Commentary on the Kyiv Court of Appeal ruling from 13 January 2010
Article 58 ¶ 2 of Ukraine’s Constitution states that no one shall bear responsibility for acts that, at the time they were committed, were not deemed by law to be an offence. Ratifying the Convention on the Protection of Human Rights and Fundamental Freedoms, the legislators did not implement paragraph two of Article 7 of the Convention which in some cases effectively allows retroactive force of the Convention on genocide. “This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” Article 7 may not be applied since in case of a clash between a norm of an international agreement and a norm of the Constitution, the norm of the Constitution takes precedence. According to Ukraine’s Constitution, it is impossible to apply the 1948 Convention on Genocide to a crime committed in 1932-1933. Therefore, although we demonstrated in our Legal classification of Holodomor 1932-1933 in Ukraine and in Kuban as a crime against humanity and genocide, that the manmade famine of 1932-1933 has all the hallmarks of genocide, it is impossible to call this crime genocide.
Generally speaking, the SBU [Security Service] couldn’t initiate a criminal investigation into elements suggesting the crime of genocide envisaged in Article 442 ¶ 2 of the Criminal Code [CCU]. Ukraine’s Criminal Code is strict in prohibiting the principle of retroactive force of the law. Paragraph three of Article 3 of the CCU states that “the criminality of actions, as well as their liability to punishment and other consequences in criminal law, is defined solely by this Code.” According to Article 4 ¶ 2 of the CCU which regulates the force of the law on criminal liability in time, the criminality and liability to punishment of an action are defined by the law on criminal liability in force at the time when this action was committed. The 1927 Criminal Code of the Ukrainian SSR which was in force in 1932-1933 did not have genocide among criminally punishable actions and therefore did not establish liability for it. The very word genocide did not then exist.
However the SBU could initiate criminal proceedings over the deaths en masse of peasants from starvation in 1932-1933, or carry out an investigation into the reasons for the mass deaths without initiating a criminal case. There could be no objections against the state’s decision to carry out such an investigation.
Judging by the results of the investigation, it was undertaken at a high level in all oblasts gripped by famine and provided a lot of material which shed light on the huge tragedy of the Ukrainian people. However at the end of 2009 it was effectively stopped, in my opinion for political reasons: there was a fear that after the elections the new Ukrainian president would change priorities and not support this process of establishing the historical facts and providing a legal assessment for them. It was decided to provide a legal assessment of the mass deaths from starvation in 1932-1933 before the election of a new president.
On 25 December within the framework of the criminal investigation, a criminal case was initiated over indications of the crime of genocide against 7 accused – Joseph Stalin; V. Molotov; L. Kaganovich; P. Postyshev; S. Kosior; V. Chubar; and M. Khataevych. On the basis of the results of the pre-trial investigation by 29 December a ruling was adopted to pass the case to the Kyiv Court of Appeal for its examination. On 31 December this ruling was agreed with the Deputy Prosecutor General Y. Holomsha. We would note that criminal procedure legislation does not envisage any “agreement” with the prosecutor: the prosecutor should study the case and pass it to the court. However on the same day the criminal case was handed by the SBU to the Court of Appeal and it was taken on as next case in line by M. Skavronik, a judge of the criminal chamber.
By 13 January the judge had in a preliminary court hearing passed a ruling on terminating the criminal case due to the death of the defendants. However this ruling is more similar to a verdict: it sets out in detail the circumstances of the crime, evidence regarding the organization and perpetrating of genocide of a part of the Ukrainian national group; a list of the means and mechanisms for carrying out the genocide; testimony provided in the pre-trial investigation body’s assessment of numerous witnesses who confirm that genocide was organized and perpetrated; material evidence of the guilt of all defendants – archival documents signed by them personally which demonstrate that decisions of the leadership of the Bolshevik party were implemented at local level, and also that grain was exported from the country in 1932-1933; forensic medical assessments carried out on the basis of archival documents regarding registration of deaths; justification for the retroactive force of Article 442 of the CCU for the period when the crime of genocide via Holodomor 1932-1933 was perpetrated in Ukraine.
Adoption of such a ruling is not part of the preliminary examination of a case by the judge, as per Article 237 of the 1960 version of the Criminal Procedure Code. During the preliminary hearing the judge does not usually check the accuracy of the classification of the impugned actions, does not touch on the issue of whether the charges are judged. These issues – the correctness of the classification and whether there is sufficient evidence - are considered at the next stages of the court proceedings. The judge effectively passed this ruling simply based on the material of the investigation, without considering the merits of the case, without hearing witnesses; or considering the evidence of guilt. The right to defence of the accused was not ensured and nor were adversarial proceedings. The judge did not carry out, and could not carry out a comprehensive, full and objective study of the circumstances of the case. Under these circumstances the value of the ruling is illusory.
Such an approach to the court proceedings devalued the results of the investigation carried out by the Security Services, whereas there was the possibility of carrying out fully-fledged court proceedings.
The SBU drew up a list of the heads of the highest party and Soviet bodies; OGPU and GPU of the Ukrainian SSR and a list of documents signed by them personally which led to the artificial famine and guaranteed repressions against those who tried to oppose this policy. The SBU also drew up a list of the heads and employees of the local GPU, the prosecutor’s offices; the justice bodies at oblast and raion levels in all oblasts of Ukraine: the Vinnytsa; Dnipropetrovsk; Donetsk; Kyiv; Odessa; Kharkiv; Chernihiv oblasts and Moldava autonomy of the SSR; and a list of documents produced by those involved from the lists of criminal cases against peasants who showed various forms of resistance: opposition to the grain requisitions; assistance to other people starving; attempts to hide grain; and others. Study of these criminal cases makes it possible to determine the criminal nature of the actions of party and Soviet bodies and justice bodies; the level of liability of each official and to rehabilitate each victim of repression not yet rehabilitated. In all these lists include 136 people involved in organizing and executing the manmade famine and political repressions at Soviet, Ukrainian, oblast and raion levels.
It is in this that the possibility lies to not terminate the case since the accused are dead. The list of accused should include all 136 officials, and the case needs to be examined on its merits in order to reinstate the good name and rehabilitate the victims of repression, peasants and officials in accordance with Article 6 Item 8 of the 1960 Criminal Procedure Code.
As well as the 136 who organized and carried out Holodomor and political repressions, the USSR as a whole should be considered in terms of perpetrator of the crime. Although the Convention on Genocide only envisages liability of individuals, the International Criminal Court in the case of Bosnia and Herzegovina v. Serbia and Montenegro passed a ruling that the country can be perpetrator of this crime.
The court found that “the events which took place in Srebrenica should be classified as genocide. Serbia violated its obligation to prevent the crime of genocide”. The Soviet state not only failed to prevent genocide, but was its organizer, as was convincingly demonstrated by the investigation carried out by the SBU.
To sum up, there are legitimate grounds for restarting the investigation; putting together a list of all those repressed for opposing the organization of the artificial famine who were not rehabilitated and holding court proceedings aimed at their rehabilitation. As part of these proceedings, the court can qualify the actions of the state, its particular bodies and officials in 1932-1933, relying on Article 232 of the CPC, according to which the court is obliged, where there are grounds for issuing separate judgments (resolutions) regarding violations of the law established during the course of the examination, as well as the reasons and conditions which contributed to the crime being committed.
Such court proceedings are needed. Do the leaders of Ukraine have the political will and wish in accordance with the principles of law to bring to its logical conclusion the study and legal classification of actions which led to a great tragedy of the nation?