AUDIENCIA DE FLAGRANCIA COIP 2024

Introduction of the Judicial Hearing

Opening Remarks by Judge Cristina Pilar Valenzuela Rosero

• The session is opened by Judge Cristina Pilar Valenzuela, who introduces herself and her role in the judicial process. She confirms the date and time for the hearing as July 24, 2024, at 21:33.

• The judge requests verification of attendance from all parties involved in the case and checks if recording equipment is functioning properly.

Confirmation of Attendance

• Secretary certifies that all parties are present, including representatives from the Fiscalía General del Estado and defense attorneys for both defendants, Nikolai Ivanov and Aleonushka Natenko.

• A translator for Russian to Spanish, Pablo Silva, is also confirmed to be present to assist with communication during the hearing.

Context of the Case

Declaration of Hearing Installation

• The judge declares that this is a hearing regarding the apprehension of Russian nationals Nikolai Ivanov and Aleonushka Natenko, who are represented by their legal counsel.

Language Comprehension

• Both defendants express limited understanding of Spanish; thus, a translator will provide simultaneous translation throughout the proceedings to ensure comprehension.

Rights and Legal Procedures

Rights Notification

• Defendants are reminded of their right to remain silent or participate in the hearing based on advice from their legal representatives, emphasizing their rights under constitutional law.

Recording Regulations

• It is noted that only authorized recordings can be made during this session as per regulations set forth by the Consejo de la Judicatura (Judiciary Council). Attorneys are reminded to act with good faith and loyalty throughout proceedings.

Prosecution's Presentation

Legal Basis for Apprehension

• Prosecutor Valeria León presents evidence regarding the legality of apprehending Ivanov and Natenko based on police reports indicating suspicious activity at a residence linked to them. She identifies herself with her professional registration number for record purposes.

Evidence Overview

• Key evidence includes:

• A search warrant leading to discovery of cocaine (1 kg) and a firearm during a police raid.

• Various documents supporting claims such as medical evaluations and drug test results showing negative outcomes for other substances.

Conclusion of Prosecution's Argument

Request for Legal Validation

• The prosecution requests that the court declare the legality of apprehension due to adherence to constitutional rights during arrest procedures without any violations reported against either defendant’s physical integrity or rights under Article 77 provisions outlined in Ecuadorian law.

Defense Response Opportunity

• Following this presentation, defendants are given an opportunity to exercise their right to silence or respond through their legal representation before proceeding further in court discussions about potential defenses or counterarguments against charges presented by prosecution.

Legal Proceedings Overview

Defense Argument Presentation

• The defense attorney emphasizes that Nikolai Ivanov's detention was conducted legally, adhering to Article 77 of the Ecuadorian Constitution, which respects his rights as a foreign resident.

• The attorney confirms that Ivanov was informed of the reasons for his detention and his rights in his native language with the assistance of an accredited translator.

• Vanessa Ordoñez, representing another defendant, asserts that her client's detention also complied with legal standards and constitutional rights were respected.

• Both defense attorneys acknowledge the classification of "flagrante delicto" under Article 527 of the Organic Comprehensive Penal Code but clarify that their clients do not admit to committing any crimes.

Court's Resolution on Detention Legality

• The judge acknowledges both sides' arguments regarding the legality of the detentions and confirms adherence to constitutional guarantees for foreign nationals.

• It is noted that defendants signed documentation confirming they understood their rights through a translator and had access to legal counsel during proceedings.

• The court declares the arrests legal due to compliance with constitutional protections and verifies evidence collected during police operations leading to their arrest.

Evidence and Charges Presented by Prosecution

• The prosecution outlines findings from police reports indicating substantial quantities of cocaine (1,000 grams) and a firearm were discovered during a search warrant execution based on anonymous tips about suspicious activities at a residence.

• Details are provided about how law enforcement acted upon information received, leading to timely judicial actions within 24 hours post-arrest.

• Prosecutor Jodaleón Sude León presents foundational elements for charges against Ivanov and Natenko, asserting they were involved in drug trafficking activities.

Evidence and Charges in a Drug Trafficking Case

Discovery of Evidence

• A judicial order led to the search of a residence where 1,000 grams of suspected cocaine hydrochloride and a 9mm firearm were found in the living room.

• The individuals arrested were Salionuchkan Atenko and Nikolay Ivanov, with evidence supporting public prosecution for drug-related offenses.

Investigation Details

• The fiscal file includes various documents: the request for a search warrant (page 9), the warrant itself (page 13), and police report number (page 16).

• Witness statements from police corroborate findings at the scene, including photographs documenting evidence location and items seized.

Forensic Analysis

• Photographs reveal a silver-colored, handcrafted pistol with Cyrillic engravings and a black plastic package containing white powder presumed to be cocaine.

• Preliminary identification tests confirmed the substance as cocaine; it weighed 950 grams net after accounting for packaging.

Legal Proceedings

• The case involves charges against Nikolay Ivanov for illicit trafficking of controlled substances under Ecuadorian law, alongside unauthorized possession of firearms.

• Due to flagrant circumstances, the prosecutor requested a 30-day investigation period per legal guidelines.

Additional Charges and Precautionary Measures

• Alyonushka Natenko is also charged with possession of controlled substances and unauthorized firearm possession.

• The prosecutor sought preventive detention for Nikolay Ivanov based on insufficient economic ties, prior drug-related offenses, and concerns about his flight risk.

Case Discussion on Preventive Detention

Arguments for Preventive Detention

• The prosecution argues that without the presence of the accused, judgment cannot be rendered, risking impunity for a crime punishable by over one year of imprisonment.

• The General Prosecutor's Office believes there is sufficient evidence to justify preventive detention based on rationality, proportionality, and necessity. They emphasize the need for such measures due to the accused's lack of employment and economic activity.

Legal Justifications Presented

• Citing Article 522, Section 6 of the Comprehensive Organic Penal Code, the prosecutor requests preventive detention as the accused is a foreign national with no guarantees of compliance in court proceedings.

• Defense attorney Gustavo Hidalgo challenges the justification for preventive detention, stating that not all legal requirements have been met according to Article 3 regarding its imposition. He notes that while there are elements that could serve as evidence, they were collected during arrest.

Critique of Prosecution's Evidence

• Hidalgo points out that the prosecution has failed to demonstrate through Article 534(3) that non-custodial measures would be insufficient and that preventive detention is necessary to ensure attendance at trial or compliance with penalties.

• He references Resolution 14-2021 from the National Court of Justice which states that preventive detention should be a last resort and closely tied to principles of minimal penal intervention and proportionality concerning restrictions on personal freedom.

Requirements for Preventive Detention

• The defense emphasizes that it is up to the prosecution to prove procedural risks and show why alternative measures are inadequate before imposing preventive detention. The defendant should not have to justify their ties or roots in order to avoid such measures.

• Documents presented by Hidalgo include birth certificates proving familial ties in Ecuador, demonstrating responsibility towards his children as a means to argue against flight risk. This includes contracts showing stable housing arrangements and active economic engagement through business activities in electronics sales.

Conclusion on Risk Assessment

• The defense concludes by asserting that since no substantial risk has been demonstrated regarding potential evasion from judicial processes or justifying preventive detention solely based on previous judicial issues or nationality is inappropriate under current legal standards. Thus, they argue against its necessity in this case.

Justification for Preventive Detention

Arguments Against Preventive Detention

• The speaker argues that individuals should not be judged based on their judicial past or nationality, advocating for the dismissal of the prosecution's request for preventive detention.

• Instead, they propose alternative measures as outlined in Article 522 of the Código Orgánico Integral Penal, including periodic presentations before designated authorities and a prohibition on leaving the country.

Presentation of Evidence

• Dr. Vanessa Ordóñez presents on behalf of Anoushka Natenka, highlighting her client's state of shock during arrest and failure to inform police about her lactation period.

• Documents are submitted to justify the defendant's ties to the community, including a birth certificate for her two-month-old son and medical evidence confirming she is actively breastfeeding.

Legal Considerations

• Reference is made to Article 537 of COIV regarding special cases for preventive detention; however, it is argued that this does not apply due to provisions in Article 11 of the Código Orgánico de la Niñez y Adolescencia concerning children's rights.

• The speaker emphasizes that their client has two children—Luca Ivanov (7 years old) and Michael Ivanov (2 months old)—and is solely responsible for their care.

Request for Alternative Measures

• The speaker requests substitute measures instead of preventive detention due to the needs of both minor children who require maternal care and regular medical attention.

• They reiterate that Articles 522’s provisions should be applied: prohibiting travel outside the country and requiring regular check-ins with judicial authorities.

Criminal Charges Against Nikolay Ivanov and Leonor Shkanatenko

Overview of Charges

• The judge notes that charges have been initiated against Russian nationals Nikolay Ivanov and Leonor Shkanatenko under Article 220 No. 1 related to drug trafficking, carrying severe penalties ranging from 19 to 22 years imprisonment.

Evidence Presented

• Evidence includes a police raid at their residence where one kilogram of cocaine was found along with firearms without legal justification or authorization.

Judicial Decisions

• The judge announces notifications regarding the initiation of fiscal instruction against both defendants while considering medical evaluations presented by defense counsel indicating psychological distress experienced by Ms. Shkanatenko during arrest.

Legal Considerations in Child Welfare Cases

Context of the Case

• The individuals involved were not present at the scene due to being with their nanny at a different residence, which is relevant under Article 537 of the COIP.

• Preventive detention can be substituted with house arrest and electronic monitoring for women within 90 days post-partum; however, this case does not allow for such alternatives.

Health and Rights of the Newborn

• The newborn's medical history indicates prematurity, necessitating regular check-ups that house arrest would hinder, impacting both children’s rights.

• The principle of the "best interests of the child" is emphasized as intrinsic to human rights and has constitutional backing.

Constitutional Protections

• The Constitutional Court has affirmed special protections for children in various rulings, notably in ruling 2691 18EP/21.

• Article 44 of the Constitution states children's rights take precedence over others, supported by international treaties like the American Convention on Human Rights.

Legal Framework for Child Rights

• Definitions from international law clarify that a child is anyone under 18 unless legally recognized as an adult earlier.

• Ecuadorian legislation (Article 11 of the Organic Code for Children and Adolescents) mandates authorities to ensure effective exercise of children's rights.

Balancing Rights and Responsibilities

• Assessing children's best interests requires balancing their rights with responsibilities to promote their development effectively.

Judicial Decisions on Child Welfare

• The Constitutional Court's decisions reinforce that all authorities must align actions with children's best interests based on dignity and developmental needs.

Conclusion on Measures Taken

• In light of these considerations, it was determined that alternative measures should prioritize the well-being of both children involved.

• Aniushka Natenko will be released under periodic reporting requirements instead of preventive detention while ensuring her role as primary caregiver remains intact.

Analysis on Nikolay Ivanov's Case

• A thorough analysis will follow regarding preventive detention requests against Nikolay Ivanov based on established legal criteria outlined in Article 534.

Evidence Assessment

• Sufficient evidence exists regarding two alleged crimes based on prosecutor claims; police testimonies suggest potential co-authorship by defendants.

Risk Evaluation

• Concerns arise about enforcing non-custodial measures like travel bans or periodic reporting due to lack of state control mechanisms.

Limitations on Alternatives

• House arrest conditions are deemed unsuitable for Ivanov; electronic monitoring devices are unavailable within penitentiary services.

Investigation and Preventive Detention

Context of the Legal Proceedings

• The prosecutor emphasizes that the requested measure is essential to ensure the defendant's presence throughout all stages of the criminal process.

• It is noted that upon police arrival, Mr. Ivánov attempted to flee through a terrace access, indicating a lack of cooperation with law enforcement.

• The defense presented rental contracts as justification for his residence; however, these documents lacked proper signatures and legal validation.

• There is insufficient evidence from internal revenue services to confirm ongoing commercial activities or employment contracts supporting his claim for residency.

• The judge concludes that preventive detention is warranted due to the severity of potential penalties exceeding one year for the pursued crimes.