the press, provoked by the ill-considered actions of the prosecution. SBU, in violation of the secrecy of the investigation (Article 222 of the Code of Criminal Procedure), wanting to disclose and tick off the documents from the criminal proceedings, reported bravely on the capture of a terrorist, separatist and traitor of the Motherland. Media of a certain orientation, having picked up this information, began to hang out labels about the Kremlin agent, the pro-Russian blogger who composed «anti-Ukrainian articles», «Putin’s assistant». The site of the 24th channel gave out the pearl of «Kremlin writer» and «informational mercenary». In general, the standard set of Ukrainian propaganda. SBU did not stop, publishing angry posts on Facebook and being proud that the FSB is ahead of them by the number of political prisoners. Some local journalists connected to the harassment, who are tightly tied to the regime of Yanukovych, and some were shown as assistants of the MPs caught on bribes. Yes, a high-moral «company». There was an impression that the investigative and supervisory agencies had completely lost touch with reality, forgetting that their games on social networks were the fate of a person.
The investigating judge was not at all concerned with the question that, in violation of Article 62 part 1 of the Constitution (presumption of innocence), Muravitsky was declared a criminal throughout the country. But in vain, because the European Court in Strasbourg is very attentive to these kinds of situations.
Article 6 of the European Convention guarantees the right to a fair trial. Everyone accused of a crime is presumed innocent until his guilt is established by law.
How to determine the independence and impartiality of the court? The ECHR provides criteria in the case of «Pullar v. UK.» First, it is necessary to establish that the court was subjectively impartial, that is, none of its members showed any bias or personal interest. Secondly, the court must be objectively impartial, there must be a sufficient number of guarantees to exclude doubts about this. In the case of Barbera, Messegu and Jabaro v. Spain, 1988, 146, Strasbourg found that the principle of the presumption of innocence requires, among other things, that the judges do not start the trial with prejudiced conviction that the defendant committed the crime; The duty of proof is vested in the prosecution and any doubts should be interpreted in favor of the defendant. A fair trial may not be possible with a «fierce campaign in the press against the accused» (X v. Ausria, 1963, Berns and Evert v. Lexemburg, 1991).
Let us then look at the impugned definition. Judge Galasyuk, who had disciplinary action in 2013 (decision of the Higher Disciplinary Commission of Judges No. 2044 / dp-13 of June 20, 2013), now that the so-called » «Judicial reforms» and judges will be appointed by the President with his decree, examines the investigator’s petition in the political affair, during the victorious information campaign begun with the submission of the Security Service. It is worthless to sneak, rewrite its definition, word for word, the position of the prosecution, using wording in the affirmative context about the guilt of my client.
I quoted above the position of the investigating judge and repeat it again. «…an investigating judge, on the basis of the materials provided by the criminal proceedings, is convinced that a milder preventive measure against Muravitsky V.O. will not be sufficient to prevent the risks brought by the investigator and the prosecutor.» You hear? «…brought by the investigator and the prosecutor»! That is, he brought, told, pointed out the possibility, but did not prove it! The investigator and the prosecutor did not prove. Did Judge Galasyuk recognize the requirements of the Criminal Procedure Code and the ECHR? I doubt it!
The investigating judge refuses to examine the petition, if the investigator, the prosecutor DOES NOT PROVE that none of the softer measures can be applied (art. 176, part 3 of the Code of Criminal Procedure). Does not «provides proof», but it WILL prove! Proved to be also possible risks: harboring from the courts and the investigation; concealment of traces of crime; preventing criminal proceedings; the opportunity to commit a new crime (art. 177 part 1 of the Code of Criminal Procedure). Detention is an exceptional measure of restraint, which is applied only if the prosecutor proves that none of the softer measures can prevent the risks listed above (Article 178 part 1 of the CCP). The investigating judge, choosing the measure of restraint, should establish the possibility of pledge (art. 138 part 3 of the Code of Criminal Procedure). The pledge is not determined in cases when the crime was committed with the use of violence or the threat of its use, with respect to a crime that caused someone’s death, in respect of a person who already was prevented by a security measure, but was violated by him (Article 178 part 4 CCP).
The Investigating Judge refers to the fact that the mortgage and house arrest cannot be applied to Muravitsky due to Article 176 part 5 of the Code of Criminal Procedure. But this is not correct from the point of view of the above circumstances and the practice of the ECtHR, to which we referred and will further refer.
Thus, in the definition we see that the prosecutor is not what he did not prove, but did not even bring the risks for the detention of Muravitsky. The investigating judge did not investigate the issue, did not examine the evidence, but enriched the world’s jurisprudence with a unique formulation that would have appealed to the executioners (butchers) in the year 37: «The arguments of the counsel and the suspect on the possibility of electing the last, another milder preventive measure is not supported by evidence». So this is the side of protection, according to Galasyuk, should prove the need to apply a softer measure of restraint?
But ECHR committed a different opinion! Not arrested, but the prosecution’s side must demonstrate evidence that is sufficiently convincing that the arrested person should be detained (Art.5 of the European Convention, case «Iliykov v. Bulgaria», 2001). Concerning the detainee, there must be a reasonable suspicion, i.e. the presence of facts and information, of which an objective observer can conclude that a person commits a crime (Fox, Campbell and Hartley v. UK, 1990). How objective is our investigating judge-observer, we understand from his definition, conclusions and motivations. Without a single proof, attempts to disassemble and decide a lawful and objective decision. In the just cited case, Strasbourg noted that the situation with the fight against terrorism presupposes a specific nature of the work of law enforcement agencies, the availability of only information that a person has become involved in criminal activities is not sufficient grounds for arrest in the understanding of Article 5 of the Convention. There must be a combination of circumstances that give reason to believe that the negative consequences of escaping will be presented to the detainee as a lesser evil than detention (Stongmuller v. Austria, 1969). Dealing with the case of «Clooth v. Belgium, 1991», the ECHR pointed out that unclear, general statements about the possibility of interference by a suspect in the course of the investigation are not enough, strong evidence is needed to confirm the validity of such fears. The length of the investigation is also very important, the longer the investigation lasts, the more convincing arguments should be submitted by the authorities when referring to the possibility of interference of the detainee in the investigation. It is necessary to offer convincing arguments that if the suspect is released before the trial, then he is likely to commit a serious crime, but simply an ungrounded statement about the possibility of committing a crime is not enough («Toth v. Austria»).
SBU and prosecutors say that they have been «following» Muravitsky for two years already. So how can he prevent the investigation, being, let’s say, under house arrest? What serious crime can commit, being under the control of such a powerful intelligence agency? You want to say that in two years 5 investigators, 5 prosecutors and a whole host of investigators could not collect enough material for one journalist?
In the definition of the investigating judge, the above questions, which are minimally required by the ECHR and Ukrainian law, were not investigated. There’s nothing explored at all. No, wait, there’s something else. The investigating judge pointed out that since Muravitsky lives in the region, is married and has a minor son, the circumstances cannot be considered a deterrent not to hide from the investigation. And why did the judge decide this? God only knows — evidence, apparently, after the judicial reform in the court’s definitions are no longer needed.
But even the Supreme Court for Civil and Criminal Cases explained to the courts that the investigating judge should take into account that the investigator, the prosecutor has no right to initiate the application of the preventive measure in the absence of grounds for this under Art. 177 CCP. Therefore, in case of consideration of the relevant application, not supported by the goals and grounds specified in the CCP, the latter should be rejected. The investigating judge, the court must bear in mind that the rationale for applying for a preventive measure in the presence of one or several risks / grounds, determines the possibility of applying one or another of the measures established by the CPC, provides for the prosecutor’s duty to prove the impossibility of applying other, milder measures. In each case of considering an application for a preventive measure, the investigating judge, when deciding on the issue of a preventive measure, except for the presence of risks specified in Article 177 of the Criminal Procedure Code, on the basis of the materials provided by the parties to criminal proceedings, must evaluate all circumstances, with st.178 CPC: the weight of the available evidence of the commission of a criminal offense by a suspect or accused. Thus, the suspicion of the pre-trial investigation of the commission of a criminal offense by the suspect or the accused (paragraph 9, 10 letter No. 511-550 / 0 / 4-13 of 04/04/2013) is subject to establishment. I’m not going to read this information letter completely with explanations, but the definition of the investigative judge Galasyuk goes against every item stated in it and the Court of Appeal it will be easy to be sure of it.
We sum up. The investigation and the prosecutor put forward inadequate and unreasonable suspicions, and the court, not verifying and not fulfilling its duty, took the side of the state prosecution.
Vasily Muravitsky cannot be held in custody, since the incriminated acts did not cause any damage, did not lead to the death of people and property. To approach the case purely formally and mathematically, the ECtHR prohibits us (see the decisions on cases «Bozan v. France», December 18, 1986, p. 60, Series A No. 111, and «Khodorkovsky v. Russia» ( Khodorkovskiy v. Russia), application No. 5829/04, paragraph 142, dated May 31, 2011). Detention as a preventive measure should not only be based on imperative national law, this is not enough, it should be necessary in specific circumstances, which in our case are not proven, not verified by the court and not reflected in the determination of the investigating judge (see decisions on affairs «Neštiak against Slovakia» (<…>), statement No. 65559/01, paragraph 74, dated 27 February 2007, and «Khayredinov v. Ukraine», application No. 38717/04, par. 27-28, dated October 14, 2010).
Dear court, at the moment to the case of Muravitsky riveted a lot of public attention. From yesterday’s «traitor» today he became a symbol of political struggle for freedom of speech and European values.
The international organization Reporters Without Borders (RSF) on August 9, 2017 called for the immediate release of journalists detained in Ukraine, including Vasily Muravitsky. Thus, my authoritative international human rights organization (headquarters in Paris, France, EU), my client is recognized as a political prisoner.
The Committee to Protect Journalists (Headquarters in New York, USA), referring to the case of the blogger Muravitsky, said that Ukraine is pursuing critics and media that are considered anti-patriotic. He also urged the Ukrainian authorities to immediately release Vasily Muravitsky and remove all charges against him.
This case is monitored and is under the control of the OSCE monitoring mission in Ukraine.
The Finnish Union of Journalists is conducting a study of issues related to the arrest and suspicions of Muravitsky, for the report to the Finnish Foreign Minister.
The Court of Appeal today is considering not just a complaint about the measure of restraint. Now the question is solved on which way Ukraine will go, what standards will be at the basis of our justice — revolutionary expediency, political necessity or still human rights!
Defender Vasily Muravitsky, lawyer, Andrei Gozhyi,
city of Zhitomir, August 28, 2017.
