Lost in SIZO
About a modern show trial with multiple confessions, defendants widely believed innocent of the charges against them, and just as widely assumed to be “doomed”
The following endeavours to explain why the case of three young men charged with organizing a bomb blast in the Svyato-Pokovsk Church, Zaporizhya on 28 July 2010 warrants close scrutiny from all bodies fighting torture and concerned over problems with the justice system in Ukraine.
It is being sent, together with an appeal, to participants in the EU-Ukraine Summit on 25 February, to Amnesty International, Human Rights Watch, the European Committee for the Prevention of Torture and others.
On 28 July 2010 a bomb exploded in the Svyatopokovsk Church, Zaporizhya, injuring 9 people, one of whom, an elderly nun, died later of her injuries.
On 29 July, the President was seen by television viewers sternly ordering the heads of law enforcement bodies to find the culprits immediately. He was assured that the crime would be solved within the week, and those responsible arrested.
On 6 August the Interior Minister announced just as publicly that the crime had been solved and the culprits were in custody.
The first young man, Anton Kharytonov., a dismissed sacristan of the Church, was taken to the police station on the morning of 30 July. His brother – Serhiy Dyomin. - was detained late that evening, and then on 4 August yet another sacristan, Yevhen Fedorchenko. was taken into custody.
All three wrote confessions [yavki s povinnoy]. Anton’s first confession coincides with the protocol of detention, drawn up at night, 13 hours after his actual detention. Over the next 11 days he was to write three more, mutually exclusive, “confessions”/
Serhiy initially “confessed” on 1 August to making the explosive device and during an investigative experiment was filmed demonstrating how he’d done so. There was, however, one inconvenient hiccup. The explosives experts rubbished that version, placing in serious doubt his knowledge of explosives and ability to make such a bomb.
By 2 August another confession had appeared. This time Serhiy confessed to buying the explosive device “from an unidentified individual”.
Yevhen, detained later, on 4 August, only wrote one confession.
All three men have been in detention, in SIZO, without having been found guilty of any crime, for two and a half years. The evidence is effectively based solely on “confessions” which all the accused have retracted in court.
Two expert assessments carried out by forensic psychologists from the relevant Luhansk and Donetsk institutes came to the same conclusion, that the accused had given their testimony under psychological pressure. The judge ordered a third assessment which did not find such pressure. No explanation was provided as to why the judge considered two expert assessments to be insufficient. Although the third contradicted two others, the judge did not order a fourth.
In December 2012 the Zaporizhya Regional Prosecutor’s Office made substantial changes to the indictment. Contradictory elements linked with the large number of mutually exclusive “confessions” were removed. Most importantly reference was removed for the period of time for which all three men have alibis.
The prosecutor was unable to explain to the lawyers and court why these changes had been made so late in the day. The presiding judge, however, made no objections.
For these reasons and more, we believe the criminal investigation and trial of three men over the bomb in the Syato-Pokrovsk Church in July 2010 require very close scrutiny and response from the authorities, which has thus far not been forth-coming.
Detention of Anton Kh.
Born in 1985, he had been a sacristan in the Church for 10 years, but had recently been dismissed. Anton was mainly close to his family, living with his mother and grandmother.
On 30 July at around 10.20, Anton and his mother were taken to the city police station. They were told that this would take no more than 20 minutes, that they just wanted Anton to look at some photos and see if he recognized anybody.
Their arrival at the police station was not recorded, and they were immediately separated and taken to different rooms. Olga D. only saw her son again, from the door of the office he was in, late in the evening.
The lawyer called in by the investigators appeared only at night. It should be noted that for his participation in interrogations at night, for total failure to defend Anton’s interests, even when the latter began vomiting during an investigative re-enactment, that lawyer received a formal warning. Two others were stripped of their licence to act as defence lawyers for six months by the relevant disciplinary commission of the Zaporizhya Oblast Defence Lawyers Association.
If they all incurred such disciplinary measures, even temporary suspension, the conclusion seems clear that all three of the accused were deprived of their right, enshrined in law, to defence.
The protocol of detention in Anton’s case was drawn up at 23.40, immediately prior to the first recorded interrogation and his first “confession”.
Away from the camera
In court Anton spoke of the treatment he had received away from the video camera – for 13 hours before the official detention and interrogation, and during a rather questionable “break” in the interrogation. He asserts that he was tormented; cruelly ridiculed (forced to sing, make faces for the officers to photograph); that a pistol was put to his head. Two police officers threatened that if he “didn’t talk”, they’d kill him, imprison his mother and brother and put his grandmother into an old people’s home.
You can see on the videoed interrogation that the pockets of his trousers have been cut out. In the court, the police officers couldn’t give any explanation as to why. Anton says that they threatened to cut off his genitals as well.
The first interrogation
The recording begins at 23.55. Given Anton’s retraction of all his “confessions” which he says were extracted through threats, blackmail and severe pressure, it is worth noting the somewhat strange break in the interrogation and the words spoken by the investigator which preceded it.
“ I just want to remind you once again that a sincere confession and remorse will somehow soften your guilt, that’s the first thing, and secondly, there’ll be a completely different attitude to you already during the investigation if you talk with me and tell me everything openly?
Anton repeated that he hadn’t blown up the church and didn’t know who had. In a couple of minutes, the investigator said: “I think you do know. Let’s take a break for a moment, I’ll go and take a tablet”
Anton: Can I go with you?
The video recorder was switched off, and the interrogator left alone. She was absent for around 35 minutes.
Anton asserts that during this time, the same police officers as during the 13 hours of his unregistered detention came into the room and renewed their threats against him and his family if the didn’t “talk”.
According to Anton, while all of this was happening, the lawyer sat and did nothing. Before the interrogation was resumed, he attempted to persuade Anton to “confess”, saying that they’d sort it out in court.
The investigator returned, and Anton virtually immediately began to tell her – hesitantly and not very clearly – about some 16-year-old acquaintance who had supposedly told him of his plan to organize fireworks in the church.
Towards the end of the interrogation, the investigator asks: “Has your testimony been given voluntarily?” The specialist psychologist from the Luhansk Institute added a comment here, writing [“during a long pause he longs around, especially to where there should be a lawyer].
The investigator responds aggressively to Anton’s hesitant response, “well, I don’t know, probably voluntarily”.
(what does probably mean, you told me now, what, did I drag you by the tongue?) “no, you didn’t drag me by the tongue, so voluntary”
With regard to this interrogation, and all the other videoed investigative activities, the first specialist psychologist notes that:
“there is a complete lack of free narrative stage; … interaction between Anton and the person running the investigative activity is in the form of question – answer. The answers of the accused are in the main short, often containing the semantic unit from the interrogator’s question. There are also often expressions like “probably”. “seemingly”, “maybe”, “I think”, which the investigator on several occasions told him off for.
During the interrogations and reconstruction of the situation and circumstances of the event, Anton was being led [by the interrogator], this demonstrating a lack of independence when giving testimony”.
As mentioned, over 12 days Anton Kh. wrote four “confessions”. In terms of content, they all differ significantly, while from the point of view of style, density of information and dependence on the interrogator’s questions, the first two which were videoed differ radically from the last two where there are only typed protocols of the interrogations. Only one has held during the day, the other three interrogations were in the night.
The second (night) interrogation begins with the following:
(“Tell me what you’d like to inform; that we didn’t know or change previously given testimony, clarify?)
I want to inform, well say a frank confession that I’m kind of guilty of this incident ….
It was me who brought this explosive device in a black bag into the Svyatopetrovsk Church, put it under a bench, and because of that, it turns out because of me, people suffered. …”
It was his brother, he says, who made the bomb because his brother understands technical things better than him. “He made them from components which we bought at a small market , well on the outskirts. We went and looked for an explosive substance, a kind of device from kind of iron kind of parts, there sulphide was silver, oj, … well, there was sulphide, and there was a timer with …. [undecipherable].
Two specialist psychologists noted that in both brother’s case, there was no free account of the events; that they were led by the interrogator; and that they effectively always answered questions, many of them leading.
Now if you have conflicting opinions from medical or nuclear industry specialists, it can be difficult to know who to trust. In this cast, the question is about whether the men were placed under pressure, and the material available on the Internet making it easy enough to reach ones own conclusion.
During the second night-time interrogation (where he was asked 523 questions), Anton asserts that he took the explosive device which his brother had made into the church. He is either a dazzling actor playing a somewhat unclear role, or he really does have trouble even identifying the component elements of the device.
A curious diagram – a picture of the explosive device - also dates from that night. It is purportedly Anton’s sketch, but he was having difficulties, and on the video you can see the interrogator showing him how to draw it. This is when, according to the investigators’ original idea, Anton was drawing an explosive device which he had helped his brother to make.
Anton’s confession on 31 July corresponds to his brother’s testimony on 1 August when during a night of investigative activities, Serhiy D. not only confessed to having made the explosive device, but actually showed how he did this.
It does not gel with his brother’s testimony of 2 August where Serhiy explains that he purchased the device.
It contradicts Anton’s own confession in an interrogation on 5 August when he says that it was Yevhen F. who took the bomb into the church.
It harmonizes, however, with the “confession” made by Yevhen F the day before, on 4 August.
During the third interrogation at night on 10 August recorded only in a written protocol, Anton states that Serhiy “went to Ihor C. and consulted with him about the explosive device”.
In 10 days, if we are to judge by the protocol, Anton had gained a truly staggering level of knowledge about the components of explosive devices.
Ihor Ch and his brother whom he shares a flat with were summoned as witnesses for the prosecution. The two brothers, however, attempted to tell the court how they had been tortured during interrogation by the police, and presiding Judge Minasov stopped them. There was another witness, Oleh S. who also tried to talk about torture, but was told that this was not related to the case.
So what is related?
Over two years has passed since the beginning of the court hearings into this case. The three men are adamant that their – multiple – confessions were obtained through physical and psychological pressure.
Obviously the physical measures, overt threats and so forth remained outside the camera’s focus, yet even what we see on the videos was deemed to be psychological pressure by two specialists from two authoritative institutes. Yet the judge simply asked for another assessment, although he must have seen the videos himself. It is a moot point whether you need specialist training in psychology to see that the men are answering, and very uncertainly at that, leading questions. It is seriously difficult to believe that without such an education, the menace in the investigator’s statement that a confession will make Anton’s life better during the investigation, is not clear.
The judge must be as aware as the members of the disciplinary commission that all three gave confessions, now retracted, effectively without a lawyer. Serhiy’s first interrogation began well after midnight after being held in unregistered detention for two days. The lawyer, called in by the investigators, confined himself to two questions:
“Do you understand, realize what you did and feel remorse?”
“Are you giving testimony now sincerely, voluntarily?”
Unlike the accused who say that they were deprived of sleep (as well as of food and water), nothing much seems to have stopped the lawyers from dozing at work. After those first strenuous questions, the lawyer sat through all other investigative activities during that night and the next day without another word. This is despite the fact that the testimony and “confessions” during tthe first night and then the following day were radically different.
The professional body of defence lawyers deemed the behaviour of that lawyer to be so shocking that it stripped him of his licence for six months. Not only were all the defendants deprived of their right to proper legal representation, but they were also held for long, unrecorded, periods. In Serhiy’s case, after being held in custody for two days, he “confessed” to a crime which specialists consider he could not have committed.
You get the strong impression that the confessions were written to fit the investigators’ still changing version of the crime. In this respect, it is worth mentioning the comments from the Donetsk Institute specialist about Yevhen F’s testimony. This, he notes, contains no spontaneous corrections and none of the omissions customarily made by our memory. Since Yevhen is attributed a secondary role, of placing the bomb, one might have expected him to recall the least number of details. It seems likely that by 4 August, the investigators had fine-tuned their version and one “confession” was enough.
In their haste the investigators made one bad mistake – they totally failed to consider possible alibis. It turned out that all three had unbreakable alibis for the time when, according to the investigators and the “confessions”, they were supposed to be racing about Zaporizhya handing one another the explosive device.
This thankfully transpired later when real defence lawyers appeared on the scene, make it harder to organize yet more “confessions”.
Although where there’s a will …
As mentioned, after two years in court, the prosecution resorted to daring means of overcoming what some might see as an insurmountable obstacle. They removed the time from that part of the indictment. The time disappeared, so did the men’s alibis.
Other elements in the indictment pointing to grave infringements and to contradictory testimony in the multiple “confessions” were also taken out.
No objections were made by the presiding judge. Minasov’s role in this trial has, for many reasons, raised eyebrows. As well as closing his eyes to glaring violations of the right to a fair trial and to evidence that the police used unlawful means of influence, he has also infringed the men’s right to defence.
Applications from Serhiy D. to have the former Prosecutor of the Zaporizhya oblast, Oleksandr Shatskiy, defend him were twice turned down by the judge, with no reason given. Then at the beginning of this year Judge Minasov removed Anton’s lawyer because the latter could not attend the next court hearing. The judge who had happily taken a four month break despite the fact that the defendants had been in detention without conviction for over 2 years, now decided that the lawyer should cancel a holiday already paid for. Or he decided that removal of a lawyer whom Anton trusts, like the elimination of the “problem” with the alibi, would facilitate a guilty verdict in the case.
The judge is not alone in looking the other way. Over the last two and a half years the mothers and lawyers of the three men have lodged formal complaints about the use of torture and unlawful methods of influence; about falsifications; and violation of the right to a fair trial. Such complaints have been made to the Interior Ministry, Prosecutor General; Human Rights Ombudsperson, President, etc, as well as to bodies overseeing the courts and judges.
If they answer at all, they say that they can’t interfere with the courts. Quite correct in principle, only it sounds like cynical mockery in this case.
Three young men are spending their third year in a SIZO with nobody trying to investigate their allegations of torture and unlawful pressure. This is despite the fact that the entire case is based on a suspiciously large number of contradictory “confessions”. There is stubborn reluctance to give any attention to what appears to suggest either that a terrible miscarriage of justice has taken place or that the case has been cynically trumped up.
In SIZO, out of sight
Virtually everybody has heard of this case in Ukraine. They know it as the case which the President took under his control. According to a survey in Zaporizhya, most people believe that the three men are innocent. The belief is widespread not only in Zaporizhya that the “confessions” were beaten out of them in order to fulfil the President’s order to solve the crime within the week. People feel sorry for the guys, but expect them to be convicted and get hefty sentences.
If these men are innocent, then the case remains unsolved.
Three innocent men’s lives have been destroyed.
This is already a terrible price to pay.
The ramifications for Ukraine of such a cynical distortion of law enforcement and the justice system are also devastating.
A way out of this impasse is needed before it is too late. We are therefore asking representatives of the EU to raise this case at the EU-Ukraine Summit on 25 February. The appeal can be read in both English and Ukrainian