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17.06.2020 | Halya Coynash
The right to a fair trial

Ex-Kremlin hostage Sentsov calls out Zelensky over flagrant violations in Sheremet case

From left Yana Duhar, Yulia Kuzmenko, Andriy Antonenko Photo Radio Svoboda
   

Ukrainian filmmaker Oleg Sentsov has addressed a hard-hitting letter to Ukrainian President Volodymyr Zelensky over the high-profile arrests of three military volunteers on charges linked with the murder in 2016 of journalist Pavel Sheremet.  Sentsov, who spent five years in Russian captivity for opposing Russia’s annexation of Crimea, notes that it was those volunteers working for Ukraine who proved easy targets for the Russian aggressor.  It is now, he suggests, the Ukrainian authorities who are persecuting volunteers. 

As somebody who was told by the Russian FSB that he would get a 20-year sentence  if he didn’t provide the false testimony demanded, and who 15 months later got exactly 20 years, Sentsov’s abhorrence of predetermined sentences is fully understandable. He is however, neither prosecutor, nor judge, and there may be things he does not know. On the other hand, the concerns he raises, especially with respect to the presumption of innocence, were expressed by many people back in December 2019, and they have only been escalated by recent radical changes in the charges against well-known war veteran and musician Andriy Antonenko (Riffmaster); paediatric surgeon and military volunteer Yulia Kuzmenko and military nurse Yana Duhar

Sentsov writes that six months have passed since the press briefing on 12 December 2019 attended by Zelensky himself, the Interior Minister Arsen Avakov and Prosecutor General Ruslan Riaboshapka at which the three suspects were all but labelled murderers.  Antonenko and Kuzmenko were both taken into custody that day and remain in detention to this day.  Sentsov asserts that the public have, for the last six months, been hearing how the defence “provide evidence which totally refutes the grounds for the charges and any risk that these people would impede the investigation, and show that there are no grounds for believing that they were implicated in the murder of Pavel Sheremet.”

Despite this, the courts keep extending Antonenko and Kuzmenko’s detention and preventive measures against Duhar.  Sentsov believes that this is because “the courts cannot be objective and independent since on 12 December 2019 these people were designated ‘murderers’, with the Interior Ministry’s briefing broadcast to the entire country”.  Public officials (including Avakov) have since made numerous statements claiming that the people were involved in Sheremet’s murder.  All of this a priori  determines court decisions, Sentsov says, and calls it a flagrant violation of human rights.  

This violation of the presumption of innocence was condemned from the outset by over 80 members of PEN Ukraine in one case, and by prominent Ukrainian human rights activists, academics and politicians in the other.   It is no accident that Sentsov mentions the European Court of Human Rights.  The latter has, in its explanation of the right to a fair trial, enshrined in the European Convention on Human Rights, given considerable attention to the right to the presumption of innocence. 

For the moment, Sentsov writes, the public are seeing numerous independent journalist investigations which refute the investigators’ version.  What the latter present as evidence appears extremely unconvincing and even contradictory.  Given the number of well-known and authoritative people who are willing to act as guarantors that the suspects will not abscond if released from custody, Sentsov believes that their ongoing detention creates a dangerous atmosphere in society.  He calls on Zelensky, as President and Guarantor of the Constitution, to ensure that the constitutional guarantees of the defendants’ rights are protected, including their right to an independent and unbiased court, ensuring that innocent people are not held behind bars without justification, and that the public do not lose faith in justice and the courts in Ukraine.

Pavel Sheremet was a former Belarusian political prisoner and well-known journalist living and working in Ukraine.  He was killed in the morning of 20 July 2016 by a bomb planted under the car that he was driving.  Since the car belonged to Olena Prytula, his partner and the Chief Editor of Ukrainska Pravda, the police did not exclude the possibility that she was the target, and she was given police protection.

A major journalist investigation in May 2017 pointed to numerous gaps in the investigation, and also suggested a possible SBU [Ukrainian Security Service] link which was, predictably enough, denied.  Much of the investigation was made secret soon after this. 

Zelensky came to power in 2019 promising that high-profile cases, such as the murder of Sheremet, would be solved.  At that stage, there appeared to be no progress at all in finding his killers. 

The press briefing on 12 December 2019 was certainly designed to convince the public that the murder had been solved.  The event, as mentioned, raised concern about the presumption of innocence, but also left very many questions unanswered.  No answers have been forthcoming in the past six months, and new questions have arisen.

Back on 30 January 2020, Riaboshapka admitted that there was not enough evidence to get convictions, and on 20 May 2020, Zelensky essentially indicated that it was  Avakov who had started all of this, and that his job was likely to be on the line if the case did not hold up in court.  Public trust has not been enhanced by the fairly widespread belief that Avakov needed the press briefing and high-profile ‘breakthrough’ to hold on to his position back in December last year.

Almost immediately after Zelensky’s press conference, the investigators announced radical changes in the indictment and then stated that the case was ready to be sent to court.

Motive

Both the first and the second versions of the motive for the crime have nothing to do with Sheremet’s own person, or his journalism. 

At the December press briefing it was claimed that Antonenko had organized the murder, and had accompanied Kuzmenko while she planted the bomb.  All this was allegedly because he was “seized by ultra-nationalist ideas, cultivating the supremacy of the Arian race, the division of society on the basis of ethnic identity, wanting to make his views the object of public attention and carrying out his actions in order to draw the public’s attention to certain political beliefs… he decided to create an organized group in order to carry out the murder of journalist and radio presenter Sheremet”.

The alleged motive elicited outrage in court from Antonenko who said he had grown up in a Jewish neighbourhood, was himself half-Jewish and that such allegations were an insult against him and his family.

The ‘motive’ also made no sense since the murder did not attract public attention to such racist views, nor was there any evidence at all that attempts had been made to do so.

It seems likely, however, that this ‘motive’ has now been discarded for another reason. The above words, supposedly referring to Antonenko’s motives, appear to have been copy-pasted from an indictment against another person altogether, back in 2015 (before Sheremet’s murder).

The prosecution’s case now seems disturbingly lacking in a motive, with the unidentified organizers supposed to have acted for personal motives and “decided to carry out an extremely high-profile event in society in order to provoke numerous acts of protest”. 

It is not clear why Sheremet’s unexplained murder should have been expected to do this, and it did not.  There is no explanation of how these unidentified individuals enlisted the three suspects.  The constant referral to ‘unidentified organizers’ does, however, mean that the investigators are not overburdened by the problems of an alleged conspiracy in which only Kuzmenko and Antonenko had had extremely limited contact with one another, and neither had known Duhar at all.

Now it is supposed to have been the unidentified ‘organizers’ who ‘sponsored’ the activities of the suspects and paid any expenses.  How (or if) the investigators are explaining why a well-known musician and veteran and a children’s surgeon, both of whom are also parents, would have taken part in such a crime is not clear.  If it is now suggested that this was a commissioned crime, it is difficult to understand how the identity of at least the ‘organizers’ go-betweens could still remain unclear after six months at least where the investigators can examine all records of telephone conversations and probe the movements of the three suspects. 

Duhar’s alleged role, in photographing CCTV cameras near the scene of the crime has always seemed rather unnecessary, and it is noticeable that the courts, which have repeatedly rejected calls to release Antonenko and Kuzmenko, have steadily reduced the preventive measures against the young nurse.

Although there were clear insinuations during the December briefing about unexplained amounts of money, the prosecution does not appear to be charging any of the suspects with carrying out the crime for financial gain. 

This leaves only the disturbing claim that the organizers looked for people to carry out the crime “in volunteer groups of the population” with the criteria being “the people’s inclination to violent acts” and “low moral-psychological qualities”. 

Charges

Antonenko is no longer supposed to have been the organizer, and is accused only of having planted the bomb, together with Kuzmenko.  In announcing the changes, the prosecution mentioned two new charges: of deliberate destruction of property (Article 194 § 2 of Ukraine’s Criminal Code) and of possession of explosive devices (Article 263 § 1). 

Kuzmenko is no longer accused of having detonated the explosive device, with this action attributed to yet another “unidentified individual”.

It is not clear if the investigators have explained who is supposed to have held on to the explosive, which is by no means an irrelevant question since both Antonenko and Kuzmenko have at least one child. 

There is also nothing to indicate where the explosive came from, with it being the same (or other?) “unidentified individuals” who were responsible for this.  This adds a new dimension to one of the first worrying discrepancies in the case.  Five names were mentioned during the December press briefing, including former volunteers Inna and Vladyslav Hryshchenko and they, and the explosive that they are accused of planting, were supposed to be important links.  In fact, they have never been charged at all in connection with the Sheremet case, yet the people who were supposedly identified because of them remain chief suspects, with two still in detention.

Evidence

The last six months have certainly made it clear that the blithe assurances at the December press briefing of huge amounts of evidence were seriously exaggerated. Considering how much emphasis was placed on comparison of video footage, it is extraordinary that Antonenko remains in detention since he is significantly taller than the believed perpetrator on CCTV footage.  The expert assessment from 2016 of that footage estimated the perpetrator’s height in outdoor footwear at 170 cm.   Antonenko’s height is 180 cm. in bare feet.  Antonenko's beard and sideburns are also different on photos from the same period.  Duhar looks quite different from the woman seen on the photo, and has a tattoo on the same arm that the woman on the CCTV footage can be seen raising (with no tattoo visible).

Slidstvo.info almost immediately obtained copies of the ‘expert assessments’ regarding similarities between the CCTV footage of the couple believed to have planted the bomb, as well as of the person who is claimed to have photographed the cameras, on the one hand, and the three suspects on the other.  These seemed far less clear-cut than suggested, and Slidstvo positively called them contradictory, an assertion the investigators denied. Kuzmenko has also pointed out the questionable validity of comparing two videos of somebody walking if, in one case, the woman was carrying something weighing up to five kilograms, and in the other – nothing.

There is also something very disturbing about all such expert assessments being obtained on the basis of experts comparing the suspects’ posture with that of the perpetrators as seen on CCTV footage.  Any normal police identification has several other individuals of similar appearance.  Perhaps ‘gait analysis’, as provided by a UK expert, does have validity, but surely not as one of the sole items of evidence.

Law enforcement link

While the organizers are ‘unidentified’, they are said to have been “familiar, among other things, with the methods of work of the law enforcement bodies”.  According to defence lawyer Vitaly Kolomiyets, the new charge speaks of “mystical unidentified organizers with the features of a law enforcement body”.

This clearly hearkens back to the suggestion in 2017 of an SBU link, and the concern that certain video footage seemed to have conveniently disappeared.  If on the night that the bomb was planted, an SBU officer was near Sheremet’s apartment block, it is reasonable to ask why.  The SBU asserted at the time that the man was no longer one of their employees.  So why did CCTV footage reportedly go missing while in the SBU’s hands?

These questions cannot simply be left for some time when or, more likely, if the alleged organizers are finally identified, since the answers may well point to irreconcilable problems with the prosecution’s case against Antonenko, Kuzmenko and Duhar.  Given so many unanswered questions, it is  beyond baffling that Antonenko and Kuzmenko remain in detention, 


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