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16.04.2018 | Halya Coynash

In Ukraine a life sentence is for life even when you’re innocent

Maxim Orlov, Volodymyr Panasenko
   

An important European Court of Human Rights ruling has prompted Ukrainian human rights groups to demand a Constitutional Court review of the current lack of real mechanisms for releasing people sentenced to life imprisonment. The move is particularly important given strong grounds in very many cases for believing that life prisoners are either innocent or did not deserve the severe sentence imposed.  

The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have called for such a Constitutional Court review, citing the Judgement in July 2013 by the European Court of Human Rights [ECHR] in the Case of Vinter and Others v United Kingdom.  This ruled that sentences ordering imprisonment for life are in violation of Article 3 of the European Convention – the prohibition of inhuman and degrading treatment and torture.

The judgement was not always reported adequately and for that reason aroused controversy.  The Court in Strasbourg had been careful to stress that its judgement was not suggesting that any or all life prisoners must be released at some stage.  The judges stipulated only that for a life sentence to comply with Article 3, there had to be a prospect of release and a possibility of review.

There is no mechanism at present in Ukraine for such review, with the only possibility for early release being a Presidential pardon, which is of an exceptional nature. The human rights groups note that the European Committee for the Prevention of Torture confirmed in a report in 2016 that such pardons do not provide a realistic chance for release.  They believe that one way forward is for life prisoners to make use of a recent important change, enabling individuals to make constitutional submissions to the Constitutional Court.  There have already been several such submissions, and could soon be a large number.  These cite the above-mentioned ECHR judgement and the corresponding prohibition against torture and inhuman treatment (Article 28) in Ukraine’s Constitution.

If ECHR found that the lack of any realistic mechanism for release violated Article 3 of the European Convention, then such a failing in Ukraine is surely also in violation of the Constitution.

In fact, even if the Constitutional Court agrees that this is in breach of the Constitution, there will need to be changes made to the Criminal Code for an improvement to be seen.  It would, however, be a step in the right direction, one that is vitally needed, especially given the cases where there are strong grounds for believing that there has been a terrible miscarriage of justice.

One of the constitutional submissions already lodged was from Volodymyr Panasenko, who has already served 11 years of a life sentence for a murder essentially nobody believes he committed.

There was no evidence that Panasenko had commissioned a bomb which exploded under a car owned by a Lviv City Councillor and businessman which killed a young girl who was passing by. The person who originally testified against Panasenko, said that he had done so under pressure and consistently stated that the latter had had nothing to do with the crime. 

There was evidence of major falsification, and Panasenko’s lawyer Natalya Krisman reports that neither the investigators nor the court really concealed their awareness that Panasenko was innocent.  It was simply that the other candidates had power and could not be touched. 

There are equally serious doubts about a number of other cases, such as that of Maxim Orlov who was only 20 when the police pulled him and 14-year-old Oleksandr Kozlov in following the brutal murder of an elderly couple whom Kozlov knew slightly. 

The 14-year-old ‘confessed’ under torture, also implicating Orlov.  Although in court both Orlov and Kozlov explained the illegal means used to extract ‘testimony’, Orlov was sentenced to life imprisonment, Kozlov to 12 years.  There was nothing to suggest that either had anything to do with the killing, but the police and prosecutor could claim to having ‘solved’ the crime.

Draft law No. 2033a, drawn up to allow judicial review in certain very specific cases,  was tabled back in 2015, and even passed through a first reading in November that year. 

The bill offers life prisoners or others serving long sentences a chance of judicial review in very specific cases.  A prisoner or his/her representative would be able to apply for a review of their case if the only evidence against the person was from confessions or other testimony obtained through illegal means, for example, torture or some benefit gained from testifying against the defendant.  Review would also be possible if there were grounds for believing that the evidence had been falsified and / or where the court had rejected evidence proving the defendant’s innocence.  A further reason would be if the sentence did not seem proportionate to the case. 

The families of life prisoners and human rights groups have been campaigning for this bill to be passed ever since and have come up against a wall.  It seems likely that either MPs themselves, or the Prosecutor General’s Office are seeking to protect those in the law enforcement bodies and the courts who helped convict innocent men.

With Ukraine’s first post-Maidan parliament unable to pass a law that only seeks to redress grave miscarriages of justice, human rights groups hope that Constitutional Court submissions can help secure the freedom of such prisoners.

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