Contempt for the justice system from the Supreme Court?

A strong and independent judiciary is the main prerequisite for observance of human rights and fundamental freedoms. The lack of respect for the justice system, mechanisms of support of the court’s independence and authority renders protection of human rights illusory.

Just who doesn’t encroach on the authority of the justice system? High-ranking government figures constantly see fit to disregard court rulings, violate them, insult all judges en masse, calling them mafia – although they mean those caught red-handed or those who passed rulings not to their taste. They want to keep judges all the time on a short lead, constantly under-funding the judiciary. Where would you get respect for the justice system?

In our Ukrainian reality I have therefore always been categorically opposed to any actions by human rights activists which undermine this institution – pickets near the court or other forms of pressure on the court. If you’ve lost your case, appeal. If they don’t hear you then, try a cassation appeal. If that doesn’t work try the European Court of Human Rights if there are grounds, or another international body. You’ll eventually win. While it is, in my view, a vain endeavour to put pressure on the courts.

Yet what does one do if the highest judicial body – the Supreme Court of Ukraine – demonstrates flagrant contempt for the justice system?  This is a very worrying signal which places a question mark over the above-mentioned arguments. It is the collapse of the foundations when the ground slips out from under our feet. This case needs to be thoroughly considered and the reasons and motives established. We propose that the reader does this in the case of Oleksandr Yaremenko.

On 27 January 2001 Yaremenko was arrested on suspicion of the murder on 26 January of taxi driver M., as well as other crimes. On the same day during interrogation in the Kharkivsky District Prosecutor’s Office in Kyiv, in the presence of lawyer Oleksiy Khyvrych, Yaremenko confessed to the crimes of which he was accused. On 1 February a police officer from the Kyiv Kharkivsky District Police Department interrogated Yaremenko over the murder of taxi driver Kh. In 1998. The crime was qualified under Article 101 § 3 of the Criminal Code as inflicting severe bodily injuries leading to the death of the victim. This article does not stipulate mandatory presence of a lawyer during interrogation as do charges of murder. Subsequently Yaremenko alleged that police officers had beaten him, demanding that he sign a letter rejecting a lawyer and confessing to the killing of Kh.

On 2 February Yaremenko told his lawyer Oleksiy Khyvrych about what had happened on 1 February. The latter advised him to retract him testimony, declare his innocent and complain of the use of force. On the same day Oleksiy Khyvrych lodged an application for a medical examination of Yaremenko with the Prosecutor, however this was not carried out.

On the same day Yaremenko signed a waiver with respect to lawyer Oleksiy Khyvrych, claiming that the latter was obstructing him from confessing to the murder of Kh. He later stated on a number of occasions that he had signed this waiver under pressure from the investigator of the Prosecutor’s Office H. and police officers. During the following days Oleksiy Khyvrych tried in vain to meet with his client. On 9 February he was informed that he had been removed from the case at the decision of investigator H. on the basis of Articles 61 and 130 of the Criminal Procedure Code. Another lawyer had been appointed, and in this lawyer’s presence charges had already been laid of murdering Kh. Under Article 93 of the Criminal Code. Yaremenko had confessed to killing Kh. Together with S. in the summer of 1998.

Without going into the details of the battle of Oleksiy Khyvrych, Yaremenko and his wife for the lawyer to be returned to the case and the allegations of unlawful violence to be investigated, we would note that on 24 April Khyvrych was allowed to defend Yaremenko. On 21, 23 and 24 June the same investigator from the Prosecutor’s Office H. carried out a check of Yaremenko’s claim to have been beaten.  He questioned the three police officers named by Yaremenko and all three denied having applied any pressure or other unlawful actions.

On 20 November 2001 the Kyiv Appellate Court convicted Yaremenko of the killings of M. and Kh.. It did not take into consideration statements that the confession regarding the killing in 1998 had not been made voluntarily. The court referred to the fact that these “claims had been checked by the Prosecutor’s Office” and that “according to the results of the check no information was obtained confirming violations of the law by officers of the detective inquiry or criminal investigation department”.

On 18 April 2002 the Supreme Court of Ukraine upheld the judgment of the appellate court. In reply to Yaremenko’s complaint about a violation of his right to a defence, the Supreme Court stated that it found no evidence of a violation of the right to a defence or of any other serious violation of criminal procedural law that could provide a basis for quashing the judgment of the appellate court.

Yaremenko applied to the European Court of Human Rights alleging torture and violation of his right to a fair trial. On 12 September 2008 the European Court’s judgment came into force. The Court found that there was insufficient evidence of ill-treatment since an effective independent investigation of the statement by Yaremenko and his lawyer of ill-treatment had not been carried out. The Court deemed this a violation of the State’s duties and that therefore Article 3 of the European Convention had been infringed. The Court also found a violation of Article 6 § 1 in the violation of the applicant’s right to remain silence, and in his having been forced to testify against himself. The Court noted that the applicant’s conviction for the 1998 crime was based mainly on his confession, which was obtained by the investigators in the absence of a lawyer and which the applicant retracted the very next day and then from March 2001 on. The Court deemed that this confession had not been corroborated by other evidence and that the lack of any discrepancies and inconsistencies in the detailed testimony given by Yaremenko and the other accused S. regarding the circumstances of the 1998 killing led the Court to surmise that this testimony had been well coordinated and received against the will of the accused. The Court also stated that two other lawyers “defending” Yaremenko had only formally fulfilled their duties which could not compensate for the removal of lawyer Khyvrych. The Court was especially concerned by the trick with switching the article of the charge which made it possible to carry out the interrogation in the absence of a lawyer and obtain a confession, and then with the removal of the lawyer from the case. The Court deemed this a flagrant violation of the right to defence (Article 6 § 3(c)).

The European Court Judgment must be enforced. For this the Yaremenko case must be re-examined since the European Court found the evidence of his guilt in the murder of 1998 unlawful. According to all canons of the law, the finding of even a part of the evidence unlawful undermines the verdict, and requires the examination of the entire case again. Therefore at the end of 2008 lawyer Arkady Bushchenko filed an application with the Supreme Court to have the court rulings in the Yaremenko case reviewed as extraordinary proceedings.

It would be natural to expect that the Supreme Court could revoke the verdict of the appellate court in 2001, the 2002 Supreme Court judgment and would ensure that these rulings were re-examined. However there was an unexpected turn: the court chamber for criminal proceedings and the military chamber at a joint hearing simply excluded from the verdict the confession and other evidence obtained on 1 February 2001 during Yaremenko’s interrogation as suspect, leaving the verdict in force! They considered sufficient precisely that evidence which arouse the doubts of the European Court and prompted them to think it was falsified.

The European Court Judgment in the Yaremenko case was thus not enforced. The Supreme Court gave grounds for another complaint to the European Court of Human Rights regarding violation of the right to a fair trial. It went beyond its competence and assessed facts which it did not have the right to do in this court case. It seems that Supreme Court judges taking part in this case did not understand the point of the European Court Judgment in the Yaremenko case and totally ignored it. They even complained against the conclusion of the European Court that an investigation into the allegations of torture had not been properly undertaken.

When formally asked who voted how during the passing of the judgment, the answer came that the criminal procedure law does not allow for voting by name when taking decisions in a joint hearing.

The Supreme Court judges evidently do not understand the situation that they have placed themselves in, and the country. It will now find itself under pressure from Council of Europe bodies, international and domestic human rights organizations and will finally be forced to change its position.

The joint ruling of the chambers of the Supreme Court has one other important aspect: it effectively gives law enforcement agencies carte blanche to continue the practice of extracting confessions through violent methods and by violating the right to defence. After all there will be no punishment for this even if the European Court finds there to have been a violation. And the Supreme Court had the opportunity to provide an opposite signal on the basis of the judgment of the European Court in the Yaremenko Case!


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