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1 February, 2016  ▪  Stanislav Kozliuk

18 Months is Not a Sentence But a Start

Sabotage and lack of resources notwithstanding, the investigation into the murders on the Maidan has been going on for 18 months now. The finish line is still a long way off

At the end of 2015, court hearings were held in cases on  the beating of students on November 30, 2013, the kidnapping of Ihor Lutsenko and Yuriy Verbytskiy, and the murder of activists on February 20, 2014. The court has also received evidence regarding the events of February 18 in the Government block but hearings have not started so far.

Still, it’s hard to say that these cases have been fully investigated. The courtrooms in every case hear the names of new witnesses time and again and additional circumstances are added to the events. Even if the work of the investigators improves, it’s unlikely that the situation will change because the quantity of information that needs to be gone over is enormous.

The victims and their lawyers have run into problems with the investigations from the very start. Evidence quietly gathered dust in the prosecutors’ offices while testimony from eye-witnesses disappeared. The police failed to organize proper internal investigations, whether over the disappearance of weapons and documents, or over illegal actions by enforcement personnel. It got to the point where Ministry of Internal Affairs (MIA) officials used the conclusions of investigations under discredited ex-Interior Minister Vitaliy Zakharchenko to claim that when the students were being driven off the Maidan, they attacked the special forces men and that “only a few individual officers” overstepped their bounds.

In July 2014, the “investigation” into the disappearance of Berkut documents was closed. Interestingly, the person who was deemed responsible for this was Berkut Col. Serhiy Kosiuk’s deputy, Andriy Dydiuk, who had participated in the dispersals on November 30. According to statements made by the police at the time, they had been given orders to remove the documents, brought them down to the hall on the premises and... that was it. Nobody seems to know what happened to the documents after this.

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As to the beatings of Automaidan activists, there are still no admitted suspects in the case although the victims themselves identified the Berkut officers who had ambushed them on January 23, 2014. In November 2015, a list of names of possible participants in this “safari” appeared, but in the two months that have passed since then, the prosecutor’s office has not been able to agree about the suspected attackers. What’s more, some of these men have since been promoted and two of the Special Forces officers have even been given new posts as platoon commanders. Only one private, Serniy Tsynaridze, ended up in court: the Pechersk Court put an electronic bracelet on his wrist and made him give his word he would not flee. As to the court cases against his colleagues, they have effectively been closed.

Overworked and understaffed

Things with the Security Bureau of Ukraine are not much better, say representatives of the victims. When he was still in charge, Valentyn Nalyvaichenko announced that he would pass on information to the Prosecutor’s office regarding evidence of a Russian presence in the February events. To date, the investigation team has not received this information: not eavesdropping materials, not CCTV tapes, not interrogation records. Another question that remains unanswered is why the odious Viktor Medvedchuk has remained outside the scope of these investigations, when he clearly operated as the middleman between Viktor Yanukovych and Moscow.[1] So far, there has been no indication of any official suspicions or interrogations, at least not among the broader Ukrainian public.

The investigations began to move when a special investigative group (SIG) was set up and given the Maidan cases. However, the investigating officers there are extremely short-handed. For example, only 3 detectives are on the cases involving February 20 although there were some 50 killed, nearly 500 injured, and several thousand witnesses. The case involving events of February 18 is even larger, although it has been assigned only one detective and two seconded officers.

“Unless there is a serious improvement in the work of the enforcement agencies, this investigation will be impossible,” says Yevhenia Zakrevska, a lawyer representing some of the victims. “Even if only to speed up the process itself. We need five more detectives, enough computers and software, a single server with the database of evidence so that every person involved in this might look at photos and videos. The investigators shouldn’t have to run around from office to office looking for the disk with the necessary files. And they should also not have to queue up for a room in which to interrogate people! Anyone who works with huge volumes of data can see that this process is disorganized. The most we’ve been able to achieve so far is that all those involved in the investigation are in the same building. The logistical problems have not been resolved, however.”

Still, she says, the investigators are willing to communicate with the victims and activists who, in most cases, are playing an important role in the investigation. The court hearings have shown that the relatives of those who were killed often have collected an enormous amount of information, including photos and video recordings. Some have even looked for witnesses on their own.

“The Prosecutor’s Office and investigators are in communication with the activists,” continues Zakrevska. “If someone calls up a member of the SIG and says that they have photo or video material, that they are prepared to come in tomorrow to answer questions, even if they don’t have the resources, the group will turn everything upside down to make it happen. However, it’s better that this information be in the hands of at least two people, just as insurance, such as the lawyer and the investigator. And after this kind of contact, it’s important to check on the state of your testimony, to find out what kind of status you have been granted.”

The prosecutors themselves admit that it’s impossible to investigate crimes quickly for objective reasons.

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“You need to look at the circumstances: many victims and perpetrators who committed the crimes as a group,” says Oleksiy Donskiy, one of the prosecuting attorneys with the Prosecutor General’s Office. “The Zinchenko-Abroskin case[2] in criminological terms is the same as a case against criminals that involved several criminal episodes. It’s on a scale with something like the case against the Marinchuk gang in Odesa. There were 30 instances of murder, armed robbery and theft in the course of two years, 1998-2000. The perps were arrested in 2006 and now we’re in 2016 but the appeals court still has not yet picked up the appeal in this case.”

Donskiy goes on: “You have to understand that, in order to investigate all the circumstances that exonerate or expose the guilty parties, all the available evidence needs to be sifted through. Otherwise, we will not get a fair judgment.”

Derailed by reforms: The Anti-Corruption Bureau

Just before the New Year, certain events threatened to derail these high-profile cases, however odd this may seem, because of the overall reform of the law enforcement system in Ukraine. The Anti-Corruption Bureau (ACB) was set up, along with the State Bureau of Investigations (SBI) and a national police. Ukraine’s lawmakers simply neglected to include a mechanism that would determine who inherited the Maidan cases. They were supposed to be split up among these three organs. But given the huge volume of information that they would have to familiarize themselves with, it meant that the investigations would be stalled for, at minimum, six more months. Given that only the ACB was officially launched, this involved only former top officials: Yanukovych, Pshonka, Zakharchenko, Lukash, and others.

“The law establishing the ACB came into effect, but the Bureau is still not fully formed: it has neither investigators nor prosecutors,” explains Zakrevska. “Even if it were to collect all the material evidence, there are 10,000 volumes of the stuff. While they familiarize themselves, the terms for preventive measures and the seizure of assets will run out. And on top of there are the general timeframes for investigations. If the suspect has fled, the case can be suspended indefinitely. But if the suspect is sitting behind bars, under house arrest, out on bail or whatever, we have only two months, after which the term has to be officially extended.”

Worse, the Maidan cases would one again be scattered among different agencies, which could wipe out all the efforts of the activists and lawyers who have been trying to collect all the cases together in one place. Because this is about a criminal system led by top officials who engaged in criminal activities in order to stay in power.

So, at the end of 2015, the Verkhovna Rada passed amendments to legislation that would allow law enforcement agencies involved in investigation to continue the work they had started. However, these amendments applied not only to the SIG, but to all investigations without exception, which could lead to new opportunities for corruption down the line. Activists say that domestic legislation lacks a mechanism that would help the ACB take on cases without the involvement of the prosecutor’s office.

The SBI still in limbo

With the setting up of the SBI, the situation is somewhat different. Although the Rada approved the necessary bill, it still hasn’t been signed by the President, although the deadline within which this should have been one has long been passed. Nor has the President vetoed the bill. It has simply ended up in limbo, which makes it impossible to make any changes to the text. The danger with the SBI is similar: the lack of rules that will determine who inherits which Maidan cases. Whereas with the SBI, Ukraine risked losing only corruption cases, in this situation, it risks losing all the cases involving Special Forces and police crimes on the Maidan.

“As soon as the law comes into effect, we have three months during which the Bureau must be set up,” says Zakrevska. “As we can see with the ACB, this is not realistic. And in those three months, the investigative bodies of the prosecutor will lose their authorization. Investigators and prosecutors alike understand that soon they might not have any connection to these investigations, which kills any motivation on their part. If we don’t do something here, then we will face a complete collapse of the investigation. All the cases involving the Maidan that have been charged to the special administration will be scattered among the SBI, the police and the ACB. The accumulation of information, contact among investigators, interactions between the cases and any understanding of them could all disappear.”

Zakrevska continues: “I’m not saying that it was a bad idea to set up the SBI. But someone needs to think what will happen with this one, unique, historic case. I think that this cannot be sacrificed, not even for the sake of the SBI. After all the investigators and prosecutors are committed to their work. It would be very unfortunate if this entity, one of the very few that is investigating the Maidan cases, were destroyed.”

A problematic Criminal Procedural Code

In the SIG, they say that since the militia was disbanded, they’ve been unable to be attached to criminal investigations because they aren’t considered operatives. As a result, the work on the Maidan case has stalled.

“I don’t think this was done intentionally, but lawmakers simply forgot to make the necessary changes to the Criminal Procedural Code,” says prosecuting attorney Donskiy. “Still, I don’t think the case is at risk of being derailed. All that has been stopped is the operational support, those actions that involve operatives. This means establishing the identity of individuals, their place of residence, and so on. To put it simply, the theoretical operative goes to the place where the individual is officially registered and determines whether they really live there or not.”

They tried unsuccessfully to replace the operatives by the K Department under the SBU. According to Donskiy, in most cases investigators were getting replies, but the orders were not being carried out for 6 to 8 weeks.

“We were being given responses such as ‘unable to establish domicile,’” says Donskiy. “But with operatives, this kind of problem never arose. So at the moment, the investigation is having a hard time of it.” He also explains that investigators have been having problems getting new suspects arrested. Among others, the police cannot arrest anyone without a court warrant.

“We’re also running into problems with the Portnov’s Criminal Procedural Code,” Donskiy notes. “It’s unbalanced... For instance, a serial killer can be arrested at the scene of the crime without a court order. But if we establish the criminal’s identity after a year, then the Code requires that we send a letter stating that the individual is under suspicion and provide evidence that we plan to turn to the court for an arrest warrant... So if we identify a new theoretical Berkut guy and he doesn’t flee, then the case will get to the court for a hearing.”

Finally, says Donskiy, “People are complaining that the case against highly-placed officials has not gone anywhere. There are some nuanced reasons. Firstly, an investigation may not continue more than a year. After this term has ended, any actions taken with regard to suspects are illegal. We can’t inform the person that they are under suspicion and we can’t take any preventive measures. In this way, someone like Yanukovych can theoretically return to Ukraine on a white horse and there’s nothing anyone can do about it.

“So what defense lawyers are doing is making sure that, whatever it takes, the prosecutor does not suspend the case. The point is that suspending the case is not the same as suspending the investigation. Yes, we don’t have the right to gather evidence, but we are obligated to continue to carry out detective work in searching for suspects. Moreover, the term for suspending a case is unlimited.

“And right now, all the cases involving top officials against whom we have a sufficient body of evidence have been suspended.”

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[1] In addition to Medvedchuk’s track record of pro-Russian activity, Putin is godfather to Medvedchuk’s child.

[2] Two men suspected of participating in the murder of 39 activists on February 20, 2014.

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