war crimes in Ukraine

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Political repression

Yevhen Zakharov
A brief analysis of the court ruling which remanded former Minister of Internal Affairs Yury Lutsenko in custody for two months

Being interested in the history of the human rights movement in Ukraine during Soviet times, I have read masses of sentences passed under the “political” articles of the UkrSSR Criminal Code – Articles 56, 62 and 187.

All were similar, like twin brothers, and all have the same features: a) stubborn disregard for obvious facts; b) primitive and flawed interpretation of natural actions as criminal (like “I wrote some poems and gave them to friends to read” – “No, you prepared a defamatory text which slanders our social and state system and circulated it in order to undermine the Soviet regime”!; c) overt lies; d) the absurdity of the court’s conclusions, and others.

In the ruling passed by the Pechersky District Court in Kyiv on the choice of a preventive measure for Yury Lutsenko (former Minister of Internal Affairs – translator), all those features are pronounced (with it not even being during the examination of the case on its merits and assessment of the evidence!) which gives yet more grounds for classifying his remand in custody as political persecution.

Disregard of things that are obvious

The court ruling spells out in black and white that “The term of remand in custody is to be counted from 27 December 2010.”  Does this means that on Sunday, 26 December Lutsenko was not deprived of his liberty? He went voluntarily with 11 Alpha Special Force officers and two representatives of the Prosecutor ‘s Office to the SBU [Security Service] remand unit [SIZO], voluntarily spent the day, evening and night, in the morning voluntarily went in handcuffs to the court and voluntarily entered the cage… The court clearly ignored this detention, obviously not wishing to link their hearing with a new charge.

The only grounds for changing the preventive measures from a signed undertaking not to abscond to remand in custody is moving “from the registered place where a person lives, is staying or is temporarily at without the investigator’s permission” (Article 151 of the Ukrainian Criminal Code). The court ignored the absence of such facts.

The court gave the first grounds for remand in custody as being avoidance of procedural actions and the decisions of the investigator, clearly meaning the assertion of the investigator that Lutsenko was deliberately avoiding reading the case material.

The court ignored the fact that Lutsenko had read the case material on 15, 21, 22 and 23 December, and did not appear when called by the investigator on 14, 16, 17, 20 and 24 December, explaining that his lawyer was busy on other criminal cases.

The court also ignored Article 218 of the Criminal Procedure Code according to which the reading of the material of a criminal case is not a procedural act of the investigator, but the indisputable right of the accused which he exercises independently, or with a lawyer at his own discretion.

Remand in custody changes nothing in this situation and will in no way expedite familiarization with the case material.

Interpretation of natural actions as criminal

The grounds for remanding Lutsenko in custody were, for example, his denial of guilt and refusal to testify against himself. The court thus deprived him or his liberty for exercising his constitutional rights which guarantee the right to a fair trial.

The accused is effectively being forced to reject the right to retain silence guaranteed by the Constitution, the European Convention and other international agreements.

By justifying remand in custody as required by influence on witnesses, the court agreed with the investigators who consider the public statements of his point of view regarding the criminal case in the media, for example, in an interview to Dzerkalo Tyzhnya [the Weekly Mirror] and the UNIAN information agency, as pressure on them. We are once again seeing the Soviet practice where people answered for their words through arrest.

Overt lies

The court ruling states that the court has taken into account “the accused, Y.V. Lutsenko, his material and family state, his place of residence, whether he has children, his state of health which does not exclude or prevent the latter’s remand in custody”.

In fact no document relating to this was examined during the court hearing since the court rejected the application from the lawyer for the examination to be adjourned so that such documents could be prepared and submitted.

The absurdity of the court’s conclusions

In my opinion the court ruling looks quite absurd. Lutsenko was arrested on 26 December in connection with a new criminal case. Yet the court examined change of preventive measure within the framework of the criminal case already investigated and deemed Lutsenko guilty of having avoided reading the material of that case. At the same time it transpired during the court hearing that on 24 December the investigation into this case had been restarted!  That, as far as I can see, makes the reason given for remanding him in custody absurd.

Possible reasons for the prosecution

Most observers believe that the main reason for Lutsenko’s criminal prosecution, like that of other formal government officials, is the desire to stop them taking part in political activities because of a criminal record. This once again highlights the political motivation behind the criminal cases.

In my opinion, an element involved is the active part which Lutsenko played in the arrest of Boris Kolesnikov and Yevhen Kushnaryov in 2005.  Those were also unlawful and politically motivated as I said five years ago.  These ended in their release from custody. Can one hope for such magnanimity from the heads of the present regime?

Yevhen Zakharov, Kharkiv Human Rights Group

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