Dniprohaz, an amnesty and questions that could go all the way to Strasbourg
The court ruling this week amnestying three men charged with professional negligence has clearly not put to rest the emotions and questions raised over the tragic gas explosion in October 2007 which claimed the lives of 23 Dnipropetrovsk residents.
And how indeed could it? The men were facing charges under Article 367 § 2 of the Criminal Code, this being for professional negligence with grave consequences. In the following I would not in any way wish to suggest that the men were guilty. This was for the court to decide, however the judge on 20 January, faced with an application from the mens lawyers asking that the proceedings be dropped under the Law on Amnesty from 12 December 2007, agreed that the law applied in this case and terminated the proceedings.
The victims and relatives of those who died immediately issued a letter appealing to the President, Prime Minister and Prosecutor General to intervene, and warning that they would apply to the European Court of Human Rights if they found no remedy in Ukraine. On 23 January the Prosecutor Generals Office stated that it believed the decision to amnesty the men had been lawful. It added that the investigation had not been terminated, and that if the men were found to have committed other offences with regard to the case, new charges could be laid and the resolution revoked. On the same day, a representative for the relatives and victims stated that they intended to appeal against the court ruling.
13 October 2007
A gas explosion, apparently caused by a sharp increase in pressure in the pipes, destroyed two parts of an apartment block and killed 23 people. A criminal investigation was launched immediately involving detailed questioning of all relevant staff of the company “Dniprohaz” which provided the building with gas. It is not known what the investigators found, although reports at the time asserted that Dniprohaz had not carried out sufficient repairs and modernization, and also mentioned lack of control by the State inspection authorities. Whatever the specific findings, charges of professional negligence leading to grave consequences were brought against three people: the Director of Dniprohaz, his deputy and the Chief Engineer. A little later a court decided that they should be released on bail.
The charges under this article of the Criminal Code (professional negligence with grave consequences) are punishable by imprisonment for a period of from two to five years, being stripped of the right to hold certain positions for up to 3 years and a reasonably substantial fine.
12 December 2008
A Law on Amnesty was passed by parliament and the same day signed into law by the President. The introduction to this document mentions that it is partly to mark the sixtieth anniversary of the signing of the Universal Declaration of Human Rights and guided by the principle of humanism enshrined in the Constitution. In fact, such amnesties date back to Soviet times, and have an undoubted effect on reducing overcrowding in penal institutions.
Not everybody supports amnesties, but given the fairly large number of people imprisoned in Ukraine and the pitiful number of acquittals, they do serve a purpose.
The problem in this case, highlighted on 20 January, is in one particular clause and details relating to it. Article 6 of the Law on Amnesty states that amnesties may be granted where the imputed crimes were of minor or medium seriousness (with sentences up to 5 years) and even if the person is still at criminal investigation stage or defendant in a court trial, but has not been convicted of the crime. According to Article 14, the amnestied person is freed from all additional punishments, for example, a fine or restriction on holding certain posts. One point about Article 14 would seem of particular importance:
“Amnesty does not revoke the obligation to pay compensation for the damage caused by the crime imposed through a sentence or court ruling.”
In the case of the three people from Dniprohaz, no sentence was passed, no conviction handed down. While the victims of the explosion or their relatives can and should lodge a civil claim for compensation, they will surely have to demonstrate to the court that the damage was caused through those individuals negligence. Since the investigation at present has not been terminated, then they can ask to see the investigation file, however it is difficult to see how a court can allow serious damages against people who have not been found guilty by a court of causing them. The same problems seem likely if a civil claim is attempted against the company itself which will doubtless argue that their culpability has not been established.
Its the law?
Most media reports indicate that the victims or their relatives expressed outrage at the use of the amnesty but that at the court hearing their lawyers were unable to give any argument against its application. Certainly none of the many categories of people not eligible for amnesty, listed In Article 7, applies to the three men charged. On the other hand, if the media reports and lawyer colleagues are correct, and the judge simply had no choice but to amnesty the men before reaching the stage of deciding whether they were guilty or innocent, then Article 10 would seem to be either entirely redundant or in serious need of rewording. This Article states:
“The decision to apply or not apply (my highlighting) amnesty is taken by the court in the case of each individual after thorough examination of the material of the persons case and information about the behaviour of a convicted individualwhile serving his or her sentence.”
This is entirely clear in the case of a prisoner, but bafflingly unclear in the case of three men accused of negligence leading to the death of 23 people. Why does the judge thoroughly examine the material in the case if s/he is constrained by the law and must amnesty the person? And if the judge did not have to amnesty the people before examining the case, then why is there now a situation where the criminal proceedings have been terminated thus meaning that the men must be presumed innocent, since they were not proven guilty? And how are the victims to prove that Dniprohaz should pay them compensation in this situation?
Six weeks to go
The Law on Amnesty is for three months only. Since the explosion occurred in October 2007, and the mens lawyers applied for the amnesty, one assumes that either the court hearing was only to hear this application for amnesty, or the men had extraordinary luck to have their cases come up just at the right time. In the last week there were two other cases which could have fallen under the amnesty, but did not. One involved what is unfortunately a rare occurrence in Ukraine: successful prosecution under Article 161 of the Criminal Code (incitement to racial enmity). The Prymorsky Court in Odessa handed down a one and a half year suspended sentence to the Editor of the newspaper “Nashe dyelo” Igor Volyn-Danilov over a viciously anti-Semitic publication. Then on 22 January, a court in Kharkiv handed down a five year suspended sentence to the owner of a funfair ride on which a young student died a year ago.
In both these cases, had the defendants wished to, they could have applied for an amnesty. If, as is asserted, the judge has no choice, then it is to the defendants credit that they did not and admitted guilt, or to be attributed to their lack of information about the amnesty. Given the wide coverage of the decision to terminate proceedings against the Dniprohaz men, it seems most unlikely that anybody else facing legal proceedings will delay in filing applications for amnesty now.
In fact, of course, they may choose not to do so, since, after all, people convinced of their innocence should want to clear their name which obviously the amnesty does not do.
According to the Law, it is not only the defendants themselves who can apply for an amnesty. Article 8 states that the court may decide to apply amnesty at its own initiative, that of the prosecutors office, detective inquiry or criminal investigation bodies or penal institutions.
As mentioned, the theory is that the victims representatives will lodge first an appeal which could overturn the decision and then a civil compensation suit seeking damages. Even if these do not succeed they would be required if the victims did pursue their intention of approaching the European Court of Human Rights since the Court would wish to see that the applicants had exhausted all possible avenues in Ukraine.
It seems extremely probable that a claim against Ukraine for failure to ensure the right to life will not be terminated before being heard and considered in all its aspects.
One can only hope that courts in Ukraine prevent this strange bleep from turning into a travesty of justice with the only recourse being in Strasbourg. And that the next six weeks do not generate a record harvest of applications to an international court to redress wrongs suffered at home.