war crimes in Ukraine

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Glimmer of hope in the flawed Zaporizhya Church Bomb trial

Halya Coynash
Vital questions are being asked by the judges of the Zaporizhya Court of Appeal and the abject failure by the prosecutor to answer them noted

Answers remain thin on the ground regarding the bomb blast in the Zaporizhya Svyatopokrovsk Orthodox Church on July 28, 2010 and subsequent detention and trial of three young men.  Vital questions, however, are now also being asked by the judges of the Zaporizhya Court of Appeal and the abject failure by the prosecutor to answer them noted.

The following contains just some of the unanswered questions about the criminal investigation which did not prevent Prosecutor Andriy Kmet from demanding – and getting - 14 and 15 year sentences for two former sacristans, Anton Kharytonov and Yevhen Fedorchenko, and Kharytonov’s brother, Serhiy Dyomin. 

As reported, the hearing on Oct. 1 was adjourned so that the prosecutor could carry out a “check” as to why the mysteriously changed indictment almost on the eve of the verdict being passed was not in the file material.  On Oct. 18 Kmet “explained” this by blaming an inexperienced court secretary.

If he hoped this would get the court off his back, he was disappointed. The judges asked how he had justified the changed indictment, this being a mandatory procedural norm.   He claimed that he had only adjusted the size of the damage caused to the church building.  The prosecutor’s memory was faulty – a list of just some of the substantial changes which were made without the legally required explanation can be found here.

The Mystery of the “Unidentified Individual”

At the Oct. 18 hearing, the judge asked the prosecutor to explain the appearance in the material of an “unidentified individual”.  “After all Dyomin was first accused of preparing the bomb himself wasn’t he? Who mentioned an unidentified individual? Is an unidentified individual mentioned in Dyomin’s interrogation protocol?”

Prosecutor: “Well no, he’s not mentioned in the protocols. I think that the investigator himself came to this conclusion, assumption”.

Judge:  “Were there any investigative measures taken to establish this individual’s identity?  What was done at all by the investigator with respect to this unidentified individual?

Prosecutor:  “The material was set aside in separate proceedings”.

Judge: “We are aware of that, and what? Prosecutor, you haven’t answered the question – what specifically was done to establish the identity of this “individual”, and what is currently known about this “unidentified individual”? Did Dyomin say that he had purchased it from an unidentified individual?

Prosecutor:  (long pause) “Well ….”

Judge: “Understood”.

As reported, on July 31, 2010, after being held around 24 hours without any record of his arrival at the police station, Dyomin confessed to preparing the explosive device and during subsequent investigative measures carried out at night, endeavoured to show how he had done so. The following morning explosives experts failed him on the knowledge and skills needed for the task, and on the same day another “confession” was received according to which Dyomin had purchased the device from an “unidentified individual”.  Nobody except Investigator Yeremeev spoke of this “unidentified individual”, and ever since September 2010 when Dyomin finally received a lawyer whom he himself chose, Dyomin has been adamant in asserting his innocence.

The prosecutor, incidentally, was also unable to answer another question regarding the two totally different “confessions”. The judge noted that the first instance court had excluded Dyomin’s identification of the bag and pot supposedly used for preparing the explosive device.  Judge Volodymyr Minasov stated in the verdict  that this was because the identification had taken place at night.  Minasov, however, did not exclude similar measures in the case of Fedorchenko (and Kharytonov) also carried out at night.  The Prosecutor was asked what he had to say about this discrepancy.  He was silent.

Pockets cut out

During the first interrogation at night, commenced 13 hours after Kharytonov’s actual detention which was nowhere recorded, gaping holes are visible on Kharytonov’s trousers where the pockets should be. In court the police were unable to explain why and Kharytonov himself asserts that the police threatened to also cut off his genitals.

The judge asked why the pockets had been cut out, where they were now and whether a formal decision had been issued to remove the pockets. The prosecutor began talking about how it is customary to check pockets for traces of components of explosive devices. The judge asked whether any examination had been carried out of the cut-out pockets which forced the prosecutor to acknowledge that as far as he was aware, none.

It should be noted that in the file material the cut-out pockets are not mentioned at all, although from the moment when a real lawyer appeared on the scene, and not the limp individual called in by the investigator to sit in the corner, Kharytonov has asserted his innocence and alleged that all four “confessions” were forced out of him through physical and psychological pressure.

With respect to psychological pressure, two forensic psychological examinations carried out at the relevant Luhansk and Donetsk institutes pointed to pressure; the lack of any free account and leading questions (more details here). Judge Minasov’s response was to call another assessment, from the Kyiv institute, which found no pressure, only “inclination to criminality”.   It is cheering that the appeal court judges have found it necessary to ask why the psychologists were not called as witnesses to explain such a discrepancy. They were not called because Minasov turned down the defence’s application for this.

A very large number of questions are equally obvious in this case and there finally seems a chance that they will be asked.  

The next hearing is scheduled for Oct. 25. 

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