An appeals court notices glaring problems with a notorious murder trial, then ignores them.by Halya Coynash 1 November 2013
On 25 October, a court of appeal in Ukraine upheld the conviction of three men charged over a fatal bomb blast in July 2010 in an Orthodox church. It reduced each of their long sentences by one year.
The appeal tribunal’s judges reached their verdict despite hitting upon truck-sized holes in the case and adding an inconsistency of their own. It leaves the impression that the lower and high courts were hoping to cover up the most questionable aspects of a widely publicized trial.
The “case of the sacristans” is well-known in Ukraine. In brief, an elderly nun was killed in July 2010 by a bomb planted in a church in the eastern city of Zaporizhya. The next day, President Viktor Yanukovych ordered the heads of the law enforcement agencies to find the culprits within the week. The first young man was pulled into the police station the very next morning, and by 6 August the chief of police reported that three men were in custody and that he would be proposing “rewards for the Interior Ministry, Security Service, and Prosecutor General’s Office employees who had taken an active role in solving the crime.”
Two of the arrested men were sacristans at the church. The other is a brother of one of the sacristans. The only evidence against them has always been a combined seven confessions, extracted through what the defendants say was torture and threats, and since retracted by all three. When two independent psychological analyses of those confessions called them into question, the trial judge simply ordered a third assessment that validated them and then refused to allow the evaluators to testify.
What’s more, the men had airtight alibis for when they were supposed to have been running around the city passing the bomb to one another. That is, until the prosecutor changed the indictment more than a year into the trial to remove references to specific times that clashed with the men’s alibis. That indictment, before it was “cleaned up,” was a deranged muddle of details from different confessions.
Lawyers called in by the investigators shirked their responsibility to represent the men so egregiously that two had their licenses suspended and another received a formal warning.
These and other issues were aired by the appeal judges. They also learned that nobody had tried to find the person from whom one of the defendants had allegedly purchased the explosive device. The judges noted enough significant discrepancies and infringements to support at least a ruling that the case had been insufficiently investigated.
Yet on 25 October, presiding Judge Yury Boikov stood up and read out a ruling upholding the conviction of all three defendants. For now, we know only that the judges threw out three confessions, one of them on the grounds that it was obtained at night, when the defendants had been deprived of sleep and food.
The two other excluded confessions were also obtained at night, although the judges did not cite that – or any – reason for throwing them out, and they let stand yet another two nighttime confessions (along with two obtained during the day).
One of the convicted men, sacristan Yevhen Fedorchenko, had his only confession thrown out – so it remains a mystery how his conviction was not overturned, given that the confession was the only “evidence” against him.
The exclusion from the case of some of the confessions is hardly likely to be viewed with understanding at the European Court of Human Rights, where this case is likely to end up – and which has penalized Ukraine for other cases in which the only evidence was multiple confessions.
It is worth noting that both courts threw out a confession by one of the men in which he implausibly explains how he put together the bomb, reviewed the next morning by explosives experts who said he clearly had no idea what he was talking about.
No matter. Within hours the man was instead telling investigators that he had bought the device.
Even in a country where the police are notorious for beating confessions out of people, such a quick succession of fundamentally different confessions, as well as the videoed reconstruction, raised eyebrows and elicited unwelcome publicity.
The subsequent confession was allowed to stand, although the defendant said it, like the earlier one, was beaten out of him – and two independent assessments found evidence of psychological pressure on him.
It seems obvious that the lower court simply wanted to rid the record of the embarrassing bomb-making confession, and the upper court obliged, making a murky case even murkier.
Given their pertinent questions about the case’s many problems, it is profoundly frustrating that despite the weak answers, or in some cases the lack of answers altogether, from the prosecution, the three appeal judges looked the other way at this decisive moment.
Instead they simply shaved a year off the men’s original sentences of 14 and 15 years.
There remains one cassation appeal in Ukraine, and then the European Court of Human Rights, whose judges will not look away.
The ramifications for Ukrainian justice if judges can pick and choose confessions are serious. This is just one of the reasons why the case is important and why the three young men urgently need support and legal counsel. They have been in detention for more than three years. Virtually nobody believes that they are guilty, yet most assume that they are doomed because of the role played by Yanukovych.
In Ukraine and abroad everybody is waiting to see how the president will resolve the issue of imprisoned former Prime Minister Yulia Tymoshenko, on which they say the fate of a political association and free trade agreement with the EU hinges. Perhaps it does, but the development of civil society in Ukraine also depends of the fate of these three young men. Acceptance that they are “doomed” is a move straight back into the Soviet past.