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05.12.2009 | V.Batsunov, Y.Zakharov

The Supreme Court: Not all yet, I’ll begin from the end …

   

“And if Kirpich is a criminal he should be in prison, and nobody cares how I get him there. People only care that a criminal is in prison, that’s what interests them”  This quote, spoken by Capitan Zheglov, from a well-known book by the Vainer Brothers was later voiced in Govorukhin’s film “Meeting place cannot be changed” and popular with several generations of television viewers who basically shared that view. It is sad and frustrating, and even sadder when one thinks that it is not only criminals who suffer and that anyone can be called a criminal. We know that entirely innocent people can be serve sentences for crimes they didn’t commit.

The case of the “Polohivsk maniac” Tkach

At least ten people were convicted of crimes in fact committed by this monster. Law enforcement officers obtained confessions in one or other unlawful way, applying violence. One person served ten years, two others got 15 years, with one who was in the eighth grade at school being arrested during school hours and convicted of killing his cousin. A father, accused of murdering his own daughter, hanged himself in the cell of the Dnipropetrovsk SIZO [investigative isolation unit]. One young man was released from a psychiatric hospital, while another person, who had served 15 years for a murder he didn’t commit and died after his release, was posthumously rehabilitated.

How many other innocent people are behind bars in Ukraine?  Fortunately the death penalty has been abolished.

We can examine some other telling cases.

The case of Stanislav Lutsenko

Stanislav Lutsenko from Makiyivka was arrested in 1995 on suspicion of murder. The charges were on the basis of testimony given by a person he knew, N.L. who had supposedly hired him to carry out the crime. N.L. gave testimony without consulting a lawyer and was charged with incitement to murder, and after this retracted his testimony and denied any involvement by either himself or Lutskenko in the murder. N.L. complained to the Prosecutor that the police officers who had interrogated him put him under severe psychological pressure, including threatening to charge him with a crime which would result in the death penalty, to beat and rape him, and also harm his wife and daughter if he refused to testify against Lutsenko as murderer. He also alleged that two strangers had attacked him on the street and told him to confess to being complicit in murder if he wanted to protect his family from serious unpleasantness. The case against Lutsenko and N.L. was submitted for examination to the Donetsk Regional Court.  The prosecution claimed that Lutsenko had committed murder for gain. In May 1996 the Court sent the case back for additional investigation, considering that the facts of the case had not been fully proven, and that there was insufficient evidence of the defendants’ involvement in the indicted crime. In December of that year the same Donetsk Regional Court acquitted the defendants, stating that the numerous arguments of the prosecution were not substantiated by anything except the initial confession by N.L. which he had later retracted as given under pressure. Lutsenko was freed, soon left Ukraine and settled in Uzbekistan.

In June 1997 the Donetsk Regional Court declared him on the wanted list. Lutsenko asserted that he had known nothing about this and had not been in hiding. He had a home, work, had married and had a child, and had received a driving licence under his own name. The Supreme Court allowed the prosecution’s cassation appeal and sent the case for new examination by the Donetsk Regional Court. Then in 2002 Lutsenko approached the Ukrainian authorities to renew his passport and was detained and placed in custody in Ukraine. In October 2003 the Donetsk Regional Court of Appeal (the former regional court) agreed with the prosecution’s version, formulated in 1996, and found Lutsenko guilty of murder for gain. This was thus on the basis of N.L.’s testimony which had been given under pressure.   Lutsenko and his lawyer lodged cassation appeals, however the Supreme Court upheld the October 2003 sentence. The Supreme Court found no justification in Lutsenko’s claim that N.L. had falsely accused himself and Lutsenko under physical pressure exerted by the police. In August 2004 Lutsenko lodged an application with the European Court of Human Rights in which he asserted that his conviction had been in breach of the right to a fair trial (Article 6 § 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms). The European Court found that there had been a violation of Article 6 § 1 and pointed out that Article 10 of Ukraine’s Law “On the enforcement of judgments and application of European Court of Human Rights case law” envisages that a court examination must be reinitiated if the European Court finds that there has been an infringement of the Convention. At present Lutsenko is awaiting review of his case by the Supreme Court.

The case of Oleksandr Yaremenko

Oleksandr Yaremenko has already had such a review of his case.  He was arrested in January 2001 on suspicion of the murder of taxi driver M., as well as other crimes. Several days later he was interrogated by a police officer investigating the murder of taxi driver X in 1998. That crime had been qualified under Article 101 § 3 of the Criminal Code as inflicting severe bodily injuries leading to the death of the victim. This article does not stipulate mandatory presence of a lawyer during interrogation (in the case file there is a document asserting that Yaremenko had himself turned down the services of a lawyer). Yaremenko made a confession, stating that together with S. in the summer of 1998 he had killed taxi driver X.  The case was then reclassified as “murder with aggravating circumstances”, however later in the presence of his lawyer Yaremenko retracted his confession, saying that it had been given under duress. After this the lawyer was removed with the explanation that he supposedly “impeded his client from confessing to a crime”. In November 2001 the Kyiv Court of Appeal sentenced Yaremenko to life imprisonment. His attempts to find justice in domestic courts were fruitless and he turned to the European Court of Human Rights. Yaremenko claimed that he had been subjected to ill-treatment while in police custody and that his complaints had not been properly examined. He also complained that he had been deprived of assistance from a lawyer of his choosing throughout part of the investigation and that this infringement had resulted in an unfair trial.

Yaremenko won his case at the European Court of Human Rights. The Court was unimpressed by the trick of the investigators in changing the charge, as well as by the interrogation of Yaremenko without a lawyer, finding this a flagrant infringement of the right to defence, especially since Ukrainian legislation makes the participation of defence counsel mandatory in cases where the possible sentence carried the death sentence (later life imprisonment). The authorities, by manipulating the charge, had justified Yaremenko’s (supposedly voluntary) rejection of a defender. The European Court found that Yaremenko’s allegations of ill-treatment had not been properly examined. The Court took into consideration his statements that the testimony had been obtained by unlawful means and judged that its use in a judicial examination violated his right to remain silent which safeguards the justice of the trial. The Court also noted that the lack of any discrepancies and inconsistencies in the detailed testimony given by Yaremenko and the other accused S. regarding the circumstances of the 1998 killing led it to surmise that this testimony had been well coordinated and received against the will of the accused.  The Court found that there had been a violation of Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant’s allegations that he was ill-treated by the police and prosecutors, and of Article 6 § 1 of the Convention.

            This summer Ukraine’s Supreme Court, in re-examining the case, effectively ignored the European Court of Human Rights’ judgment. It ordered that all reference to evidence received unlawfully be removed from the court rulings, but left the actual rulings unchanged. Nobody had expected such a judgment from the Supreme Court since it would have been most logical and sensible to return the case for new judicial examination. We have seen a brazen sabotaging of a European Court judgment which to put it mildly does not improve Ukraine’s image on the international stage. What possessed the Supreme Court to behave in this manner. It had a wonderful opportunity to make a huge step towards significantly improving criminal proceedings in general by implementing the European Court’s judgment in the case of Yaremenko v. Ukraine. And now this will be seen by lower instance bodies: the police, the Prosecutor’s office, the courts as overt encouragement of torture and violation of the right to a fair trial, as a sign to go on as before..

            The situation in the law enforcement bodies has not changed significantly. Confessions obtained by means of unlawful violence, physical or psychological, are used as proof of guilt and the passing of verdicts on the basis of dubious evidence a common situation. A sociological survey of unlawful violence in the Internal Affairs structures carried out in 2009 by the Kharkiv Institute for Social Research and the Kharkiv Human Rights Protection Group found that there were more than 600 thousand victims of physical violence during criminal investigations each year. It is clear that the criminal justice system requires serious change, however that is a separate discussion.

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