Nechiporuk, Motsny and their torturers


Yury Lukanov has investigated a notorious case in which one man – Ivan Nechiporuk - was released after 8 years only after the case when to the European Court of Human Rights and where his supposed accomplice remains in prison. He shows how a whole system from ordinary investigator to first Deputy President of the Supreme Court was involved in the miscarriage of justice

In March 2004 two masked men killed a Khmelnytski woman and the investigators decided that the culprits were 22-year-old Ivan Nechiporuk and 25-year-old Oleksandr Motsny.

The investigators claimed that Nechiporuk’s wife who worked at the Iskrytskys’ factory had told her husband that Oleksandr Iskrytsky was going on a business trip, leaving his wife and 25-year-old son in the home alone.  Nechiporuk had supposedly persuaded Motsny, and they went there to rob the house.

Lukanov writes that the strangest thing was how the investigators got the idea that the two young men were guilty.  At the end of that month, the son of the murdered woman who had supposedly opened the door to the two masked men and been attacked by them was driving along the road and saw the two young men, the husband of a woman who worked in the family’s factory and Motsny who’d studied at the same school as a relative of his. The two young men were standing and talking.  In court Iskrytsky said that some sixth sense had worked, and he went to the police.

Nechiporuk and Motsny were arrested for suspicious behaviour.

Nechiporuk’s suspicious behaviour, police officer Dmytro Martsenyuk said in court, was that before his arrest he called a lift, got in and then got out again.

Lukanov begins his article by noting that the Iskrytsky family are claiming that Nechiporuk was acquitted wrongly.

From the ECHR report:

“Mr Nechiporuk was apprehended by the police on 20 May 2004 and placed in “administrative detention” in a police station on suspicion of illegal drug possession. A written note by one of the arresting officers explained his arrest with his suspicious behaviour in the street. His relatives were not informed of his whereabouts. During the first night of his arrest, Mr Nechiporuk, according to his submissions, was urged by two police officers under threat of violence, to confess to the murder of a woman who had been shot by armed intruders at the door of her flat in Khmelnytskyy one week before his arrest. After he refused to confess, he was handcuffed, suspended from a metal bar and given electric shocks to his ankles and coccyx. The officers further beat him up and threatened to give his eight-month pregnant wife, who was also in custody to be questioned, the same treatment. Mr Nechiporuk then wrote a confession, allegedly under dictation from a police officer, stating that he had committed the murder together with another person.”

Motsny and Nechiporuk say that they were tortured by three officers: Viacheslav Mostovy; Ihor Vesna; and Dmytro Martsenyuk.

The forensic expert Serhiy Dunayevsky found various cuts and bruises, however said that it was questionable whether electric shocks had been applied, as the men alleged, to their genitals. He also failed to notice Motsny’s beaten head.

During that first trial, however, the judge noticed and an independent examination was called. That corroborated the allegations made by the two men. It confirmed that a light electric shock had been applied to their genitals.

The only evidence against Nechiporuk was 5 “confessions” which the European Court of Human Rights found to have been beaten out of him through the use of torture.  Motsny gave three confessions in all.

Lukanov writes about some of the gaps in the investigation.  Although the police found that three beds had been slept in, they do not appear to have ascertained why. There were a number of strange aspects in Iskrytsky’s behaviour, for example, he asked the neighbours to call an ambulance for his mother but did not ring the police.

He was in fact initially treated as a suspect.

Lawyer Halyna Berehova asserts that the investigator Ruslan Sydelnykov actually found out who committed the crime.

There were a number of other questions which the investigators did not raise.

During the first medical examination, no injuries were found on the victim’s son who was supposed to have been fighting the intruders when his mother ran out and was shot.  A forensic expert – Serhiy Khiblen – found injuries only several days later when the investigators changed his status from suspect to victim.  The fact that Khiblen was not qualified to examine live people, not bodies, was also not taken into account.

Lukanov mentions also that the investigators were seen to be travelling in the Iskrytskys’ car.

Acquitted then imprisoned

The Khmelnytsky City District Court acquitted the two young men.  According to human rights worker Tetyana Yablonska, the case was so full of holes that it would have been impossible to act otherwise.

The court also passed a separate ruling pointing out that the investigators had committed a number of unlawful acts and drawing the Prosecutor’s attention to the inadequate forensic examination.

And that, Lukyanov writes, was when bizarre things began happening. He says that it seemed as though the courts were prepared to satisfy any of the Iskrytskys’ whims. The latter appealed against the ruling.

Ivan Nechiporuk applied to the Supreme Court asking that the trial be held in a different oblast since the head of the Khmelnytski Regional Court was a relative of the Iskrytskys.

The European Court of Human Rights noted the contradictory rulings passed by the Deputy Head of the Supreme Court, Petro Pylypchuk, who refused Nechiporuk but allowed an application from the victims.  The Ternopil Regional Court of Appeal sent the case back for a new trial.

There were a number of further stages which were fully outlined in the ECHR judgement which can be read here #{"itemid":["001-104613"]}

Lukanov describes how the victims kept making applications which Pylypchuk allowed, sending the case back again to the Ternopol Regional Court of Appeal.

It was judge of that court Olha Demchenko who sentenced both Motsny and Nechiporuk to 15 years.  Lawyer Halyna Berehova believes the protocol was falsified.

Yet the Supreme Court under presiding judge Mykola Morozov found no grounds to overturn the ruling.

Motsny did not apply to the European Court of Human Rights and remains in prison despite a damning judgement from the Court which thankfully has now led to Nechiporuk’s acquittal.

As reported the ECHR found on 21 April 2011 that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights both on account of his having been tortured, and due to the lack of an effective investigation into his complaints in that respect; violations of Article 5 §§ 1, 2, 3, 4 and 5 (right to liberty and security) on account of his detention during five separate periods between 2004 to 2007; violations of Article 6 §§ 1 and 3 (c) (right to a fair trial) as regards the proceedings.

All the law enforcement people involved in this case are doing well, and most have been promoted.

Ihor Vesna is now the head of staff for the city police;

Dmytro Martsenyuk is now the deputy head of a district police station in the Khmelnytski oblast.

The former Khmelnytski Prosecutor, Volodymyr Shevchuk is now the deputy Regional Prosecutor;

Other officers and investigators have also been promoted.

Serhiy Dunaevsky and Serhiy Khiblen are continuing to work as forensic medical experts. 

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