UHHRU experts contributed into EU-Ukraine Parliamentary Association Committee’s statement and recommendations
Developments and findings of USAID Human Rights in Action Program have been used by the Ukrainian...
20 April 2018
About a year ago the national mass-media made public disclosure of absolutely inconceivable comparable figures revealing the number of life-termers in Ukraine and Russia. As it turned out, Ukraine has drawn ahead of its North – Eastern neighbour with the number of 1,845 life-term prisoners versus 1,841 lifers in Russia.
To a certain degree, slight legislative distinctions between our countries might be one of the reasons why Ukrainian judges choose the most drastic measures of punishment more often than their Russian colleagues. On the other hand, according to the criminological data, the quantity of murders committed in Russia is twice as many as in Ukraine. We must also take into consideration the fact, that the population of Russia more than three times exceeds the amount of Ukrainian citizens. Then, how can such an obvious statistic paradox as to the number of lifer-termers in Ukraine and Russia be explained?
The poor quality of national jurisdiction is one of the evident explanations. Let us take the case of the Sydorenkos family as an example. An elderly-age father and his two sons of 28 and 36 years old were convicted for murder and were imposed a life sentence. Pursuant to the verdict of the Kyivo-Sviatoshynskyi District Court dated May 16, 2012, one of the sons convinced his father to take out residential mortgage loan in June 2008. The total funds received (UAH 261,800.00) were given to [victim] O. O. Vasylyshyn for setting up a common business. The business partners maintained friendly and trust-based relations for some time, the victim even called the elder Sydorenko “the father”. Thus, giving their family assets to the person with business acumen, as they guessed, the Sydorenkos could hardly imagine the trouble they would get into. The following was stated in the sentence: “Having received the sum of money equal to UAH 261,800.00 from the Sydorenkos, O. O. Vasylyshyn started evading his commitments and failed to refund money, assuring the family that the assets were used for their designated purpose”.
There are no legal grounds for defining the victim a “fraudster”, though a testamentary evidence of his brother, V. O. Vasylyshyn, testifying before finding out the causes of the victim disappearance, can be found in the case files. V. O. Vasylyshyn informed about the following: “Oleksandr was living alone. He had always dreamt of doing business. While chatting he told me of having set up a business of providing road transport and haulage services between Kyiv and Khmelnytskyi cities. I did not believe him. We often talked about his borrowing great sums of money from me, our parents and relatives for no particular reason. He had never repaid the borrowed money… On this account, I ask to question our family, me, parents, aunt and uncle who lent Oleksandr the sum of money equal to USD 80,000.00 during 2008-2009. V.S.M. was also the person who lent Oleksandr some money in 2008-2009. Oleksandr used to borrow money every two-four months each time giving different explanations. The sums of money equal to USD 4,500.00 given by N.O.I. at the beginning of May 2009 and US 20,000.00 provided by SH.V. were the last money he received…»
So, the drama happened soon… Pursuant to the verdict of the Kyivo-Sviatoshynskyi District Court dated May 16, 2012: “After it became clear for the Sydorenkos that O. O. Vasylyshyn was not going to meet the civil and legal obligations, a criminal intent arose on the twentieths of May 2009. They decided to kidnap the victim and nail him down to fulfil the civil and legal commitments by repaying UAH 261,800.00. Putting their intent into action, on May 26, 2009 at about 08.30 am the Sydorenkos seized O. O. Vasylyshyn that was just leaving his house, by arms and forcibly got him into the car. In order to overcome the resistance put up by O. O. Vasylyshyn, Sydorenko [the father] hit him on the head with the handle of a rubber bullet pistol…Vasylyshyn was transported to his house… He was being unlawfully kept in the basement for a day and forced for a legal paying back of the sum equal to UAH 261,800.00. Nevertheless, O. O. Vasylyshyn refused to give a refund. Having failed to get the money back, the Sydorenkos decided to kill O. O. Vasylyshyn Thus, it was a wilful homicide of a kidnapped person committed by a group of people with extreme atrocity by burying the victim alive…”
Let us pass over the details of what was happening in the wood near the Village of Zhornivka of Kyivo-Sviatoshynskyi District at night May 26 to 27, 2009. It would be for many reasons improperly wrong. The feelings of the affected people are not the only reason. We avoid details because there are two versions of the night events in the case files, while neither of the two is true, as it often the case with our system of justice. Secured false confessions made by the young Sydorenkos under torture and acknowledgement of guilty being the grounds for the proceeding decision and the sentence on the one hand, and the testimony given by the criminal defendants differing from the evidence given at the beginning, on the other hand. It’s known for certain that the Sydorenkos kept demanding from O. O. Vasylyshyn, while in the basement and in the forest, to pay the money back. We also know for sure that during the day and night the young Sydorenkos (the sons) were acting by order of their father feeling their guilty for a dishonest partner and imminent bankruptcy late in life. By all means, there are no reasons to disbelieve the young Sydorenkos stating that there was no coordinated murder plan and that, by their father’s order, at the last moment they left the latter alone with the victim…
The final of the story is, say the least of, frightening. The death of a buried alive victim is terrible. Though, the sentence imposed by the Kyivo-Sviatoshynskyi District Court on May 16, 2012 is not less awful: the three previously unconvicted Sydorenkos, the father and two sons, were given a life sentence.
What is a life imprisonment? Everybody knows that this is the uppermost legal penalty having substituted death sentence. Everyone knows that the concept “fair justice” is an integral part of “just punishment” depending on the gravity of offence and the identity of a defendant. The penalty is to be found to conform to Law, though, at the same time, it can be found unfair in terms of its type or extend (mild or heavy). Taking into consideration the fact that Ukrainian judges impose life imprisonment six times more often than their Russian colleagues, some new questions without answers arise. Why is that? Are our judges more intolerable towards murderers? Are they more pitiless, malicious or merciless? No way! Our national judicial practice is full of quite opposite examples giving a display of incredible humanity and leniency towards evidently pathologic killers. Let us take two cases – Lozynskyi case and Demishkan case – as examples.
Deputy Lozynskyi, coming around the fields and woods which he considered his feudal possessions, noticed a stranger. The typical representative of Ukrainian political elite decided to give a good lesson to the person that dared to trample the land of a landlord without permission of the latter. At first Lozynskyi, for the sake of self-affirmation, caught up to the local countryman by his car and beat him brutally. The Public Prosecutor of the District and the Head of District Police Office were there at the moment and saw everything firsthand. The victim was trying to escape to the forest, so Lozynskyi started firing grape-shot for a big animal. The wounded Oliinyk fell down trying to crawl while the people’s deputy went on torturing the victim by the car having crushed the ribs and foot bones of the dying man…The first instance court convicted Losynskyi for a 15 year prison term. The Appeal Court of Kyiv lightened the sentence to 14 years. The Superior Specialized Court of Ukraine was even more liberal having reduced the term of imprisonment to 10 years. On June 11, 2014 the Brovary District Court of the Region of Kyiv discharged Lozynskyi from prison for health reasons. For the time being, the latter served a little more than 4 years in jail for his zealotry.
Serhii Demishkan is the person involved in the other case. He is the son of a deputy from the Party of Regions who was appointed the Governor of Vinnytsia region at the beginning of the presidency of V. F. Yanukovych, and later the Head of Ukravtodor. Younger Demishkan was providing air services subletting the leased АН-26 which he was renting from the company managed by Vasyl Kryvozyb. At some time Demishkan stopped paying a rent. In return, the company headed by Kryvozyb terminated the lease contract and reclaimed the leased aircraft which was ensuring a significant monthly income for the former. The perspective of losing the stable source of income was unacceptable for Damishkan and he decided to act. On November 19, 2007 Kryvozyb was kidnapped and transported to a country house in the Town of Baryshivka. Threatening bodily harm, the offenders were trying to make the victim disclaim his right to the aircraft. As Kryvozub was setting his teeth hard, a decision to kill the latter was made the following night. For that purpose Demishkan and his two accomplices took the affected person to one of the Dnieper river coves having him hog-tied and attached with an iron radiator to his back. For a better secure Demishkan personally pushed the victim’s chest with his foot having caused the fracture of 4 and 5 right ribs. After that the criminals started forcedly pouring vodka into mouth of Kryvozub. As the latter was resisting his neck was pressed a few times with fingers having caused the fracture of thyroid cartilage. According to the accomplices evidence, before throwing Kryvozub from the bridge, Demishkan was mocking the victim saying: “Say hello to Kusto”.
The first time the case was heard in the Appeal Court of Kyiv. After two years of proceedings the General Prosecutor Office filed a petition for remitting the matter for fresh examination which was granted by court on 29.09.2009. At that, referring to the accused Demishkan’s state of health, the court ordered to release the latter on licence. After a new hearing in a first instant court, on November 23, 2012 the Brovary District Court of the Region of Kyiv sustained a conditional sentence to Demishkan for a 5 year term. His accomplices were imprisoned for 5 and 7 years. That is an example of a real humanity displayed by our national justice…
Then why is the statistics of “lifers” in our country so unfavourable? We will try to find an answer analysing the Sydorenkos case. But first let us reflect a little about the heaviest type of criminal punishment. If we paraphrase some criminal-legal and criminological categories in layman terms, then we can say that life imprisonment can be justified only in cases of supreme confidence in no moral right for the person to live among people, in terms of what he/she has committed. It can be also justified in the cases when there is no least guarantee for a murdered for not falling back in old ways and repeating murder again. Are these the cases for our example?
Of course, not. Even assuming that the tree accused Sydorenkos have planned and violently killed their light-minded debtor, in this case the three Sydorenkos with no previous convictions are far from being so monstrous and ugly to be punished and eat their heart being isolated from people till their dying day. That was the decision of the Appeal Court of Kyiv made on April 3, 2013 having lightened the verdict delivered for the young Sydorenkos to 13 years. It could have been a partial restoration of justice but for the next trick of judicial system. On February 4, 2014 the Order was issued by the Superior Specialized Court of Ukraine reversing the decision made by the Appeal Court of Ukraine of 03.04.13, and the case was remanded for a new trial. At that, cassation court having overstepped its authority in the Act of 04.02.14 stating the following (word-for-word): “Having lightened the sentence for V. A. Sydorenko and D. A. Sydorenko …as imposing a 13 year term of imprisonment… the Decision of the Appeal Court on imprisoning the mentioned above people was hasty” In other words, the Supreme Court made a mandatory and literary directive for the Appeal Court in terms of penalty indicating that life imprisonment was the only proper type of punishment for the brothers. There is no doubt that the Appeal Court of Kyiv followed the directive and the imposed sentence has not been changed after the retrial.
The case when reversing the decision of lower courts, the cassation court directly indicates the type of punishment to be chosen during the retrial is a rare and extraordinary example. In fact, the dogged persistence displayed by judges to sustain a life sentence for the Sydorenkos can be easily explained. The victim was the brother of the judge that has been now holding the position of the Head of the Brovary District Court of the City of Kyiv – Valerii Oleksandrovych Vasylyshyn.
The second cassational appeal for the defendant plea of the Sydorenkos is planned to be heard by the Superior Specialized Civil and Criminal Court of Ukraine on September 11, 2014. It is interesting, are the Supreme Court judges bound by the directives having been made by their colleagues before..?
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