“Prava Ludiny” (human rights) monthly bulletin, 2013, #12

  Photo: CVU

In its preliminary report on the parliamentary re-runs held on Dec 15 in the 5 so-called problem electoral districts, the Committee of Voters of Ukraine [CVU] writes that the conditions in which they took place did not meet democratic election standards.

“CVU believes that although the Central Election Commission has the legal grounds for declaring the election results, in certain districts (in the first instance, No. 194 and No. 223), these results have already been distorted by vote-buying during the election campaign or on election day”

CVU names the following as the main problems:

vote-buying;

monitoring of the voting;

ballot papers being taken outside the polling station area;

strangers present directly at the polling stations or near them;

obstruction of observers.

CVU points to the generally unfavourable atmosphere during these elections in all 5 directs due to the large number of unidentified individuals near the polling stations and district election commission [DEC] buildings, and the blocking by police of the headquarters of Mykola Bulatetsky in District No. 194.

It expresses concern over the unwarrantedly drawn-out vote count by the DEC for No. 94 and No. 223.

As well as calling on the DEC to determine the results in those districts, it also calls on the Central Election Commission to examine all complaints and the law enforcement bodies to examine all documented cases of vote-buying.

CVU stresses that the majoritarian component of the elections is the main reason for the abuses and political corruption and calls for the electoral system to be changed. 

Before Ukrainian President Viktor Yanukovych signed a deal to bail out our country’s economy this week, there was excitement among Western officials and analysts about the way some businessmen who have bankrolled the president’s rise to power appeared to be distancing themselves from him.

Many Ukrainians weren’t fooled. The country’s so-called oligarchs still supported Yanukovych. And now they will be prime beneficiaries of the $15 billion of bail-out loans and lower natural gas prices that he secured from Russian President Vladimir Putin.

We still don’t know what commitments Yanukovych made to Putin in exchange for his largesse. Protesters remain in the streets of Kiev, and this should be seen as the start, rather than the end, of their struggle to remove a corrupt regime and link their nation’s future to the values and norms of the European Union.

Yanukovych’s two main backers have been the country’s richest businessmen: Rinat Akhmetov, the metals magnate and owner of the Shakhtar Donetsk football club, and billionaire energy broker,  Dmitry Firtash.

In Ukraine, the division between big business and politics is blurred. Akhmetov is from Donetsk, where Yanukovych served as governor until 2002. The billionaire also served in parliament as a legislator for Yanukovych’s Party of Regions from 2006 until 2012. Firtash owns one of the largest TV channels, Inter, which has supported Yanukovych and criticized the opposition in its coverage.

Election spending in Ukraine is opaque, but both Akhmetov and Firtash are widely thought to have sponsored Yanukovych’s campaigns. Even as they have supported an increasingly authoritarian Yanukovych at home, however, Akhmetov and Firtash have invested heavily in building their reputations in the West.

Akhmetov’s System Capital Management JSC is a partner of the Swiss-based World Economic Forum. It has used the services of, or attracted financing from, Germany’sDeutsche Bank AG, the U.K.’s Royal Bank of Scotland Plc and Austria’s Raiffeisen Bank International AG. Firtash has made generous donations to the University of Cambridge. This year he started financing the Days of Ukraine festival in the U.K., held at prestigious sites in London, such as the Saatchi Gallery.

The two men have also hired prominent Western consulting companies, including McKinsey & Co. Inc., to develop an economic plan for Ukraine, while bolstering Yanukovych, who is the biggest obstacle to any reasonable economic policy.

In the last three years of Yanukovych’s presidency, many businesses have complained of coming under attack from government agencies such as the tax authorities, law enforcement and the judiciary. Corruption has become ubiquitous. The European Business Association, a union of foreign companies working in Ukraine, is expected on Dec. 19 to report that its rating of the investment climate reached a historical low of less than 2 on a scale of 5 for the last quarter.

At the same time, Yanukovych is living in a new mansion on an estate near Kiev that is the size of London’s Hyde Park. The cost of the project hasn’t been made public, but it is certainly incompatible with the president’s officially declared salary of $100, 000 last year. Local media have published photos of the mansion shot from the air, as well of the lavish interior, with its marble floors and elaborate chandeliers. The presidential press office has denied that the estate belongs to Yanukovych and says that he occupies only a part of it.

The president’s son Oleksandr has built a fortune from virtually zero over the last three years. With assets in finance and real estate worth $367 million, Oleksandr Yanukovych ranked 32nd on this year’s list of the richest Ukrainians, compiled annually by Korrespondent weekly magazine and investment bankers.

Yanukovych’s political agenda, meanwhile, has included a crackdown on the press -- much of the previously free media has fallen into the hands of businessmen loyal to him -- and jailing opposition leaders, including former Prime Minister Yulia Tymoshenko.

Despite putting out recent statements to the effect that the use of violence was unacceptable and that the the protests showed Ukraine is a free and democratic country, neither Akhmetov nor Firtash have used their power to restrain Yanukovych. Moreover, all of the pro-presidential members of parliament, including those aligned with Akhmetov and Firtash, supported the government in a no-confidence vote held after the security forces’ brutal attacks against peaceful demonstrators.

The reason for the two men’s hesitancy is simple: They have benefited from the government, buying state property at low prices in tenders with little or no competition. They wanted to hedge their bets during the recent protests and keep their reputations in Europe, but they weren’t ready to bite the hand that feeds them.

We are current and former journalists in Ukraine and we appreciate statements of support for the Ukrainian people that the EU and U.S. have made. More can be done.

International banks, reputable galleries and other institutions must make it clear to Akhmetov and Firtash that they will continue as their partners only if they stop supporting Yanukovych’s increasingly despotic regime. Corporate social responsibility policies shouldn’t exist only for glossy booklets distributed at investment conferences in luxury hotels. They must be applied in the real world.

European governments can also help. Targeted personal sanctions, including visa bans, should be applied to the leaders of Yanukovych’s government, especially to those implicated in the crackdowns that have inflamed the protests in Kiev. The first on the list could beAndriy Klyuev, Yanukovych’s long-term close associate and the head of the National Security and Defense Council.

Senior Ukrainian officials should endure the consequences of their policies by spending vacations in Minsk and Almaty, rather than in Milan and Sardinia, as they have become accustomed to doing. They should personally experience the results of full-scale reintegration with Russia, Kazakhstan and Belarus in the Eurasian Union that Putin wants us to join.

We don’t expect the rest of the world to ride to the rescue of Ukraine’s protesters right now. But governments, businesses and nongovernment organizations engaged with Ukraine must show they support the European values for which hundreds of thousands of Ukrainians have braved the winter cold and police brutality. Yanukovych’s financial backers must be held to the same account.

(Vitaly Sych was editor-in-chief of Korrespondent weekly magazine from 2003 to 2013. Also contributing to this article: Mikhail Gannitsky, editor-in-chief of UNIAN news agency,  Sergey Leschenko, deputy editor of Ukrainska Pravda, and Mustafa Nayem is co-founder of Hromadske TV.)

To contact the writer of this article: Vitaly Sych at [email protected].

http://bloomberg.com/news/2013-12-19/help-ukrainians-stand-up-for-western-values.html

With Ukraine’s present economic difficulties, it is legitimate to ask who is paying for the pro-government demonstration and other preparations underway for this weekend – and why.  Not only are public sector workers and miners being transported to Kyiv in large numbers, but also police officers recruited for their brawn, boxing skills etc. There are disturbing indications that titushki, or hired thugs, are also arriving in force.  

Demonstrations and counter-demonstrations are common enough and it should not be inconceivable that government supporters might also want their say.  In fact, however, the comfortable coaches being laid on and ruling Party of the Regions regalia handed out do make the event seem rather unconvincing.  The differences between the pro- and anti- demonstrations are certainly marked.  International correspondents have little difficulty in learning why participants in the EuroMaidan demonstration are there, with people eager to explain their reasons for supporting EU integration, for anger over violence against peaceful protesters, etc.  When a BBC correspondent tried to ask pro-government demonstrators similar questions, the latter moved away, obviously having nothing to say.

In most eastern regions public sector workers and miners, especially those in State-owned mines, are being coerced into travelling to Kyiv.  Nobody is putting a gun to their heads, but they know well that their jobs will be on the line if they don’t.  There have been enough complaints to human rights groups and the media to be certain that the practice is widespread. 

A fair number of people are going because they have been offered money to do so.  The figure most often heard for “ordinary demonstrators” is 300 UAH, (around 30 EUR) which for many people, especially in the regions, is a significant enticement. 

The contrast to the early hours of Dec 11 when interior ministry forces began ripping down the EuroMaidan barricades could not be more pronounced.  As well as the bells of St Michael’s Cathedral ringing as in the past to warn of danger, calls for help sped through all social networks, and people began mobilizing.  By early morning, some 25 thousand had gathered.

With most television channels now demonstrating much less willingness to simply present the government’s position, the propaganda value of such a staged pro-government rally at first glance seems limited.

Close scrutiny, however, gives a much more sinister picture.  The expenses thus far mentioned are already considerable, however nothing in comparison with the figures required for other costs.   

The number of police officers being recruited is hard to estimate, since it depends very much on the size of the place, however the Kharkiv Human Rights Group is aware of 25 having been selected from Severodonetsk, with a population of 100 thousand.  Rubizhne which is a third the size is sending 7 men.  The Kharkiv Interior Ministry University is sending all its third and fourth year students, with coaches laid on.  As mentioned, the criteria are highly specific, with physical strength and fighting skills being premium.  The money offered is, by police standards, enormous: 800 to 1000 UAH per day, with people being taken on for 5 days – from Saturday to next Wednesday. 

As reported, on Dec 1, during a pro-European integration demonstration attended by around half a million people, there was almost no police presence at all except around the president’s administration and the government buildings.  It was, incidentally, only those places with large police contingents which saw any significant trouble.  A week later there were at least twice as many demonstrators, still little police presence adn also scarcely any trouble. 

It is therefore highly unlikely that burly police officers with boxing and other combat skills have been recruited to protect the public over the next five days.  All experience indicates that the titushki or hired thugs are also expected to perform an entirely different, much more violent, role, and a very large number are being brought in to Kyiv.

The last two weeks have not only demonstrated the authorities’ readiness to use excessive force against totally peaceful protesters.  A number of prominent Ukrainians have just issued a statement to the international community in which they warn of a crude attempt by the “Government and their local and Russian political technologists” to discredit EuroMaidan. They explain that over a dozen louts with swastikas daubed on helmets and steel reinforcement rods tried to push their way onto Maidan and then pick a fight with the police.  The aim was clearly to present the protesters as neo-Nazis and turn Ukrainians and the international community against them. That attempt was, thankfully, thwarted by the protesters. 

At present, EuroMaidan demonstrators are steeling themselves, and instructing everybody on how to recognize provocateurs and prevent them from deliberately causing trouble. 

The scale of the current movements, however, gives extremely serious grounds for concern.  It is unclear whether the aim is to stir up trouble and provoke a crackdown, enabling the imposition of a state of emergency, or simply to discredit the demonstration in support of European integration.  Some suggest that Putin stipulated pacification of EuroMaidan as a condition for the highly secretive agreement between the Russian and Ukrainian presidents.  Whatever the motives, in a situation where there will be crowds of people on the streets, the authorities are demonstrating a terrifying disregard for the conceivable human cost of irresponsible power games.     

“Would anyone anywhere in the world be willing to take a truncheon in the head for the sake of a trade agreement with the United States?”, asks Tymothy Snyder acerbically in his article “A Way Out for Ukraine?” knowing the answer perfectly well.

Many Ukrainians, indeed, got truncheons in their heads in the past two weeks, as they were protesting on the streets of Kyiv against their government’s last-moment decision to abstain from signing the Association Agreement with the EU. Timothy Snyder is well aware that it is not the Agreement per se that mobilized the protesters but their hope for a “normal life in a normal country” which the agreement had envisaged and come to symbolize. Now, as the government had stolen that hope, they feel deceived – it’s not just about this single incident, but about their whole lives, the whole development of the country stuck for 22 years in a grey zone between post-Soviet autocracies to the East and increasingly democratizing and prosperous neighbours to the West.

There were too many hopes and too many disappointments in the past 22 years – starting with national independence, endorsed by 90% of the citizens but compromised eventually by a predatory elite, and ending probably with the Orange Revolution, which also failed to deliver on its promises. The inauguration of Viktor Yanukovych as president in 2010 and the dismissal of the feckless Orange government only made bad things worse. Within a few years, the narrow circle of the president’s allies (nicknamed “the Family”) usurped all power, destroyed the court system, accumulated enormous resources via corruption schemes, and encroached heavily on human right and civil liberties.

Indeed, it might be a blessing in disguise that these people withheld the Agreement, and that a country with such a regime is not taken “into Europe”. But the problem is that they already ARE in Europe – with their villas, stolen money, and diplomatic passports that make the visa-free regime for the rest of Ukrainians unnecessary. They benefit from the rule of law and from property rights in the West, while systemically undermining these things in their own country. It is not them, but Ukraine – its forty-plus million people – who are excluded “from Europe”, whilst the ruling elite enjoys la dolce vita in Western resorts, sucking the last resources from the impoverished country.

For many Ukrainians, the Association Agreement was the last hope to fix these things peacefully, i.e., to make their rulers obey the law, and to get the EU’s support in their attempts to re-establish the rule of law in the country. Most of them have little if any illusion about the ruling clique. But for many of them, including myself, the Agreement had two clear meanings. On the government side, it would have meant a commitment not to steal, not to lie, and not to cheat so much and so unscrupulously. And on the EU side, it would have meant merely to take care of this commitment and help us, wherever possible, to enforce it.

The current government has never been serious about signing the document initiated by their Orange predecessors, and even less serious about its coherent implementation. Yanukovych’s refusal to sign it was a moment of truth, and Maidan is simply a reaction to that truth – a farewell to illusions, and a recognition of reality. The standoff between the government and the protesters may last for a long time, and its result looks unpredictable. It is very unlikely yet that the people who captured the state like Somalian pirates would give up easily. Whatever the outcome, however, three conclusions can already be drawn.

First of all, Ukrainian society proved once again its resilience, its ability to self-organize and act mostly peacefully, despite various provocations – from both the government and quasi-oppositional radicals, generally suspected to be cooperating with the government. Most importantly, both the 2004 and the 2013 protests were clearly value-driven. People went onto the streets not for bread, higher salaries or a populist leader, but for their own dignity, for justice and the hope to live like “in Europe”. They still try (and will try in the future, whatever happens today) to complete the unfinished revolution that swept away the corrupt authoritarian regimes in Eastern Europe from 1989 to 1991 but which stopped, reluctantly, at Ukraine’s western border. If the West fails, once again, to understand this message properly and respond adequately, we will probably witness another cycle of authoritarian Gleichschaltung, stagnation and, inevitably, popular resistance and another upheaval. Even though a substantial part of Ukrainian society, especially in the Southeast, looks in the opposite direction and largely adheres to Soviet values, the very nature of these values keeps their civic mobilization low and unsuitable for the government. Moreover, demography itself dooms Yanukovych’s autocracy: all the opinion surveys reveal a strong correlation between the respondents’ young age and their commitment to European values.

Secondly, the unprecedented monopolization of power and concentration of resources carried out by Yanukovych and his inner circle within the past four years has not, in the end, made their position stronger than that of Leonid Kuchma, who had pursued more flexible ‘divide and rule’ tactics (until he was disqualified by the ‘tape scandal’). Yanukovych today faces resistance not only from civil society and entire regions, which encompass virtually half of the country. He also seems to get only lukewarm support from his fellow-oligarchs. So far, all the major TV channels they control have provided balanced, non-partisan coverage of events – in striking difference to 2004, when all the main channels aired extremely dirty propagandistic materials against the opposition until the revolution erupted. The tough control of Yanukovych’s close associates over the law-enforcement agencies may tempt him to use even more radical measures against the protesters, especially if his Moscow advisers and provocateurs push him in this direction. The victory will be, however, pyrrhic. It is easy to win with bayonets, but difficult to sit on them. Russia may help, of course. But even if Yanukovych ceded all sovereignty to Mr Putin, the Kremlin would encounter the same problem with Ukraine as it had with Hungary, Poland, the Baltic states and some other indigestible regions of the empire. Russia may delay Ukraine’s westward drift, but she cannot stop it.

And thirdly, the Ukrainian opposition is in a weaker position today than it was nine years ago, when the ‘Orange’ mobilization was merely a continuation of the election campaign, when electoral fraud was largely expected and protest actions well prepared, when Viktor Yushchenko as the common leader had an undisputable authority over all factions, and the incumbent Leonid Kuchma was a lame duck with a vested interest in safe retirement. Now, the protests erupted from below and apparently surprised even the leaders of the opposition, who seem not to have found a common leader, a unified position, or clear tactics yet. The presence of the radical nationalistic party Svoboda in their ranks also makes their position more vulnerable, even though Oleh Tiahnybok, Svoboda’s leader, has declared his support for nonviolent struggle. (Back in 2004, he was expelled from Yushchenko’s Our Ukraine block for xenophobic and anti-Semitic statements.) This makes negotiations between the opposition and Yanukovych’s regime even more difficult. International mediation is now more necessary than ever.

The West certainly cannot solve Ukraine’s multiple problems; that task falls to Ukrainians themselves. But the West can facilitate conditions for problem solving, especially when the Kremlin does not spare any effort to do the opposite. The most urgent thing the EU should do is to send a very clear signal that no violence will be tolerated. This signal should be sent not in words, but in deeds. At least ONE Ukrainian official should be ostracized, as soon as possible, and in an exemplary way. The interior minister, many believe, is a primary candidate for this deserving real sanctions. Otherwise Viktor Yanukovych and Co will escalate the violence, and the EU will share the responsibility for its usual fecklessness.

Mykola Riabchuk is a political and cultural analyst based in Kyiv, and currently a EURIAS Senior Visiting Fellow at the IWM, Vienna. His most recent book,  Gleichschaltung. Authoritarian Consolidation in Ukraine, 2010-2012, was published in both Ukrainian and English.

 Dmytro Pylypets, a civic activist and co-organizer of the EuroMaidan protest in Kharkiv was seriously attacked on Tuesday evening at around 9 p.m.  The assailants did not demand anything and silently sprayed a gas in his face, issued blows to the head and abdomen and stabbed him.

According to opposition MP Arsen Avakov, Pylypets thankfully had the presence of mind to run out onto the road.  Although the assailants continued the attack, they were finally scared of by oncoming cars.  After waiting more than 20 minutes for an ambulance, witnesses to the attack took Pylypets to the hospital themselves.

The doctors say that Pylypets was stabbed 12 times, with the wounds between 0.5 and 2.5 cm deep. He has undergone an operation and as of around 1 a.m. is talking with investigators. 

This comes in the wake of arson attacks and other offences against participants of the Kharkiv EuroMaidan.  In an arson attack at around 3 a.m. on Tuesday morning, two individuals threw a Molotov cocktail into a mini-van parked outside its owner’s place. The inside of the van was badly burned, and equipment used in the EuroMaidan protests was destroyed.

People standing in the block entrance saw what was happening and called the alarm preventing even greater damage.  

The attack has been reported to the police, but the latter’s treatment of previous incidents gives no grounds for optimism.  On Dec 13 an arson attack resulted in a mini-van being totally destroyed.

The owners of the latest vehicle have asked other activists to stop collecting money for them, saying that they will not accept the money for the repairs and that any money should be collected for EuroMaidan or for people who are in more need. 

Photos from Media Port and Ukrainska Pravda

Mykola Khavronyuk, a prominent criminal law specialist and research director for the Centre for Political and Legal Reform has commented on the law which came into force on Dec 25 entitled “On removing adverse effects and preventing persecution and punishment of people as the result of the events during peaceful gatherings”.  As reported, initial doubts about the bill have been exacerbated by comments from Party of the Regions politicians suggesting, among other things, that the law could also remove any liability from Berkut riot officers guilty of savagely beating up peaceful protesters on Nov 30, 2013.  There is also little evidence of any will to enforce the bill.

Khavronyuk stresses that the act, for all its appalling legal flaws, remains a law.  Not just any law, he says, since it was voted for by a constitutional majority (over two thirds of MPs).  It is aimed at achieving some degree of consensus in society, by resolving the most sensitive issue: if you won’t punish representatives of those in power, then at least don’t punish us!

“Some representatives of the regime occupying the post of high judges have already claimed that the law is unenforceable. Yet those who don’t want to do something look for a reason, those who do want to, look for a way.”

Khavronyuk explains that the law effectively prohibits the prosecutor from sending such cases to the courts. According to Article 283 ¶ 2 and 284 ¶ 2 of the Criminal Procedure Code, the prosecutor has only three other options:

i) terminating the criminal proceedings  - this must be done where there is insufficient evidence to prove a person’s guilty and all means of gaining them have been exhausted.  The proceedings must also be terminated if the behaviour in question does not contain elements of a crime;

ii) applying to the court to release a person from criminal liability.  The court can waive criminal liability if it receives such an application from the prosecutor with the grounds in this case being provided by the law just passed.

ii) refusing to support the state prosecution.

Khavronyuk expresses regret that the High Specialized Court has not yet provided the appropriate explanations.

On the basis of this law, , people already convicted of any of the alleged offences the bill covers are entitled to apply to the courts for any criminal record to be waived.  “That is at the very least”.   The maximum, he says, depending on the Criminal Procedure Code, would be to get all judgements revoked by appeal or cassation courts.

He agrees that the law does not create a good impression about its authors as lawyers, however the spirit of the law is clear.  This, he stresses, is the need to do everything possible to ease the lot of all participants in protests and mass events from Nov 21 to Dec 26 in any part of Ukraine. 

From the comment in full at: http://pravo.org.ua/2011-07-05-15-26-55/2011-07-22-11-16-35/1560-komentar-mykoly-khavroniuka-stosovno-qzakonu-pro-amnistiiuq.html

A dangerous stunt acted out by provocateurs and the Berkut riot police on Sunday outside the president’s administration on Bankova St has taken a sinister turn.  On Dec. 3, 9 men, five of them still in hospital after being badly beaten by the riot police, were remanded in custody for 2 months.  All were peaceful protesters, without masks, who seem to have had nothing to do with the confrontation between a crowd of masked young men and the riot police.  It is especially disturbing that various video clips are widely available showing some of them being brutally beaten, as well as backing allegations that the whole confrontation was orchestrated.  It is possible that the authorities are not even trying to conceal this.  The message, after all, is chilling: go out and protest and you could end up in hospital and facing a 5- 8-year sentence for “taking part in mass riots”.  

The demonstration on Sunday, Dec 1 brought up to half a million Ukrainians out into the centre of Kyiv.  They were protesting against the government’s rejection of European integration but also expressing outrage at the violent dispersing of peaceful protesters early on Nov 30. 

Police hide and seek

With such a huge number of demonstrators, police presence was undoubtedly called for.  Yet mid-afternoon, the civic initiative OZON began sounding the alarm.  There were almost no police on most of the central streets at all.  Demonstrators who wanted to hand over individuals caught deliberately trying to start fights, or report strange stockpiles of sticks, canisters with unidentified substances, etc, were unable to find police officers and were effectively ignored even when they rang the emergency police number. 

Outside the president’s administration, however, and around a monument to Vladimir Lenin, there were huge contingents of Berkut riot police. 

And lo and behold, a group of masked individuals seized a bulldozer and began heading towards the president’s administration.  They were impervious to the pleas from demonstrators to stop and reminders that this was a peaceful demonstration.  A detailed report from the police on facebook was suspiciously swift in appearing.   It asserted that 200 protesters had tried to storm a cordon outside the administration and said that 5 officers had received injuries and three had inhaled some unidentified gas. The number of injured officers was later put at 70.

Strange collaboration

Several videos can be seen of these events,   Perhaps the most damning detail concerns one of the supposed “hotheads” – a tall masked man in a purple jacket.  In the video he can be seen in various roles – first apparently fighting with the Berkut officers, then standing next to one and observing, before again changing sides.  The Berkut officers do not seem to bat an eyelid.  Other video clips appear to be showing young men, suspiciously like the hired thugs swarming the centre over recent days, being brought by coach to a courtyard on Bankova St near to the police cordon. 

There were immediately suggestions in the media and social networks that the bulldozer crowd had been coordinated by Dmytro Korchynsky, captured on video near the bulldozer and described by Anton Shekhovtsov, a well-known specialist on far-right organizations as being “widely considered an agent provocateur, and his "Bratstvo" already took part in several actions that were meant to provoke police suppression of peaceful protests”.

The police even stated on Sunday evening that Korchynsky and his fringe group had been involved.  Yet they are now saying that Korchynsky himself is not a suspect, and none of the men detained are in any way connected with Bratstvo or any other political organization.  None was masked and most were at the demonstration with friends (see below).   

Beaten up then arrested

Five of the men were so badly injured that they have been in hospital ever since under guard.  Oleksander Ostashchenko, an engineer, married, with a young daughter, was on Bankova St with a friend.  They both tried to get away when they saw the men in masks and police.  The friend succeeded -  Ostashchenko can be seen here  being knocked down by a Berkut officer. He is also one of the men being beaten and abused while lying on the ground and showing no resistance here.

This clearly requires objective and thorough investigation. Unfortunately the court hearings on Tuesday make it impossible to feel any confidence that the men will receive a fair trial.

The prosecutor demanded the maximum 2 month detention period on the grounds that the accused men could otherwise continue their alleged role in mass disturbances.  Most have concussion, bandaged heads and fractures which the video footage demonstrates were inflicted by riot police.

Dmytro Hnap reports that he was in court when judge Olena Radchykova remanded Yaroslav Prytulenko in custody for two months. The prosecutor claims that he was caught with a firework device and that he hit out at the officers when being detained.  This is undoubtedly undesirable behaviour, however the allegations are based solely on testimony from police officers whose names were not given, and who were not present in court.

Both the prosecutor and police refused to reveal the names of the men facing charges before the court hearings, and none have been allowed visits from members of their family.

All of this bears a disturbing resemblance to the charges laid on activists protesting against the Tax Code in 2010.  Some of those charged with causing damage to the granite stone on Maidan Nezalezhnosti [Independence Square] by erecting tents were not even part of the protest.  Then and now the calculation was brutally cynical: the more unwarranted the charges, the less likely people will be to stick their necks out. .

The outrage expressed within Ukraine and from the international community following violent measures against peaceful demonstrators on Nov. 30 forced Ukraine’s leaders to issue statements promising an investigation and claiming commitment to democratic values.  Behaviour by law enforcement bodies on Dec 1, their likely implication in planned provocation and the detention and prosecution of peaceful demonstrators indicate that the current regime will stop at little to stay in power and crush dissent. 

   Yaroslav Prytulenko (photo: Dmytro Hnap)

The nine beaten by Berkut officers then arrested on Bankova St

Yury Bolotov, 39, father of two, ex-director of the rock group “Okean Elza”, at the demonstration with a friend

Hennady Cherevko from Lubny

Valery Harahuts, Dnipropetrovsk journalist, founder of the newspaper “Litsa”

Mykola Lazarevsky, 23, architect

Serhiy Nuzhnenko, works in retail and is an avid photographer.  His friend Pavlo says that during the demonstration Nuzhnenko simply took photographs

Oleksander Ostashchenko, 32, engineer

Yehor Previr, an architecture graduate, presently unemployed

Yaroslav Prytulenko, 21  - at the demonstration with a student friend

Vladislav Zahorovko, married with three children

Harahuts, Lazarevsky, Nuzhnenko, Ostashchenko and Previr all have serious injuries and were kept in hospital under guard from Dec. 1.

Picket outside the Interior Ministry on Thursday

There has been a lot of movement in the investigation into the brutal attack on journalist and civic activist Tetyana Chornovol, some moving in worrying directions. 

A fairly positive move was the fact that the police have added to "hooliganism" the charge of inflicting serious injuries.  Considering the scale of Chornovol’s injuries, the deliberate nature of the attack and her fame as a fearless investigative journalist, any attempt to palm the attack off as hooliganism was manifestly absurd. The hooliganism charge, however, does not seem to have been abandoned, simply supplemented.

The police also announced on Thursday that a third suspect, whom they had named the previous day as 29-year-old Serhiy Kotenko, had been detained. 

From here on the story becomes murkier.  On Wednesday, Interior Minister Vitaliy Zakharchenko announced that two men involved in the attack had been detained, and the third was wanted for questioning. In typical mode, no suggestion was made of any doubt in the matter. 

The Porsche Cayenne identified by Chornovol’s video is registered under the name of Oleksandr Khramtsov.  It was, however, bought 6 months ago by Serhiy Kotenko.  He had apparently only paid 14 – or 17, according to the third person detained - of the 24 thousand owed, meaning that the car was still registered in Khramtsov’s name.  This leaves a substantial amount still due, placing at very least a question mark over why, if involved, he would choose to use the car so roughly and then abandon it.  

There may well be other questions.

During the day on Thursday it became clear that Khramtsov has not only two friends willing to account for every moment of the time required for an alibi, but also CCTV footage from the restaurant in which they spent the time.

The other person detained, Andriy Nasikovsky, also denies any involvement, and claims he has an alibi. 

Interestingly, he told journalists that both he and Khramtsov have witness status, but are worried that this could be changed.  This jars with Zakharchenko’s assertion on Wednesday evening that all three were involved in the crime.  If true, however, it would raise their incentive to provide testimony demanded of them.

Nasikovsky’s account of how Kotenko asked to stay on Tuesday night at around 1 a.m. and how he behaved strangely, is clearly suggesting that the latter is guilty. 

It would be nice to feel pleased that the police are finally acting promptly in investigating one of the many attacks on journalists or civic activists, and to assume that they know what they’re doing. 

Perhaps they do, but scrutiny seems especially called for following the summonses to opposition MPs on Thursday.  The ministry announced before Kotenko was detained that the “investigation had established that he was connected to certain commercial structures and owned the business which controls TVi.”  To gain additional information, three MPs had been summoned for questioning.  This supposedly is all because of a statement in the media by Kagarlovsky, the former owner of TVi who suggested that Kotenko was involved in the takeover of the channel, and that MPs Mykola Knyazhytsky and David Zhvania were connected with him. 

Knyazhytsky and a third MP summoned, Vitaliy Zarema, are both from the opposition Batkivshchyna party, while Zhvania, who joined the Party of the Regions after Viktor Yanukovych became president, left following the violent dispersing of peaceful protesters on Nov. 30. 

The trail seems to be leading to opposition politicians.  Or at least that is the impression that the police are trying to make with their summonses. 

The Porsche Cayenne was found abandoned in the area, which was the stupidest thing that two people could do, namely Khramtsov or Kotenko.  There was a miniscule chance that Chornovol would have seen and memorized the number plate.  It was the video register that recorded this, and if people known to have a connection with the car knew of its existence, it is unclear why they didn’t simply remove it. 

On Friday morning, the court hearing which was due to decide on a preventive measure with respect to Khramtsov was unexpectedly postponed, with journalists told that he had been taken away somewhere for investigative matters.  It was also reported that Kotenko’s brother had been detained. 

(As of Friday evening, all four men mentioned above, had been remanded in custody for 2 months, although only Serhiy Kotenko appears to have been present in court during the hearing).

In short, watch this space…  Closely. 

Photo UP

Prominent investigative journalist and EuroMaidan activist Tetyana Chornovol was attacked in the early hours of Saturday morning in Boryspil (near Kyiv).  She was driving towards the village of Hora when another car forced her to the side of the road.  There are slightly different versions: Mustafa Nayem seems to have spoken to her at around 3 a.m. and writes on facebook that she noticed she was being followed, and turned back towards Boryspil.  It was then that the other car began ramming her and forcing her off the road. It appears that there were 2 assailants who set to beating her.  The pictures unfortunately speak for themselves. 

Chornovol is well-known for her investigative journalism on, among other things, the corrupt schemes behind the privatization of Viktor Yanukovych’s controversial residence at Mezhyhirya.  Last year, frustrated by Yanukovych’s continuing failure to keep his promise and show journalists the reportedly sumptuous and increasingly top-secret residence, she climbed into the grounds and managed to take photos before being caught.

On Friday she published photos and information about the anything but modest home of the current Interior Minister, Vitaly Zakharchenko.  The title reads: This is where a butcher [literallyexecutioner) lives.  The photos are well-worth viewing http://blogs.pravda.com.ua/authors/chornovol/52b9e29e4286c/

Photo: Alexei Hrytsenko

While the president’s signing on Monday of an “amnesty” bill may (or may not) lead to dubious criminal proceedings against at least two journalists, one of whom was beaten by the Berkut riot police, being dropped, lawyers are also actively working to ensure that violence against journalists does not go unpunished.  

A group of human rights lawyers are working on measures to ensure the prosecution of those guilty of beating up journalists on Bankova St on Dec 1.   They discussed the end of the first phase of their campaign on Monday during a discussion panel held at the LIGABusinessinform information agency.  A representative of LIGABusinessinform explained that an agency photographer had been injured in the events, but that given the scale of the violations, the agency had understood that it could not simply defend its own journalist. 

Over 40 members of the press were injured on Dec 1, including a LIGABusinessInform photographer, most by Berkut riot police.  The prosecutor’s office has initiated criminal proceedings under Article 365 of the Criminal Code (exceeding official powers) and Article 171 (obstructing journalists carrying out their work).  It was noted during the discussion that there are an unprecedented number of police officers (26) involved in the case.

According to Artem Afyan from the law firm Yuskutum, the human rights lawyers’ work is divided into three stages.  The organizational phase has now ended, and they are moving into the criminal investigation phase which will be following by the court proceedings.

Afyan explains that a working group on legal accompaniment for journalists has been formed.  It remains open and willing to share material with other colleagues representing victims.  In fact, however, one of his colleagues qualified that, saying that a number of issues were involved, including confidentiality, and only certain information can be shared.

He says that they understood from the outset the difficulty of their task given that the law had been broken by a large number of people whose faces were masked.  This is one of the main factors which they must overcome in order to ensure that the law is upheld.

The lawyers are planning to seek compensation for damages incurred, including the cost of equipment broken, of treatment as well as unearned salaries while recuperating.

One of the lawyers, V. Tytych explained that the Bankova Case would create a new precedent in that they will be applying a new feature of the 2012 Criminal Procedure Code.  This enables the victim’s party to initiate and take part in investigative activities.

Ihor Cherezov from the law firm Cherezov and Partners said that he couldn’t remember a case which had so united lawyers as the Bankova Case. He says that without any calls to unity, the lawyers had simply joined forces on this project.  “Something really is happening in the consciousness, in the minds of lawyers”.

The lawyers have called on all those who witnessed the events to contact their initiative group, since witness testimony will be vital in bringing the culprits to justice. They stress that they guarantee total confidentiality. 

Most of the text below was written (shortly) before the disturbances on Sunday night. More detailed information about what happened on Hrushevsky St will be posted separately.

Whether the blow inflicted on Ukraine’s fragile democracy last week proves fatal will depend on a number of factors, not all linked with the EuroMaidan mass demonstrations.  The blitzkrieg attack was so brazen both in method and ammunition used that all protest from the west seemed scarcely worth the effort. 

This, I believe, is not yet the case.  A president desperate to remain in power and his parliamentary titushki may do the opposition and civic activists a favour  – if some painful lessons can be learned.

Hollow applause

Ukraine remained in the world headlines for two weeks or so in November-December, first because of the vast pro-Europe demonstrations, then due to outrage over the violence against peaceful protesters, particularly on Nov 30.  The attention waned and concerns increased as it became evident that Viktor Yanukovych and his guard had no intention of doing more than making a few insincere noises.  The president’s “applause” for peaceful protesters came against a background of blanket bans on all protests in Kyiv and throughout the country.  The promises to find those guilty of excessive violence against protesters remained words as empty as the law passed on waiving criminal prosecutions against protesters.

Instead of the promised amnesty, repressive measures, similar to those so scandalously “adopted” by the ruling majority on Jan 16, began gaining pace.  The number of obvious attempts to provoke trouble from hired thugs or titushki increased, as did attacks on journalists and civic activists, most prominently the savage assault on investigative journalist and civic activist Tetyana Chornovol. 

Every new mass demonstration was greeted with triumph, as proof that the people had not been cowered.   Every new attack strengthened campaigns in the West for “sanctions”. 

And what? 

The Dec 15 mass demonstrations coincided with repeat parliamentary elections in the five “problem constituencies”.  Large numbers of observers, including foreign, registered multiple irregularities, including the ominous presence of “titushki” at many polling stations.  The main Ukrainian watchdogs OPORA and the Committee of Voters of Ukraine [CVU] both criticised the mass use of vote-buying, administrative resource as well as the scandalous use of the courts to remove the likely winning candidate in one constituency.

And nothing. 

The demonstrations continued, as if in some parallel world.  There were no specific calls for sanctions over the elections.  Even if there had been, they would have remained words alone, especially given the fact that the main vote rigging had been organized before the observers took their places.  While large numbers of students, for example, stood on Maidan, others supplemented their student grant by selling their vote.

Yanukovych’s moves over the last two months are widely seen as being specifically aimed at “winning” the 2015 presidential elections. If those elections end like the last Belarusian farce, then sanctions will be imposed.  Sanctions did not oust Lukashenko in Belarus, and will change little in Ukraine.

Legislative blitzkrieg

There was nothing subtle about the blitzkrieg offensive last week.  Large numbers of activists had arrived at Maidan [Maidan Nezalezhnosti] on Jan 15, following rumours of a new attempt to disperse the protest and clear the city centre.  The attack came instead the next morning in the Verkhovna Rada and proved fiendishly successful.

10 bills, including one overtly aimed at neutralizing journalists and civic activists, were “adopted” by the two ruling parties – the Party of the Regions and the communists – with breathtaking disregard for parliamentary regulations and the Constitution.  The draft laws had only just been registered, they hadn’t passed through any of the required procedure for consideration and discussion, nor were they discussed on Jan 16.  Instead there was a “show of hands”, with the requisite number conveniently counted, although photographic evidence suggests that only half the MPs needed were actually present.

More details can be added although really only for the record. Why speaker Volodymyr Rybak felt the need to assert on the official parliamentary website that the voting had been in accordance with European standards is perhaps a question for psychologists. There was no pretence of adhering to the law, and the calls on the president to veto such demonstrably unconstitutional laws were also, unfortunately, largely pro forma. His signing of all the texts on Friday surprised nobody.

The laws are primitive with their targets being embarrassingly obvious. There are a number of amendments to legislation bringing in draconian fines, possible confiscation of vehicles, aimed specifically at crushing the AutoMaidan movement which has been organizing processions to the residences of the president and high-ranking officials.  Any more than five vehicles must now effectively have the permission of the traffic police which it will not get. This is in direct breach of Ukraine’s Constitution since Article 39 requires only that the authorities are informed, not that they give permission.

The law contains numerous amendments specifically designed at using others to put pressure on activists.  The law, for example, makes the person in whose name the car is registered liable regardless of the person’s actual involvement in the protests.

There are similarly repressive measures, including up to 15 days imprisonment for wearing helmets or a mask at a demonstration, for erecting tents which are a traditional part of peaceful protest in Ukraine, and others.  Criminal charges carrying up to 5 years imprisonment are proposed for seizing official buildings, and similar. 

A number of the punitive measures, including up to 15 days imprisonment, are to be imposed for organizing a peaceful protest which does not comply with “established procedure”.  There is no such established procedure which means that it is likely to refer to whatever document the local authorities decide should constitute such procedure, with one favourite being a decree from Soviet times (1988).   Once again, the penalties for such supposed infringements of Article 185-1 of the Code on Administrative Offences are extended in the second paragraph to business or organization leaders for supporting peaceful protests which somebody deems to not comply with this same “established procedure”.  The penalty here is up to 10 days imprisonment. 

Ominous role model

Some of the worst aspects of Law No. 3879 are taken straight from legislation controversially passed in Russia over the last years. Defamation has been re-criminalized in a clear attempt to silence critical journalists and activists.  Some of the sentences in this part of the law could almost have the names of specific journalists added.  The penalties for “libel” are especially draconian if the person has accused somebody of being behind a serious or particularly serious crime.  Chornovol and others have been open in accusing the president, the Interior Minister or Prosecutor General of being behind the attack on her.

All of the above becomes extremely serious given the total degradation of the judiciary over the last 4 years.  There is heavy pressure on judges to pass “the right sentences”, punitive measures against those who don’t and likely promotion or other benefits for those judges who demonstrate servility or who are in with the clan.  Rodion Kireyev who sentenced the former Prime Minister Yulia Tymoshenko to 7 years was made deputy head judge of the Pechersky District Court in Kyiv shortly after gaining indefinite tenure. 

Judges, as well as law enforcement officials, have been particularly well looked after in the new law where something termed “interference in their activities” can carry a 2-year term of Imprisonment.  Interference in the work of the court has nothing to do with trying to pervert the course of justice.  The law says that this is circulating information about a judge which is of an “overtly offensive nature and demonstrates disrespect for the judge and justice system…“  Disrespect for a judge like Kireyev who sentences an opposition leader to 7 years on politically motivated charges can hardly be denied.  Expressing well-founded suspicions when the judge in whose court the president’s criminal record got “lost” is made head of the Constitutional Court or when this same judge Volodymyr Ovcharenko and others sport watches cost 30 thousand dollars is now likely to be deemed a criminally liable act.

The scope in the law is vast with “extremist activity” always there to fall back on if other charges prove problematical.  The charm here is in a definition of “extremism” which is so vague and far-reaching in its scope that it effectively covers any criticism of those in power.

The law is quite overtly aimed at intimidating and silencing civil society. In the most ominous aping of neighbouring Russia, NGOs “which fulfil the function of a foreign agent” are supposed to register themselves as such, submit quarterly reports and pay corporate tax.  NGOs are thus stigmatized with the population encouraged to see them as some kind of fifth element.   How successful this will be is debatable, in part because the government has long shirked its real responsibilities and a large range of social, medical and other activities would simply be inconceivable without foreign assistance. The real target are those NGOs engaging in “political activity” this being defined as activities “which are aimed at influencing decision making by state bodies, a change in the state policy which those bodies have defined, as well as forming public opinion for those purposes”.  In short anybody the authorities wish to nail, which can be said of most norms of this law. 

Other laws are also dangerous, with one making it possible to try a person in absentia regardless of the reasons for their absence, another extending the amnesty passed by a constitutional majority yet thus far not enforced to those Berkut riot officers guilty of savage attacks on peaceful protesters. 

An attempt to further divide and radicalize protest in Ukraine can be seen in Law №2179а which criminalizes the “denial or justification of the crimes of fascism”. A closer reading makes it clear that the bill will be applied against members of the VO Svoboda party and other Ukrainians who view Stepan Bandera and the Ukrainian Insurgence Army [UPA] in a positive light.

All of the laws are so sweeping that they could only ever be applied selectively.  This is a major advantage to the authorities who can respond to situations likely to discredit the protest, while ignoring many others.  Such tactics must still intimidate since there is no way of knowing who will be targeted. 

Where to?

As with previous repressive or violent measures, the laws did not stop tens of thousands from coming out into the centre of Kyiv on Sunday, Jan 19.   This time, rumours about likely provocation seem to have proven correct.  Most reports suggest that the trouble which erupted on Hrushevsky St. on Sunday evening was initiated by a group of Russian-speaking provocateurs wearing orange masks who attacked the interior ministry troops (conscript soldiers) cordoning off the government quarter. 

The police are already threatening prosecution and possible 15 year sentences, and there is no doubt that real laws this time have been broken. . 

There is bitter irony in the fact that provocation was made much easier by the number of people who demonstrated their resistance to pressure by donning masks.  While most of the anti-protest measures are undoubtedly repressive, the ban on masks and other means of remaining anonymous would protect real protesters.  They would hopefully also restrain hot-headed protesters who join in after trouble has started.

The brutal truth, however, is that ongoing street protest given a subservient police force and large numbers of titushki or thugs who are not brought in for their intellectual input cannot endlessly restrain outside provocateurs and its own activists eager for more action.  A similar provocation on Dec 1 outside the president’s administration on Bankova St resulted in the arrests and ongoing prosecutions of activists, journalists and protesters who almost certainly had nothing to do with the trouble.  The same scenario may well be repeated now. 

One major factor cannot be attributed to those in power, but is doubtless most welcome to them.  An appeal initiated by Ukrainian intellectuals and civic activists on Friday is calling on the opposition leaders to put aside personal ambitions and decide on one leader and presidential candidate now.  Similar calls were heard on Maidan during Sunday’s demonstration.  There is no sign that the opposition leaders intend to heed this call. When asked why not Arseny Yatsenyuk apparently bleated something about the Ukrainian people being the leader.  Not overly helpful when the Ukrainian people have just faced the gravest threat to their constitutional rights since independence. It remains unclear even whether the law passed by the ruling majority in November really can exclude Udar Party leader Vitaly Klitschko from the presidential race. 

Whether or not the disturbances on Hrushevsky St were initiated by specially commissioned provocateurs, after last week’s legislative coup, they were very widely predicted.  The results of continued failure to adequately prepare for the 2015 elections, including intelligent methods of ensuring informed choice; preventing concealment and manipulation of information, as well as resistance to vote-buying, are no less foreseeable. 

There was one positive move forward on Dec 23 when the District Administrative Court allowed a civil suit and ordered the Interior Ministry to provide orders and other documentation regarding the use of the Berkut officers.  On a more negative note it rejected equally legitimate demands for information from others including the Prosecutor General, the ambulance service and hospital.  There has been enormous secrecy about injured protesters, and pressure on medical staff to conceal the real details about the patients they treated, so such information is clearly needed.

During his address to parliament on Dec 21, Pshonka produced carefully edited video footage showing activists attacking police officers.  When asked angrily why he was refusing to let opposition MPs show the videos demonstrating Berkut violence against peaceful demonstrators showing no resistance on Nov 30, Pshonka claimed that “everybody had seen those videos”, and he wanted to show the others “for balance”. 

Everybody has indeed seen them. They give the lie to almost every word spoken by the country’s chief law enforcer. 

Pshonka claimed that the police had repeatedly issued clear warnings calling on people to vacate the square, and that they had also created a corridor for protesters to leave safely.  This is not borne out by the video footage, testimony of protesters and of witnesses.  Protesters were forced to seek refuge in St Michael’s Monastery with Berkut officers actively pursuing them.   Medical workers who endeavoured to treat injured protesters were themselves beaten.

According to a report complied by the Association of Ukrainian Human Rights Monitors on Law Enforcement [UMDPL], there was clear breach of the Police Act and other legislation with the Berkut officers’ use of force and special means coinciding with the warning.  UMDPL says that this meant that some people had not even woken up.  The report condemns the “indiscriminate, wide-scale, brutal and cynical manner in which the Berkut officers kicked and beat protesters with rubber truncheons and their fists without considering their age, gender or physical condition”.  

Outrage in Ukraine and international condemnation forced Ukraine’s leaders to produce statements of concern, and promise that those who had used “excessive force” would be punished. 

Even if there were any grounds for believing the promise, it would still be pitifully inadequate.  Certainly the Berkut officers behaved in a savage fashion, however their very deployment was in grave breach of the law.  The use of this special force is regulated by an Interior Ministry order which states explicitly that Berkut officers are brought in for dealing with difficult situations where force is required.  The people on Maidan were talking quietly or asleep, and Berkut should not have been there in the first place.

Pshonka produced questionable chronology and altogether too many words to try to justify the deployment of men trained for conflict situations on the grounds that municipal workers supposedly needed to erect the New Year tree and an ice skating rink.  It was, he alleged, “all directed at protecting public order”,

One of the lines which Pshonka pushed strongly was the involvement of “members of radical gangs who pretend to be civic organizations, including sports groups.”  These individuals, he alleged, caused confrontations with the police. 

On Nov 29, there were indeed a large number of “titushki” or athletic-looking thugs in Kyiv, most of them gathered in Mariyinsky Park.  They certainly behaved aggressively, but not towards the police.  During the day there were at least two attacks on journalists from media providing coverage of the EuroMaidan protests.  It was widely reported that they had been brought in to Kyiv for the pro-government demonstration planned for Sunday.

Pshonka’s repeated assertions are especially interesting given well-founded grounds for suspecting that the trouble on Bankova St on Dec 1 caused by a crowd of young masked louts was deliberately organized.  It was largely during those events that interior ministry conscripts, and possibly police officers, were injured

The actions by Berkut on Bankova St are also criticized by UMDPL in their report, however the situation was somewhat different with the deployment of a special force  unit in principle legitimate. 

This was demonstrably not the case on Nov 30 and attempts to merge the two situations must be withstood.  The brutal actions on Nov 30 gave new vigour to the EuroMaidan protests and prompted widespread demands for the government’s dismissal, the president’s impeachment, and for sanctions against those now in power. 

Failure to carry out an honest investigation and do more than dismiss a few obvious scapegoats will show that all those calls were entirely justified. 

On Dec 19 the Verkhovna Rada adopted a draft bill which apparently provides an amnesty for those who took part in the EuroMaidan protests while not protecting those guilty of beating up peaceful protesters.  How much it will achieve this is, unfortunately, not so clear.

The title of the draft bill seems alarmingly broad in scope: “On removing adverse effects and preventing persecution and punishment of people as the result of the events during peaceful gatherings”.  The opposition who tabled the bill say that they managed to agree this bill with the Party of the Regions and remove the bill proposed by ruling party MP Vadym Kolesnichenko.  The latter had offered an amnesty for all involved, this clearly including Berkut riot police guilty of unwarranted brutality against peaceful protesters.  The bill passed says that liability is waived for “people who were participants in protests and large-scale events regarding their actions and decisions from Nov 21 to the day this Law takes effect”.  According to a former justice minister, Roman Zvarych, the draft law is illiterate and non-specific. He says that the term “participant” is not clearly defined in Ukrainian legislation meaning that it could be applied selectively. This is increasingly the fate of most laws in the country, and if there was a way of ensuring total clarity, Zvarych did not mention it. 

The term may not be clear, but the authorities would surely be stretching it to call Berkut riot police “participants”.  The only mention of peaceful assembly is in the title, making quibbles over what constitutes peaceful protest difficult. On the other hand, certain individuals who did undoubtedly play a part in the actions and whose testimony could prove most inconvenient to those who ordered the police action will also be covered by the amnesty.  With regard to the events on Bankova St on Dec 1, this includes first and foremost Dmytro Korchynsky. He and his organization Bratstvo are notorious for acts of provocation aimed at causing confrontation and a police crackdown.  Despite having been seen near the bulldozer seized by masked louts and then used in a confrontation with Interior Ministry forces outside the president’s administration, the police announced that Korchynsky was not a suspect and only placed him on the international wanted list after outcry, and of course after the man had obliged by going into hiding.  Korchynsky could provide a vital key to understanding the confrontation on Bankova St which is widely believed to have been orchestrated. 

While the police were assiduously ignoring Korchynsky, the prosecutor was demanding 2 month detention orders first for 9 men arrested on Bankova St, then for some others including well-known Road Control journalist, Andriy Dzyndzya and photographer Oleh Panas.  All such applications were allowed by the judges at the Shevchenkivsky District Court despite the fact that seven men were still hospitalized after their treatment by Berkut riot police and the only testimony against them was from riot police known to have used unwarranted force against peaceful protesters

Some were released last week, the others should hopefully go free if the bill is signed into law.  The criminal proceedings in these and a number of other cases should without any doubt be terminated, however that will also make it easier for Berkut officers to escape liability. Having suffered concussion and serious injuries, then found themselves charged with an offence carrying an 8-year sentence, it is unlikely that many of the men will feel up to lodging legitimate complaints about their treatment by Berkut officers.

It seems likely that the amnesty will not apply to Viktor Smaliy, Road Control lawyer remanded in custody for 2 months on highly questionable charges.  He is accused of attempting to murder the judge who remanded his client Dzyndzya in custody. On Friday, Dec 20 the court rejected his appeal against the 2-month detention order.  Smaly is not alone in believing that the case against him has been brought to intimidate other lawyers. 

The huge number of titushki or hired louts who were brought into Kyiv and who actively tried to provoke trouble and beat up journalists will also be amnestied as participants in the events.  Since the bill applies to all actions which take place before it comes into force, it may not be unduly cynical to expect new attacks and provocation in the coming days.

There are also more and more reports of people facing dismissal, receiving threatening summonses, etc, over their participation in EuroMaidan.  The law does nothing to protect them.

The Association of Ukrainian Human Rights Monitors on Law Enforcement has just issued a damning analysis of the deployment and behaviour of Berkut riot police during the dispersing of peaceful protesters on Maidan Nezalezhnosti on Nov 30 and during the Dec 1 confrontation on Bankova St.   Those who issued the order to violently disperse peaceful protesters, and the officers who used excessive force should be identified and held to answer.  At present there seems little will to do more than dismiss scapegoats, with Andriy Klyuev, secretary of the National Defence and Security Council, Vitaly Zakharchenko, Interior Minister and others remaining untouched.  While absurd criminal charges laid against the victims of police brutality certainly need to be dropped, there are all too many questions that must not be muffled.

One of the peaceful protesters injured on Nov 30

The Association of Ukrainian Human Rights Monitors on Law Enforcement [UMDPL] have prepared a legal analysis of the actions taken by law enforcement officers during the dispersing of peaceful protesters on Maidan Nezalezhnosti on Nov 30 and during the Dec 1 confrontation on Bankova St. 

UMDPL has made use of the ample photo and video footage of the events, and is making their assessment available on open sources as well as passing it to the Prosecutor General’s Office to ensure that the latter does not miss any of the violations and that it finds and punishes those responsible.

During the events on EuroMaidan, various special force units and Interior Ministry forces were deployed however it was primarily the Berkut riot police who used violence.

Berkut is a high-mobility unit with around 3, 700 officers.  This special unit functions on the basis not of a law, but of an internal Interior Ministry order which is not even registered with the Justice Ministry, making it effectively governed by the wishes of one official – the Interior Minister.  The order states that Berkut officers are used for operations involving force in difficult situations.

The analysts consider that there were no legal grounds for deploying Berkut officers to protect public order during the peaceful protest in the early morning on Nov 30.  The people on Maidan Nezalezhnosti were of different ages and level of physical fitness and were behaving peacefully, talking together or sleeping. Nobody was committing any offence meaning that the circumstances cannot be seen to have warranted the use of force. The group of people could not be called organized and accustomed to showing resistance through force or attack.

On Dec 1 outside the president’s administration there were grounds for deploying Berkut, however the officers should have stabilized the situation. This could have been achieved by isolating only those people who were breaking the law and, in accordance with the Police Act, ensuring the safety of participants of a peaceful gathering. This was not, however, what took place.

The most shocking aspect was the indiscriminate, wide-scale, brutal and cynical manner in which the Berkut officers kicked and beat protesters with rubber truncheons and their fists without paying any consideration to their age, gender or physical condition.  The grounds and limits for the use of force and special means are clearly set out in the Police Act, the Patrol Service Charter, and other normative acts.  There must be an audible warning before the use of force which should give people the time and opportunity to understand the situation and obey police orders. Instead the use of force and special means coincided with the warning meaning that some people had not even woken up. Force may only be applied without warning where there is a direct threat to the life or health of members of the public or police officers. There was no such threat on Nov 30.

Both on Nov 30 and on Bankova St on Dec 1, the use of force by police officers was more reminiscent of a mass execution, than a law enforcement measure. Some people lying on the ground and showing no resistance were beaten by several officers at the same time.

This is in flagrant breach of the law which stipulates that where force cannot be avoided, it must not exceed the limits needed for carrying out the officers’ duties, and should minimize the harm caused to the offenders or other citizens. Furthermore, in a Soviet resolution still in force on the use of special means for protecting public order, there is a clear ban on beating people with truncheons on the head, neck, collarbone, stomach and genitals. One can however see on numerous videos that blows were delivered indiscriminately and with disregard for any rules and prohibitions. The nature and methods for the use of force by the police suggests that they were used deliberately to inflict severe pain and suffering in order to frighten the protesters, with this being a direct violation of Article 28 of Ukraine’s Constitution which bans torture, cruel or inhuman treatment or punishment.

Stun grenades were used on Dec 1 on Bankova St without taking into account how far away from people they have to fall, with this resulting in protesters receiving leg burns and injuries.  Both on Nov 30 and Dec 1 the officers breached the Police Act by ignoring the requests of people injured to call an ambulance. Instead they even used force against medical workers who tried to provide first aid to the injured.

UMDPL also notes that the number of journalists who suffered from this violence – over 50 people – was unprecedented in all the years of Ukraine’s independence.  As well as the beating, this involved violation of Article 171 of the Criminal Code – obstructing journalists from carrying out their professional activities.

There were also a large number of procedural infringements with respect to the detention of protesters. Both on Nov 30 and on Dec 1 the detentions were largely unwarranted with the reasons not being given, nor the people who were detained being informed of their rights.  In breach of Article 254 of the Code of Administrative Offences which requires that a protocol be drawn up when a person is detained, some of those detained report that they were released without any protocol or apologies being issued. Such detentions are in breach of Article 29 of the Constitution regarding the right to liberty and personal security, as well as protection from unlawful detention.

The dispersing of peaceful demonstrators by the Berkut officers on both occasions was undoubtedly of a brutal and cynical nature.  The fact that they were obeying orders from above is no excuse for their actions. Article 41 § 4 of the Criminal Code clearly stipulates that a person who carries out a manifestly criminal order or instruction is criminally liable. The management’s reference to “excesses in carrying out orders” is also absurd since almost all the Berkut officers took part in the beatings. In this respect the actions of certain Berkut men and their commanding officers should be viewed as criminal offences as per Article 365 of the Criminal Code – exceeding official powers.

Enabling municipal workers to set up an ice skating rink and New Year tree can in no way be considered the same as ensuring public order or national security. Furthermore the Berkut actions were disproportionate since they were directed at public interests clearly lower in the hierarchy of interests than the rights and freedoms of Ukrainian citizens enshrined in the Constitution and European Convention on Human Rights.

On Dec 9 when Berkut officers unblocked the government quarter there were no beatings or use of force and special means and the protesters were in general moved out in a more civilized manner. however during the events on Maidan Nezalezhnosti in the early hours of Dec 11 and the unblocking of the Kyiv City Administration building the police again applied brutal and excessive force which according to media reports resulted in over 40 people being injured with 5 needing hospitalization.  The police are continuing to disregard legislation and this means that their actions, as before, require close scrutiny from the public, and the effective investigation and punishment of those responsible.