Report: The case of Aleksander Orlow. Polish citizen faced criminal persecution in Ukraine

1. Introduction

Ukraine is one of Europe’s ‘leaders’ when it comes to the number of persons held in pre-trial detention (detention centres). According to statistics, as of April 2015, 18.6 thousand people were being held in Ukrainian detention centres, half of them – as suspects. The conditions of detention do not meet sanitary standards; in pre-trial detention centres, people may be subjected to battery and torture; as a result, their lives are under constant danger. In 2014, 26 people died in Ukrainian detention centres.

Pre-trial investigation and a court trial may last for years, and throughout this time, a suspect faces the risk of being held in custody in anticipation of the verdict. At the same time, cases in which persons, detained for several years in custody, are ultimately acquitted are not rare.

Under the conditions of total corruption of the investigating authorities and the courts, Ukrainian citizens have no guarantees that they will not become a defendant in a fabricated criminal case and spend several years in detention without conviction. It is exactly the situation faced by a 60-year-old citizen of Poland, a member of the Union of Journalists of Ukraine, human rights activist and father of three children, including two minors, Aleksander Orlow. His illegal prosecution in Ukraine has been ongoing for more than 15 years.

For the last 4 years, in spite of his serious health condition and advanced age, he has been held in the Odessa detention centre. Orlow is awaiting a verdict. The proceedings have comprised more than 100 hearings, and all indications show that the progress of which has been deliberately hampered. The reason for the prosecution of Aleksander Orlow could be his active journalistic and civil activities, including his involvement in the fight against corruption.

The criminal case against Aleksander Orlow consists of two episodes. The first dates back to 2000 and is associated with charges of illegally possessing drugs. In the second episode, Orlow was accused of involvement in a murder. Both these allegations are dubious and are not based on strong evidence, and the judicial bureaucratic process has been accompanied by a number of violations, and has become artificially procrastinated.

2. Charges of illegally possessing drugs

On 13 April, 2000, in Odessa, Aleksander Orlow was detained by police on suspicion of possessing illegal drugs. During his detention, police failed to draw up a custody report or search protocol, and after some time, heroin was ‘found’ in Orlow’s pocket, which resulted in the bringing of criminal charges against him. On 19 April, 2000, Orlow was released from custody. During the subsequent criminal proceedings, he remained under house arrest. On 1 September, 2000, at the end of the pre-trial investigation, the case was referred to the Oktyabrsky District Court of Odessa. On 31 January, 2003, the court acquitted Aleksander Orlow due to a lack of evidence of his guilt.

Illegal prosecution

of A. Orlov

a citizen of Poland

Orlov is a journalist and human rights activist. For the last 4 years, in spite of his serious health condition and advanced age, he has been held in the Odessa detention centre. The reason for the prosecution of Orlov could be his involvement in the fight against corruption.

On 22 April, 2003, the Appellate Court overturned the verdict of the Odessa district court of first instance due to procedural irregularities and sent the case back for retrial. On 13 April, 2006, the Primorskiy Court of Odessa found Orlow guilty on all counts, sentenced him to 1 year’s imprisonment before releasing him from custody due to the expiration of the period of limitation for criminal responsibility. On 20 June, 2006, the Appellate Court overturned that decision and ordered a retrial.

On 12 June, 2007, the Primorskiy Court closed the criminal case against Aleksander Orlow due to the statute of limitations for criminal responsibility. However, on 18 September, 2007, the Appellate Court quashed the judgment for a third time and remitted the case for retrial.

On 15 December, 2011, the European Court of Human Rights concluded its consideration of the case ‘Ukraine v Orlow’. The ECHR ruled that in the case of Orlow, the duration of the proceedings was excessive and failed to meet the ‘reasonable time limit’, in breach of Art. 6, section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Also, the ECHR ruled that Orlow be paid 3000 euros compensation for moral damage.

Despite the decision of the ECHR, the case against Aleksander Orlow as regards the illegal possession of drugs has not been closed.

3. Charges of conspiracy to murder and complicity to commit murder: procrasted judicial consideration

On 11 September, 2007, Sergey Mrochko, an inspector of the Road Transport Inspection Authority, was murdered in Odessa. His assassins were identified only 4 years later. They transpired to be Aleksander Arutinov and Boris Veretskiy – members of Georgi Stoyanov’s criminal group (Georgi Stoyanov died in 2010). The detainees pointed to Stoyanov as the mastermind behind the murder. According to the investigation bodies, and the first testimonies of the accused, it was Aleksander Orlow who requested that Stoyanov kill Mrochko. At the court session of 24 June, 2015, Veretskiy changed his testimony; he claimed that they hadn’t followed Orlow’s instructions, but had only obeyed Stoyanov who had ordered that they ‘frightened’ Sergey Mrochko.

Orlow himself flatly denies involvement in the murder. The reasons for the initiation of criminal proceedings against him he explained as follows: “Having entered into a criminal conspiracy, Vasiliy Kalischuk, Shalit and other officers of the Department for the Fight with Organised Crime (DFOC) at the Main Directorate of the Ministry of Foreign Affairs of Ukraine (MD MFA) for the Odessa Province have chosen me as the mastermind and organiser of the murder committed in 2007, when I worked as deputy director of the Odessa Central Bus Station. In other words, just because I worked in this position, and they had a ‘dead-end’ investigation [Orlow means a number of criminal cases on charges of legal violations and corruption that had been previously conducted by officers of the DFOC, which they probably could not, or did not want, to solve in accordance with the facts], and so they decided to pin that crime on me [thereby attributing to him a crime he had not committed]. It was an act of revenge”. It is worth noting that Kalischuk had a personal motive for taking revenge against Orlow – he owed the journalist a large sum of money.

According to Orlow, V. Kalischuk and A. Shalit act alongside ‘Stoyan’s criminal group’. During one of the hearings, Shalit was supposed to photograph Orlow’s attorney’s face using a mobile phone in order to transfer the image to thugs who were planning to intimidate the lawyer. Orlow’s family members were subjected to harassment, threats, surveillance and attempts to blackmail. According to Orlow’s testimony, when he was being escorted, Colonel Shalit threatened that at his order, the journalist would be mocked and oppressed by other prisoners, over whom the officer had control.

Aleksander Orlow, Aleksander Arutinov and Boris Veretskiy were arrested in September 2011.

Following the detention, Aleksander Orlow was subjected to torture, while psychological pressure was exerted on his family members. On 15 September, 2011, during his interrogation, Orlow was brutally beaten by DFOC Major A. Shchelkonogov in the presence of Investigator Guzunova, a counsel and an interpreter; consequently, Aleksander sustained a neck vertebrae injury. Orlow was not rendered medical assistance; instead, he was immediately taken by private car to the detention centre, whose staff did not want to admit him due to the injuries he had sustained – finally, the journalist was admitted after a phone call from DFOC was made to the detention centre management.

The counsel informed Orlow that the investigators demanded $500, 000 for the settlement of the case, as they believed that a Polish person, who had been to the United States, must be a rich man and could ‘buy himself out’ of the situation. Orlow, in fact, had no money.

During brutal searches, conducted by Shalit in the house of Orlow’s wife, police officers demanded that she hand over gold, jewellery and cash. Orlow’s infant daughters witnessed violent and vulgar behaviour towards their mother – during the search, police officers were shouting: “That’s the end of your husband!”, “Find yourself a lover!”.

On 28 April, 2012, Orlow’s case was sent to court for consideration. According to the criminal case file, Orlow has been accused of ordering a killing and conspiracy to commit murder (Art. 28, Art. 115 of the Criminal Code of Ukraine) and unlawful possession of controlled drugs (Art. 229-6 of the Criminal Code of Ukraine).

The matter became artificially protracted both during the investigation and after the court’s verdict had been handed down. Over a period of 10 months, the court was determining which court the case should be referred to for consideration, and deciding on the composition of the panel of judges. It was only on 18 February, 2013, that the Odessa Primorskiy Court finally held the first hearing on the case.

More than 100 court hearings have been held in the case of Orlow. More than 20 times, hearings have been postponed for various reasons (the lack of Orlow’s counsel, the absence of witnesses, the lack of an interpreter; several times Orlow was just not brought to the courtroom). On 21 April, 2015, for the first time, the court heard the testimony of the aggrieved party – Ms. Rudenko, the widow of Sergey Mrochko. She requested that the court apply a more lenient sentence in respect to the accused Arutinov and Veretskiy, as they had started to pay her ‘compensation’. At the same time, Rudenko asked the court to apply to Orlow the most severe punishment possible, as he does not pay her compensation and continues to refuse to admit his guilt.

4. The deterioration of the health condition of the defendant due to his prolonged detention

Immediately following his arrest, the most severe measure of restraint in the form of detention was applied in respect to Aleksander Orlow. He was placed in Detention Centre No. 21 in Odessa, where he remains incarcerated to this day. According to the accused himself, the conditions of detention in remand prison No. 21 are terrible. “Violation of all reasonable time limits of unlawful arrest, torture, torture, torture at every moment (…) In court, I am sitting on the floor, the documents and the case file are on the bench. Six to eight hours in a basement in a solitary confinement cell of the court without food, being forced to breathe in cigarette smoke, with no water!!! With no windows or fresh air (…) Also in the detention centre cell – always surrounded by the smoke, always with smokers. Although they try to exhale the smoke through the feeding flap (…), it does little good”, – Aleksander himself stated.

The sanitary conditions in the cell are disastrous: dirt, insects, rotting mattresses, broken bunks. In the institution, AIDS and tuberculosis are widespread. Orlow is only alive thanks to food parcels, brought by his wife – it’s impossible to eat the food they serve in the detention facility. He does not get any dairy products or meat, only porridge and rotten beets, cucumbers and tomatoes. Orlow has consistently refused to pay bribes by which other prisoners are afforded wholesome food from outside the bars.

The terrible conditions of incarceration in the detention facility, pressure exerted on him in order to force him to give testimony, convenient to the authorities and to confess to a crime he did not commit, as well as his advanced age (he is 60 years old) – all this has led to the significant deterioration of Aleksander Orlow’s health condition. The presence of the forensic medical opinion No. 44 of 5 March, 2015, explicitly corroborates this fact. Thus, the operative part of the opinion states that at the time of the medical examination of Aleksander Orlow, the commission of experts diagnosed him with the following diseases: ischemic heart disease, atherosclerotic cardiosclerosis, 2nd degree hypertension, heart failure, a duodenal ulcer in remission, chronic cholecystitis, chronic pancreatitis, osteochondrosis, and others. During his stay in the surgical department in connection with the operation at the end of July 2015, Orlow was guarded constantly by three armed guards (one constantly handcuffed to him), and at night he was handcuffed to the bed.

It is worth noting that during numerous court hearings, Aleksander Orlow has filed 8 petitions to change his remand in custody to a less stringent measure of restraint, citing his serious health condition. Not once was any petition taken into account by the judges of the Primorsky District Court in Odessa (during the trial, the panel of judges was changed 5 times), who believed that the state of Aleksander’s health is normal (although incidents in which he lost consciousness during court sessions should have indicated otherwise).

5. Journalistic and civil activities of Aleksander Orlow

Orlow’s criminal prosecution may be due to his journalistic and civil activities.

The reason for the prosecution of Aleksander Orlow could be his active journalistic and civil activities, including his involvement in the fight against corruption.

In 1998, at the request of his friends, Aleksander Orlow left Poland (where he had lived for many years and was granted Polish citizenship) to Odessa in order to help create a human rights organisation ‘Ruthenia-Mir’ ‘Ruthenia-World’. He was appointed chief editor of the Internet portal ‘Nabat’ [‘”Alarm’], which has become a popular channel of mass media, serving to expose abuses of power. Orlow described, in particular, the case of disappearance of journalist Georgiy Gongadze, which caused an international scandal and has become a stain on the reputation of the then Ukrainian authorities after revealing that the murder of the journalist was carried out on the order of President Kuchma’s entourage. Orlow described incidents of fraud in the organisation of tenders and the practice of exporting arms to Liberia and Sierra Leone, which were under embargo. He brought to light various incidents of the falsification of tenders and the practice of transporting weapons to countries under embargo: Liberia and Sierra Leone. He covered the case of the criminal practice of bankruptcy of the State Shipping Company ‘Black Sea Shipping Company’ in Odessa, irregularities in the transfer of the franchise of the oil port of Odessa, as well as cases of police officers’ co-operation with international criminal groups and the participation of police officers in contract killings. In 2003, Orlow disclosed juicy details regarding the history of the then newly-appointed Prime Minister Viktor Yanukovych and the history of the ‘Donetsk clan’. His articles appeared, in particular, on the Internet portals ‘Ukraina Kriminalnaya’ [‘Criminal Ukraine’], ‘Maidan’ [‘Maidan’] and ‘Svoboda’ [‘Freedom’]. According to Orlow’s testimony, at the time when he worked as a journalist, he was followed by the members of the Security Service of Ukraine, and the authorities treated him as a persona non grata: he was denied entry into the territory of Ukraine for 2 years.

In addition, Aleksander Orlow described the illegal actions of the criminal organisation leader Aleksander Argent (alias ‘Angel’) and his cooperation with law enforcement authorities of the city of Odessa. Orlow’s journalistic works also include articles – the results of his journalistic investigation into the Mayor of Odessa Gennadiy Trukhanov, as well as Ukraine’s MP Sergey Kivalov, who continues to be a very influential figure in Odessa and, supposedly, is one of the symbols of corruption in the country (currently, Kivalov is the chairman of the Committee on Justice of the Supreme Council; Kivalov is also a representative of Ukraine to the Venice Commission, which issues opinions on planned constitutional reforms in Ukraine; as the chairman of the Central Election Commission, he was responsible for the mass falsification of election results in 2004, which directly led to the outbreak of the Orange Revolution; Kivalov also serves as president of the Odessa Academy of Law).

While in custody, Orlow has made attempts to help other detainees – he writes letters on their behalf, complaints, describes incidents of violations of the rights of detainees. Because of this, he is often subjected to searches, during which prison employees confiscate his notes.

6. Support on the part of mass media, civil society and officials

In February 2012, a number of journalists and civil society activists signed and sent to former President Viktor Yanukovych a joint letter containing a request to bring about the release of the illegally detained Aleksander Orlow.

The previous intervention of Polish and Ukrainian authorities in the case of Orlow did not yield satisfactory results. The gaps were in the establishment of basic data were apparent: for example, the fact that Orlow is only a Polish citizen (he never held Ukrainian citizenship). The family was not able to pay for a lawyer through their own means – only a public defender was present during the hearings; it was impossible to meet with him outside the courtroom in order to agree on a strategy to defend Orlow. Due to financial difficulties, Orlow’s daughter transferred from a Polish school to Ukrainian one.

The Ukrainian Parliament Commissioner for Human Rights (Ombudsman) Valeriya Lutkovskaya promised to take steps to bring about the release of Orlow from prison before the verdict of the court is handed down, but this promise has not been fulfilled. The Ombudsman’s officeof the Republic of Poland sent a request to the Ukrainian Ombudsman, pointing to the protracted nature of the proceedings. In July 2015, the office of the Commissioner for Civil Rights addressed the Consul of the Republic of Poland in Odessa with a request to present an update on the legal and actual status of the case of Orlow.

Orlow, from his cell, is striving to maintain contact with journalists, and with their help describe the conditions in which he is held: the articles appeared, in particular, on the internet portal www.kz.com.ua and Odessa Daily. Journalist Irina Goloborodko, who wrote about the violation of the law in the case of Orlow, received anonymous threats on the phone.

6.1. Polish and Ukrainian parliamentarians are monitoring the case of Orlow

The criminal prosecution of a citizen of Poland in Ukraine could not but attract the attention of Polish officials. Over 4 years, Polish diplomats have monitored the case of Aleksander Orlow. After the intervention of the Open Dialogue Foundation, the case received wide publicity in the media and attracted the attention of Polish and Ukrainian parliamentarians. Thus, the Polish MPs: Andrzej Lewandowski, Adam Rybakowicz, Tadeusz Woźniak and Maria Zuba addressed the governor of the Odessa province Mikheil Saakashvili with a request to assist the cessation of illegal actions of the investigative bodies and the court in the case of Orlow.

On the initiative of Hanna Machińska, the director of the Information Bureau of the Council of Europe in Warsaw and the Open Dialogue Foundation, on 19 August, 2015, members of parliament Małgorzata Gosiewska from the party ‘Law and Justice’ and Marcin Święcicki from the ‘Civic Platform’ party went to Odessa on a special mission on behalf of the Polish Sejmto inspect the conditions of detention of Aleksander Orlow, as well as to attend the court trial.

On 19 August, 2015, Marcin Święcicki, Małgorzata Gosiewska and an observer from the Open Dialogue Foundation Natalia Panchenko arrived at the Primorsky District Court in Odessa in order to attend a hearing on the case of Aleksander Orlow. However, the hearing was cancelled due to the absence of the public defender of the accused (Veretskiy). At the same time, a representative of the state prosecution and the lawyers of all three defendants were present in the courtroom, which was sufficient to hold a court hearing. Obviously, the absence of a public defender was an excuse used by judges in a bid to prevent the case from receiving further publicity. Following this court decision, public activists tried to block judges in the courtroom, so that they would have to continue with their examination of the case. Consequently, police were brought into the courtroom, which resulted in minor clashes.

The next court hearing, scheduled for 21 August, 2015 for which Małgorzata Gosiewska travelled to Ukraine, did not take place either. Before the start of the court session, an anonymous tip-off was received indicating that the courthouse contained an explosive device. Later it transpired that the report was false, but Orlow’s trial did not take place on that day either.

The court hearing did take place on 25 August, 2015. This time, no Polish MPs were among the observers, but the consul of the Republic of Poland in Odessa, as well as the observer from the Open Dialogue Foundation Natalia Panchenko were present in the courtroom. During the hearing, Aleksander Orlow filed a petition to change the measure of restraint for him from custody to house arrest. The judges rejected the petition, justifying the decision with the fact that the defendant may pose a threat to witnesses and fail to appear at court hearings.

Polish MP, Marcin Święcicki, who went to Odessa, commented on the trial of Orlow as follows: “If Ukraine wants to adhere to European values, wants Nadiya Savchenko to be treated properly in Russia; it should also treat its own prisoners properly. This also applies to the Polish journalist who was investigating a number of corruption cases. He is being held under appalling conditions. Even humanitarian reasons would be enough for his release; he could attend the court hearing, being under house arrest.” – Marcin Święcicki commented on the results of monitoring of the case of Aleksander Orlow. On 25 August, 2015, Marcin Święcicki along with a representative of the Open Dialogue Foundation, held a meeting with the Deputy General Prosecutor of Ukraine, David Sakvarelidze, during which he spoke about the case of Orlow, and also shared his opinion about the course of the trial.

At the initiative of the Open Dialogue Foundation, Ukraine’s MPs Yegor Sobolev and Ruslan Sidorovichhave requested the prosecutor’s office verify the legality of the criminal prosecution of Aleksander Orlow, as well as to raise, at trial, the issue of changing the measure of restraint from custody to a less stringent measure.

We should note that the wide public attention the process is now receiving, after all, led to the acceleration of the proceedings. Following the meeting of 25 August, 2015, three more hearings have already been held.

In early September 2015, Ukrainian MP Sergey Kivalov stated that the protracted trial of Orlow is a clear violation on the part of judges, and, therefore, there is every reason to take disciplinary action against them. During the governance of Yanukovich, Sergey Kivalov was one of the most influential persons in Ukrainian Justice. Much of this influence he still enjoys today. Sergey Kivalov is one of the subjects of the investigative journalism of Aleksander Orlow.

7. Conclusions

The history of the criminal prosecution of Aleksander Orlow is a blatant example of the arbitrariness of the Ukrainian law enforcement system. In the absence of conclusive evidence against the accused, he was being held in custody for 4 years now. All this time, Aleksander Orlow, despite his advanced age and poor health condition, has remained in prison.

The Open Dialogue Foundation hereby demands an immediate alteration of the measure of restraint for Aleksander Orlow from pre-trial incarceration to house arrest, as legal prerequisites for this action do exist (Art. 150 and Art. 274 of the Criminal Procedure Code of Ukraine) – serious health condition (confirmed by the opinion following a forensic medical examination) and the advanced age of the accused.

According to the decision of the ECHR (the case ‘Orlow against Ukraine’), Aleksander Orlow should be acquitted of the charges of illegal possession of drugs.

We also believe that the litigation procedure in the case of Aleksander Orlow is artificially protracted and therefore must be accelerated.

The Open Dialogue Foundation hereby calls on the Ukrainian and international community to closely monitor the case of Aleksander Orlow and to demand from the competent authorities of Ukraine that he be immediately released, and that the prosecution process in his regard be ceased.

The prolonged detention of suspects in custody without trial is one of the most outrageous examples of violations of human rights in Ukraine. The Ukrainian authorities should resolve this issue at the legislative level. In particular, the Criminal Procedure Code should clearly define deadlines for trials.

All those wishing to support our demands are requested to send their appeals to the following persons and institutions:

Institutions in Ukraine:

• Primorskiy District Court of Odessa – 65029, Odessa, 33 Balkovskaya Street, tel.: +38 048 784 71 36, e-mail: [email protected];
• Prosecutor of the City of Odessa Gyunduz Mamedov – 65026, Odessa, 24 Lanzheronovskaya Street, tel.: +38 048 731-90-00;
• Head of the MD of the MIA (police) of Ukraine for Odessa Province Giorgi Lortkipanidze – 65014, Odessa, 14 Yevreyskaya Street, tel.: +38 048 779 40 25;
• Acting Head of Department for Combatting Organised Crime of the Main Directorate of the Ministry of Internal Affairs for Odessa Province NikolayChernov – 65011, Odessa, 23 Osipova Street, tel.: +38 048 722 42 95;
• Head of Detention Centre No. 21 Leonid Nanarov – 65059, Odessa, 11 Lyustdorfskaya Doroga, tel.: +38 048 765 73 93;
• The Ukrainian Parliament Commissioner for Human Rights Valeriya Lutkovskaya – 01008, Kiev, 21/8 Institutskaya Street, tel.: +38 044 253 75 89, e-mail: [email protected];
• Chair of the Committee of the Verkhovna Rada of Ukraine on Human Rights, National Minorities and International Relations, Grigoriy Nemyria – 01008, Kiev, 5 Grushevskogo Street, e-mail: [email protected];
• Chairman of the Odessa Regional State Administration Mikhail Saakashvili – 65032, Odessa, 4 Shevchenko Street, tel.: +38 048 718-95-82, e-mail: [email protected];

International institutions:

• Secretary General of the Council of Europe Parliamentary Assembly, Wojciech Sawicki – e-mail: [email protected];
• Vice-President of the European Parliament Ryszard Czarnecki – Rue Wiertz 60, 1047 Brussels, Belgium, tel.: +32 2 28 45441, e-mail:[email protected];
• Deputy Chairman of the Polish Delegation of the European People’s Party, Andrzej Grzyb – the coordinator of the Group of the European People’s Party in the European Parliament Subcommittee on Human Rights – Rue Wiertz 60, 1047 Brussels, Belgium, tel.: +32 2 28 45185, e-mail: [email protected];
• Chairman of the Subcommittee on Security and Defence of the European Parliament Anna Fotyga – Rue Wiertz 60, 1047 Brussels, Belgium, tel.: +32 2 28 45356, e-mail: [email protected];
• EU High Representative for Foreign Affairs and Security Policy Federica Mogherini – 1049 Brussels, Rue de la Loi / Wetstraat 200, tel.: +32 2 584 11 11; +32 (0) 2 295 71 69;
• Head of the European Parliament Committee on Foreign Affairs Elmar Brok – Rue Wiertz 60, 1047 Bruxelles, Belgique, tel.: +32 2 28 49013 (Brussels), +33 3 881 76902 (Strasbourg);
• United Nations High Commissioner for Human Rights Ra’ad Zeid Al-Hussein – Palais des Nations  CH-1211 Geneva 10, Switzerland, tel.: +41 22 917 9220;

• President of the European Commission, Jean-Claude Juncker – 1049 Brussels, Belgium Rue de la Loi / Wetstraat 200, e-mail: [email protected].

See reports dedicated to Orlow’s case:

• Report: The case of Aleksander Orlow