Analysis of Berkut treatment of peaceful protesters on Nov 30 and Dec 1
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.