Markiv case update. Prosecution presents same tedious arguments despite new evidence

Ukrainian soldier Vitaliy Markiv at the Milan Court of Appeal, October 15, 2020. Photo: Oles Horodetskyy 

International, War in the Donbas

The third hearing of the Court of Appeal on the case of Ukrainian National Guardsman Vitaliy Markiv was held behind closed doors in Milan, Italy on October 15, 2020. Only some journalists, accredited officials, family and lawyers were allowed into the premises.

Vitaliy Markiv has been in prison in Italy for over three years on charges of complicity in the killing of Italian journalist Andrea Rocchelli and his Russian interpreter and human rights activist Andrei Mironov near then-occupied Sloviansk.

We present a summary of the main inside events.

The good

Additional evidence was admitted by the court, namely a new translation of Markiv’s conversation with a cellmate by a certified translator appointed by the Milan Court of Appeal.  In the first translation of Vitaliy Markiv’s conversation with his cellmate in July 2017, Markiv allegedly said:

I killed (took down) an Italian reporter”.

For the prosecution, these words constitute a confession. However the new translation, which was allowed by the Milan court, reads as follows:

An Italian reporter was killed in 2014, and now they want to put the blame on me.”

In fact, prosecutor Nunzia Ciaravolo tried to include the phrase “An Italian reporter was killed…” in the case file and use it as confession evidence. It should be noted that the phrase was taken completely out of context, and the prosecution interpreted Markiv’s statement as “I killed an Italian reporter…”.

Milan Court of Appeal, October 15, 2020. Photo: open source

The bad

Ukrainian ombudsperson Liudmyla Denisova, one of the few persons allowed to attend the hearing, summed up the Milan proceedings in a nutshell:

“Today, it was not only Vitaliy Markiv on trial in Milan, it was all of Ukraine.”

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Denisova added that the prosecution reiterated the same dubious arguments voiced in the Pavia court on July 12, 2019, which were later reflected in the absurd verdict, sentencing Markiv to 24 years in prison. The prosecutor also presented videos related to Rocchelli’s killing, including Russia Today (RT) videos, which she called a credible TV source, on a par with CNN and Al Jazeera.

In a turn of events, the prosecutor finally admitted that both sides were firing, and not only the Ukrainian soldiers, as Andrei Mironov seemed to infer in the last video just before his death. However, the prosecution stated that there was no doubt that it was the Ukrainians who wanted to kill the reporters, as the pro-Russian militants never hindered the activities of foreign journalists.

For the prosecutor general, Markiv’s testimony that they fired only in response was an “unheard lie” and that Markiv’s possession of a walkie-talkie is “proof” of his guilt.

The prosecutor presented a video of Markiv’s radio and some RPGs, as well as several facts from the OSCE account on general violations concerning journalists, failing to mention that such heinous acts had been committed by the Russian-backed militants, and then duly investigated and reported by the OSCE.

In fact, all the arguments that had been presented in the Pavia trial in July, 2019 were repeated again in the Milan Court of Appeals. Nothing new was added, but Denisova underlines the fact that this time the statements were more emotionally-charged, containing distorted facts and “false accusations, including some against Ukrainian state officials.”

Denisova believes that the prosecution is deliberately putting pressure on the judges and jurors to obtain the verdict that the prosecution team desires, namely confirmation of the sentence and imprisonment of Vitaliy Markiv for 24 years.

Olha Tokariuk, co-producer of the investigative documentary The Wrong Place with Cristiano Tinazzi, Ruben Lagattolla and Danilo Elia, offered a similar summary of the court hearing in Milan. Although she did not attend the hearing, Tokariuk provided an hourly account of the events thanks to an inside source in the courtroom. She underlines that there were “an incredible number of things in court that have nothing to do with reality”. Other persons who were allowed to attend the hearing testify to the Russophile statements and emotionally-charged arguments of the prosecution, much larger in scope and more passionately expressed than at the trial in Pavia.

  • The pro-Russian militants in then-occupied Sloviansk always treated journalists fairly because they wanted the world “to learn the truth” about their so-called “struggle for freedom”.
  • The area near ​​the railway crossing and the Zeus Ceramics factory, where Rocchelli and Mironov were killed, was calm and peaceful. There was no shooting or fighting.
  • The Ukrainian soldiers deliberately aimed at civilians in Sloviansk because they considered them enemies, but the Russian-controlled militants used their weapons only for defence purposes.
  • Vitaliy Markiv saw the journalists through his optics, and reported their position to the others stationed on Mount Karachun through his walkie-talkie. Of course, suggests the prosecutor, the Russian proxies could not do this because they respected foreign journalists.
  • Russia Today is a trustworthy TV channel.
  • Markiv is a Nazi who wanted to stab an Italian security guard with a ballpoint pen and escape from prison, that he does not respect the court and has no empathy for the relatives of the deceased, because he does not admit his responsibility in the killing.
  • The situation of the war in Ukraine can be compared with World War I.
  • Ukraine is forcing men to go to the front to kill civilians and others.
  • The investigative documentary The Wrong Place film offends Rocchelli’s family, and is biased because it was shot at a Ukrainian military firing range and the producers officially thanked the National Guard of Ukraine for their assistance.
  • The prosecution totally ignores reports about the Russo-Ukrainian war in the Donbas from such international organizations as the OSCE, the EU and the United Nations, dismissing accounts of torture and killings in Sloviansk by the Russian forces and Russian mercenaries under the command of Igor Girkin (“Strelkov”), who is internationally wanted for murder in the shoot-down of MH-17 in July 2014.

On October 12, 2020, Genoa Deputy Prosecutor General Enrico Zucca published a detailed account on the complexity and failings of this trial.  He notes that the Ukrainian issue is often perceived through media reports which are heavily polluted by organized propaganda and disinformation operations, a fact that makes it difficult, for everyone, including the judges, to understand the events and dynamics of a war that has caused thousands of victims, dead, wounded, missing, refugees and glaring violations of human rights. He points to the following facts:

  • The sentence fails to take into account the context of the war in the Donbas. The Pavia court chose to give in to simplification, refusing to consider the facts in the context of war, often referring to it as a “civil conflict”.
  • The court discredits the Ukrainian side, basing its arguments on unreliable media reports, i.e. a chain of circumstantial evidence so suggestively reconstructed by the judges. In this case, circumstantial details and facts can be more easily misinterpreted, or re-arranged, to resemble guilt.
  • The court’s reconstruction of Markiv’s “presence” on Mount Karachun is hypothetical and taken from documentaries, films and photographs. His actual presence cannot be proven without a doubt.
  • The prosecution constantly discredits Markiv, portraying him and Ukrainian institutions as Nazi-oriented. It is difficult to understand the relevance of such issues in this case. The judges should avoid such obvious propaganda traps.

On October 9, 2020, Kyiv Post published an insightful article on the Markiv case – How an Italian court undermined the presumption of innocence in Markiv’s conviction – by Wayne Jordan, a leading expert in international humanitarian law and international human rights. He writes that the fundamental question in this trial lies in “whether, in the absence of direct evidence of presence and participation at the relevant time, the evidence was in fact even capable of proving the case beyond a reasonable doubt. This is not a merely technical question. It is a profound question that must be addressed in every criminal trial. If the evidence is not capable of establishing the act(s) and the corresponding mental state beyond a reasonable doubt, then no matter how suspicious the individual pieces may look, alone or in combination, then the case must be dismissed. To ask the accused to answer allegations that are incapable, when taken at their highest, of discharging the prosecution’s burden of proving the case beyond a reasonable doubt, is, not only a violation of the right to silence and a reversal of the burden of proof, but a step along the way to serious miscarriages of justice. No answer is required if no case exists. 

Following the third hearing, Massimiliano Massey published an excellent article in MilanoToday, where he pointed to the failings and judicial errors of the prosecution team.

The next hearing of the Milan Court of Appeals will take place on October 23. The defence team will present their arguments and it is expected that the court will pronounce its decision some time in November.

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