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3 May, 2012  ▪  Yaroslava Movchun

Hammer Into Anvil

Innocent people trapped in the grindstones of Ukraine’s law enforcement machine often have only two options: admit their guilt and end up behind bars, or spend a long time proving their innocence and get released as invalids

On 22 March, Maksym Dmytrenko (photo) was released after eight years in prison for a murder committed by another man, Serhiy Tkach, who is also known as the “polihivsky[1] maniac”. Convicted at 14 for crimes also committed by Serhiy Tkach, Yakiv Popovych was released a year earlier. All in all, the Ukrainian justice system sent at least 14 people to jail for the rapes and murders of women committed by Serhiy Tkach, a one-time police officer and criminal lawyer. One of the convicts was executed, while another committed suicide under the pressure of the charge of murdering his daughter.  

This appalling story is just the peak of the mistakes iceberg in Ukrainian justice, and each hides a broken life. Even more tragic than this is the fact that nobody can count exactly how many Ukrainians have been hit by this blind justice. Human rights advocates do try to keep record of those who say they are innocent, but they are not judges, and therefore they can only determine the facts of a violation in the process of investigation.

Sometimes judges do grant acquittals, but it is merely a drop in the ocean of all criminal cases. Last year, for instance, 160,600 verdicts of criminal cases included just 78 acquittals compared to almost 50% in countries with a highly developed justice system. In fact, the Presidential Administration reported the share of acquittals as 0.2% in Ukraine while discussing the new version of the Code of Criminal Proceedings, which is sponsored by President Yanukovych. What the officials missed, though, was that this figure includes verdicts on administrative and other breaches, not just criminal ones that send most convicts straight to jail.

IGNORANCE AND SOLIDARITY

“Imprudent investigations, unprofessional investigators, poor prosecutor oversight and, of course, the hunt for statistics to boost career growth,” Oleksiy Bahanets, a former prosecutor with 32 years experience, lists the reasons that put innocent people behind bars. Forced to resign from the prosecutor’s office in 2010, he has been working as lawyer ever since.

“Everyone knows of Dmytrenko and other people sentenced for Tkach’s crimes but nobody has yet spelled out the reasons for what is going on officially, nor have those who sent these people to jail been announced,” Mr. Bahanets says. “Nobody inquired why these people went to prison in the first place.”

According to Mr. Bahanets, very few professionals still serve in law enforcement authorities and there is no one to train young employees who replace retirees. Thus, the violation of legal requirements during an investigation begins at the point when the crime scene is examined.

Then, investigators start their arbitrary search for the guilty parties, says Yevhen Zakharov, Board Chair of the Ukrainian Helsinki Group for Human Rights. Most often, they find someone who turns up in the wrong place at the wrong time, or someone they already have on record who they think could be a criminal or a ‘whipping boy’ that just happened to be around. “They arrest this person and manipulate, intimidate or beat him or her until they get a confession,” Mr. Zakharov notes.

“Once the arrested party pleads guilty and some indirect evidence is found against them, the case goes to court,” Oleksiy Bahanets confirms what Mr. Zakharov says. “Apparently, this is enough for a verdict.” Most often, courts disagree with the prosecutors’ conclusions. A prudent judge reluctant to break someone’s life is most likely to send the case for additional investigation. “But most judges are scared because the prosecutor will immediately complain to the Supreme Council of Justice if something like that happens,” Mr. Bahanets claims. “They will lose their jobs after just a few complaints.”

As a result, no one involved in the machine is interested in granting the acquittal. “An individual is always weaker than an institution,” lawyer Tetiana Montian says. “For Ukrainian institutions, investigation is business. Nothing personal! First of all, their own head and their statistics matter much more to law enforcers than someone’s life. Second of all, they get no bribe (to stop criminal persecution – ed.) if they don’t try to beat the suspect into confessing. It’s common knowledge that you’d have to pay the prosecutor if you don’t pay the cop, or pay the judge if you don’t pay the prosecutor. The lucky ones escape this vicious circle if they come across a gap in the system and the machine members are at swords with each other. But that’s a lottery with barely any chances for victory.”

NEW CRIMINAL CODE IS NO CURE

The government insists that the new version of the Code of Criminal Proceedings was drafted to eliminate this scandalous trend. “I believe that so few acquittals in Ukraine signal something is wrong,” Viktor Yanukovych said before the Verkhovna Rada passed his Draft Code of Criminal Proceedings in the first reading. Yet, human rights advocates do not expect any positive impact of the president’s initiative.

“The new Code comprises two conflicting models: the old soviet system of direct allegations and the European prosecution and defense competition model. Unless amended, the document will fail to operate,” Mr. Zakharov claims. “However, law enforcers keep pulling the rope as they are reluctant to share their powers, especially with the courts. I wonder how all this will end. Anyway, Ukraine really needs the new Code of Criminal Proceedings that would fit the European model.”  

Oleksiy Bahanets is a fierce opponent of the president-sponsored version of the Code. Representing the old school, he believes that the current Code is fine if all of its requirements are fulfilled, while the Code sponsored by Mr. Yanukovych runs counter to democratic principles of investigation, the ex-prosecutor insists. “The provision about pre-trial investigation was removed from it,” Mr. Bahanets states as one example. “This means that a businessman could report that his competitor has killed his mother-in-law to the police to remove him from the business scene. Under the new Code of Criminal Procedure, an investigator opens a criminal case immediately and starts the investigation that includes the search and arrest of the suspect. The new Code requires no verification of whether the suspect is married and has a mother-in-law. He can prove himself innocent later, but of course time and nerves will still be wasted.”

“The new Code was designed to break the police-prosecutor-court chain,” Tetiana Montian says hinting at the fact that it opens even more doors to windfall profits for those who serve justice. “Earlier, judges used to come last in the feeding chain of the system. Now, they will be first. The document will change nothing for common people because who they bribe, judges or the police, doesn’t really matter to them.”

The lawyers’ despair about legislative initiatives of the current government is self-explanatory. People will now have no chance to go through all judicial authorities. The Higher Special Court has now emerged as an obstacle on the way to the Supreme Court of Ukraine, and people cannot appeal to the European Court of Human Rights before they appeal to the Supreme Court of Ukraine. The Higher Special Court now decides whether someone can appeal to the Supreme Court of Ukraine, or not. Without its approval, the Supreme Court cannot accept the appeal for consideration. Moreover, the reform by those in power has made judges dependent on the Supreme Council of Justice.

Human rights advocates unanimously complain that escaping the grinder of the system is next to impossible. The only helpful things here are cash and the power of will. The guide to salvation includes hiring a good lawyer, as well as making all details of the case and violations during the investigation public through the media. The main challenge, though, is to survive the torture that turns many suspects into invalids. Most suspects in Ukraine do not have enough cash or strength to go through all these circles of hell. As a result, they confess to anything.

THE GRINDING MILL

Alive means guilty

Svitlana Kuksa has been at a pre-trial detention center for five years now. She is charged with ordering the murder of her husband, a farmer from Kherson Oblast killed by three robbers in front of her and their 13-year old son. The woman and the boy survived but gave all their savings away to the robbers. The alleged murderers, aged 16-17 when arrested, are behind bars, too. Crimean journalists have found that Volodymyr H., a long-time drug addict, has confessed to the murder twice over the last five years. Both times, though, investigators were instructed from atop to release Volodymyr and get rid of the evidence because the convicted murderers were already behind bars. Investigators were the ones who told journalists of the case because Volodymyr’s story sounded perfectly believable. At one point, the investigator in charge of Svitlana’s case actually told her that her main wrongdoing was to survive the assault.

Confess or die

This story shows what can happen to those who refuse to be held liable for a crime someone else commits. During the night of 30 December 1995, 10 people were murdered in Bratkovychi, a village in Lviv Oblast. The authorities launched a wide-scale operation that involved over 100,000 police officers, special service agents and the military. In March 1996, 26-year old Yuriy Mozola was arrested as a suspect. He was interrogated for three days and tortured with electric shock. The man refused to admit someone else’s guilt and hung on until his heart eventually stopped. On 22 March, the police found Anatoliy Onoprienko, the real murderer. By the time he was arrested he had murdered 52 people. Sentenced to life imprisonment, he is now in jail. Thankfully, those who tortured Yuriy Mozola are also now behind bars.

15 months in jail for no bribe

Kharkiv-born Yakiv Strohan spent 15 months in a pre-trial detention center charged with inflicting severe injury on his drunken neighbour. On 12 March, a court released Mr. Strohan after the criminalist examination failed to confirm the charges put forth by the prosecutor. Yakiv thinks that the law enforcers were simply waiting for a bribe. He says that he had an argument with his neighbour and pushed him. The neighbour fell on his back on some beer bottles he himself had broken before. In the morning Mr. Strohan was arrested. The enforcers broke into his apartment and tried to accuse him of cutting the neighbour with a knife. After lengthy torture, they demanded a bribe of USD 10,000, Yakiv claims. He agreed to pay and they let him go home to get the cash. However, he filed an appeal to the prosecutor’s office instead. After this he was arrested for a second time, accused of libel, and put into the pre-trial detention center.

No-victim murders

Oleksandr Rafalsky, a one-time prosperous businessman from Kyiv Oblast, has spent 10 years in jail. Sentenced to life imprisonment, he was accused of killing five people. Tamara, his mother, has spent all this time trying to prove her son’s innocence. She has collected evidence that shows one of the victims was seen alive several months after the crime, while two others were moving to Russia around the time of the alleged murder. Notably, the corpses of the victims allegedly murdered by Rafalsky were identified based on indirect evidence, such as the coincidence of the time when the crime was committed with the time of their disappearance. Amnesty International experts have confirmed that the case was investigated with multiple procedural violations. They claim that the enforcers forced Oleksandr to confess through torture, while witness evidence did not fit the conclusions of forensic examinations held at the request of Oleksandr’s family.

 



[1] From Polohy, a town in Zaporizhzhia Oblast


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