On Oct. 15, the appeal trial in the case of Ukrainian National Guard soldier Vitaliy Markiv will resume in Italy. Markiv was convicted and sentenced to 24 years in prison by the 1st grade Pavia Court in July 2019 for the murder of Italian photographer Andrea Rocchelli and his Russian interpreter, dissident Andrey Mironov, in the Donbas region of Ukraine in May 2014. This was during the early months of Russia’s war.
The case had been deemed as controversial and a miscarriage of justice by many, and soured the relations between Ukraine and Italy. On Oct. 4, Russian human rights organization Memorial, whose member was Mironov, issued a statement criticizing the approach of the Italian court.
There is a common belief among those who take an interest in criminal cases that circumstantial evidence is somehow inherently weak or unfit for the purpose of proving the guilt of an accused. Nothing could be further from the truth. Circumstantial evidence – evidence of a number of different circumstances which, taken in combination, point to a conclusion because they would usually only exist in that combination if that conclusion was correct – are the basic instruments of decision making in everyday life. Prosecution cases are no exception. The broken window, DNA on a piece of the glass, the footprints of the accused at the crime scene, the fingerprint on the murder weapon, and a motive may individually hint at a conclusion but, in combination, can destroy an accused’s alibi and point inexorably to an accused’s guilt, sometimes even more than identification by an eye witness. A prosecutor with a firm grip on the circumstantial evidence is a formidable opponent of any accused, guilty or not.
Circumstantial evidence can be prone to misuse
On the other hand, as Markiv has discovered in his trial in Italy for allegedly murdering the Italian photojournalist Andrea Rocchelli, a court that fails to approach circumstantial evidence with care and objectivity is a serious threat, not only to the presumption of innocence but also to personal liberty. The problem with circumstantial evidence is not that it is inherently unreliable, but that in circumstances where public pressure demands action, it is more prone to misinterpretation or misuse. When tragedy strikes and a scapegoat is required to satiate the public demand for justice, fair evidential assessments and fundamental rights are most at risk. DNA, footprints, fingerprints, and murder weapons are more easily misinterpreted, or re-arranged, to resemble guilt. Inferences, stretched to the breaking point, can become the departure point for conclusions that transform the notion of reasonable doubt into a moveable feast, with terrible consequences for the truth and the unfortunate accused.
Andrea Rocchelli killed on May 24, 2014
Markiv was convicted pursuant to Article 575 of the Italian Criminal Code for the murder of Italian photojournalist Andrea Rocchelli in the city of Slovyansk, near the Karachun mountain. The “murder” took place on May 24, 2014, during an attack (allegedly involving other volunteers of the National Guard and soldiers of the regular Ukrainian army), that also killed Rocchelli’s Russian colleague, Andrey Mironov, and injured the French journalist William Roguelon. Markiv was sentenced to 24 years imprisonment. The case is now on appeal and is presently being heard in the Milan Court of Appeal.
According to the Pavia Corte d’Assise’s decision, the jury established the following circumstances:
On May 24, 2014, three journalists, Rocchelli, Mironov, and Roguelon, went to the Zeus ceramics factory site in the city of Slovyansk, near the Karachun mountain. The city at the time was occupied by Russian special forces and their local proxies, and the factory and railway passage (which marked the front line), were controlled by them. The Ukrainian forces, both National Guard and the Army, were stationed about two kilometers away on Karachun hill overlooking Sloviansk, defending a TV tower. After getting out of their taxi and walking towards the railway bridge to take photographs, an unarmed individual appeared, shouting at journalists the warning, ‘sniper.’ The jury found that it was at that point, that the National Guard subjected them to a concerted attack using AK-74s weapons, knowing that they were journalists and not combatants.
In a nutshell, it was alleged that Markiv was one of those forces, stationed on the hill, with a full view of the terrain and the journalists. The court found established that he was equipped with an optical sight to enable distant targets to be targeted. According to the jury’s conviction, Markiv recognized the group as journalists and aimed his AK-74 “at journalists near the wall of the Zeus factory in a fitful rhythm, firing continuously…. directing the largest volume of fire at the victims.” When the AK-74’s failed to hit the journalists, Markiv followed their movements through his optical sights and directed members of the Ukrainian army so that they could target the journalists with mortars, leading to the death of Rocchelli and Mironov. According to the jury, “only from his [Markiv’s] position could he pinpoint with such precision, using a viewfinder that allowed him to aim at the victims, gradually directing the shots at the target.”
Ukrainian director and former political prisoner Oleg Sentsov comforts Diana Markiv during a rally in support of her husband Ukrainian soldier Vitaliy Markiv in front of the Italian Embassy on Oct. 14, 2019. Markiv was sentenced to 24 years in prison in Italy for involvement in the 2014 death of Italian freelance photographer Andrea Rocchelli during Russia’s war in Donbas. (Volodymyr Petrov)
A metamorphosing case against Markiv
The case against Markiv was built from circumstantial evidence. It was a metamorphosing case, to say the least. The prosecution’s original case at trial was that Markiv had himself killed the journalists with a mortar. During the trial, evidence emerged that showed the impossibility of this: Markiv, as a member of the National Guard, had no access to mortars. Instead of abandoning the prosecution, as would have been normal in many criminal jurisdictions, the prosecution pushed on regardless. Be that as it may, in both cases the prosecutor was unable to rely upon any single witness who had seen Markiv in a position to commit the crime at the relevant time, let alone one that had seen him fire a single shot or heard him provide any coordinates to the Ukrainian Army forces. Notwithstanding the obvious risks to the concept of individual responsibility from such as mutating and fragile case, the court concluded that the circumstantial evidence established not only that Markiv was present on the mountain, but that he, and he alone, had the function of guiding mortars and was uniquely situated to so do.
Serious fair trial violations
Unsurprisingly, the jury’s conviction is beset with serious fair trial violations. The purpose of this article is not to summarize the entirety of the fair trial violations or otherwise argue for the verdict to be overturned. We can only hope that Markiv’s Italian lawyers will do this, and do it well. Instead, this short contribution to the debate focuses on a more fundamental question: 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.
In order to prove the prosecution’s case against Markiv, the prosecution had to establish four principal elements:
First: That the Ukrainian (and not the pro-Russian) side was responsible for the shooting of the journalists at the relevant time.
Second: The presence of Markiv on the day in question on the mountain.
Third: Markiv’s participation in the initial shooting and the coordination of the (alleged mortar) shooting that caused the death of the journalists.
Fourth: that his actions were intended to kill the journalists. Each had to be established beyond a reasonable doubt.
As defined by Lord Denning, a renowned English jurist, proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt but “[i]f the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence, ‘of course it is possible, but not in the least probable,’ the case is proved beyond a reasonable doubt, but nothing short of that will suffice.”
In other words, the circumstantial evidence of Markiv’s presence, awareness of a plan to kill the journalists, and participation in that plan with the relevant intention, had to be capable of proof to that standard. The evidence had to be, first, capable of showing that Markiv’s claim – not to have been present or to have participated (with or without) intent – was possible but not in the least probable and then, secondly, establish, in light of the entirety of the evidence (including the Defence evidence), that guilt was in fact established.
Court takes gargantuan leap of faith
As an examination of the circumstantial evidence relied upon to convict Markiv shows, the evidence was, as a matter of law, incapable of establishing guilt. Having found that the Ukrainian side was responsible for shooting the journalists, with AK-74’s and mortars, the court took a gargantuan leap of faith.
Lacking any direct evidence of Markiv’s involvement, the court merely presumed that, of the 100 men from the Ukrainian Army and 30-40 soldiers from the National Guard (usually) located on the mountain (along a front of 100 meters and at a distance of 10-15 meters from each other), Markiv must have been the man responsible for leading the AK-74 attack and coordinating the deadly mortar attack.
That leap – that Markiv was singularly placed to be able to lead the attack and did so, intending to kill – is a textbook illustration of a reversal of the burden of proof in a criminal case. It involved the conflation of evidence – that tended to suggest that Markiv could have been responsible – with evidence that was capable of proving beyond a reasonable doubt that he was in fact responsible.
Even though there were serious flaws with the jury’s analysis of the first element, it was the most reasonable and persuasive part of Markiv’s conviction.
Principally, based upon the eyewitness testimony of one man, Roguelon, the court found that it was the National Guard of Ukraine acting in concert with the Ukrainian Army – and not the pro-Russian side – that was responsible, and such attacks were deliberate and had not taken place in the midst of battle. According to the jury, there was no room for mistake or misidentification: the victims were clearly not combatants but easily recognizable as journalists. The attack began only after they were recognized. In effect, the jury adopted Roguelon’s own “intimate belief that it wasn’t pro-Russians” doing the shooting.
According to the jury, the evidence provided “from a logical point of view…. many fundamental considerations regarding the attribution of the attack to the Ukrainian faction.”
However, in order to arrive at this conclusion, the jury had to ignore the most persuasive evidence on the issue: contemporaneous video evidence recorded by Mironov. As the shooting began, the journalists sought to escape by concealing themselves in the undergrowth. At that moment, Mironov, talking to a taxi driver who was hiding next to him in a ditch, stated that they were caught in “crossfire from both sides,” that there was “someone sitting nearby and shooting from everything he has,” including a mortar, and that heavy machine guns and mortars were being fired from the hill.
This evidence was of critical importance for two reasons. It was relevant to the issue of which faction was responsible for the shooting. But it was also relevant to the prosecution’s fourth element, namely whether the shooting was intended to kill the journalists or whether (as Markiv suggested) they were accidental victims of crossfire or victims of pro-Russian aggression. Contemporaneous evidence of this kind in a criminal trial usually carries significant weight. Due to its immediacy and spontaneity, it is highly unlikely to have been fabricated or otherwise undermined by the frailties of memory or subsequent trauma.
Along with the jury’s mischaracterization of the historical context (that the events occurred on May 24, 2014, following Ukraine’s declaration of independence), and their unwillingness to consider the ramifications of the scene being a frontline more generally, the jury appears to have willfully ignored this evidence. Nonetheless, this analysis was still the most reasonable part of the jury’s entire conclusions. The evidence was at least capable of supporting the conclusion, even if their conclusion was premised on an analysis that appeared to overlook the most relevant and probative evidence.
The same cannot be said of the evidence of Markiv’s actual presence, involvement, and personal intention.
In relation to these latter three elements, lacking any direct evidence that Markiv was present and acting in the way alleged, the jury examined a range of evidence that was relevant and probative of Markiv’s usual post, function, and location. In the judgment, the jury divided this evidence into two parts: first, circumstantial evidence indicating Markiv’s location and alleged command (including the role of coordinator of mortars) and, second, an alleged out of court confession that was regarded as the “main” evidence establishing Markiv’s presence on the day in question. As will be discussed, the jury failed to appreciate that, alone or in combination, this evidence was, as a matter of law, wholly insufficient for findings beyond a reasonable doubt. As mentioned, it was evidence that Markiv could have been present and as a result of his function could have participated as alleged. Nothing more, nothing less.
As for the circumstantial evidence of location and command, the jury examined a range of circumstances. This included Markiv’s own evidence that his duties ordinarily placed him on the mountain at Karachun in May 2014; that the National Guard, of which he was part, was tasked with defending the television antenna against pro-Russian forces; that they would act together with the Ukrainian Army in the event of an attack; that the National Guard had Kalashnikov AK-74 assault rifles and the army used mortars (which required coordinated assistance to direct their aim); and that he had several weeks before the events been assigned a fixed position on the mountain that would be rotated every four hours.
Lacking any direct evidence that Markiv was even capable of aiming an AK-74 (with an accurate range of maximum 600-800 meters) over the 1,700-meter distance from his usual mountain place, let alone capable of directing mortar fire, the jury relied upon a range of circumstantial evidence.
The principal evidence of command and function consisted of witness testimony from a journalist, Ilaria Morani (reporting that Markiv had, shortly after the killings, reported himself as a captain and therefore in a commanding role) and a series of photographs taken on other occasions that were suggestive of the claim that Markiv might (ordinarily) carry out the function of “observer” within the National Guard, a function consistent with participating as alleged to coordinate the mortar fire. These included photographs that suggested he might be a more “qualified soldier” than others in his unit; have been in possession of an AK-74 with optics (capable of facilitating his alleged coordinator role); and used a radio (allegedly not possessed by others in the National Guard giving him the capability of communicating coordinates of targets to the Ukrainian army).
As for location, the jury placed significant weight on a video that Markiv had taken on June 8, 2014, more than two weeks after the shooting. Appearing to reverse the burden of proof, the jury concluded that the video not only showed Markiv with the requisite radio confirming his command, role and, status, but, in light of evidence that National Guard soldiers were expected to maintain their designated post, gave “an accurate description of the functions of Markiv on the hill and the place where it was located, given that there are no images that would show him in other places, in other positions.”
One does not have to be a criminal lawyer to see that these pieces of evidence were incapable of establishing that Markiv was present on the day alleged. Even taking the evidence at its highest, it was capable of proving only that if Markiv had been present, he might have played the role alleged. It could not establish an actual presence on the mountain at the relevant time, let alone establish participation in the alleged criminal conduct or his intention to kill.
Main evidence was weak
In recognition of the inadequacy of this evidence, the jury turned its mind to the remainder of the evidence. The prosecution case relied upon a conversation that Markiv allegedly had with an Italian journalist shortly after the incident that the court regarded as an “out of court confession.” The court concluded that the certainty that the accused was on the mountain [on the day in question] mainly stems from the statements of Italian journalists to whom he passed information. It was the main evidence against Markiv, but not because it was convincing evidence. On the contrary, it was inherently weak and unsuited to the task at hand. As an examination of Markiv’s purported “confession” shows, at its most incriminating, it was simply incapable of proving actual participation in such a heinous crime, let alone establishing the required criminal intent.
‘There is no exact front line here’
The evidence in question was based upon a conversation Markiv purportedly had with an Italian journalist called Fauci in the evening after the incident. That conversation was in turn overheard by another Italian journalist, Morani, who was listening in on the speaker phone. Another journalist, Volpi, also spoke to Fauci immediately after the telephone call. Morani wrote an article for an Italian newspaper “Corriere della sera” purportedly based upon the conversation she overheard. The article, entitled ‘Ukraine – The Story of a Captain: This Is How Rocchelli Died’ relayed how they had called up the “captain of the army, who at the time was standing on the tower, coordinating the defense of the city.”
According to Morani, Markiv stated, “[T]his is not a joke, you should not approach: this is a strategic place for us.” She detailed how the “captain” had stated: “normally we do not fire in the direction of the city and civilians, but as soon as we see movement, we load heavy artillery. So it happened with two journalists and an interpreter. We’re shooting from a mile away. There is no exact front line here, it is not a war, like in Libya. There are actions scattered around the city, we are only waiting for the green light for the final attack.”
Fauci’s recollection of the conversation was somewhat different. Fauci testified that he asked Markiv about the fate of his colleague. Markiv allegedly answered to the effect that “he had no specific information about the injured person, but knew that there were clashes and, perhaps, with the dead, with dead people.” Fauci also recalled that Markiv confirmed that he was on the mountain and “from this position he and his fellow soldiers shot at everything that moved. He added that he knew that there would be victims. I was strongly advised not to go to this place.” However, when questioned about the contents of Morani’s article, Fauci declared that he had no memory of any such (partial admission). He stated: “I only confirm that I remember that in that phone call this person – Markiv – which, according to him, commanded the office of National Guard, reported that in those days they shot at all.” Fauci confirmed that: “I don’t know if the content reported in his phone call is true or not. He certainly knew what happened up there on that mountain.” Volpi’s evidence was even more supportive of Markiv’s case (that Morani’s article and subsequent evidence was nothing more than the product of a fertile imagination and creative license). Volpi merely recalled Fauci telling her that he had spoken with Markiv regarding the incident and Markiv had said, ‘this area is dangerous, we told you not to approach.’
People hold flyers during a rally to demand freedom for Vitaliy Markiv in front of the Italian embassy on Oct. 14, 2019. Markiv was sentenced to 24 years in prison in Italy for involvement in the 2014 death of Italian freelance photographer Andrea Rocchelli during Russia’s war in Donbas. (Volodymyr Petrov)
Inconsistent accounts
The jury claimed that there was no “significant controversy” regarding these statements. Yet nothing could be further from the truth. Putting aside the fact that Morani recalled the conversation taking place on a loudspeaker in a bar in Donetsk in English and Italian and Fauci recollected a conversation in Italian in Morani’s rented flat, the jury ignored the significant differences in their accounts. As can be seen, Morani’s account placed Markiv among a group of Ukrainian military firing at the journalists, and Fauci’s account, although suffering from internal inconsistency, appeared to suggest that Markiv may have had only knowledge of the attack. Volpi corroborated this interpretation of the disputed telephone call.
In light of the standard and burden of proof, Fauci and Volpi’s accounts could not be ignored. They corroborated Markiv’s own version of events.
The jury could not simply select the account that was most incriminating and dismiss those that undermined the prosecution case. At the very least an explanation was required, not a disingenuous claim that there was no controversy. In any event, and this is the most salient point of all; even Morani’s more incriminating account could not be read as an actual confession. At best, it was ambiguous.
It reasonably bore two meanings: that Markiv might have been amongst the men that fired at the journalists or he was speaking more generally about the incident. The fact that everything Markiv said involved “we” and not “I” did not allow this ambiguity to be resolved, one way or another. Whichever interpretation was correct, it was a conversation that was incapable of distinguishing or identifying Markiv as specifically participating among the 30 or 40 National Guard soldiers or his intent to kill journalists (and not combatants), especially when the evidence established that the men on the mountain, including Markiv, were rotated from their usual locations every four hours, with four hours of active observation, four hours of reserve, and four hours of rest.
Putting aside the ambiguity and fragility of the main evidence, these rotations created an insuperable, evidential problem for the prosecution: even if the circumstantial evidence placed Markiv on the mountain at the relevant time, which is highly doubtful, how could it establish that he was not in reserve or resting?
Markiv may not have been on active duty. Indeed, he may have even been asleep!
A reading of the jury’s judgment shows that they reflected on this issue and appreciated the seriousness of the problem. They noted that an “element in favor of the defendant could be the order of service or the rotation of shifts but that none of the military was able to provide this evidence.”
The way the court addressed this lack of evidence speaks volumes. For the presumption of innocence to mean anything, the court was duty-bound to give Markiv the benefit of doubt.
It was the prosecution’s job to provide this evidence, not the Ukrainian government, and certainly not Markiv. There was no case without this evidence. Instead, contrary to the fundamentals of trial processes, the court gave the benefit of doubt to the prosecution: Markiv could have been on active duty, therefore he was in fact responsible for murder.
Wayne Jordash, a lawyer and managing partner at Global Rights Compliance LLP, analyzed the Italian court verdict in the Vitaliy Markiv case. Jordash was described in the Legal 500 UK 2017 as a leading queen’s counsel and one of the world’s leading international criminal lawyers. He has worked in all the significant international criminal courts over the last two decades, representing governments, military and political leaders, and victims. He has represented the Serbian government at the International Court of Justice, the (post-revolution) Libyan government, Rohingya victims at the International Criminal Court, and the ex-head of the state security of Serbia at the International Criminal Tribunal for the former Yugoslavia.
