Ukrainian courts in no hurry to correct their mistakes



Ukraine does not have a mechanism for reviewing the cases of life prisoners.  Their only chance of proving a miscarriage of justice remains the European Court of Human Rights.   Ukrainians make up one of the five largest groups of applicants to the Court in Strasbourg.

The European Court of Human Rights judgment in the case of Zamferesko v. Ukraine came into force on 15 February 2013, after the Ukrainian government failed to appeal.

The Court on 15 November had found unanimously that there had been a violation of Article 3 of the European Convention on Human Rights (prohibition of torture) on account of Zamferesko’s ill-treatment at the police station; a violation of Article 6 §§ 1 and 3 (c)  on account of the absence of legal assistance as from the first questioning; and of Article 6 § 1  on account of the use of evidence obtained through ill-treatment for the applicant’s conviction.  The Court awarded the applicant 11, 253 EUR.

Viktor Zamferesko was sentenced to life for robbery and a double murder in 2005.

The Court at the same time issued judgements in 11 other cases involving allegations of violations of their rights by Ukrainian law enforcement bodies.

In the case of Viktor Zamferesko, he Court found: (71) “ that the confession of 9 April 2005 was made by the applicant as a result of ill-treatment prohibited by Article 3 of the Convention. Accordingly, the use of this confession to obtain the applicant’s conviction automatically rendered the whole criminal proceedings against him unfair.”

The case therefore needs to be reviewed.

Zamferesko’s lawyer Iryna Boikova told Deutsche Welle that there is a chance, but that it remains unclear how the Supreme Court will decide. She says that she has had bad experience where despite a European Court of Human Rights judgement, the Supreme Court has still rejected an application to review a case. They are loath to change judgements, partly for financial reasons since this can lead to considerable amounts due in compensation. “And then there’s the liability of the judges for wrongful judgements, unlawful actions by the investigators and Prosecutor”.

Oleksandr Bukalov, Head of Donetsk Memorial, says that the situation is unequivocal.  If the prisoner’s rights were violated, especially if a confession was beaten out of him, his case must be reviewed.  He adds that the Justice Ministry is obliged to apply to the court to establish whether Ukraine lost the case through the fault of specific individuals.

He notes that the Justice Ministry is in no hurry to follow this norm.

There are a large number of such cases.  Andriy Didenko from the Kharkiv Human Rights Group says that there are at least 10 cases which have gained publicity due to dubious sentences.

He adds that the new Criminal Procedure Code has flaws specifically as concerns review in the case of life prisoners. He believes that amendments are needed, and that the Supreme Court’s authority to review cases according to certain procedure, on the basis for example, of an application from the prisoner, must be reinstated.

Since not all life prisoners have the lawyers, or the legal knowledge, to prepare such applications, Andriy Didenko stresses the need for legal aid and changes to the law so that life prisoners can use it.

At present without a European Court of Human Rights judgement, the only possibility for getting a case reviewed is if new circumstances arise, yet these need to be established by a court. Furthermore, he adds, the case will be reviewed by the same court which issued the wrongful sentence.  The chances of getting a review in this way are thus infinitesimal. 

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