How Zelenskyi and his team deliver on their promise “not to soft-pedal the Maidan cases”

All these years we hear about the problems surrounding the investigation of the Maidan cases. In fact, few people understand what is it that actually hinders full investigation of more than 4,700 criminal episodes of the authorities’ large-scale and systematic offensive on the people who took to the streets peacefully in November 2013[1].

 

To find the answers, one should look at the way this investigation was organised.

 

An efficient investigation does not necessarily imply that law enforcement officers are required to identify perpetrators in all instances. Nevertheless, the investigation must resort to all the necessary and available means to collect evidence. Without the investigation being properly organised, there will be no results at all.

 

“No one will escape responsibility”

 

Despite its fervent assurances, the previous government failed to pay proper attention to this issue. In the first year of the investigation, criminal proceedings were scattered across various investigative bodies. No investigator or prosecutor thus had any idea of the overall picture and was simply unable to draw links between various episodes. The Department of Special Investigations, intended to coordinate investigation into all these crimes, was only established when the Prosecutor General Vitalii Yarema’s position had become shaky. For a long time, the investigators had to work “deskless”, lacking the adequate facilities, computers, and personnel.

 

Later, under the Prosecutor General Yurii Lutsenko, the idea of the “Yanukovych big case” emerged, changing the logic behind the investigation. Instead of unwinding the “chain of orders” — from the direct perpetrators of criminal activities to those who had issued these orders, it was suggested that attention be focused on the ex-President Viktor Yanukovych and his entourage who fled the country immediately after the Maidan.

 

The actions of Viktor Yanukovych and his inner circle by all means deserve proper legal evaluation. However, any failure to investigate the individual episodes concurrently with the “big case”, as they say, “from the bottom up” would create a legitimate opportunity for ignoring the “middle link” that had supported a systematic and large-scale offensive against the civilians by the government authorities and has retained its positions after the Maidan.

 

When it became obvious to the Prosecutor General that the “Yanukovych big case” would also require significant technical and organisational efforts and could not be completed within six months (the laws on trial in absentia had not been put in order as well), the enthusiasm somewhat faded and was followed instead by the practice of unjustified redundancies and interference in the investigation, unreasoned transfer of cases to the Department, changes in the composition of the investigator or prosecutor teams.

 

The situation was further aggravated by changes to the legislation, which failed to take into account the interests of justice in the Maidan cases. In 2017, investigators from prosecutor’s offices lost their powers of conducting criminal proceedings in the cases within the investigative jurisdiction of the State Bureau of Investigation[2]. Under the law, it became impossible to register or investigate additional episodes, despite reports of crimes being filed by many of the victims. The Parliament allowed the investigators from prosecutor’s offices to investigate only the initiated criminal cases and only within a two-year period expiring on 20 November 2019. Furthermore, in the words of the lawyer Yevheniia Zakrevska, “in these two years, neither the SBI, nor the police, nor the SSU have investigated or referred to the court any crimes related to or associated with the Maidan cases, although, to the best of my knowledge, reports of these crimes were being referred to them.” In 2018, with the State Bureau of Investigation becoming operational, the law on the prosecutor’s offices ceased to apply to the investigators from prosecutor’s offices, thereby depriving them of social and labour guarantees of their employment[3].

 

Throughout these two years, the victims, their relatives, lawyers, and human rights organisations, investigators and prosecutors have been vocal about the need to resolve the problem of properly managing the transfer of the Maidan cases from the Prosecutor General’s Office to the State Bureau of Investigation. However, the President, the Parliament and top law enforcement officials failed to pay any attention to this.

 

A revealing fact is that, during his entire presidency, Petro Poroshenko has never met the victims in the presence of their lawyers to discuss professionally the challenges faced by the investigation.

 

The problem of managing the investigation was thus inherited by the newly elected President Volodymyr Zelenskyi.

 

“We need tangible results of the investigation”

 

At the time of the protests, showman Volodymyr Zelenskyi, while still being the Quarter 95 Studio’s CEO, “dropped by” the Maidan to support the protesters, according to his version of the events. In December 2013, he said in an interview: “I understand the position of those people who have taken to the Maidan. Before that, other people were beaten up. I’m willing to stand together with the people for the same cause.”

 

The newly-elected President held the snap parliamentary election and, for the first time in the history of Ukraine, obtained a single-party majority in the Parliament. In the first months after the election, the presidential party required no support from other political forces to pass regular laws. Furthermore, Volodymyr Zelenskyi appointed Ruslan Riaboshapka, the Deputy Head of his Office, to the position of the Prosecutor General of Ukraine. All this had inspired hopes that the problems facing the proper management of the investigation into the Maidan cases could be promptly resolved. Just having a desire, often called the “political will”, would have been enough.

 

Alas, the political will was not there.

 

Just handing over thousands of case files from the Prosecutor General’s Office to the State Bureau of Investigation turned out to be an impossible affair. The newly created agency had no relevant subdivision within it, and “a catastrophic lack of investigators” was already felt at that time. According to Roman Truba, the Bureau’s Head, each investigator had a hundred sets of criminal proceedings to look after. And if the “Maidan cases” were to become a one hundred and first set, the outcome could be easily predicted.

 

Besides, it is important to keep in mind the amount of materials. These include thousands of volumes of files, along with hundreds of terabytes of collected videos and photos. It would take new investigators at least six months just to read and look through them.

 

In a situation like this, transferring the cases to the State Bureau of Investigation would only mean suspending the investigation process for at least six months.

 

All attempts by the lawyers of the victims’ families to resolve the problem of properly managing the transfer of the Maidan cases from the Prosecutor General’s Office to the State Bureau of Investigation through communication with the new heads of law enforcement agencies and the Parliament have failed.

 

In view of this, a month before the prosecutor’s offices were to lose their investigative functions, the relatives of the dead protesters, their attorneys and human rights activists published an open appeal to Volodymyr Zelenskyi. They urged the head of the state to introduce the necessary amendments to the Law on the State Bureau of Investigation, offering a legal opportunity for the investigators and prosecutors from the “Maidan Department” to be transferred to the Bureau in order to preserve institutional memory of several years of investigation.

 

They held several demonstrations on the Bankova Street, in front of the President’s Office, to make it pay attention to this problem. During the “Are the Maidan cases doomed?” event, iconic photos taken during the events on the Maidan were publicly put through a shredding machine. In this symbolic way, the protesters tried to show what was going to happen after November 20.

 

The Office of the President, however, issued a formal reply, and, on the prescribed date, the transfer of case files into “nowhere” began, while the President, on the anniversary of the Revolution of Dignity, confined himself to general phrases.

 

The situation was reversed only after the lawyer Yevheniia Zakrevska went on hunger strike, joined by more than a dozen victims and sympathisers from Kyiv and other regions. She demanded that an amendment to the Law on the State Bureau of Investigation be adopted immediately, allowing the investigators from the Prosecutor General’s Office, who were investigating the Maidan cases, to transfer to the Bureau under a simplified procedure. Following a public outcry over the hunger strike, the Parliament finally adopted the respective amendments on 3 December 2019.

 

However, the adopted revision prevented Serhii Horbatiuk, the former Head of the Department, along with many investigators, from continuing their work on the Maidan cases.

 

“The Parliament should have provided an opportunity not only for a transfer, but also for employment to those who had worked efficiently with the Department of Special Investigations. Alas, this opportunity was blocked,” says Serhii Horbatiuk who was dismissed in October 2019. “Besides, delays in transferring the DSI investigators to the SBI had forced them to seek employment with other subdivisions of the Prosecutor General’s Office. But, most importantly, the outright unwillingness on behalf of the top officials in the Prosecutor General’s Office to protect the investigation in these cases and those prosecutors who not only had supported it but also resisted any unlawful interference, made many investigators and prosecutors doubt the necessity of their expertise.”

 

“I promise you I’ll do everything you say”

 

After the hunger strike was over, public interest in the problem faded, and the President procrastinated with signing the law until 14 December 2019. Without consulting the attorneys of the dead protesters, Iryna Venediktova, the Acting Director of the Bureau, appointed Oleksandr Buriak the chief of the department for investigating the “Maidan cases”. Mr. Buriak has no positive experience of handling the Maidan cases. Furthermore, according to the information posted on the SBI website, he was the acting head of the investigation at the Kyiv city prosecutor’s office immediately after the Revolution of Dignity. And, according to Yevheniia Zakrevska, the Maidan cases that were investigated by the Kyiv city prosecutor’s office at that time “laid like dead weight; no investigations were conducted, despite the victims’ demands and complaints, right until the moment the cases had been transferred to the Special Investigations Department — also under the pressure from the victims and the public.” The public is also unaware of any other significant achievements on behalf of Mr. Buriak. Instead, his name surfaces in the embarrassing records made in the office of Pavlo Vovk, the Chairman of the Kyiv District Administrative Court, and posted on the NABU’s official website. Attorneys are particularly concerned that these records were taken from the materials obtained through covert investigative actions that had been performed in the criminal proceedings in the case of suspected unlawful actions committed by the presiding judge precisely in the Maidan cases, which indicates a potential direct conflict of interest.

 

Oleksandr Buriak himself is quite optimistic: “Completing the investigation of the Maidan cases is one of the most crucial tasks now facing the State Bureau of Investigation. This is a complex area of work that requires not only the desire, but also considerable investigative experience. The Administration of the State Bureau of Investigation is fully aware of it, therefore, it has charged me with this critical job.”

 

This optimism, however, is not shared by the lawyers of the victims’ families. The transfer of investigators and prosecutors from the Prosecutor General’s Office of Ukraine to the department for the investigation of the Maidan cases began early in January and is still continuing. Its outcomes will be made public in the coming weeks.

 

The victims and their representatives are also worried about the likely appointment of Oleksandr Babikov to the position of a Deputy SBI Director. According to the lawyer Yevheniia Zakrevska and the information from a court register, Mr Babikov represented Viktor Yanukovych as hid attorney in the case where the former President was suspected in initiating the bloody events of February 2014. This was a trial in absentia, which could not be completed at that time because of the legislative problems.

 

So will the President deliver on his promises?

 

Proper arrangements for the investigation are just one of a few problems to be resolved. However, the desire on behalf of Volodymyr Zelenskyi to distance himself from them all is well illustrated by the story of the long-awaited return of prisoners from the occupied Donbas.

 

Since the presidential office was in charge of the exchange process, Volodymyr Zelenskyi personally met the prisoners at Boryspil Airport, rejoiced together with the members of their families, received thanks for this long-awaited liberation and gave a victory speech.

 

The exchange had been made possible thanks to a ruling, adopted by a court of appeal on 28 December 2019, to release from custody the former Berkut policemen accused of shooting the protesters. The incriminated offences meant life imprisonment for them and, although they had nothing to do with the war in Donbas, their release, according to Valeriia Lutkovska, Ukraine’s representative in the trilateral contact group, was among the “key demands put forward by the militants” (i.e., Russia).

 

At the same time, Yevheniia Zakrevska, the attorney for the victims’ families, has pointed out that “these actions cannot even be regarded as release, as two of the five exchanged persons were not held in custody at all, being kept under the night-time or round-the-clock house arrest.” In her opinion, rather than being a humanitarian gesture on the part of the Russian Federation, it represented a clear strategy to prevent a verdict in this case.

 

The victims’ families had learned about the examination of the appeal just a few hours before it began. Volodymyr Zelenskyi himself could not muster the courage to meet them at least behind closed doors and to explain honestly, why Ukraine has to come to this painful compromise with Russia. He chose to share the joy with the prisoners’ families, but cowardly avoided having to share the grief with the families of the dead. This is well below the standards of responsibility that the head of state should meet.

 

All these years, this was the most high-profile trial among all the Maidan cases, given the crimes that these people had been accused of and the number of victims. But, at the same time, it was only the low-ranking perpetrators who were sitting in the dock.

 

The public, meanwhile, was waiting for an answer to a question about the role played by Ukraine’s highest officials during the Maidan. This would require legal evaluation of the actions committed not only by Yanukovych and his inner circle, who are hard to reach by the hand of justice. It is also important to carry out legal evaluation of all senior officials who had brought about a situation where the use of weapons for mass shootings of the people “armed” with shields and helmets was only a matter of time.

 

This should begin with the judges of the Constitutional Court of Ukraine, who had legalised a coup d’etat a few years earlier and, in contravention of the system of checks and balances, had vested excessive powers in the President. One should not forget about the people’s deputies who had supported the “dictatorial laws” that made all forms of peaceful protest illegal, thereby provoking its radicalisation. After the Maidan, some of them were quietly re-elected to the new Parliament to continue passing the laws.

 

Finally, those judges must be brought to responsibility who had knowingly issued unlawful rulings during the Maidan and now, together with their peers among other judges, openly torpedo the Maidan cases, failing to consider cases or to hold court sessions for months, to which the High Council of Justice merely turns a blind eye.

 

Thus, the question of whether the President will deliver on the promise that “no one will be allowed to soft-pedal the Maidan cases” still sounds rhetorical. It remains to understand who exactly this “no one” is going to be.

 

[1] The fact that a small part of the protesters had engaged in sporadic acts of violence in response to the provocations from the authorities and “titushky” does not change the nature of the government offensive as a deliberate persecution of peaceful civilians. “If individual self-defence against prohibited violence were to entail loss of protection against direct attack, this would have the absurd consequence of legitimizing a previously unlawful attack. Therefore, the use of necessary and proportionate force in such situations cannot be regarded as direct participation in hostilities.” Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 58-61 (May 2009).

 

[2] Amendments and modifications to the CPCU Transitional Provisions, 20/11/2017.

[3] Amendments and modifications to Article 5, Transitional Provisions of the Law of Ukraine “On the Public Prosecutor’s Office” dated 27/11/2018.

 

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