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19.06.2013

Ivan Nechiporuk acquitted after almost 8 years imprisonment

   

Arkady Bushchenko

Ivan Nechiporuk spent almost 8 years behind bars for a crime he didn’t commit. The only evidence against him was 5 “confessions” which the European Court of Human Rights found to have been beaten out of him through the use of torture.

Another suspect – Oleksandr Motsnyy – was charged with the same crime, and again with the only evidence being a confession obtained by means of torture.

After the European Court of Human Rights judgment, Nechiporuk’s case was reviewed and he was acquitted. He is now a free man.

Yet who should answer for the fact that an innocent man was put behind bars? I asked this question of Arkady Bushchenko, , Executive Director of the Ukrainian Helsinki Human Rights Union and the lawyer who represented Nechiporuk at the European Court of Human Rights.

Arkady, are you aware of any of those who tortured Nechiporuk having faced punishment after the European Court of Human Rights judgement?

I don’t know of any of the police officers who tortured Nechiporuk having been held to answer. On the contrary, as far as I’m aware, they made a pretty successful career for themselves.

Is it possible now to bring them to account?

Yes.  The Prosecutor’s Office should do what it hasn’t done up till now – begin an investigation into this case (there is a very large amount of evidence). The fact that Nechiporuk was subjected to torture was recognized by the European Court of Human Rights. There is only one not very difficult task outstanding  - to establish who actually did it.  The number of people who could have been responsible is not great. Furthermore, Nechiporuk gives specific first and last names. It all therefore depends on the will of the Prosecutor’s Office and basic skills in carrying out an investigation.  This would take a month.  And Ukraine has an international obligation to punish those guilty of torture.

What would this accountability entail?

The Prosecutor’s Office should pass the case to the court and seek the conviction of those police officers.

What about the prosecutors who on the basis of a confession got a conviction? Should they also face liability and who should deal with that?

That’s what the Prosecutor General’s Office is for.  The case after all is major enough for the Prosecutor General’s Office to deal with the investigation. It’s very likely that there will be grounds for bringing  charges against prosecutors who did not investigate this case for abetting the crime.

What about the appellate court judges who sentenced him to 15 years, and of the Supreme Court who upheld the sentence? Can they hide behind judicial errors?

With the judges it’s more difficult. They can indeed hide behind judicial error, although in fact they simply used evidence that should not have been used.  The fact that the European Court found that inadmissible evidence had been used is nothing new for our legal system. It wasn’t possible according to the law as it stood at that time. Our judges simply applied all kinds of logical acrobatics to close their eyes to the fact that the evidence obtained with the use of torture had formed the basis of the sentence. I’d also like to point out that there was an acquittal in this case. Unfortunately, the courageous judge who issued it did not live to see Nechiporuk released.

What about Motsnyy who did not apply to the European Court?  What will happen in his case?  What do the authorities have to do regarding him in order to restore justice?

Unfortunately in this case nobody is obliged to do anything for Motsnyy.  It depends entirely on his position. He has serious grounds for seeking a review of his case in view of new circumstances because of Nechiporuk’s acquittal (I will hope that the acquittal will come into effect).  For some reason he did not take the opportunity to apply to the European Court. 

It is indeed illogical that Nechiporuk is free, and Motsnyy who was convicted of the same crime is in prison. When, after the European Court judgement there was a review of Nechiporuk’s case in the Supreme Court, one of the judges issued a separate opinion explaining why in such a case the sentence passed on Motsnyy should also be revoked. Unfortunately the judge was in the minority.

What about material compensation for Nechiporuk for the seven and a half years in prison?  What could this be?

He can indeed demand such compensation. It’s hard to say what the amount might be. Our judges are not very eager to award such compensation. However from what I know there is a person in Kharkiv who served 6 years on a charge of murder, was then acquitted, and received 1 million UAH in compensation. That was a record amount.  

So Nechiporuk could seek a larger amount? He spent longer inside?

Exactly

If he applies for compensation will we taxpayers pay for this?

I think that we will pay from our pockets. Although, if the Prosecutor General’s Office looks seriously at this case, it should extract the money from those bodies which caused the expenditure. The State Treasury could also do this. However you can’t find those responsible in all cases, and I doubt if you could get the money from judges.

So can we say that the longer Motsnyy is kept in prison the greater will be the compensation if he’s released?  And again at our expense?

Absolutely!

The interviewer was Maryna Hovorukhina

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