Ukraine’s most malicious miscarriages of justice
Volodymyr Panasenko turned 62 on 13 March, his 15th birthday imprisoned for a crime nobody believes he committed. If he were one of Russia’s many Ukrainian political prisoners, legislators and others in Ukraine would, at least, be making public noises, and maybe even trying to secure his release. Panasenko, however, is imprisoned in Ukraine, and legislators are in no hurry to right a terrible wrong, against him and other men, whose life sentences also arouse very strong concerns. Ukraine has already been slammed for this by the European Court of Human Rights, with the second time, on 10 December 2020, a bulk judgement finding violation of the rights of 24 applicants, including Panasenko.
The Court in Strasbourg is losing patience with Ukraine, since this is not the first time it has stressed that the European Convention’s prohibition of torture (Article 3 of the Convention) requires that there must be at least the possibility that a life sentence can be reduced. The Court is not saying that all prisoners must be released, only that they must have the chance of “a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds”
While ECHR kindly assumed that the only possible reasons for a review lay in some changes or reform of the life prisoner himself, the situation is far worse in Ukraine. Here one of the most compelling grounds for needing a review mechanism lies in grave concerns that many of the life prisoners are either innocent, or have received a disproportionately harsh sentence.
A Ukrainian life sentence is for life, with the only possibilities for release being a terminal illness or a Presidential pardon. The latter have not been issued once in the last several years.
The problems with Ukraine’s justice system are most graphically seen in the case of serial killer Sergei Tkach. He was able to murder his victims with impunity over an incredible 25 years because at least ten other men had been tortured into ‘confessing’ to some of the crimes and sentenced to long terms of imprisonment. Even after Tkach was arrested in 2005 and confessed to around 100 murders, 37 of which were fully proven, it still took a long time before those other victims, arrested for Tkach’s crimes, were finally released.
The methods of ‘investigations’ which enabled such miscarriages of justices were widely used, at least until the adoption of a new Criminal Procedure Code in 2012. Among other important changes, this makes it impossible to pass a sentence solely on the basis of a ‘confession’, and also ensures that people accused of serious crimes have a lawyer present from the outset.
Human rights monitors believe that there are up to 100 life prisoners in Ukraine whose sentences, based on ‘investigations’ before 2012, are extremely suspect – either disproportionately long or, worse, passed against men who are innocent.
The last possibility for judicial review of such cases was removed in 2011, when the then President Viktor Yanukovych seriously reduced the powers of Ukraine’s Supreme Court. Many of the powers then taken away have been reinstated, but not the Court’s right to review cases under exceptional proceedings. This refers to cases where there is believed to have been violations of material and procedural law, through the fabricating of evidence, etc.
For the last 10 years, there have been several attempts, including through legislative initiatives, to rectify the situation. The first parliament following the Revolution of Dignity (Euromaidan) even voted on a draft bill, No. 2033a in its first reading back in 2015 and then let it gather dust until the parliamentary elections in 2019 made its adoption possible. A new bill (No. 3078) was tabled in February 2020, but was returned by the profile committee for reworking, and was, on 2 February 2021, withdrawn.
This makes Ukraine’s failure to comply with the European Court of Human Rights’ judgements seem especially flagrant. It also leaves a large number of life prisoners whose sentences are very likely flawed with no chance of justice.
This is almost certainly not just inertia, but downright sabotage from some quarters. When there seemed a real chance that the earlier No. 2003a bill could be passed, numerous, highly manipulative, articles appeared in the media about the bill. These gravely distorted the facts about the very restricted scope of the review proposed, and played on people’s fears about ‘maniacs and killers’ being released. Very many of the investigators, prosecutors and judges who either deliberately faked evidence or ignored clear signs that a person was innocent still hold their position, or have been promoted to considerably higher posts, including in the Prosecutor General’s Office. They have a clear vested interest in blocking any possible review.
While there are many worrying cases, one stands out for its shocking cynicism and for the number of prominent Ukrainians, including the first Human Rights Ombudsperson, Nina Karpachova and first Ukrainian President, Leonid Kravchuk, who have pointed to the evident miscarriage of justice.
On 26 October 2006, a car bomb, planted under a car belonging to Lviv City Councillor and owner of the Shuvar market, Roman Fedyshyn left him unharmed but killed 14-year-old Marika Kutsinda who was walking past when the bomb exploded..
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, who was suspected of being the go-between between the perpetrators and the person who had commissioned the crime.
Rudy was arrested while under treatment for alcoholism in a psychiatric clinic and signed four different ‘confessions’. He first asserted that the blast had been ordered by Fedyshyn himself to improve his political rating. When the investigator Roman Sharko told him that such a confession would not do, he named Myroslav Bokalo, the administrator of the market. This was also deemed wrong, so Rudy then asserted that the crime had been ordered by two men - Bokalo and Panasenko. The latter had created the company behind the Shuvar market together with Fedyshyn. A fourth ‘confession’ mentioned only Panasenko.
Rudy retracted his words in court, stating at both first trial, and then appeal level. that Panasenko had nothing to do with the crime and that it had been commissioned by somebody else. He later also 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.
This was ignored by the court, under presiding judge Stanislav Holubytsky, as were other falsifications in the case. 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.
Volodymyr Panasenko remains imprisoned. Despite the European Court of Human Rights’ judgement, on 15 February 2021. The Grand Chamber of Ukraine’s Supreme Court refused to initiate proceedings into Panasenko’s appeal against his life sentence. Stanislav Holubytsky is now a Supreme Court judge, with this despite a negative assessment from the Public Integrity Council which cited his role in the trial of Panasenko. Roman Sharko, who played a direct role in falsifying evidence has been appointed to a managerial post in the Prosecutor General’s Office, responsible for overseeing ‘adherence to the law within the National Police’.