Markiv's appeal process: emotions and fakes instead of facts

How did the prosecution react to evidence of Markiv's innocence and what to expect from the next hearing?

During the third court hearing in Milan to consider the appeal against the verdict for Ukrainian National Guard serviceman Vitaliy Markiv, the court accepted a new translation of his conversation with a cellmate in July 2017, which proves his innocence in the deaths of Italian photojournalist Andrea Rocchelli and his Russian interpreter Andrei Mironov in Donbas in May 2014.

A trial court in Pavia sentenced the Ukrainian to 24 years in prison for his alleged involvement in the journalist's death. Now justice has allegedly prevailed, as the court ordered a new translation of the recordings that allegedly testified to the confession of the Ukrainian. According to the published result, Markiv did not say: "We killed a reporter"; he said: "In 2014, an Italian reporter was killed, and now they want to put the blame on me."

The prosecution tried to include in the case file the phrase "a journalist was killed" and interpret it as a confession to the murder. Therefore, the results of the examination shattered this manipulative position, as the key evidence turned out to be a fake.

In fact, the prosecution's position is based on the programs of Russian propaganda media outlets. As before, military actions in Donbas are strongly denied.

IGNORING THE EVIDENCE OF THE UKRAINIAN'S INNOCENCE

The third court hearing lasted about nine hours. The court accepted a new translation of Markiv's conversation, which proves his innocence in the death of the journalist, and attached it to the case file. As can be seen from the conversation, Markiv not only did not confess to committing a serious crime but, on the contrary, he completely denied his involvement in it. At the same time, the prosecutor and the plaintiffs' representatives again provided a set of propaganda clichés and manipulative, unjustified accusations, rather than facts and evidence.

Vitaliy's mother, Oksana Maksymchuk, stressed that the third court hearing was extremely difficult. She said it was hard to hear the prosecution ignore the evidence, even rejecting the very fact of the war in Ukraine.

Liudmyla Denisova and Oksana Maksymchuk

"If I could scream, I would probably scream from that dirt all these hours. They said such absurd things, and even the prosecutor in Pavia refused to voice them. In particular, there was slander that Vitaliy was going to escape from prison. As soon as he was detained, he allegedly organized an escape. The prosecutor tried to make him a monster. It was very painful to hear that. How can they say that about a person who went to perform his duty without understanding what was happening in Ukraine? People give their lives to protect their native land. [...] One thing makes me happy that all this meeting was recorded, and people will be able to hear with their own ears what kind of nonsense was said there," Markiv's mother said.

She also said that the day after the court hearing she went to see her son in prison.

"There was a meeting - one hour. I was very worried about how he felt after the meeting. […] But I saw him in a good mood. He is, as always, convinced that we must be as firm as we are now, not to show our feelings, but we have to go to the end and defend the truth, because it is behind us, and all those lies cannot crush us. He told me: "I will never bend under their lies and dirt." You know, I understand that it's not us who support him, but it's him who gives us strength. I calmed down because I was very worried about him," Maksymchuk said.

Verkhovna Rada Commissioner for Human Rights Liudmyla Denisova was also present at the court hearing in Milan. She recorded a video in which she stressed that she had not heard anything new from the prosecution.

"The speeches themselves were made in such a way that not only Markiv was tried, but Ukraine was tried today. And all these speeches were intended solely for the attention of the jury. They were very emotional, untrue, in my opinion, because there was a distortion of some data, assumptions, accusations, including accusations against some officials of our state. I think that the jurors themselves, when they hear the defense team on October 23, will understand that Markiv is not a guilty person, but he was simply 'appointed' for the murder of Mr. Rocchelli," Denisova said.

A CONVERSATION BEHIND BARS AND THE DEFENSE TEAM'S POSITION

The prosecution is trying to make Markiv guilty of the Italian's death. Interestingly, it was the prosecutor who requested an examination of Markiv's conversation with his cellmate, although only in relation to his words taken out of context.

Andriy Pylypenko

"Even before the first hearing in the court of appeal, the chief prosecutor of Milan filed a petition for an examination of the translation of the phrase 'we killed a journalist' from Vitaliy's conversation in prison in 2017," Andrii Pylypenko, a lawyer with the Sergii Koziakov & Partners Law Firm, told Ukrinform. The law firm, which together with Italy's Legance - Avvocati Associati, defends the interests of the state of Ukraine in the Markiv case. "This phrase formed the basis of accusations against Vitaliy in the court of first instance and was constantly used by the prosecution. Lawyers for the state of Ukraine filed a counter-petition with the judge to examine the translation of the entire conversation, and as it turned out, Vitaliy never admitted his involvement in the murder of the journalist, nor did he mention his involvement in this tragic incident of Ukrainian troops. When the results of the examination were officially announced at the court session on October 15, the chief prosecutor simply decided to forget about the conclusions of this examination, which she initiated, but instead, she simply repeated fabrications from the Pavia court verdict. Apparently, in the absence of any evidence of Markiv's involvement in the shooting of journalists, the prosecution exerted a psychological influence on the jury in order to create an image of Markiv as a cruel and unscrupulous man who allegedly could have done what happened. All accusations are based on such manipulations and fabrications. The worst thing is that all the speculations from the prosecution turn into a bright picture for the jurors of the Milan court, who are not lawyers."

The position of the Public Prosecutor's Office of Milan surprised and disappointed Italian lawyer, Raffaele Della Valle, because the prosecution simply turned a blind eye to the results of the investigation.

Raffaele Della Valle

"I am surprised that the prosecutor's office asked for this examination to establish the broader truth, and then, when they saw it was in our favor, that is, it proves Markiv's innocence, they kept their silence. This examination dissolved in the air. […] Why should they make such demands to the court and then not to mention a word? That's strange. In that conversation, Markiv actually confirms that he has nothing to do with the tragic fact," the Italian lawyer said after the hearing.

For their part, Ukrainian lawyers believe that neither the prosecutor, nor the defense team, nor the court should be subjected to emotional outbursts, and decisions should be based on the principles of legality and the rule of law.

"There are jurors in the appellate court and in the court of first instance, and this performance is designed for them. The second reason, in our opinion, is that the fundamentally incorrect first translation of Vitaliy Markiv's conversation raises the question of both the possible criminal liability of the translator for the deliberately incorrect translation and the criminal liability for possible pressure on the translator by those who wanted to receive some specific interpretation of Vitaliy's words. The lack of comment from the prosecution on the new translation might be connected with this," Markiv's lawyer, Oleksandr Chebanenko, told Ukrinform.

Oleksandr Chebanenko

His colleague also stressed that the prosecution was left without its main piece of "evidence."

"To be fair, from an ethical point of view, we will not evaluate the prosecutor's behavior in the trial, but as for his procedural actions, it is quite possible to do so. The prosecutor did not say anything new in this trial, but he repeated everything that the prosecution had said in the trial court. The prosecution did not report any new circumstances, and no convincing evidence of Vitaliy's involvement in the crime was provided. We sincerely regret that instead of completely dropping all charges against Vitaliy Markiv, the prosecution continues its erroneous practice," said Leonid Topal, a Ukrainian lawyer for Markiv.

Defense lawyers said that only the initial stage of consideration of the case in this court is underway. The closing argument has not yet begun. Prior to that, the court has yet to decide on the evidence provided to it by the defense, i.e. regarding its relevance, admissibility and sufficiency.

"We are convinced that Vitaliy Markiv is completely not involved in the tragic death of Andrea Rocchelli and that the defense will be able to convince the appellate court. We hope that at the next hearing, which is scheduled for October 23, the court will hear representatives of the defense. As a result, it will make a positive decision to include in the case as evidence the materials provided by the defense, which we consider important to establish the truth," Ukrainian lawyers said.

INDIGNATION OF AN ITALIAN PROSECUTOR AND THE UKRAINIAN EMBASSY

Emotions are raging not only in the courtroom of the Milan Court of Appeal, but also in Italian newspapers. While the Ukrainian community in Italy gathers outside the courthouse to express support for Vitaliy Markiv, hoping for a fair trial, the Italian weekly news magazine l'Espresso publishes Kremlin propaganda. Without any evidence, guided only by emotions and accusations, the magazine publishes fakes and lies. Just read the headline "Ukraine continues to fire on the memory of Andrea Rocckelli."

"While the Milan Court of Appeal considers the appeal in the case of Ukrainian National Guard serviceman Vitaliy Markiv, we continue to believe in the justice of the Italian state, which we hope will restore justice and return freedom to Vitaliy. This is stated in the appeal of the Embassy of Ukraine [in Italy] to the editor-in-chief of the leading Italian newspaper l'Espresso about the latest publications that, instead of objective coverage of the trial, give Italian readers the Kremlin propaganda," the Embassy of Ukraine in Italy reported on its Facebook page.

At the same time, objective materials about Markiv are also published in the media. Enrico Zucca, deputy prosecutor general from Genoa, said the accusations against the National Guard serviceman are not convincing.

He published a material questioning the prosecution's arguments. He emphasizes that empathy for the victim cannot prevail. He emphasizes the independence of the court and the fact that being the accused does not mean being guilty, and the guilt must be proved by indisputable evidence. According to him, the Pavia jury chose the path of simplification, refusing to consider the facts in the context of the war.

Enrico Zucca

"A thorough understanding of the context of events in the eastern part of Ukraine, as well as the impact of misinformation and propaganda, is extremely important in the Markiv case. The verdict is imperfect in its evidence and has already become the subject of interest of the relevant European institutions," he said.

The Italian prosecutor drew attention to the takeover of Donetsk and Luhansk by armed groups, reports of international observers. According to him, the international nature of the conflict became apparent after Russia's annexation of Crimea. He also noted that there is no conclusive evidence of Vitaliy Markiv's involvement in the tragedy, but instead, there are only hypotheses. He called on the Milan Court of Appeal to carefully study the issues, facts and analyze everything that happened. The next court hearing in the Milan Court of Appeal is scheduled for 09:00 on October 23, 2020.

Iryna Drabok, The Hague

Photo credit: Ukrainian community in Italy