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25.10.2013 | Halya Coynash

Damning Verdict on Ukrainian Justice

   

On Oct. 25, the Zaporizhya Court of Appeal upheld the conviction of three men charged over the bomb blast in July 2010 in the SvyatoPokrovsk Orthodox Church in Zaporizhya.  It reduced each of the long sentences by one year.

Over all the previous hearings, the appeal court judges had asked questions which highlighted grave procedural infringements.  These included the failure to include the changed indictment in the case file and the lack of explanation, as required by law, of the prosecutor’s motives.  When asked why he had not revealed his reasons, prosecutor Andriy Kmet claimed that the amended version had simply corrected the estimate of damage to the church building. Just how far this diverges from the truth can be checked here  The appeal court judges learned that nobody had tried to find the person from whom, according to the investigators, one of the defendants had purchased the explosive device.  The judges noted a large number of significant discrepancies and infringements which should have suggested at very least a ruling that the case had not been fully investigated (grounds for revoking the sentence).

Yet on Oct. 25 Judge Yury Boikov stood up and read out a ruling upholding the conviction of all three defendants. At present we know only that the judges “excluded” three confessions.  That admittedly still left former sacristan of the church Anton Kharytonov with three confessions, however this judicial juggling left his brother, Serhiy Dyomin, with only one confession, while the second sacristan, Yevhen Fedorchenko had his only confession “excluded”.  

It should be noted that the three young men retracted all “confessions” as soon as they got real lawyers.  The “exclusion” from the case of some of the confessions is hardly likely to be viewed with understanding at the European Court of Human Rights.  One feels that both the first instance and now the appeal courts were hoping in this way to cover up the most questionable aspects of a widely publicized trial.

They could have saved themselves the effort.  The “case of the sacristans” is well-known not because of any famous politicians or political motives.  Although the bomb blast killed an elderly nun, it all happened in a church far from Kyiv and might have been forgotten had it not been for the role played by Viktor Yanukovych.  The President immediately announced that he was taking the case under his personal control. The day after the explosion he appeared on national television issuing an order to the heads of the law enforcement agencies to find the culprits within the week.   The first young man was pulled into the police station the very next morning, and by Aug. 6 the head of police reported just as publically that three men were in custody and that he would be proposing “incentives for the Interior Ministry, Security Service and Prosecutor General’s Office employees who had taken an active role in solving the crime”.

From the outset there were reports in the media which placed these upbeat assurances in question.  There was a disturbing number of “confessions”:  seven for three defendants. The first two were given immediately after the men were registered as being detained, but 13 hours or more after their actual detention. All defendants have consistently reiterated that the confessions were extracted through torture and threats.

There is no evidence to implicate any of the men in the actual crime. On the contrary, all three had unbreakable alibis for the time when, according to the investigators’ version, they had been running around the city passing the bomb to each other.  That was the case, however, only until the prosecutor changed the indictment a matter of months before verdict was passed.  The numerous significant amendments to the indictment included the removal of specified times where these clashed with the men’s alibis.  

Lawyers were called in by the investigators for all formal procedures after the men were officially detained.  For their participation in night interrogations and total failure to defend the detained men, two lawyers were stripped of their licence to work as advocates for 6 months by the relevant disciplinary commission, while another received a formal warning.

Despite the effective lack of defence; considerable periods of time held under the total control of the police before formally “appearing” in police custody; the night interrogations and investigative activities; contradictory confessions, as well as police inability to explain the gaping holes at the top of Kharytonov’s trousers, no investigation was ever carried out into the men’s complaints of torture and infringement of their right to a fair trial.

This cannot be attributed to laziness.  On the application of the defence, two psychological assessments were obtained, first from the Luhansk, then the Donetsk Forensic Analysis Institutes.  The assessments provided by two forensic psychologists were very similar.  Both found that all the defendants had been placed under psychological pressure, that they had consistently been fed leading questions, most of which in fact contained a full answer. None had ever been asked for or given a free account of the crime they were supposed to have committed.   Excerpts from the interrogations and the assessments can be found here and in the links below that text.

Judge Volodymyr Minasov responded by simply ordering a third assessment.  This, from the Kyiv institute, found no inadmissible pressure.  Minasov then rejected an application from the defence to call all three psychologists in to ascertain why the assessments diverged so radically.  This refusal was noted as surprising by the appeal court judges.

Minasov also turned a blind eye to all procedural infringements regarding the revamped indictment and never asked why the changes had been made.

Then on April 2 he passed sentence: Kharytonov and Fedorchenko were sentenced to 15 years; Dyomin to 14.

In his ruling, Minasov “excluded” the first confession made by Dyomin claiming that this was because the interrogation and investigative measures had taken place at night.  The appeal court judges pointed out the lack of consistency. Why, they asked, had Minasov not excluded Fedorchenko’s confession, also obtained at night?  They did not, however, pay attention to the interrogations of Kharytonov which in two cases were also after midnight.

In their apparent quest for consistency they excluded the first of Dyomin’s confessions and Fedorchenko.

It is worth noting what they were trying to remove.  Dyomin was taken into custody around 10 hours after his brother.   Approximately 24 hours later, during a night interrogation he confessed to having made the explosive device. There is a video recording of him very uncertainly explaining how he had supposedly done so.  This was ridiculed in the morning by explosives experts who said he clearly had no idea what he was talking about.  By that afternoon another confession had appeared, this time saying that he had bought the device.

What exactly is meant by the “exclusion” of one confession when Dyomin himself has been adamant in retracting both confessions which he asserts were beaten out of him and denies any involvement in the crime?  It all seems worryingly like a new attempt to rewrite the records of a murky case cluttered with contradictions.

As mentioned, the three appeal court judges: Y. Boikov, V. Mulchenko and V. Fomin all asked extremely pertinent questions about all the above contradictions and others (examples here).  It is profoundly frustrating that despite the inadequacy of the answers they were given, or the failure to answer altogether, at the decisive moment the judges chose to not notice.

There remains one last cassation appeal in Ukraine, and then the European Court of Human Rights whose judges will not look away.

The ramifications for Ukrainian justice if judges can with impunity “exclude” one of two confessions are serious.  This is just one of the reasons why the case is important, and why the three young men urgently need support and legal counsel.  They have been in detention now for over three years. Virtually nobody believes that they are guilty, yet most believe assume that they are “doomed” because of the role played by Yanukovych.

In Ukraine and abroad at present everybody is waiting to see how the president will resolve the “Tymoshenko issue” on which they say the fate of the EU-Ukraine Association Agreement hinges. Perhaps it does, however the development of civil society in Ukraine also depends of the fate of these three young men.  Acceptance that they are “doomed” is a move straight back into the Soviet past. 

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