Friday, December 2, 2022

Zelensky urged to veto law that puts Ukraine on track for more damning European Court judgments

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By Halya Coynash

KHPG (24.102.2022) – https://bit.ly/3soAxEg – Ukrainian human rights NGOs have issued an appeal to President Volodymyr Zelensky, calling on him to veto a bill which claims to comply with the European Court of Human Rights, but which does nothing of the sort. The situation is especially frustrating as real compliance might finally provide the only chance of justice for the many life prisoners in Ukraine who may well be imprisoned for crimes they did not commit.

On 18 October, Ukraine’s Verkhovna Rada adopted two draft bills: No. 4048 ‘On amendments to some legislative acts regarding implementation of European Court of Human Rights [ECHR] judgements’ and No. 4049 ‘On amendments to the Code of Administrative Offences; the Criminal Code and the Criminal Procedure Code regarding implementation of ECHR judgements’. The proposed amendment to the Criminal Code would allow the imposition of less severe sentences and early release on probation in the case of people sentenced to life imprisonment.

This should have been a positive move since Ukraine’s life sentences really are for life, with no possibility of release, nor of judicial review (except in the case of new evidence). The European Court of Human Rights issued its first judgement on this situation back on 12 March 2019 in the case of Petukhov v. Ukraine. The Court held unanimously that there had been a violation of Article 3 (the prohibition of torture) specifically with respect to life sentences, like that in the case of Volodymyr Petukhov, where there was no chance of any reduction to the sentence. The judgement stated clear that there needed to be a reform of the system of review of life sentences. Although there could well be situations where a prisoner was, for example, deemed too dangerous to ever be released, life prisoners must know what they can do in order to have at least some hope of eventual release. There have been several analogous judgements since then.

On 17 September 2021, Ukraine’s Constitutional Court found that the situation where life prisoners were deprived of any chance of release was unconstitutional. The Court’s judgement obliged Ukraine’s Verkhovna Rada to bring two articles of the Criminal Code into keeping with its judgement. The two bills adopted on 18 October 2022 were supposed to rectify this situation. The human rights NGOs’ appeal, however, points out that, instead of removing the violation, the bills actually create grounds for yet more applications from life prisoners to international courts.

No. 4049 envisages changing a life sentence to a sentence of 15 to 20 years where a person has already served no less than 15 years’ imprisonment. Since no part of the sentences would be concurrent, this would mean that a life prisoner’s sentence would be changed, but he would still have to serve a minimum of 30 years’ imprisonment. Since some life prisoners have already served considerably more than 15 years (even more than 25), the charges of them ever being released, would be remote. The authors of the appeal note that this norm clearly discriminates against those who have already served much more than the requisite 15 years envisaged by the new bill.

In fact, the human rights groups believe that the very need to serve more than 30 years already places the entire mechanism allowing for release of life prisoners in question. Given the inadequate conditions in Ukrainian penitentiary institutions and the failure to provide prisoners with proper medical care, life prisoners would be unlikely to survive so long in confinement. They would thus still be deprived of any realistic chance of release. 

ECHR has, in fact, already addressed the question of what would be a reasonable amount of time after which a person could at least have the chance of release. In Ihe case of Bancsók and László Magyar (no.2) v. Hungary, a term of imprisonment of 25 years was proposed.

The human rights groups (the Ukrainian Helsinki Human Rights Union, the Kharkiv Human Rights Protection Group, and others) are therefore calling on President Volodymyr Zelensky to veto No. 4049 and to send it back for revision.

Since the European Court of Human Rights’ position does not depend on whether a person was guilty of the charges which led to the life sentence, the appeal is concerned only with the above flaws. It should, however, be noted that an extra issue in Ukraine is that human rights NGOs have identified a large number of cases where there seem legitimate grounds for doubting that the person serving a life sentence is, in fact, guilty. There are also many cases where one person was sentenced to life, while another received a 15-year sentence, although the crimes were comparable.

Until the new Criminal Procedure Code came into force in 2012, there were no mechanisms for ensuring that a person could not be convicted and sentenced, even to life, on the basis of ‘confessions’, tortured out of a person, of testimony given without a lawyer being present, etc. Under the presidency of Viktor Yanukovych, Ukraine’s Supreme Court was stripped of a number of powers, including its right to review criminal cases under extraordinary procedure. Such procedure had enabled review of a conviction in cases where there had been violations of material or procedural law, for example, where evidence had been fabricated or falsified.

There remains no mechanism for rectifying miscarriages of justice, however glaring. Campaigns to obtain a judicial review or at least pardon in the cases of, for example, Volodymyr PanasenkoYaroslav MysiakMaxim OrlovMykola Slyvotsky and others have remained unsuccessful. Some prisoners, like Oleksandr Rafalsky died in prison. His mother, Tamara Rafalska, has continued to campaign not only for justice for her son, but for those of other life prisoners deprived of the right to a fair trial. It was she who, on 27 May 2021, received a poignant victory when ECHR found that Ukraine had violated her son’s rights through the use of police torture and the failure to properly investigate this.

Volodymyr Panasenko

If the President does not veto No. 4049, 62-year-old Volodymyr Panasenko, who has already spent over 15 years imprisoned, would face a further 15-year sentence for a crime nobody has ever believed that he committed.

As well as human rights NGOs, several prominent public figures, including the first Ukrainian President Leonid Kravchuk and first Human Rights Ombudsperson, Nina Karpachova 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 became 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 was appointed to a managerial post in the Prosecutor General’s Office, responsible for overseeing ‘adherence to the law within the National Police’. 

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Photo credits: UNN

Article posted on HRWF website https://bit.ly/3SvtJyX

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