Finalizing the investigations on the killings at Euromaidan would be a great achievement. The top officials would be glad to have the burden of these investigations and societal pressure off their shoulders. But they can’t.
Completed or not?
The crimes committed against peaceful protesters during the Euromaidan revolution in November 2013-February 2014 were investigated by the Special Investigative Department of the Prosecutor General’s Office created in December 2014.
As of 20 February 2019, 52 verdicts have been issued in these cases, only two people have received a real sentence for crimes committed against Euromaidan protesters, and only one is serving time. 442 people were given suspicion notices, and an indictment for 288 people are in court, according to Serhiy Horbatiuk, who heads this Department.
On 1 February, Prosecutor General Yuriy Lutsenko stated that the pre-trial investigation of the killings of peaceful protesters during the Euromaidan revolution is completed and that soon the case would be directed to court.
“We have all the proof, including independent expertise showing that the teams of Viktor Yanukovych, the Security Service head Oleksandr Yakymenko, the Ministry of Internal Affairs chief Vitaliy Zakharchenko, and their subordinates led to the killings of peaceful people at Maidan,” said Lutsenko.
According to Lutsenko, Ukraine’s ex-president Yanukovych who fled Ukraine during the Euromaidan revolution and others from his team face life imprisonment, and 150 law enforcers suspected of crimes during the bloody winter of 2013-2014 are under trial.
Lutsenko’s statement was immediately challenged by civil society representatives, who accused him of lying.
Particularly, by Yevheniya Zakrevska, one of the lawyers who has been working to bring justice to the families of the protesters killed on Euromaidan.
“The investigation of shootings at Maidan is not completed. All the investigative experiments have not been conducted. The expert analyses are not finished. All the interrogations have not been conducted. Not all the videos and photos have been collected and worked on…
P.S. His claims that everything is completed only means that he is doing everything to phase out the investigation. To stop it. To disband the investigators…To, finally, get rid of this foreign gestalt and forget it like a nightmare. This is not the same as ‘completing the investigation, handing over indictments to the court and receiving verdicts,’” Yevheniya Zakrevska wrote.
In a statement on 4 February Lutsenko insisted that he’s right. However, Serhiy Horbatiuk, Head of the Department of Special Investigations of the Prosecutor General Office, disagrees with Lutsenko’s conclusions.
Speaking to Euromaidan Press, he told that his political statements have little to do with the real investigation. He added that the decision to complete the investigation should be made directly by the procedural supervisor when he recognizes all the evidence as sufficient and when Ukraine amends its legislature on trials in absentia to allow the completion.
“The legislative procedure does not allow [completing the investigation] and [the procedural supervisor of the case] has not made the decision to finish it. So any statements of the Prosecutor General can be considered, including by the defenders of the suspects, as a lack of impartiality and objectivity in the investigation,” Horbatiuk told.
Legal obstacles to completing the investigation
As Yanukovych and others from his team had fled to Russia after Euromaidan, Ukraine had adopted amendments to laws allowing to judge them in absentia.
But starting from November 2018, some features were rolled back due to holes in legislature, leaving the investigation of crimes on Euromaidan in limbo. To replace it, another bill on trials in absentia is awaiting a vote in parliament. Prosecutor General Lutsenko supports it. However, the bill so far has not received the needed number of votes.
Horbatiuk points out that the bill has contradictions which can block the investigations.
The first drawback is that, according to the draft law, there should be evidence that a person who remains abroad was issued a subpoena. This can be a signed acknowledgment, a video where the documents were handed in or other means confirming that the suspect was informed.
“In the situation with Russia, where the majority of the fugitive [suspects] remain, the Russian Prosecutor General Office refuses to hand them any subpoenas. Therefore, it is impossible to confirm that the person has been informed and the courts will not be able to give permission on a trial in absentia,” Horbatiuk noted.
The second drawback, according to Horbatiuk, is that, according to the bill, the creation of the State Bureau of Investigation, a new institution created to deal with transgressions committed by legal authorities, law enforcement officials, military officers, and judges on 27 November 2018, annulates the necessary changes on trials in absentia.
These changes are essential for the investigation of crimes at Euromaidan because according to general rules of conducting an investigation in absentia, a suspect, apart from receiving a notice of suspicion, should also be added to the international wanted list. Horbatiuk explains that, according to court practices, Interpol’s permission is required for adding suspects to the international wanted list; however, the organization has been reluctant to add suspects in Maidan killings to its list in the majority of Euromaidan cases.
Horbatiuk claims that another bill exists where these problems were addressed However, Lutsenko decided to promote the other problematic bill to Parliament.
Legislative loopholes might allow Euromaidan killers to appeal their verdicts and win
Horbatiuk says that the Ukrainian legislature should be amended taking into account the requirements of European conventions and practices of European courts, which address the suspect’s right to defense. With the current legislation, those receiving a sentence will be able to cancel the decision of Ukrainian courts by appealing to international courts.
“The changes should be implemented in a way that so a trial in absentia can be launched against suspects residing abroad whose location is known, but the hosting country refuses to extradite them. Then the suspect’s right to defense will be upheld – if we know in which country he is in, we direct all the investigative documents there. If that country does not want to give them to the suspect, we as a country prove that we took all the possible actions to inform the person on the documents,” Horbatiuk told Euromaidan Press.
The second necessary step, according to Horbatiuk, is to amend the Criminal Procedure Code. The amendments should provide a suspect who did not know about or according to objective reasons could not take part in the court process the right to reconsider his case from the beginning if he appears in Ukraine or will be arrested.
“This is a requirement of the European Convention. With the current legislation, Ukraine is depriving suspects of opportunities to appeal against the violation of their rights,” Horbatiuk says.
He had advocated such changes for several years but without result.
Speaking to BBC, Horbatiuk told that the imperfections of Ukraine’s current legislation on trials in absentia allow ex-president Yanukovych, who was on 24 January 2019 sentenced to 13 years in absentia for state treason, to appeal the decision in the European Court of Human Rights, with all chances to win. There are all reasons to suspect that those guilty of killings on Euromaidan will be able to do the same.
Why is the investigation taking so long?
We asked Serhiy Horbatiuk to identify what obstructed the investigation of Maidan cases the most during the years of investigation. According to him, it was been a complex of the following problems:
- Lack of support and interest in the investigation and obstacles created by the heads of the Prosecutor General’s Office, Ministry of Internal Affairs, and Security Service, as well as the law enforcement bodies involved in the process;
- Unreformed courts. Horbatiuk says that investigative judges made many potentially illegal decisions which harmed the investigation. Also, judges delayed the judicial proceedings, made decisions to release suspects in killings from custody and returned indictments. The court hearings also have been delayed;
- The legislative changes on trials in absentia complicated the investigative process: the procedures which are impossible to implement properly make it possible for any criminal proceeding to end with an acquittal.
- State and expert institutions obstructed and improperly conducted expert examinations during the investigative process, which led to wrong conclusions or ineffectual examinations and made investigators consider incorrect versions and redo the examinations, delaying the investigation even more.
Lawyers of the families of the Heaven’s Hundred considering appeal to ECHR
During a press briefing dedicated to the fifth anniversary of the bloodiest days of Euromaidan, lawyers of the families of the killed protesters and civil society activists accused the government of deliberately delaying the investigation.
“Unfortunately, we are forced to state that the highest state officials are not interested in the investigation, despite all the declarations that this is the most resonant case of independent Ukraine. Moreover, we observe a number of obstacles from various state organs,” noted Oleksandra Matviychuk, head of the Center for Civil Liberties.
According to her, the investigation is being opposed by the Prosecutor General’s Office, the Ministry of Internal Affairs (MIA) and Security Service of Ukraine (SBU), as well as the judicial authorities. Particularly, the Special Investigative Department had its staff reduced and cases taken away. The MIA and SBU had not collaborated with the investigation and didn’t give the investigators the needed documents without search permits. Some of those suspected in committing crimes against Euromaidan still work in the management of these bodies.
Legislative changes present another problem: in a year, these cases will be transferred to the State Investigative Bureau, which means that they will basically need to start over, Matviychuk said.
According to the UN Monitoring Mission, 98 people died during the revolution on Euromaidan: 84 protesters, 1 bystander, and 13 law enforcers.
Colm Ó Cuanacháin, Senior Director, Office of the Secretary General at Amnesty International, noted that the organization is concerned with the stalling of the investigation, as with time it gets more and more difficult finding the necessary proof and there is a risk that justice will be impossible to deliver.
Meanwhile, Vitaliy Tytych, lawyer of the families of the Heaven’s Hundred, claimed that they may submit an application to the ECHR in order to draw attention to the situation with the investigation.
“We hoped that the state will provide a proper investigation and trial. Today, we state that the government is not complying with the requirements of the Convention [on human rights protection] …in the context of a quick and effective investigation and judicial review. We are considering the possibility of applying to the ECHR to establish the fact of this violation,” he said during the briefing.
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