22.03.2013 | Halya Coynash

Well-regulated Unaccountability


The Head of Ukraine’s High Qualification Commission of Judges considers that Ukrainian judges should refer less to European Court of Human Rights judgements. In Ihor Samsin’s view, “when an issue is regulated well in our Constitution and legislation, there’s no need to refer to ECHR judgements.”

It sounds logical. The trouble is that if you read the Constitution and domestic legislation, it’s all apparently regulated with rule of law reigning supreme.

Or a cruel mockery of it as Viktor Zamferesko probably felt when in 2005 he was convicted of murder and sentenced to life imprisonment, On 15 November 2012 the European Court of Human Rights found unanimously that Articles 3 and 6 had been violated over his ill-treatment by the police, lack of any legal assistance and use of evidence obtained through ill-treatment for his conviction.  Since Zamferesko’s confession had been made as the result of ill-treatment, “the use of this confession to obtain the applicant’s conviction automatically rendered the whole criminal proceedings against him unfair.” (71).

You won’t find permission in Ukrainian legislation to beat confessions out of detainees.  On the contrary, there are plenty of words about the inadmissibility of such methods, about checks, the right to lodge complaints, etc.  Zamferesko had not just retracted his “confession” in court but had repeatedly alleged that he had given it because of ill-treatment and psychological pressure.

What turned out to be “well-regulated” was solely the system for fob-offs instead of proper checks and close cooperation between the police, the prosecutor’s office and the court.

 Zanferesko remains in prison. Other judges continue to pay no attention to the dubious nature of the “confessions” which defendants retract in court. The fact that in some cases the behaviour of the presiding judge is also highly questionable does not seem to interest anybody.

Few grounds have been given for expecting reference to ECHR judgements from Judge Minasov who on 14 March was due to issue his verdict in the case of three young men charged with the bomb blast in a Zaporizhya Svyato-Pokrovsk Church on 28 July 2010. Unless of course the extremely abrupt postponement of the hearing until 28 March means that either Minasov or someone else has finally read pertinent ECHR judgements, including the case of Zamferesko v. Ukraine.  Perhaps that somebody is also aware of the new law on the State’s guarantees for implementing court rulings. This envisages the possibility of recouping the cost to the state coffers of the considerable amounts awarded in damages by the Court in Strasbourg to victims of violations of the European Convention.

In the case which Minasov is examining we are talking about three defendants and seven “confessions” which all three retracted as soon as they got proper lawyers and not those passive bodies for the record provided by the investigators. 

 There are serious grounds for fearing that the suspiciously numerous “confessions” were the result of physical and psychological pressure, blackmail and threats. We see that in response to two forensic psychologists from different institutes which confirm the use of excessive psychological pressure, Judge Minasov simply ordered a third which found no such thing. He then refused to call the psychologists in to give evidence and explain why the first two assessments so radically differ from that which he ordered.

We see the same judge not blink an eyelid, let alone ask obvious questions when, two years into the court proceedings the prosecution changed the indictment to remove mention of time, and thus break the three men’s proven alibis.  The list of grounds for at very least careful scrutiny is long.

Yet all we see are a huge number of complaints bounced back and forward and “answered” with fob-offs instead of investigation, and a range of explanations for why this or that person or body cannot “interfere”.

The Human Rights Ombudsperson simply cites Article 17 of the Law on the Human Rights Ombudsperson which states that “The Ombudsperson shall not consider those appeals which are being examined by the courts and shall terminate a review already initiated if the interested party has lodged a law suit statement or complaint to the court”.

The President’s Administration would seem to interpret Ukrainian legislation rather differently. In their reply to a letter from the mother of two of the young men, the head of the relevant department sent the letter on to the Ombudsperson asking her to examine that part which falls within her competence. With respect to the part that doesn’t. i.e. the incomprehensible behaviour of Judge Minasov, the Parliamentary Committee on Justice Matters sent the complaint to the High Qualification Commission of Judges.

The State, as represented by the President, the Human Rights Ombudsperson, the law enforcement bodies, etc has an obligation to defend people from torture, unlawful detention, arbitrary treatment and so forth.  When the issue is one of effective investigation into probable violations, including of the right to a fair trial, reference to a ban on interfering in the work of the court, seems less than convincing. 

It follows therefore that you can only hope for intervention from the Ombudsperson when all legal avenues have been exhausted and an application can already be sent to the European Court of Human Rights.

It seems high time to demonstrate that you don’t have to get to Strasbourg in order to achieve justice. 

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