Torture is a crime against humanity
Is it possible to imagine that even after three years after issuing the verdict on capital punishment the condemned undergo torture? The law-enforcers demand from them to confess to their guilt again.
We, parents, were overwhelmed with the pain and despair when in 1995 our 18-year-old son Boryslav was, on the basis of the falsified case, condemned to death penalty for the murder of Gomonays family. The sensational case was fanned by local mass media, which poured the flow of negative information on our innocent son by the order of law-enforcing organs: militia and prosecutors office. Long before the official accusation was presented and six months before the court the law-enforcing organs, ignoring the presumption of innocence, reported about the “disclosure” of the murder of Gomonays and shared the awards: ranks, two-room flats, money bonuses, etc. The newspaper “Galytchyna” enthusiastically informed about this in the issue of 29 April 1995. During several years the mass media presented the one-sided information; they took the side of the accusation and gave our son and us no opportunity to say truth. Such one-sidedness may be explained by the dependence of mass media on the power and law-enforcing organs.
The Supreme Court rejected or merely ignored our numerous complaints about the violations of the procedural rights of our son and Mikhail Kuznetsov, the second accused in this case. In our complaints we described the torture applied to the both detained during the preliminary investigation. We also pointed out that the proofs of their guilt were absent, such as fingerprints, tracks of footwear, tool of the crime, blood on the clothes. The torture was also applied during the preparation to the investigation experiment, when six butchers made the accused to demonstrate the details of the alleged murder; the punishment for disobedience was immediate and cruel. This training lasted for many hours alternating with beating until the loss of consciousness. Then the arrested were brought round, and the rehearsal continued… We told about the open and absurd juggle with the facts made by the investigation officers. For example, Igor Voroniak, an investigating officer of the town prosecutors office, wrote in the accusation: “Kuznetsov came to Gomonays door and ringed the doorbell until Gomonay opened the door”. This statement is obviously absurd, since all members of the Gomonays family were deaf-and-dumb, and they had no doorbell at all. The number of such juggles and contradictions in this case is enormous.
When we made sure that national courts did not want to reconsider this falsified criminal case and to reverse the illegal verdict (the capital punishment), we turned to the international human rights protecting organizations. On 19 September 1997 we sent to the European Court on human rights the complaint against the violations of the rights of our son and Mikhail Kuznetsov, the rights that are guaranteed by the European Convention on the protection of human rights and fundamental freedoms, first of all, the right for justice. This was the first complaint from Ukraine registered in the European Court.
In 1998 the General Prosecutors office of Ukraine considered our petition and ordered to the prosecutors office of the Ivano-Frankivsk oblast to conduct the investigation of the new circumstances of the criminal case. The oblast prosecutors office passed the case to the Ivano-Frankivsk town prosecutors office, the investigation department of which was headed by Vladimir Voroniak, a younger brother of the investigating officer, who had falsified the case during the preliminary investigation. It is obvious that it was disadvantageous and even dangerous for the prosecutors office to establish truth and to find the real criminals. So, the prosecutors officers did their best to protract the investigation, they muddled the case in every possible way, brutally violating the criminal-procedural laws. At the same time, by the order of the persons interested in the approval of the verdict, tortures were applied to the condemned Poltoratskiy and Kuznetsov, who stayed in preliminary prison No. 12. They were made to confess the crime again, three years after the condemnation! Besides, we learned quite accidentally, that after one of the beatings Kuznetsov was either hanged or driven to suicide. Fortunately, he survived. Yaroslav Pavliuk and Igor Ivashko, the deputies of the prison warden, headed by their boss colonel Petr Yaremkiv, were the most active torturers. Since we had no access to the condemned, we could not obtain the authentic information about what happened in the prison. According to the laws, the meetings must be organized one time per month by the permission of the head of the oblast militia directorate. Yet, the oblast militia authorities wanted to conceal the consequences of torture, so they prohibited me to meet my son during three months. Kuznetsovs mother also was not permitted to visit Mikhail. We turned to Yu. Yurchenko, the oblast prosecutor, and to V. Fedorov, the prosecutor in charge of the control over the observance of laws in penitentiary establishments. We informed these state officers about the torture applied to the condemned, about the arbitrary actions of the officers of the oblast militia directorate, about the prohibition of meetings and asked to conduct the forensic expertise and start the investigation of the facts of torture and the attempt at Kuznetsovs life. Unfortunately, instead of starting the investigation after our complaints, the prosecutors office began to defend the personnel of preliminary prison No. 12. V. Boyan, a deputy of the prosecutor of the Ivano-Frankivsk oblast, refused to conduct the medical expertise, did nothing to protect us from the arbitrary actions of the militia authorities, who prohibited the meetings, did not conduct any investigation of the facts of applying torture. Our complaints, which we sent to the General Prosecutors office of Ukraine and to the President of Ukraine, were directed back to the oblast prosecutors office. Finally we lost the hope to find justice in the motherland, so, we were forced to turn to the European Court on human rights that registered our complaint. Since the case was urgent, we sent our complaint by fax. In a week we got the phone call from Strasbourg, where the European Court is situated, and they told that the case Poltoratskiy vs. Ukraineand Kuznetsov vs. Ukrainewas accepted for consideration in the part of the upkeep regime, and was not accepted in the part of criminal case. They explained to us why they might not accept the criminal case. Since the verdict on both young men had been issued in 1995, when Ukraine had not been a member of the Council of Europe, the Court might not consider the case in this sense. The interested state officials tried to distort the facts and explain the refusal by the fact that the European Court allegedly did not find the grounds for the consideration. Yet, fortunately, the reasons of the refusals were stated in the Decision of the European Commission on human rights of 30 October 1999. We are deeply sure that if the complaint would be accepted as the criminal case, we would also win!
So, the complaint was accepted, and in several days we received by the courier post a letter from Strasbourg. The letter informed that the European Commission on human rights would arrive in Ukraine for the investigation of the case. The letter contained the detailed schedule of the work of the commission, dates and times of the meetings with officials, claimants and their representatives. In spite of this we continued to hope that the prosecutors office of the Ivano-Frankivsk oblast would recollect about the constitutional duties connected with the control of the observance of laws concerning the fulfillment of court decisions on criminal cases, stipulated by item 4 Article 121 of the Constitution of Ukraine. That is why we visited V. Fedorov, the prosecutor in charge of the control of the oblast prosecutors office. Alas, Mr. Fedorov only mocked at us saying the he doubted that the European Commission on human rights would mess around with some criminals: “Do you imagine how many cases they have? Do you really think that they will come here?”
When we understood that Mr. Fedorov has no idea either about his service duties or about the Constitution of Ukraine, we gave up our hopes to find the protection in our own country.
On 22 November 1998 the European Commission on human rights headed by its President Stefan Trexel came to Ukraine for the first time. The members of the commission met with us, parents, with the condemned, interrogated the personnel and administration of Ivano-Frankivsk preliminary prison No. 12: guards, medical staff and a deputy head of the prison. They also negotiated with the representatives of the Ministry of Justice of Ukraine, State penitentiary directorate of Ukraine and the General Prosecutors office of Ukraine. The Commission found out that Ukraine violated Articles 3 (prohibition of torture and humiliation of dignity), 8 (right for the protection of private life and secrecy of correspondence), 9 (freedom of consciousness and belief) of the European Convention on the protection of human rights and fundamental freedoms. Since the representatives of the Commission met the condemned on 24 November 1998, that is more than two months after the torture and hanging of Kuznetsov, they could not find any physical traces of the torture, except the scar on Kuznetsovs neck. On this ground they drew the conclusion that Article 3 of the Convention was not violated. Yet, taking into account that the prosecutors office did not conduct the effective investigation of the facts of torture, the Commission recognized that Article 3 was violated. Besides, the Commission regarded as inhumane the very conditions of the upkeep of the convicts: cold, starvation, absence of daylight and fresh air, opened toilet, complete isolation, etc. In this part Article 3 was also violated. The Commission acknowledged that Article 8 of the Convention was also abused: the prison administration prohibited the correspondence and meetings with relatives. As to Article 9, it was violated too, since the contacts with a priest and the opportunity to confess are very important for those, who were condemned to death penalty. The officials of the Ivano-Frankivsk oblast militia directorate acted inhumanly and godlessly, when they prohibited the meetings with priest. The oblast prosecutors office concealed these violations to cover up the guilty. On 30 October 1999 the European Commission on human rights passed the case to the European Court on human rights for taking the final decision.
On 25 March 2003 the European Court on human rights issued the decision, in which it recognized the violation by Ukraine of Articles 3, 8 and 9 of the European Convention on the protection of human rights and fundamental freedoms and obliged Ukraine to pay the moral compensation equal to 2000 Euro and the material compensation equal to 1000 Euro. On 29 April the decision on the case of Kuznetsov and Poltoratskiy was published on the site of the European Court.
The question of compensation is not the most important for us; we are more disturbed by another question: what will change in the state policy after this decision? Alas, our prognoses are not very optimistic. The state did not draw any moral from this case. Nobody intends to take any measures to punish the guilty. All publications in mass media evidence that the main attention is fixed on the violation of Article 3 of the Convention (inhumane upkeep conditions), and another, in our opinion, the most important conclusion of the European Court, is deliberately ignored: the state could not prove the fact of the effective investigation of the complaints about the application of torture to the claimants.After the decision of the European Court another informational campaign began in the press. The journalists do not turn to us for explanations, and articles are published on the basis of the information picked up from the authorities, who lost the case. For example, Valeria Lutkovskaya, the official in charge of the observance of the European Convention on the protection of human rights and fundamental freedoms, was asked whether anybody would be punished for the violations of the rights of our children. She answered that it was doubtful that the head of preliminary prison No. 12 would be brought to responsibility for the iron shields on the windows, since he did this not by his own will, but by the order of his bosses. This opinion was worded by Valeria Lutkovskaya in her interview in the TV show “My family”. Unfortunately we were not invited to this show. So, we want to present some excerpts from the letter of our son Borislav, in which he expressed his attitude to this problem.
“Now I will say about the responsibility in the connection with the decision of the European Court. Firstly, the essence of problem is not in the upkeep conditions. Secondly, if to say about the iron shields on the windows, Pavliuk and Yaremkiv (the administration of the preliminary prison) did not fulfill the orders of their bosses, as Ms. Lutkovskaya said, since, as far as I know, these bosses ordered to dismount the shields as early as in 1993 (!). (And in Dnepropetrovsk, for instance, such shields were dismounted only in March of 2000). This order was fulfilled only before the visit of the European Commission in 1998. Which orders hampered to do this earlier? And even if some illegal orders were given by some mysterious “bosses”, why these bosses may not be brought to responsibility? Why nobody is responsible for the violation of the secrecy of correspondence? And why the person, who prohibited the visits of the priest, was not punished? Or those, who drove Kuznetsov to suicide?”
We believe that nobody will be punished at all. On the contrary. After the departure of the commission all officials, who took part in the violations of the rights, were advanced. Yu. Pavliuk, a deputy head of preliminary prison No. 12, became its head, and former head of the prison P. Yuaremkiv was appointed a deputy of a department of the State penitentiary directorate of Ukraine and moved to Kyiv. V. Boyan, one of the deputies of the oblast prosecutor, whose service duties included the control over the preliminary prisons, became the first deputy of the prosecutor. V. Fedorov, the prosecutor in charge of the control over the observance of laws in penitentiary establishments, occupies his post until now.
We want to say truth to people: we complained not against the upkeep conditions, not about cold, starvation, absence of TV set, newspapers and magazines, all this is trinket in comparison with tortures that were applied to our children. We complained against the unjust court and torture.
One more question: whether the violations of the rights of the condemned stopped after the decision of the European Court? Alas, the answer is negative again. Now the authorities do their best to conceal the violations, because they do not want to have conflicts with the European human rights protecting institutions. This is the only result.
Now our son is kept in Vinnitsa prison No. 1. The conditions are the same: complete isolation, meetings through glass and in presence of guards, secrecy of all information concerning the life of the prisoners, strict censorship of the correspondence. The head of the Vinnitsa prison violates not only the rights of our son, but also our rights: he illegally seizes the letters and informs us about this without any confusion. We handed the complaint to the Staromiskiy district court of Vinnitsa, but the court took the side of the prison personnel and confirmed that they had the right to seize the letters. This statement was motivated with item 92 of “The instruction on the examination of correspondence of the convicts”… The Appeal court of the Vinnitsa oblast approved the decision of the court of the first instance, in spite of item 1 of Article 92 of the Constitution that reads: “Rights and freedoms of citizens, guarantees of these rights and freedoms, basic duties of citizens are stipulated exclusively by the laws of Ukraine”. So, human rights are stipulated by laws, but not some secret instructions, and we stressed on this provision in our appeal complaint, especially because the confiscated letter was written by us. In fact, the courts gave to the head of the Vinnitsa prison the unlimited right to seize the letters of free (not condemned) citizens. In its decision the European Court draws the attention to the illegal status of various instructions, but we are sure that Ukrainian Themis will acknowledge the advantage of instructions over laws and Constitution for a long time.
It is shameful that we could not find the protection in our own country. Unfortunately, our case is not extraordinary, on the contrary -- it is quite typical. Long time ago the idea appeared to join and to protect our children from repressions without anybodys assistance. The parents, whose children had been condemned to the capital punishment, joined and created the all-Ukrainian public organization “Parents committee “Poriatunok” (“Salvation”)”. On 12 September 2002 the organization was registered with No. 83 by the Ministry of Justice. The goal of the activities of this organization is the protection of constitutional rights of the condemned and the interests of its members.
Who will protect our children from repressions except us, parents?
Larisa and Evgeniy Poltoratskiy, the parents of Borislav Poltoratskiy, a condemned to death penalty