Tamara Rafalska received a poignant victory on 27 May when the European Court of Human Rights found that Ukraine had violated her son’s rights through the use of police torture and the failure to properly investigate this. She is unlikely to be celebrating, however, as Ukraine’s most grievous injustice towards her son almost certainly cost him his life. Oleksandr Rafalskyy [or Rafalsky] died in the Lukyanivsk SIZO [remand prison] on 20 October 2016, aged just 46. He had spent 15 years imprisoned despite strong grounds for believing that all ‘confessions’ in the case had been extracted through torture, as well as other concerns.
The Case of Debelyy and Others v. Ukraine, published on 27 May 2021 combined three different applications: those of Andrey Debelyy; Roman Korolev and of Oleksandr Rafalskyy. In each of them, the applicant had complained of a violation of the European Convention’s prohibition of torture (Article 3) through the use of police torture and lack of effective investigation into it. The Court found against Ukraine in all three instances.
It was noticeable that the Ukrainian Government challenged the claims in the case of the other two men, but did not even try with respect to Oleksandr Rafalskyy. Instead, they asserted that the “complaints of ill‑treatment and an ineffective investigation concerned non-transferable rights”, and that Mrs Rafalska could not continue in her son’s stead. They also claimed that the application should not be considered as the case had already been examined by another international body The Court rejected both arguments.
In June 2001, Rafalsky was 30 and involved in business with his parents, who were building a shopping centre in Tetiyiv [Kyiv oblast]. Rafalsky had started receiving phone calls, threatening him and telling him to leave Tetiyiv. He had his car tyres slashed and then the car itself was stolen.
A couple of months before Rafalskyy’s arrest, several bodies were discovered in a field. There were a huge number of problems with the prosecution’s later case, including claims about the identity of the victims and lack of any traces to back the prosecution’s claim that they had been dismembered in the construction site where the shopping centre was to be built.
These were not part of the application before the European Court of Human Rights, but they were certainly among the many reasons why Rafalskyy was one of the Ukrainian life prisoners whose sentence aroused serious concern among human rights groups.
The other concern, and this is part of the ECHR judgement, was the use of torture. Rafalskyy was arrested on 13 June 2001 in an acquaintance’s flat in Kyiv. No arrest warrant was provided, nor any explanation, and he was badly beaten by police officers, both during the arrest and later. He was held without any registration of the detention for 12 days, until 26 June in various detention facilities under the false pretext that he was a vagrant without identity papers. “He was repeatedly beaten, suffocated, and electrocuted by various police officers who demanded that he confess to having organised and participated in the murders of five persons with a view to appropriating their belongings”.
After his first encounter with these officers, he needed to be taken to hospital where two doctors found an injury to the head and multiples injuries to the back. He was constantly moved about, and given no access to his lawyer or family. In his own account of the torture methods applied, Rafalsky described being beaten, having electric shocks applied, being shot at with blank bullets and forced to dig his own grave in mock executions.
Four men were convicted of murder: Rafalsky, Viacheslav Baranovsky, Stepan Chernak and Volodymyr Kharchenko. Only Baranovsky is still alive.
The Court’s list of key issues is damning.
“The State provided no plausible satisfactory and convincing explanation as to the origin of [Rafalskyy’s] injuries and did not disprove that they had been inflicted by police officers. <> For over twelve years there was no full-scale investigation, only repeated rounds of pre-investigation inquiry. <> The overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities. <> The initial inquiry lacked independence. <> Delays in apprising Rafalskyy of procedural developments. <> No attempt was made to assess proportionality of force used to restrain applicant during arrest, or the probability of his allegation that he had been ill-treated after arrest to extort confession. <> Delay in according him victim status.”
The Court awarded 15 thousand euros to Rafalskyy’s estate, as well as 1,5 thousand euros to each of three lawyers.
At the time of Rafalskyy’s death, he had been held at the Lukyanivsk SIZO for over a year and a half in connection with criminal prosecutions over torture and fabrication of criminal cases, where he had victim status. There was supposedly an official investigation into the cause of his death.
Despite the serious doubts about any case built on ‘testimony’ extracted through torture, as well as all the other concerns, the life sentence (which in Ukraine to this day really is for life) remained intact.
At the time of his death, Tamara Rafalska also swore that she would be seeking his acquittal. She has campaigned tirelessly not only for her son, but also for a chance of justice for other life prisoners whose sentences arouse legitimate concerns but who are at present denied any possibility of a judicial review.