Institution of criminal case against a member of «Pora!» in Chernigiv was illegal
On 26 November, after consideration of the appeal, the court cancelled the decision of an investigating officer on institution of criminal case against Oleksandr Lomaka, born in 1984, a member of the public campaign «Pora!». O. Lomaka was detained on 20 October in Chernigiv for the illegal storage of explosives (part 1 of Article 263 of the Criminal Code of Ukraine). At first he was detained for 2 hours, and then for 10 days. The decision of the investigating officer was cancelled because of insufficient amount of information confirming the connection of the accused with the crime. So, it was acknowledged that the criminal case had been instituted without ample grounds. Human rights protectors considered this case as persecution for the expression of political views.
We want to remind that, during the search in Oleksandrs dwelling, a substance was found, which, according to experts conclusion No. 37 (Вт), was an explosive – trinitrotoluol, as well as a piece of cord, which was a detonator.
Yet, the appeal complaint of advocate A. Gerasymiv reads: «Although this substance was found in O. Lomakas dwelling, this does not confirm his connection with storage of the mentioned substance. One more person lives in this flat. The mentioned substance was found not among the personal belongings of Lomaka, but in a hiding-place under the gas-stove, and no fingerprints of the accused were disclosed on the seized things».
«Moreover», the advocate pointed out, «by the time of the search Lomaka rented the flat for a month, and the owners of the flat also had the access to the flat, as well as the workers of real estate agency, who helped to organize the rent, and other persons, whose connection to this crime was not checked by the investigation».
Another essential fact, which allowed to cancel the decision of the investigating officer on institution of the criminal case, was that «according to Article 130 part 2 of the CPC of Ukraine, the resolution on institution of a criminal case must contain information about the place and time of its composition, the rank of the person that issues the resolution, his/her name, the case that is investigated, substantiation of the decision and the legal norm, on the basis of which the decision is taken».
Advocate Gerasymiv pointed out that such data were absent in the resolution of 20 October, which evidenced its illegality. The search in the flat of O. Lomaka was illegal too: it was carried out at night, contrary to the demands of Article 180 of the CPC of Ukraine, and O. Lomakos demands to guarantee the protection of his rights and to render him an advocate were not satisfied, which violated Articles 59 and 62 of the Constitution of Ukraine, as well as Articles 44, 47 and 43-1 of the CPC of Ukraine.
The protection of Oleksandr Lomaka was realized by advocate Arseniy Gerasymiv, who worked with the support of the Foundation for legal aid to the victims of violations of human rights of the Ukrainian Helsinki union of human rights.