No to Impunity: Hope emerges in the Rafalsky Case
Alexander Rafalsky is serving a life sentence after being arrested in 2001 and allegedly subjected to torture on a number of occasions. The Prosecutor has repeatedly refused to initiate a criminal investigation.
On 24 March 2011 the Supreme Court examined a cassation appeal lodged by Arkady Bushchenko on Mr Rafalsky’s behalf against a decision from the Kyiv Court of Appeal and sent the case back for a new appeal court level examination.
The Kyiv Court of Appeal had, on 27 April 2010, overturned the ruling of the Pechersky District Court in Kyiv which revoked the Decision of the Prosecutor’s Office from 15 September 2001. The Prosecutor had refused to initiate a criminal investigation into Alexander Rafalsky’s allegations that he had been subjected to torture during the criminal investigation against him.
This case highlights several issues which seriously compromise Ukraine’s system of prosecution and justice system. These are listed by Arkady Buschenko as:
- The use of torture to force out a confession and lack of proper investigation into allegations of torture;
- Detention on false grounds, being held in custody without contact with the outside world; a long time taken to bring a person before a judge and the lack of possibility of appeal;
- Violation of the right to call and question witnesses, of the right to proper preparation of ones defence and the use of confessions obtained through the use of torture.
Brief background to the case
On 13 June 2001 Alexander Rafalsky and a woman friend, X, were arrested in an apartment in Kyiv. The police officers did not produce any warrant for their arrest and beat both Mr Rafalsky and Ms X, knocking them to the ground and inflicting several blocks with their fists as well as kicking them. They were then taken to the Central Police Station on Volodymyrska St where they were taken to different offices.
In one of them Rafalsky alleges that he was beaten and kicked for several hours first by three police officers, and then four, in order to force him to sign a confession. He says that he heard moans and crying from Ms X in a room nearby.
The officers’ methods also included suffocation with first a plastic bag, then a gas mask being placed over his head, and pressure exerted around his neck.
Although this continued for many hours and Alexander often lost consciousness, he refused to sign the confession. He was told that the next day they would ring his parents and say that they had found him dead.
By the time he was taken to a temporary holding centre his condition was so bad that the staff there refused to admit him without a doctor having certified his state of health. He was taken to the hospital where doctors refused to provide a certificate of health, saying he needed hospitalization urgently. The police officers however found a doctor willing to put in a few stitches, inject him with painkillers, put some ointment on his bruises and issue the required certificate.
Alexander Rafalsky awoke from acute pain in a cell of the police temporary holding centre. His torture continued with electric shocks also applied.
On 16 June he wrote an application to the Ministry of Internal Affairs [MIA] in Obukhov, asking for medical treatment and giving his parents’ telephone number, requesting that they be informed where he was. The Head of the temporary holding centre simply ripped it up.
During the next two days an ambulance needed to be called twice. The doctor recommended hospitalization but this was ignored.
The torture continued with his condition worsening and several times requiring medical intervention. On 24 June he again asked for his parents to be informed, but was told that the request would be passed to the investigator.
On 25 June officers taking him to another police station stopped in a forest and subjected him to a mock execution.
It was only on 26 June that he was brought before a judge who issued a ruling remanding him in custody. It became clear only later that he had been detained on 14 June as a person suspected of vagrancy, with the document claiming that he had been without ID.
The investigation or lack of such into the use of torture
Rafalsky reported the use of torture and unlawful detention while under questioning by the criminal investigator. On 15 September 2001 the Kyiv Regional Prosecutor refused to initiate a criminal investigation. The document was not given to the claimant thus depriving him of the right to appeal against it.
The list of refusals is long, and only ended on 14 December 2009 when the Pechersky District Court in Kyiv revoked the original Decision from the Prosecutor not to initiate a criminal investigation. As mentioned this was then appealed with the Kyiv Court of Appeal overturning the ruling on 27 January 2010.
Alexander Rafalsky’s lawyers were left with no alternative but to lodge a cassation appeal with the Supreme Court. The Supreme Court’s judgment in this case gives some hope of a lift in this seemingly endless impunity able to crush people’s lives, perpetuating brutality and injustice.
Alexander Rafalsky was sentenced to life imprisonment on 30 July 2004.
From information on the Strategic Litigations website