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06.07.2020 | Halya Coynash
The right to a fair trial

Ukraine taken to European Court over Sheremet murder trial by press conference

From left Yana Duhar, Yulia Kuzmenko, Andriy Antonenko Photo 24tv.ua
   

Ukrainian military volunteer and musician Andriy Antonenko (‘Riffmaster’) and his lawyers have applied to the European Court of Human Rights [ECHR] over what they assert are violations of his right to a fair trial and to liberty.  Both Antonenko and paediatric surgeon (and military volunteer) Yulia Kuzmenko remain in detention over six months after their very public arrests and the press conference at which Ukraine’s leaders effectively claimed that the case had been solved.  This is despite radical changes to the charges, announced after equally public comments on the case from President Volodymyr Zelensky, and doubts about a lot of the supposedly hard evidence. Unsurprisingly, one of the aspects of the right to a fair trial which the defence have focused on in their ECHR application is the right to be presumed innocent until proven guilty.

The application has been lodged on behalf of Antonenko, however essentially all of the violations asserted with respect to ongoing detention apply equally to Yulia Kuzmenko, while others also pertain to the third defendant, military nurse Yana Duhar.

The alleged violations are of Article 5 of the European Convention on Human Rights (the right to liberty) and Article 6 (the right to a fair trial).   

It was one specific aspect of the right to a fair trial – the presumption of innocence - that aroused concern from the outset in this case and prompted a number of public statements.  In its Guide on Article 6 of the European Convention, ECHR explains that the principle of the presumption that a person is presumed innocent until proved guilty imposes restrictions on “premature expressions, by the trial court or by other public officials, of a defendant’s guilt”.  The “ members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution and any doubt should benefit the accused.”

Antonenko’s lawyers argue that the presumption of innocence was breached in the case of their client, in particular through the extremely public pronouncements by Ukraine’s leaders and high-ranking public officials.

The crime

Four years ago, on the morning of 20 July 2016, former Belarusian dissident and journalist Pavel Sheremet was killed in a bomb blast in the centre of Kyiv.  CCTV footage from the night before show a man and a woman walking near his car and the woman seeming to lean down and place something under it.  There is also footage from the morning, which may show another woman linked to the crime.

Antonenko and Kuzmenko are now accused of being those two figures in the night, while Duhar is accused of having taken photographs of CCTV cameras near the site of the crime.  After very radical changes to the indictment in June, none of the three are accused of having organized the crime, nor of having detonated the bomb.

For over three years, there appeared to be no progress in finding Sheremet’s killers, and there were suspicions, especially following a journalist investigation in May 2017, that evidence, linked with covert SBU [Security Service], was being concealed or worse, SBU involvement.

Public pronouncements

There were promises immediately – from President Petro Poroshenko and the then Head of the Police, Katia Dekanoidze - that Sheremet’s killers would be found.

On 23 July 2019, Poroshenko’s successor, Volodymyr Zelensky held a press briefing at his official offices, with the participation of the Head of the Police, Serhiy Knyazev and Interior Minister Arsen Avakov.  During the event, both Zelensky and Avakov publicly signed non-disclosure agreements and were then taken into another room.  Zelensky later came out thanking “specialists and criminal investigation officers”, saying that he had seen a great deal of material and that he hoped that there would be a result.  His words were extremely garbled, however the entire event did suggest that he had been shown evidence that pointed to the killers.

On 12 December 2019, there was an even more public press briefing, broadcast live by many media, at which not only Zelensky and Avakov were present, but also the Prosecutor General Ruslan Riaboshapka, the new Head of Police Ihor Klymenko and his deputy, Yevhen Koval.

Avakov announced that suspects had been arrested.  In fact, Kuzmenko later told the court that the most upsetting thing for her was that she had been in the operating theatre during the press briefing that “made her into a killer” and ended her career as a paediatric surgeon.

Words like ‘suspect’, rather than ‘killer’ were used, however the case was essentially presented as solved.  Koval, for example, presented the alleged motive of “destabilization of the political situation in the state through the murder of a well-known individual” as proven, claiming that other motives had been totally excluded.

Photos of the above-mentioned suspects were shown throughout the briefing, together with the photos of two other people, also military volunteers: Iryna and Vladyslav Hryshchenko.  The latter were already under arrest on different charges, however during his presentation, Koval described the five as “a group” and there was a clear suggestion that all would face charges over Sheremet’s murder.  As of July 2020, there is nothing at all to suggest that the Hryshchenkos are suspected of involvement.  Hryshchenko has said that the investigator offered to free his wife if he “took the Sheremet murder upon himself”. 

The fact that the Hryshchenkos have not been charged in connection with this case is of particular concern since it was clearly understood from the briefing that it was the similarity between the explosive devices used to kill Sheremet and a crime that Vladyslav Hryshchenko is accused of that led to Antonenko first being linked with the Sheremet case. 

At one point, Koval stated that all five of the people named were “known to us over past crimes”.  There is nothing to suggest that this was true of Antonenko, Kuzmenko and Duhar, and claims that Antonenko was involved in bringing down an electricity pylon in the Kherson oblast in November 2015 (linked with attempts to stop electricity supplies going to Russian-occupied Crimea) have been totally refuted. 

Any such allegations at a briefing viewed by a significant percentage of Ukrainians are especially irresponsible (or worse).  The defendants have been accused in public of crimes, but are then unable to prove that the allegations were false as they do not appear anywhere in the official documents. .

During the press briefing, Avakov, the Head of Police and his Deputy all claimed that there was a huge amount of evidence, of which they had purportedly only revealed a small part.  This does not appear to be the case, as demonstrated by the radical changes in the charges five months later.

This was not the end of the public pronouncements since both the Prosecutor General and President also spoke, thanking all those involved in the investigation.

Riaboshapka, for example,  referred tothe monumental work of our colleagues from the National Police and prosecutors.  I suspect that in the country there were very few people who believed that such a crime could be solved.  It is very good that these colleagues who have just reported to us, they did believe in this. And that succeeded.”

In ill-chosen words about the need to find those who had organized the crime, Riaboshapka positively asserted that “only those persons who planned and committed the murder have been established”.

Zelensky was equally congratulatory and stated that “the suspected killers have today been detained…  but there is another question – who commissioned it”.

It is certainly very difficult to talk about any arrests without implying that you believe the arrests to have been justified, however a live broadcast of a press briefing attended by the President, Prosecutor General, Interior Minister and Head of Police, hardly demonstrates any attempt to respect the right to the presumption of innocence. 

Avakov was especially active in ignoring the presumption of innocence.  The following evening, while the court detention hearing was still going on, Avakov and the Director of the Kyiv Scientific Institute of Forensic Analyses both took part (without any representative of those accused) in the Savik Shuster Freedom of Speech talk show.   In addition to repeating information from the press briefing, Avakov also asserted that Antonenko had made a phone call before the search asking his brother-in-law to take an anti-personnel mine from his flat.  This was presented as further ‘proof of guilt’. 

Avakov linked the car bomb that killed Sheremet with the (unrelated) bomb which the Hryshchenkos are accused of, going on to say: “I am not saying that this is the same element, of the same bomb. I am not saying that this is an element of something else, but it is strange when a musician, who says “I am a musician” holds an anti-personnel mine in his home with which you could kill a huge number of people”.   This was only one of the pronouncements that made a nonsense of the presumption of innocence.  It was also, reportedly, false.  Oleksiy Nikiforov, a representative of the Special Operations Forces and colleague of Antonenko’s, has said that the mine had been deactivated, with the explosives removed, in order to use it for photo shots which were posted on social media. This was confirmed by the Kyiv Institute of Forensic Analyses which said that, in the form it had been presented to them, the mine could not be considered either ammunition or an explosive.

A particularly shocking part of this media event, attended by the Interior Minister, was that the studio audience was asked to vote on whether or not they thought the suspicions were well founded.

All of this was going on during the break in considering preventive measures against Antonenko; Kuzmenko and Duhar.  The detention ordered in the case of the first two has been extended ever since, with all appeals being rejected.  This, the grounds given for the detention, as well as specific infringements, are also cited in the ECHR application as evidence of violations of Antonenko’s right to liberty (Article 5).

As reported, two months after Riaboshapka very publicly suggested that the killers had been identified, he stated in an Interfax interview that more evidence needed to be gathered before the case was passed to the court.  

In comments about the case during his 20 May 2020 press conference, President Zelensky made it clear that it was Interior Minister Avakov “who started this” and that if the case did not hold up in court,  Avakov would be held responsible, with this likely leading to “staffing changes”.

New indictment

It was immediately after Zelensky’s comments on 20 May that major changes were made to the charges against Antonenko; Kuzmenko and Duhar.  While additional charges were added (deliberate destruction of property (Article 194 § 2 of Ukraine’s Criminal Code) and of possession of explosive devices (Article 263 § 1), critical parts of the charges were dropped. Antonenko was no longer accused of having organized the killing, but only of carrying it out, by prior conspiracy.  Kuzmenko was now only accused of having planted the explosive device, but not, as previously, with detonating it.   The three suspects were no longer considered ‘a group’ (and the Hryshchenkos do not appear to be there at all).

It is not clear who is supposed to have organized and commissioned the crime, nor who detonated the bomb.  

There appear to be hints that this could have been a person linked with the law enforcement bodies.  That hearkens back to the above-mentioned investigation in 2017 which appeared to show an SBU link.   This,  however, raises far more questions than it answers since OCCRP (the Organized Crime and Corruption Reporting Project) and Slidstvo.info uncovered a huge amount of information that the investigators had either not found or not revealed.  This included a person, Ihor Ustimenko, who was at very least a witness of critical importance since he was clearly carrying out some kind of surveillance during the night before the killing near Sheremet’s home. If journalists managed to track him down, why is he not a key witness?

Perhaps there really is hard evidence that will be presented in court, however the grandiose claims made during the 12 December press briefing seem to have boiled down to some ‘expert assessments’ based on fairly poor quality CCTV footage.  One such assessment was talked about a lot during the press briefing, presumably because it had been carried out by a British gait analyst, Ivan Birch. 

Assessments based on people, albeit ‘experts’, being shown two pieces of footage and asked to say whether these are the same person seem of questionable worth if not substantiated by other evidence.  There is, after all, a very good reason for any police identification parade requiring a choice of realistic alternative suspects.

What is clear, however, is that several characteristics which can be objectively verified do not add up.  The assessments made in 2016 of, for example, the height of the male suspect are roughly 10 centimetres shorter than Antonenko’s 1.8 metre height.  It does not take a forensic expert to see that the beard and sideburns that Antonenko had at the time seems different from those of the assumed male perpetrator.  

The motive of ‘destabilization’ remains, although critical and absurd allegations against Antonenko have been removed.  As reported, Antonenko was accused of having been “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.

That alleged motive also appeared to have been copy-pasted from an indictment against another person altogether, back in 2015 (before Sheremet’s murder).

During the press briefing, there were all sorts of insinuations about the suspects having acquired large amounts of money, although neither then, nor now, does there seem to be any suggestion that this was a crime for financial gain.

The ‘motive’ as it now stands, with or without a mystery organizer with insider knowledge of the law enforcement bodies, seems at best weak, at worst, suspicious.  Everything that Pavel Sheremet stood for as a courageous human rights defender and former dissident, as an outspoken journalist, has been discarded with the alleged organizers having been interested merely in a well-known individual to carry out their essentially unsuccessful ‘destabilization’.   


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