Dodgy life sentence proves no impediment for Ukraine Supreme Court judge vacancy
Ukraine’s first competition for Supreme Court judges is coming to a close, and, as feared, the selection commission has already overridden the Public Integrity Council’s very serious objections to a number of candidates, including one of the judges who sentenced Volodymyr Panasenko to life for a crime he almost certainly did not commit. Perhaps that was the reason for an inept attempt on Tuesday morning to discredit the Council which is made up of representatives of civil society, whose only interest is to see the best candidates appointed.
There were plenty of real civic activists outside the High Qualification Commission of Judges building on Tuesday, there to impress upon the Commission how important it is to choose candidates of the highest calibre and integrity. According to Natalya Sokolenko, a journalist and member of the Public Integrity Council, there were also people of a specific build and appearance who she suggests were ‘titushki’, or paid thugs, there to discredit the Council.
It soon became clear why such an ‘act of provocation’, as Sokolenko called it, had been needed on June 6. This marked the beginning of the Commission’s plenary sessions where they are voting on whether to accept the Public Integrity Council’s negative assessments of 103 of the 382 candidates competing for 120 Supreme Court judge posts.
The Commission had, of course, been aware of these assessments earlier, yet during the interview stage only rejected 15% of the total about whom the Council expressed grave misgivings.
There has been wide publicity of the reasons for the Council’s negative conclusions, and the rules of the competition dictate that the Council can only be overridden by a two-thirds majority vote. The vote is, however, secret, and judging by the first day of the session, members of the High Qualification Commission are not too worried about the scandal.
Three candidates, at least, were allowed to continue in the competition despite damning assessments: Volodymyr Aleinikov, judge of the Central District Court in Mykolaiv; Oleksiy Bryntsev, judge of the Kharkiv Regional Economic Court; and Stanislav Holubytsky, from the Lviv Regional Court of Appeal.
With respect to Aleinikov, the Council had pointed to contemptuous behaviour towards journalists and members of the public during a court hearing and to his heavy reduction of the sentence passed on a police officer for beating up two young men.
Bryntsev had failed to reveal close family ties, especially to a judge of the Constitutional Court and to the Kharkiv Regional Prosecutor’s Office. He also had assets far in excess of his officially declared earnings.
The most baffling is, however, the Commission members’ vote on Stanislav Holubytsky. The Public Integrity Council had issued a negative assessment on the basis of the judge’s role in one court trial, with this giving “grounds for concluding that the Candidate does not meet the criteria for integrity and professional ethics”.
On September 19, 2008 Holubytsky was one of a panel of judges who sentenced Volodymyr Panasenko to life imprisonment, with this sentence soon afterwards upheld by the Supreme Court.
Panasenko remains in prison to this day, although nobody seems to have ever believed he was guilty. Adoption of a draft bill now in parliament will almost certainly result in a judicial review finding Panasenko to have been the victim of a terrible miscarriage of justice.
Already in 2009, the then Human Rights Ombudsperson Nina Karpachova cited the conviction of Panasenko as an example of “flagrant cases of judges applying life sentences as a means of resolving conflict in cases involving business structures”. She called the case obviously commissioned, and expressed the hope that the truth could be established.
The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have repeatedly called for a judicial review of this case as obviously flawed.
The Public Integrity Council wrote that it could not ignore the public reaction to the Panasenko case and the influence that it had had on public confidence in the judiciary. While Holubytsky was not the presiding judge, he could have used his right to express a dissenting opinion, and did not.
Holubytsky can now hope for a post in Ukraine’s Supreme Court.
The Panasenko case
On 26 October 2006, a bomb, planted under the car of Roman Fedyshyn, Lviv City Councillor and owner of the Shuvar market, exploded. Fedyshyn was only slightly injured, but a 14-year-old girl walking past the car was killed.
Volodymyr Panasenko had created the company behind the Shuvar market together with Fedyshyn, and his wife also owned 8% of the shares.
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, the suspected go-between between those carrying out the crime and the person commissioning it.
Rudy was arrested while undergoing treatment for alcoholism in a psychiatric clinic. In all, he was to sign four totally different ‘confessions’. He first claimed that the blast had been ordered by Fedyshyn himself to improve his political rating. He was told by the investigator Roman Sharko that Fedyshyn could not be the person, so Rudy then named the Shuvar administrator M. Bokalo. This was also deemed wrong, so Rudy came up with a third ‘confession’ where he said that the bomb blast had been commissioned by two men – Bokalo and Panasenko. A fourth ‘confession’ mentioned only Panasenko.
Rudy later wrote a statement saying that he had given false testimony against Panasenko under pressure from the investigator. The pressure, he specified, consisted of threats that he would get life himself if he didn’t provide the testimony and beatings.
During both the first court trial, and then at appeal level, Rudy stated clearly that Panasenko had nothing to do with the crime and that it had been commissioned by somebody else. He also asserted that there had been no intention of hurting anybody, the blast was only supposed to frighten Fedyshyn and thus convince him to sack somebody.
This was ignored at all levels, and Panasenko was sentenced to life imprisonment. There is evidence of falsification of the case, and certainly Panasenko’s lawyer Natalya Krisman is convinced that everything was done to put Panasenko away for life. She says that neither the investigators nor the court really tried to conceal their certainty that Panasenko was innocent. It was simply that the other candidates had power and could not be touched.
Human rights activists who have seen plenty of falsified cases in Ukraine consider the Panasenko case unprecedented for the degree of cynicism and brazen falsification.
It is now Ukraine’s legislators who are obstructing the chance for Panasenko and a number of other life prisoners to find justice in Ukraine, instead of having to rely upon the European Court of Human Rights. Draft law No. 2033a 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.
This law is urgently needed, and the fact that parliamentarians are still procrastinating forces the suspicion that they or the Prosecutor General’s Office are seeking to protect those in the law enforcement bodies and the courts who helped convict innocent men.