Convicts were beaten, the law was not broken… A court ruling.

Resolution of the Shepetivka District Court of 30 December 2008 regarding a complaint against the prosecutor’s resolution of 7 February 2007 on the refusal to initiate a criminal case regarding the fact of mass beating of prisoners by special units wearing masks in Izyaslav Penal Colony No 31.

RULING
IN THE NAME OF UKRAINE
30 December 2008, Shepetivka

Judge of the Shepetivka City District Court of the Khmelnytskyi Region O.A. Hubish, with secretary N.K. Havrylova, and the participation of the Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases M.F. Yantselovskyi, having considered the complaint of advocate A.P. Bushchenko, acting in the interests of Yurii Yevhenovych Shmyhlenko, against the resolution of the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk dated 07 February 2007 on the refusal to initiate a criminal case, —

has established:
Complainant A.P. Bushchenko, as a person representing the interests of Yurii Petrovych Shmyhlenko, one of the victims resulting from the mass beating of convicts which took place on 22 January 2007 in Izyaslav Penal Colony No 31, requests to cancel the specified resolution by which the initiation of a criminal case against the officials of Izyaslav Penal Colony No 31, members of the rapid response groups of Shepetivka Penal Colony No 98, Zamkova Penal Colony No 58, Khmelnytskyi SIZO, and the special-purpose unit of the Directorate of the State Department for the Execution of Punishments in the Zhytomyr Region under Articles 364 and 365 of the Criminal Code of Ukraine was refused for lack of corpus delicti in their actions, referring to the fact that the resolution was issued by an unauthorised person — the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk, in violation of the requirements of Articles 54 and 58 of the Criminal Procedure Code of Ukraine, and item 58 of the Internal Rules of Penal Institutions approved by order of the State Department of Ukraine for the Execution of Punishments No 275 dated 25.12.2003.
In addition, he noted that the resolution stated that the verification did not confirm the fact of the mass beating of convicts who were in Izyaslav Penal Colony No 31 that day, although citizens Tovsultanov, M.S. Batashev, I.V. Shorban, O. Tkachenko, V. Obrezha, and besides them also V.N. Karabet, K.G. Knyshev, O.Yu. Tkachenko, and A.S. Ivanov complained to various institutions and affirmed the opposite with their explanations.
Along with this, he believes that the materials based on which the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk issued the resolution on the refusal to initiate a criminal case are not proper, since the latter refers to the explanations of those convicts who denied the fact of the mass beating of convicts, in particular to the explanations of Tovsultanov, although subsequently he and others made completely different statements, namely that the explanations denying the fact of the mass beating were obtained as a result of the prosecutor’s office failing to take appropriate security measures that would have made subsequent beatings of convicts by employees of the ‘State Department for the Execution of Punishments’, who continued to periodically inflict bodily injuries on convicts even after 27 January 2007, impossible, which is affirmed by the explanations of Tovsultanov, Knyshev, M.S. Batashev, and others. Therefore, the circumstances under which the explanations were obtained from the convicts that no mass beating had occurred do not give grounds to consider them voluntary, especially since they were subsequently refuted by these and other convicts.
The conducted verification did not cover all the circumstances of the mass beating of convicts, which took place not only in Izyaslav Penal Colony No 31 but subsequently in the Khmelnytskyi SIZO, Rivne SIZO, and Lviv SIZO, about which M.S. Batashev, A.U. Tovsultanov, I.V. Torban, K.G. Knyshev, V.N. Karabet, and A.S. Ivanov testified. Therefore, he requested to cancel the resolution and send the materials to the Prosecutor General’s Office of Ukraine to organise an additional verification.
Advocate A.P. Bushchenko did not appear in the court session; in an application addressed to the court, he requested the court to conduct the consideration of the complaint in his absence and fully supported the arguments set out in the complaint.
The Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases M.F. Yantselovskyi objected to the cancellation of the resolution on the grounds set out in A.P. Bushchenko’s complaint, noting that the arguments he presented are baseless. Thus, the disputed resolution was issued by the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk lawfully, since the latter was not present during the search conducted on 22.01.2007 in Izyaslav Penal Colony. The norms of the Criminal Procedure Code and item 58 of the Internal Rules of Penal Institutions, approved by order of the State Department of Ukraine for the Execution of Punishments No 275 dated 25.12.2003, which the complainant referred to as the basis for his arguments, only provide for the notification of the prosecutor about the conduct of search measures and do not oblige him to directly participate in their conduct. In addition, he noted that according to the order of the Prosecutor General of Ukraine dated 26.12.2005 No 7 ‘On the organisation of prosecutorial supervision over compliance with laws during the execution of judicial decisions in criminal cases, as well as during the application of other coercive measures related to the restriction of personal freedom of citizens’, the verification under Article 97 of the Criminal Procedure Code of Ukraine and the conduct of pre-trial investigation in criminal cases about crimes committed in correctional colonies, including by employees of these institutions, is carried out exclusively by the prosecutor’s office for the supervision of compliance with laws in the execution of judicial decisions in criminal cases.
Furthermore, he noted that the verification regarding the fact of conducting a general search in Izyaslav Penal Colony No 31 on 22.01.2007 was conducted taking into account all circumstances. Thus, in the course of the verification, it was established that during the search, convicts S.V. Sak, A.V. Kuvshynov, V.O. Pryhara, M.S. Batashev, K.G. Knyshov, R.A. Yakovliev, V.V. Obrezha, and O.O. Hlushuk physically resisted the search group, opposed the conduct of personal searches, and insulted administration staff, in connection with which physical force and special equipment were used against them. According to the forensic medical research reports dated 02.02.2007, the convicts V.O. Pryhara, M.S. Batashev, K.G. Knyshov, R.A. Yakovliev, and A.V. Kuvshynov were found to have light bodily injuries in the form of bruising of soft tissues of the buttocks measuring from 3 by 4 cm to 9 by 2 cm; besides this, R.A. Yakovliev had bruising of the right lower leg, and A.V. Kuvshynov had abrasions on the head. No bodily injuries were found on convict O.O. Hlushuk. Forensic medical research conducted on persons staged to the Khmelnytskyi SIZO, besides convicts V.O. Pryhara, M.S. Batashev, K.G. Knyshov, R.A. Yakovliev, and A.V. Kuvshynov, found no bodily injuries. Convicts A.U. Tovsultanov, O.V. Danyliuk, Ye.L. Plokhoa, and others, totaling 20 persons, who were staged to the Rivne SIZO on 22.02.2007 in accordance with the permission of the State Department of Ukraine for the Execution of Punishments, denied the fact of causing bodily injuries to the convicts. Convicts did not apply to the medical unit of the institution for medical assistance regarding the infliction of bodily injuries since 22.01.2007.
Moreover, during the verification, besides the convicts, officials of Izyaslav Penal Colony No 31 were also questioned, as well as officials who exercised control over the conduct of the search, and members of the rapid response group of Shepetivka Penal Colony No 98, who denied the fact of the mass beating of convicts, stating that the use of physical force and special equipment was carried out exclusively in accordance with regulatory acts by which State Department officials are guided, and in relation to individual persons. Along with this, he noted that after the issuance of the resolution dated 07.02.2007, the actions of the officials of the State Department for the Execution of Punishments regarding said fact were repeatedly checked, and conclusions regarding the lawfulness of the latter’s actions in the prevailing situation were issued. Also, he asked the court to take into account the circumstance that, according to the resolution of the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk dated 29.08.2007, issued based on the results of the verification regarding the appeal of convict Yu.B. Shmyhlenko, the initiation of a criminal case against the officials of Izyaslav Penal Colony No 31, the special-purpose unit under the Directorate of the State Department for the Execution of Punishments in the Zhytomyr Region, and members of the rapid response groups of Zamkova Penal Colony No 58, Shepetivka Penal Colony No 98, and SIZO No 29 of Khmelnytskyi under Articles 364 and 365 of the Criminal Code of Ukraine was refused due to the absence of corpus delicti in their actions.
Having heard the opinion of the Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases M.F. Yantselovskyi and having studied the materials of the complaint and the supervisory proceeding No 032-07 regarding the refusal materials 1/04-07 concerning the fact of conducting a general search in Izyaslav Penal Colony No 31 on 22.01.2007, I consider that the complaint should be left without satisfaction.
Based on the above, guided by Article 236-2 of the Criminal Procedure Code of Ukraine,

has ruled:
The complaint of advocate A.P. Bushchenko, acting in the interests of Yurii Yevhenovych Shmyhlenko, against the resolution of the assistant Shepetivka Prosecutor for the supervision of compliance with laws in the execution of judicial decisions in criminal cases V.L. Stasiuk dated 07 February 2007 on the refusal to initiate a criminal case shall be left without satisfaction.
The ruling may be appealed to the Court of Appeal of the Khmelnytskyi Region through the Shepetivka City District Court within 7 days from the day of its issuance.

True copy:
Judge of the Shepetivka City District Court
O.A. Hubish