Editor’s Note: This is an open letter by British military expert Glen Grant to Ukrainian Interior Minister Arsen Avakov.
Dear Minister Avakov,
I have been following the case into the July 20, 2016 murder of journalist Pavel Sheremet with great interest, especially the recent very public pronouncements that the guilty have been found after the Dec. 12, 2019 arrest and detention of suspect Andriy Antonenko. You may ask why would a defense expert be interested in this? In the British Army, we have our own justice system and so we learn law while at the academy. We have regular compulsory refreshment throughout our careers. I have prosecuted, defended, and sat on the jury in over 100 military cases including defending soldiers in civil courts and even in the high court in London. As a commanding officer of the military prison, I had powers of a judge. Justice and defending human rights means a lot to me.
Your public show, and the arresting and holding of Antonenko for such a long period made me think hard about the use and understanding of “evidence” in serious cases like this. There are many types of evidence but in a murder case it is important only to consider the very strongest types or there is a grave risk of prosecuting the wrong person. A person is innocent until proven otherwise. The challenge with this case is that there appears to be no direct evidence proving Antonenko is linked with the murder. If this is indeed true, then holding him on suspicion is on very weak legal grounds. From the evidence so far presented, it appears that no person in five years has come forward with anything that links him to the case by a hard fact. There also appears to be no forensic proof of any sort – no DNA, no phone calls, no text messages, no explosives, no computer links, no smoking gun, no nothing.
The best that the police have produced is that the person in CCTV videos has been considered by experts to be walking in an identical way to Antonenko. This may in fact be technically correct, but they apparently failed to consider the reverse that there may be many more people in Ukraine, Belarus or Russia who have a strong motive for this murder and who fit this description equally well. Any old-soldier will tell you that he can spot another soldier by the way he walks. Weightlifters also have similar body shapes and gait patterns created by the similarity of muscle development from doing the same identical exercises time and time again over many years.
The expert CCTV viewing logic also breaks when we hear that other police experts in 2016 identified the man in the video as being of 10 centimeters in height difference from the later arrested Antonenko. Bizarrely, when challenged on this fact the police tried to keep Antonenko’s true height secret from his defense team, assumingly because it did not fit their own evidence. It is arguable that as soon as the contradictory evidence on height was established by the police he should have been immediately released from custody. He has now been in custody over 300 days on the thinnest of evidence.
The British gait expert Ivan Birch brought in by the police to judge the CCTV videos then failed to report using the internationally established protocols for comparative judgments. These are clearly based upon mathematical probabilities. He used a non-standard word “sufficient“ to describe the assessed similarity of gait between the killer and Antonenko. This word was used in the Ukrainian document signed by the British expert. An original signed document by Professor Birch in English using the established protocols should be provided as evidence. This is so the court to be totally sure of the language accuracy of the recommendation. This English document has not been given to the defense team despite repeated asking. The lack of an English original and the use of a non-standard statistically unmeasurable recommendation in the Ukrainian document must bring into real doubt the veracity of the whole police case. Even with this document, for a murder case, gait evidence can still only be used as supportive evidence for other more direct evidence – and in this case, the direct evidence appears absent.
A recent academic paper in the Journal of Forensic Sciences concluded that the science of gait analysis was sufficiently immature so that “courts should treat gait evidence with caution, as they should any other form of evidence originating from disciplines without fully established codes of practice, error rates, and demonstrable applications in forensic scenarios”[1]. This evidence is thus assessed academically at best “weak” and should never be considered prime or legally convincing in a case of this seriousness.
The police have also argued circumstantial evidence for example that Antonenko lives nearby the murder scene, that he wears similar clothes, that he has a beard like the murderer, that he knows the other arrested suspects and more. But circumstantial evidence can only be argued as a corollary from hard facts, and in all cases, these logic steps and first-order facts are simply absent. Clothes for example can only be used if they have forensic underpinning such as DNA or explosives being found on them. With common chains of shops like Zara, Mango, Benetton, and Hugo Boss, anyone in the world can now be wearing the same styles, logos, or patterns. Antonenko may have owned a flat nearby the murder scene but so do thousands of other people. So these police comments have no firm foundation that can be used in a case of this type. It has been suggested that there was more evidence to come but this has not appeared. The courts should go by what hard evidence is placed before them, not on emotion.
Other ideas presented by the police are in the realms of conjecture such as the fact that someone unknown organized the case. Well, that is obvious, but because there is no direct evidence against Antonenko or anyone else, there can equally be no causal link between him and others. This fact is not evidence. The motive is also just conjecturing with no hard, logical underpinning. If Sheremet had acted against Antonenko personally in a seriously bad way in the past, that may have some strength. But there is no factual link at all between the motive and the relationship between these two people. In five years apparently, no one has come forward with a single idea or fact linking the two at all let alone sufficient to arrest and convict someone for murder. The police offerings on motivation are basically meaningless comments not worthy of a serious case of this type.
When you said on television to President Volodymyr Zelensky that the police had identified the likely guilty parties, the sudden speed of solving the case should have been a red flag for you. It was too quick and too clever. Now we know why. The police produced a criminal intent hypothesis apparently not backed by true evidence. As time has progressed that hypothesis has been shown time and time again to have no evidential strength. The police should have warned you of this and the case should probably have been withdrawn. The fact that when keeping Antonenko in custody the courts believe conjecture rather than evidence as a minister should also worry you greatly. Justice is a government problem and here it is being shown to be seriously problematic.
Now Antoneko may be totally guilty. I am not trying to prove otherwise. Proving guilt is for the police and the prosecutor. Deciding guilt for the courts. My aim here is to point out that on the surface the prosecution has produced no proper evidence linking Antonenko to this case and certainly not enough to leave him in custody for such a lengthy time on assumed murder. But if the police and courts do not understand what “evidence” is or means, as they are showing already, this accusation rests upon extremely weak grounds. Sadly, I also predict that with this case in the European Court of Human Rights it may cause you, your police, and the prosecution, much pain in the coming months.
