Right to speedy trial, pre­sump­tion of in­no­cence tram­pled

Less than 1 per­cent of all crim­i­nal tri­als re­sult in ac­quit­tals

Kyiv Post Legal Quarterly - - Contents - By Mark Rachkevych [email protected]

Amer­i­can citizen Robert T. Fletcher III spent more than six years in pre-trial in­car­cer­a­tion be­fore a judge re­leased him on bail in Fe­bru­ary. He has al­ready spent 15 more months in jail than the min­i­mum sen­tence for the crimes he’s merely ac­cused of com­mit­ting. “This is kid­nap­ping. The laws are set up to tor­ture ev­ery­one,” Fletcher, 51, told the Kyiv Post out­side the Kyiv Des­nyan­sky Dis­trict Court on June 9 where he is be­ing tried on charges of se­ri­ous fi­nan­cial crimes – al­le­ga­tions that he de­nies. Fletcher is sus­pected of em­bez­zling more than $10 mil­lion from 226 vic­tims.

A trial judge did not sched­ule a court ap­pear­ance with Fletcher, an Ore­gon na­tive, for four years and five months – nearly three years be­yond the limit for pre­trial in­ves­ti­ga­tions un­der the pre­vi­ous crim­i­nal code, the one in force when he was charged.

Short pre­trial de­ten­tion and speedy tri­als are pil­lars of any nor­mal jus­tice sys­tem, long­time hu­man rights ac­tivist Yevhen Zakharov told the Kyiv Post, if pre­sump­tion of in­no­cence – another pil­lar – is to be taken se­ri­ously. “What if a per­son is in­no­cent yet spends seven years in pre­trial de­ten­tion,” Zakharov told the Kyiv Post. “Un­der the old pro­ce­dural crim­i­nal code (up­graded in Novem­ber 2012), at any given time there were more than a dozen peo­ple sit­ting in de­ten­tion cen­ters for at least seven years.”

Lan­guish­ing in jail for long pe­ri­ods ru­ins lives – pro­fes­sional, per­sonal and fi­nan­cial. A speedy trial is im­por­tant for jus­tice. Over time, mem­o­ries fade about what hap­pened and ev­i­dence gets lost. Once a sus­pect is charged in Ukraine, they face a 99.7 per­cent chance of be­ing con­victed, Zakharov added. “This hap­pens partly de­spite the lack of ev­i­dence, fal­si­fied foren­sics and co­erced wit­ness tes­ti­monies,” he said.

Judges who do not want to con­vict but who also don’t want to come into con­flict with pros­e­cu­tors had of­ten sent cases back for fur­ther in­ves­ti­ga­tion, leav­ing the ac­cused longer in prison. A re­port by Pe­nal Re­form In­ter­na­tional, a non-profit group, found that the longer a sus­pect is in­car­cer­ated be­fore trial, the higher the risk of a con­fes­sion or state­ment be­ing co­erced by tor­ture or ill-treat­ment.”

That’s what hap­pens to many in Ukraine, Alla Bozhok, Fletcher’s de­fense at­tor­ney, told the Kyiv Post.

“I’ve seen in­no­cent peo­ple plea bar­gain, get a re­duced sen­tence and ac­knowl­edge a crime just to re­join their fam­i­lies, in­stead of fight­ing to prove their in­no­cence” she said.

Un­der new crim­i­nal pro­ce­dures, author­i­ties have up to nine months to con­duct pre­trial in­ves­ti­ga­tions. Once the time ex­pires, judges can’t send the case for fur­ther in­ves­ti­ga­tion. They must rule on the case, Zakharov said. If an ac­quit­tal, the per­son must be freed. Other le­gal changes al­low for more sus­pects to be re­leased on bail or placed un­der house ar­rest. Fewer peo­ple are be­ing held in pre­trial in­car­cer­a­tion. There were some 40,000 peo­ple in pre­trial de­ten­tion when the old crim­i­nal pro­ce­dures were changed on Nov. 11, 2012.

As of May 1, there were 16,255 peo­ple in pre­trial de­ten­tion, or 23 per­cent of the prison pop­u­la­tion, ac­cord­ing to the State Pen­i­ten­tiary Ser­vice.

“The changes are more hu­mane, it’s a con­sid­er­able im­prove­ment,” said Zakharov.

Still, the ac­quit­tal rate for crimes hasn’t changed and hovers at 0.3 per­cent, he added.

Mean­while, Fletcher’s trial drags on be­cause many vic­tims are dif­fi­cult to find af­ter so many years, with some hav­ing reg­is­tered ad­dresses in Rus­sian-oc­cu­pied Crimea and Don­bas. He is con­fi­dent of his ac­quit­tal and has lost more than 30 kilo­grams since his ar­rest on Nov. 23, 2008.

“I’m the vic­tim, my busi­nesses were taken away from me,” Fletcher said. When asked to de­scribe Ukraine’s crim­i­nal jus­tice sys­tem, he said: “It’s not bro­ken, it doesn’t work.”

He is back to be­ing a busi­ness coach, de­liv­er­ing train­ings on “sales, mar­ket­ing, advertising…the in­ter­net busi­ness” at the Soviet-era Tourist Ho­tel near the Livoberezhna sub­way sta­tion, he said.

Although the U.S. Se­cu­ri­ties and Ex­change Com­mis­sion fined him $5 mil­lion for se­cu­ri­ties fraud in Au­gust 2008, Fletcher said he’s learned from his mis­takes.

“If you no­tice, all the rich Ukraini­ans, they got noth­ing in their names, it’s all ei­ther in their rel­a­tives’ names or prox­ies,” he said.

The web­site that of­fers reg­is­tra­tion for the “free in­tro­duc­tory Robert Fletcher mil­lion­aire course,” frtrs.com, doesn’t say to whom the site be­longs.

Whether he’s guilty or not, Amer­i­can Robert Fletcher — who is sus­pected of con­ning many Ukraini­ans out of their sav­ings — is only now get­ting his day in court. He was ar­rested and jailed in 2008, but only got re­leased on bail ear­lier this year. His case il­lus­trates the low re­gard in Ukraine for two pil­lars of a fair and func­tion­ing ju­di­cial sys­tem: The right to a speedy trial and the right to the pre­sump­tion of in­no­cence. “You’ve been in jail more than six years! You must have been con­victed of some­thingbad!” “No, I am just wait­ing a pre-trial court hear­ingon my bail re­quest.”

Amer­i­can Robert Fletcher (right) gives one of his “Se­crets of Mil­lion­aires” train­ing sem­i­nars on Feb. 21, 2008 in Kyiv, nine months be­fore po­lice ar­rested him out­side an ex­po­si­tion cen­ter late at night on Nov. 23, 2008 on sus­pi­cion of largescale fraud of over $10 mil­lion. (UNIAN)

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