Quashing of the resolution on the refusal to initiate a criminal case regarding the mass beating at Izyaslav Penal Colony No. 31

Shepetivka City-District Court, Khmelnytskyi Region
RULING

IN THE NAME OF UKRAINE

8 July 2011
Shepetivka

Judge of the Shepetivka City-District Court of Khmelnytskyi Region N.V. Mazur, with the participation of secretary Ya.V. Yaroshchuk and prosecutor V.L. Stasiuk, having considered the appeal of lawyer A.P. Bushchenko, acting in the interests of Yurii Yevhenovych Shmyhlenko, regarding the resolution of the assistant prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases on the refusal to initiate a criminal case dated 10 September 2007,

determined:
By the resolution of the assistant Shepetivka prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases dated 10 September 2007, the initiation of a criminal case was refused following the statement by Yu.Ye. Shmyhlenko dated 30 July 2007, regarding officials of Izyaslav Penal Colony No. 31, staff of the rapid response groups of Shepetivka Penal Colony No. 98, Zamkova Penal Colony No. 58, the Khmelnytskyi pre-trial detention centre, and the special forces unit of the Department of the State Department for the Execution of Punishments in Zhytomyr Region, under Articles 364 and 365 of the Criminal Code of Ukraine, for the use of physical violence against him and other convicts, due to the absence of the elements of a crime in their actions.

On 8 June 2011, the court received an appeal regarding the aforementioned resolution from lawyer A.P. Bushchenko, acting in the interests of Yu.Ye. Shmyhlenko by his commission, with a request for its cancellation.

In justification of the appeal, it is stated that Yu.Ye. Shmyhlenko was one of the victims of the mass beating at Izyaslav Penal Colony No. 31. Furthermore, as grounds for the cancellation of the contested resolution, it is noted that Assistant Prosecutor V.L. Stasiuk could not conduct the investigation into the events of 22 January 2007, as he was subject to recusal as a witness to said events, and during the pre-investigation check, the circumstances of the mass beating of prisoners were not comprehensively and fully verified. He justifies his arguments by stating that the fact of the mass beating of prisoners on 22 January 2007 by representatives of the special forces unit and the colony administration at Izyaslav Penal Colony No. 31 is confirmed by the appeals of M.S. Batashev to the Kharkiv Human Rights Protection Group, interviews by O.I. Tkachenko and V. Obrezha to the "1+1" channel, the appeals of A.U. Tovsultanov, and statements by K.H. Knyshov, O.Yu. Tkachenko, A.S. Ivanov, V.N. Karabet, and I.V. Shorban. The explanations of the prisoners denying the use of violence against them and stating they had no claims against the staff of the penal system, which were obtained from them under the influence of intimidation, psychological and physical violence, are refuted by forensic medical examination reports concerning the presence of bodily injuries on the prisoners.

Furthermore, he asserts that the statements given by the convicts during the prosecutor's office check, in which they claimed that violence was not used against them and they had no claims against the officials, were made under pressure and physical violence by staff of the State Department for the Execution of Punishments, who continued to beat them even after 22 January 2007.

Lawyer A.P. Bushchenko and Yu.Ye. Shmyhlenko did not appear at the court session, having submitted a petition to the court for the case to be heard in their absence.

The prosecutor believes that the specified appeal should be left without satisfaction, as the decision was made lawfully based on data obtained during the pre-investigation check, and no evidence of the beating of convict Yu.Ye. Shmyhlenko was obtained.

Having heard the prosecutor, examined the materials attached to the appeal, the materials of supervisory proceedings No. 032-07, and the materials concerning the use of unauthorised measures of physical influence against convict Yu.Ye. Shmyhlenko in January 2007 at Izyaslav Penal Colony No. 31 of the Department of the State Department for the Execution of Punishments in Khmelnytskyi Region, I believe that the appeal is subject to satisfaction on the following grounds.

In accordance with Article 236-1 of the Criminal Procedure Code of Ukraine, a complaint against a resolution of an inquiry body, investigator, or prosecutor on the refusal to initiate a criminal case is submitted by the person whose interests it concerns, or their representative.

By the resolution of the assistant Shepetivka prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases dated 10 September 2007, the initiation of a criminal case was refused regarding officials of Izyaslav Penal Colony No. 31, staff of the rapid response groups of Shepetivka Penal Colony No. 98, Zamkova Penal Colony No. 58, the Khmelnytskyi pre-trial detention centre, and the special forces unit of the Department of the State Department for the Execution of Punishments in Zhytomyr Region due to the absence of the elements of a crime in their actions under Articles 364 and 365 of the Criminal Code of Ukraine.

From the materials of supervisory proceedings No. 032-07 examined by the court, which contain refusal materials No. 04-07 regarding the fact of the general search conducted on 22 January 2007 at Izyaslav Penal Colony No. 31, the appeal of lawyer A.P. Bushchenko and the materials attached to it, as well as from the contested resolution, it follows that during the general search conducted on 22 January 2007 at Izyaslav Penal Colony No. 31, violent actions were used against the prisoners; some convicts (D.O. Yakovlev, V.V. Obrezha) sustained bodily injuries, and it has not been clarified how they were caused, as it is evident they could not have been caused by handcuffs.

Furthermore, lawyer A.P. Bushchenko asserts that violence was used against the convicts even after 22 January 2007, which has not been refuted by anything. The conducted check is incomplete.

In the course of an additional check, it is necessary to interview Yu.Ye. Shmyhlenko in detail.

Where possible, establish the location of and interview the following convicts: Ye.V. Sak, A.V. Kuvshinov, V.O. Pryhara, M.Ye. Batashov, K.H. Knyshov, R.A. Yakovlev, V.V. Obrezha, O.O. Hlushko, A.U. Tovsultanov, V.N. Karabet, O.Yu. Tkachenko, and A.Ye. Ivanov. Ascertain from them the circumstances under which they wrote statements and declarations that they had no claims against the officials of Penal Colony No. 31 and the Khmelnytskyi pre-trial detention centre, as well as conduct other necessary actions during the additional check.

Based on the above, guided by Articles 236-1 and 236-2 of the Criminal Procedure Code of Ukraine,

ruled:
The appeal of lawyer A.P. Bushchenko, acting in the interests of Yurii Yevhenovych Shmyhlenko, regarding the resolution of the assistant prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases on the refusal to initiate a criminal case dated 10 September 2007, is to be satisfied.

The resolution of the assistant Shepetivka prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases on the refusal to initiate a criminal case dated 10 September 2007 regarding the statement of Yurii Yevhenovych Shmyhlenko is to be quashed, and the materials returned to the Shepetivka prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases for the conduct of an additional check.

Copies of the ruling are to be sent to Yu.Ye. Shmyhlenko, lawyer A.P. Bushchenko, and the Shepetivka prosecutor for supervision of compliance with laws during the execution of court decisions in criminal cases.

An appeal against the ruling may be filed by the prosecutor, the person who submitted the complaint, and the person in whose interests the complaint was submitted, within seven days from the date of its issuance to the Court of Appeal of Khmelnytskyi Region.

Judge [signature]