In representing Mr Ihor Kolomoisky, I express my deep concern about the trials I witnessed during the hearings held in the Ukrainian courts in Kyiv in February 2024. Mr Kolomoisky has been unjustly detained in a Kyiv prison for over six months (and now his arrest has been extended for another 60 days!) as a mere suspect, and this situation raises concerns about respect for human rights and due process of law in Ukrainian courts.
I have been asked to provide my opinion on a request to extend the detention of Mr Ihor Kolomoisky, who has been in custody for six months on suspicion of various economic crimes for the needs of the investigation, without a decision on charges,due to the lack of a sufficient evidentiary basis for such a decision at this time. The investigation is ongoing and Mr Kolomoisky has been in custody for over six months, with no end to his detention in sight in the near future. On the contrary, the prosecution has recently requested at least an additional 6 months (!) to continue the investigation, and no one can predict how long it will last and when it will end. All this time, the prosecution has been insisting that Mr Kolomoisky remain in prison. I'm sorry, but this makes no sense.
I came with high hopes of contributing to the administration of justice in Ukraine's respected courts. I was very disappointed. I came to shed light on the principles of the law of detention. The right to be free from arbitrary detention is fundamental in various democratic states and international legal systems with a heritage of respect for human rights (whether continental or common law).
For example, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights recognise these rights. In Israel, the right to freedom from arrest is considered a fundamental right, as stated in Section 5 of the Basic Law: "Human Dignity and Freedom". The Canadian Charter and the Constitution of South Africa similarly establish freedom from arbitrary detention or imprisonment and the right to a fair trial.
In the United States, the Fourth Amendment requires "probable cause" for an arrest, which provides a reasonable basis for the detainee's alleged offence.
Arrests may not be made solely for investigative purposes, but must be based on a perceived danger or suspicion of flight.
Similarly, in Germany and France, the guidelines of the European Court of Human Rights require strong evidence of guilt even in the initial stages of an investigation, emphasising the principle of presumption of innocence and proportionality.
Detention in Israel, especially in cases of economic crimes, is seen as a measure of last resort and should not be used as the main investigative tool. The practice limits the duration of pre-charge detention, which typically lasts only a few days to a few weeks, but certainly not 6 months, emphasising the prohibition of prolonged detention without charge.
What all these enlightened legal systems have in common is the need to seek the truth without compromising the fundamental rights of detainees, especially the right to dignity, liberty and due process. The purpose of detention is never to punish a detainee, who is presumed innocent until proven guilty beyond a reasonable doubt, especially when it is not even clear whether charges will be brought in the absence of sufficient evidence to support his or her guilt.
Furthermore, common to these legal systems is the need to always look for a realistic alternative to detention, as being kept behind bars and walls is always the worst alternative, especially for a person who has not been charged or may be acquitted in the end.When the duration of detention increases and the investigation shows no signs of ending (as in this case), the likelihood of continuing to use punitive measures in the form of detention decreases, which increases the need to find alternatives to detention. There are no obstacles to continuing the investigation if the relevant authorities wish to do so, but it is extremely unwise, as already noted, to keep an innocent person in punitive detention for many months, even without charges, without sufficient evidence to prove guilt.
In addition, the bail amount set by the court in our case is extremely excessive to the extent that it is virtually tantamount to a denial of release under the circumstances.
This is a de facto decision by the courts in Ukraine to arrest Mr Kolomoisky for a very long period of time without trial. Israeli jurisprudence, as well as the Eighth Amendment to the US Constitution and other democratic legal systems, prohibits excessive bail that would prevent release. Excessive bail actually serves the purpose of unlawful detention, violating a suspect's right to liberty and presumption of innocence. The setting of astronomically high bail in excess of $60 million is de facto detention under the guise of unrealistic bail conditions. Under international human rights law, the imposition of excessive bail is unconstitutional.
There are numerous and varied alternatives to detention. For example, restrictions on movement, confinement to certain places, prohibition of contact with certain persons, appointment of supervisors (many of whom in our case had good reputations and were qualified supervisors), reporting to the police station at certain intervals, reporting to the police, depositing and inventorying financial guarantees and obligations from third parties, wearing an electronic ankle bracelet, surrendering a passport, being banned from leaving the country, etc. are all different alternatives. There is no doubt that in our case, this is the only reasonable way out of a protracted investigation when no one can say when it will end and what will come of it. Any other decision, and especially the decision to keep Mr Kolomoisky in custody for 6 months to investigate economic suspicions (and extend his arrest for another 60 days) made by the Ukrainian courts is extremely unreasonable. In my opinion, such a decision could not have been made in any other democratic legal system that respects human rights and due process, especially the presumption of innocence.
In accordance with the rule of law and justice, Mr Kolomoisky should be released from detention immediately.
Avihai Mandelblit, defence counsel of Igor Kolomoisky in the criminal proceedings investigated by the Bureau of Economic Security of Ukraine
