Right not to be killed: why is it still possible to be imprisoned for self-defense in Ukraine
Despite the fact that Ukrainian legislation clearly defines in which cases citizens are allowed to protect themselves from assailants in any way, even employing weapons or other objects, and not bear any responsibility for this, these rules actually don't work. And the proof of this claim goes beyond the high-profile case of Serhiy Sternenko.
The life of Serhiy Pankratov of Izmail was broken in 40 seconds. The brawl in a roadside diner in the fall of 2015 lasted about that long. There were 15 attackers wielding iron sticks, knives, and handguns.
"When 15 people attack you, you defend yourself… They shoot, stab, and kill. After the shot to the head, I no longer could… That's truly scary," he told TSN.Tyzhden.
The video of a man being knocked off his feet, stabbed and shot in the head was captured on CCTV footage. Although Serhiy doesn't remember what happened after the shooting, the video shows that the man's instincts kicked in. He grabbed a pistol from the ground after one of his stabbers dropped it. He started firing at the gang. Then it turned out that he fatally wounded two of them…
And then the cops took Serhiy from the hospital… to throw him into a pretrial detention center for three and a half years, suspecting him of the alleged premeditated murder of two or more persons. At the same time, law enforcers simply "forgot" about the assailants and the very attack on Pankratov.
"I've never met such an outrageous case," says Serhiy's lawyer. "I'd been a judge for 10 years and lawyer for another 25 years. In Soviet times, I personally acquitted people in self-defense cases. But this case is so obvious – after all, the actions of all 15 of the attackers have been caught on video, on four CCTV cameras!"
Moreover, all attackers were identified within the first month of the probe: "Their names, whereabouts, phone numbers... But they are still noted as 'unidentified persons.' Meanwhile, Pankratov had been in custody for 3.5 years."
Five years into the day of the attack, Serhiy Pankratov is no longer behind bars, while still being investigated. And the charges pressed are still messing up his life.
"While the probe is underway, I can't even get a job or leave country… And I can't even imagine what it will further be like," says Serhiy.
Another man from the TSN.Tyzhden report is Anton Farb, a martial arts instructor. He teaches students to defend themselves from a knife-wielding attacker.
"Most people are killed in knife attacks. The other top deadly weapon is… you'll never guess – an ax! At one time, in the 1970s, researchers did an experiment in the U.S. before coming up with the 21 foot rule. If the attacker wields a knife, while a policeman has a pistol in his holster, the 21-feet distance is enough for the attacker to kill," he says. Demonstrating how psychologically and physically difficult it is to draw a knife when a group of attackers are trying to kill you, Anton seems to be telling his own story.
"No matter how hard I prepared for this, believing that one day I might be assaulted, they caught me off my guard. It was unexpected," he recalls the terrible event.
In the spring of 2017, three attackers assaulted Anton in the center of Zhytomyr. They sought revenge for a petty argument on a bus over an open window.
"They ran up from behind, grabbed me by my backpack and started beating me. I tried to hit back. I knocked one of the attackers off his feet, while realizing there are two more. I draw a knife and start waving it. I hit the guy in the neck and the other in the arm. I imagine what three fit men could do with one. How far they would have gone, I don't know. It is better not to expect that you will go through the mess with just a few bruises. You must assume the worst. Most often, it's precisely such stupid petty conflicts that end up in murder," says Anton.
Eventually, the well-trained man stopped the assailants, got into a taxi and drove off. And in a few hours, police came and took him to the station where he was charged with an attempted premeditated murder of two or more persons. And here only wide publicity and a good lawyer helped the man.
"The victims came to the station with their cuts, got questioned, identified, and the probe could have ended up totally differently. We went, gathered all CCTV footage from the area and quickly identified eyewitnesses of the incident. We gathered all that evidence and in two days brought it in, appealing to shut the case. And the prosecutor, tnahkfully, decided to close the case," said Anton's lawyer Vitaliy Kolomiets.
Ironically, Ukraine's self-defense legislation is better than in some American states. If you were attacked by a single assailant, self-defense must be proportionate – you may inflict light or medium injuries, but you will be held liable for inflicting grievous bodily harm or death as exceeding the limits of self-defense. However, in three cases, you are allowed to defend yourself as you wish, using weapons or other tools, without having to bear any responsibility.
Here are these cases:
If the attacker is armed;
If you are being assaulted by a group; and
If someone tries to break and enter your home.
However, in reality, things are way more complicated.
"So, someone has been injured or killed, proceedings are instituted, and the investigation begins. The investigator collects material for a month or two, putting it into two or three volumes of case file, and here a question is raised – the detective has indeed found that the person really was fighting off a group attack. But what is he going to do? The investigator thinks to themselves: "I have poor results in this reporting period. I did a lot of work but no one will praise it and I won't get a promotion.' And people are told: 'Let's just go for Article 118, you will get deferred sentence or a fine, and then we will close this case. For the investigator, this would be a positive result. And that person thinks: 'Well, okay, I might have some criminal record of one year of deferred sentence…'," lawyer Vitaliy Kolomiets tells about the sad realities of such cases.
Two proceedings are instituted at once in such cases – in one of them, victim is the one who defended themselves. And in another one, he is suspected of attacking those whom he fought back. So everything here depends only on quality of lawyers and public response. As isin the case of Serhiy Sternenko.
Prison or grave
Serhiy Sternenko is an Odesa-based activist. TSN.Tyzhden earlier reported about all three attacks he had survived.
The last time was two years ago when two persons attacked Serhiy and his girlfriend Natalia outside their own house.
"At one point, I drew my left hand forward and felt that I had been stabbed. And then I started waving around the knife," he says.
Serhiy was defending himself against two armed thugs and fatally injured one of them. By law, his actions were justified. But Sternenko's enemies are too influential.
"It couldn’t be a coincidence. In four months, three attacks outside my house. This clearly testifies to these attacks having been orchestrated," says Serhiy.
For the two years since the attack, he has been walking around with bodyguards. Also, he has been defending his right not to be convicted of murder.
"Definitely, my life has turned upside down. It's changed a lot. That's because while I used to fight off the assaults, now I am fighting off the Ukrainian punitive system, which seeks to put me behind bars for repelling the attacks on me. But people should understand that they can find a way out of prison, but they will never find one out of the grave," Sternenko said.
In fact, the attack on Serhiy is of no interest to anyone but him. After all, law enforcers have only pressed "hooliganism" charges against the assailants. Sternenko says that a huge amount of evidence has been gathered in the case, which would allow to press charges against a few people, except masterminds: "There are grounds to do so. But these decisions are not being made. And this can be done only from the high offices at the SBU and the Office of the Prosecutor General."
Last week, Serhiy was summoned to report to the Security Service to be charged.
But Sternenko's case is no longer just a criminal investigation. This is also about corruption, PR, and political pressure. And the trouble is that this case affects the interests of all other citizens – because it completely devalues the basic human right to protect people's own lives. The government enforcement machine in a brutally unjust attack on an individual is sending a bunch of signals: from the unscrupulousness of the law enforcement system to the murder of the moral laws of society.
Of course, when you are attacked, you will defend your life anyway as instincts kick in. However, when someone sees a woman being raped or some old man being mugged, they might think it is wiser to just flee from the scene. Currently, Serhiy is being defended not only by lawyers as everyone who still believes in their own dignity and the right not to be killed is on his side.
Stanislav Yasynsky, Serhiy Osadchuk, Olena Kuznetsova