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Human Rights in Ukraine. Website of the Kharkiv Human Rights Protection Group
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31.12.2019 | Halya Coynash
The right to a fair trial

Investigator involved in Ukraine’s most notorious miscarriage of justice appointed to top prosecutor post

Volodymyr Panasenko, imprisoned for a crime nobody believes he committed
   

As a Lviv investigator, Roman Sharko fabricated the criminal prosecution that led to Volodymyr Panasenko being sentenced to life imprisonment for a crime nobody ever believed he had committed and effectively abetted the real criminal(s) in escaping justice..  13 years later, Panasenko remains in prison, and Sharko is only one signature away from a managerial post in the Prosecutor General’s Office.  His appointment will make a farce of the current procedure aimed at cleaning up the prosecutor’s service and will be a serious blow to Ukraine’s efforts to build a society based on rule of law.

Tetyana Panasenko, who is herself a lawyer, lodged a formal submission at the beginning of December in which she detailed Sharko’s involvement in fabricating the case against her father.  All of the information she presented would have been immediately corroborated by Panasenko’s lawyer and human rights groups, so presumably her complaint was simply ignored.

Even among the very many life sentences in Ukraine that give grounds for concern, Panasenko’s case stands out as an evident miscarriage of justice.  He was sentenced to life imprisonment on the testimony of one man’s third and fourth ‘confessions’ which were obtained through unlawful means and totally retracted in court. 

On 26 October, 2006, a bomb exploded under the car of Roman Fedyshyn, a Lviv City Councillor and owner of the Shuvar market.  Fedyshyn was unharmed, but 14-year-old Marika Kutsinda, who was walking past when the bomb exploded, was fatally injured.

A month after the blast, the police had caught one person suspected of carrying out the attack, and declared another person wanted (he was arrested in 2013), as well as Oleksandr Rudy, who was suspected of being the intermediary between the perpetrators and the person who had commissioned the crime. 

Rudy was arrested while under treatment for alcoholism in a psychiatric clinic and signed four different ‘confessions’. He first asserted that the blast had been ordered by Fedyshyn himself to improve his political rating.  When Sharko, who was then a senior investigator for the Lviv Regional Prosecutor’s Office, told him that such a confession would not do, Rudy named Myroslav Bokalo, the administrator of the market.  This was also deemed wrong, so Rudy then asserted that the crime had been ordered by two men - Bokalo and Panasenko.  The latter had created the company behind the Shuvar market together with Fedyshyn.  A fourth ‘confession’ mentioned only Panasenko. 

Rudy retracted his words in court, stating at both first trial, and then appeal level. that Panasenko had had nothing to do with the crime and that it had been commissioned by somebody else.  He later also wrote a statement saying that he had given false testimony against Panasenko under pressure from the investigator (i.e. Sharko). The pressure, he specified, consisted of beatings and  threats that he would get life himself if he didn’t provide the testimony denanded. 

This was ignored by the court, under presiding judge Stanislav Holubytsky, as were other falsifications in the case. Panasenko’s lawyer Natalya Krisman believes that everything was done to put Panasenko away for life, with neither investigators nor the court even concealing their certainty that Panasenko was innocent.  Somebody, however, needed to be ‘found’, and all other candidates had power and were considered untouchable.

Oleh Levytsky, a defence lawyer from the Ukrainian Helsinki Human Rights Union [UHHRU] has called the case of Panasenko by far the most shocking he has ever seen.  He says that he has studied all the material of the case, and believes there were never any grounds at all for Panasenko’s arrest. 

Back in 2009, Ukraine’s then Human Rights Ombudsman, Nina Karpachova called for a review of Panasenko’s life sentence.  In March 2016 independent Ukraine’s first President Leonid Kravchuk called the Panasenko case a court travesty. 

In an appeal to President Volodymyr Zelensky and the Verkhovna Rada at the end of August 2019, UHHRU and the Kharkiv Human Rights Group called the Panasenko case the most shocking of all Ukraine’s judicial miscarriages.  They said that exceptional lawlessness requires extraordinary measures and called on Zelensky to ‘pardon’ 60-year-old Panasenko or on parliament to issue an individual amnesty.

Four months later, Panasenko remains imprisoned, and Sharko has been appointed the head of a department within the Prosecutor General’s Office overseeing, for example, observance of the law by the National Police.  Information on the PGO website claims that the Selection Commission appointed on 16 December 2019 is to be made up of six members, of whom at least three are delegated by international NGOs, international technical aid projects and diplomatic missions. What this means in practice is less clear since there is information about the order to appoint a Commission, but seemingly none identifying the members.  The commission is, however, supposed to take into consideration a candidate’s moral and professional qualities.

Something evidently went wrong in the case of Sharko’s candidacy.  Even were we to believe that Sharko had behaved impeccably in every other investigation, his role in Panasenko’s prosecution should have been a sufficiently damning indictment.

The details revealed in court, and outlined in Tetyana Panasenko’s complaint, about Sharko’s use of physical force and threats are not the only examples of inadmissible behaviour.  Sharko also falsified the protocols of interrogations at pre-trial investigation stage and prevented Rudy from having access to an independent lawyer during the six days (from 22 to 27 November 2006) in which his ‘confessions’ were extracted.

According to Tetyana Panasenko, Sharko also had surveillance methods applied against her father’s lawyer in an evident attempt to put pressure and intimidate the latter.  He also sought to conceal evidence proving Panasenko’s innocence.

The list of violations is longer, but the above are already more than enough to make Sharko’s new promotion seem deeply disturbing.

This is not the first worrying appointment.  In 2018, the judge who sentenced Panasenko to life imprisonment, Stanislav Holubytsky, was appointed Supreme Court judge.  This was despite a negative assessment from the Public Integrity Council which specifically noted his role in Panasenko’s imprisonment.

There has long been concern that vital legislation providing a mechanism for judicial review of cases like that of Panasenko is being blocked by people in the Prosecutor General’s Office because of the questions that such reviews must generate about the investigators’, prosecutors and judges involved in such cases.

Sharko’s appointment, like that of Holubytsky in 2018, is a betrayal of everything people stood on Maidan to achieve in 2013 and 2014.  Not only impunity, but even promotion is being given to those willing to imprison an innocent man and allow the real culprits to go unpunished.

And 60-year-old Volodymyr Panasenko is spending his 14th year imprisoned for a crime they know that he did not commit.


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