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01.05.2017 | Halya Coynash

Ukraine faces human rights court hammering over investigation of Odesa 2 May Tragedy

Trade Union Building - the scaffolding had been dragged over by pro-unity activists to try to save people
   

If the finger can be pointed at Russia for its role and propaganda lies about the tragic disturbances and fire in Odesa on 2 May 2014, it is solely the Ukrainian authorities who must answer for Ukraine’s shameful failure to carry out a proper investigation.  At least one application is already before the European Court of Human Rights, and that number is likely to increase.  Any public announcements of supposed ‘progress’ as the third anniversary of the events approaches cannot conceal the general sabotage of any attempts to find those responsible and hold them to account. 

The events on 2 May 2014

All impartial investigations confirm that the disturbances that day arose after a group of pro-Russian anti-Maidan activists from the recently formed Odesskaya Druzhyna attacked a peaceful march for Ukrainian unity.  The violence escalated, with weapons and firearms used by both sides, and spun out of control particularly after news of the first death – that of Ihor Ivanov, a Maidan activist.  Six people were killed, four of them anti-Maidan activists. 

Pro-unity activists then moved to Kulikovo Pole Square intending to destroy an anti-Maidan tent camp, where they were shot at by activists from inside and on the roof of the Trade Union building. Molotov cocktails were used by both sides, and independent experts have concluded that there is no way of determining whether the fire was started by a Molotov cocktail badly thrown by anti-Maidan activists from inside the building, or by pro-unity activists outside the building.  42 people lost their lives. 

Propaganda

Within hours of the tragedy, Russia had begun presenting the events as provoked by Ukrainian ‘radicals’ and the fire as a ‘massacre’.  It has systematically pushed this line, ignoring or distorting the independent investigations, including one by the Council of Europe’s International Advisory Panel [IAP] published on Nov 4, 2015.  The lies are, quite literally, murderous, and are known to have prompted many young men to fight and be killed for the Kremlin-backed militants in the Donbas.

Beyond the lies

There are multiple questions to be asked concerning the role of the authorities.  Whoever provoked the disturbances in the afternoon, they could and should have been stopped long before the first uses of firearms.  There had been plenty of warning of likely provocation and trouble that day and an action plan had been drawn up.  For reasons that remain unclear, it was never implemented.

The same applies to the fire.  Most of the deaths were because the emergency services took 45 minutes to appear, with specific officials directly responsible for fire engines not being sent earlier.

The above-mentioned IAP report noted evidence suggesting some police complicity, as well as omissions, and the fatal delay of the emergency services, and advised that the investigation needed to be carried out by a body independent of the Interior Ministry. That recommendation has been ignored, as have many others.

Failure to properly investigate is all the more reprehensible given the huge amount of investigative work carried out by a non-partisan civic group of journalists, scientists and former enforcement officers, formed within days of the tragedy. The 2 May Group has tirelessly gone through hours of video footage, witnesses’ accounts and spoken to those directly involved in the events and the families of those who died.  Their material has been used by the Council of Europe and OSCE Monitoring Mission. 

The Group’s frustration with the lack of progress and flawed nature of the few prosecutions actually brought over the events has mounted over the years.  At a briefing on March 12, 2017, they released a statement blasting the authorities.

They noted that Ludmila Balaban, whose son Oleksiy died in the Trade Union House fire, has lodged an application with the European Court of Human Rights [ECHR].  She accuses Ukraine of violating Article 6 of the European Convention through: deliberate inaction by the law enforcement bodies; dragging out the investigation; restricting access of victims to the file material and restricting access to justice.

Although the Group mentions only Article 6, it seems likely that applicants will also accuse Ukraine of violating the procedural arm of Article 2, the right to life.  Ukraine has an obligation not only to take all measures to protect life, but also to provide effective investigation in cases of loss of life.

The Group states that Ukraine “did not defend its citizens during the disturbances in the centre of Odesa, did not take measures to save them during the fire in the Trade Union House.  The state is not carrying out a proper investigation into the crimes committed on that tragic day and is not safeguard the law during court hearings.”

The Group is monitoring both the investigations and court trials and point to negative developments which need urgent response.

There had been some progress from January 2016, when the investigation into the disturbances was passed to the National Police in the Odesa oblast. All active investigative measures appear to have stopped and over the last four months effectively nothing has happened. 

There has been and remains major resistance to any demands for information about the course of the investigation. 

Some of the people who should be held to answer over the events on May 2, 2014 are now in hiding, with at least one man – Volodymyr Bodelan, who ordered the fatal delay in sending out fire engines – virtually helped to escape justice. 

Not everything is bad, and here, as with investigations over crimes against Maidan activists, the credit goes to the Special Investigations Department headed by Serhiy Horbatyuk.  The prosecution is now with the court of three of Bodelan’s immediate subordinates who obeyed the order to delay sending a fire engine. 

The prosecution of Petro Lutsiuk over the failure to implement the riot prevention action plan has finally reached trial stage. 

Only one of the people currently facing charges – Serhiy Khodiyak, a Maidan activist -  is accused of involvement in the fatal shootings.  There is evidence that he used a gun, but it is unlikely that it can be proven that he killed any specific person.  It is nonetheless problematical that he has not been in custody most of the time, while 21 anti-Maidan activists were remanded on lesser charges.  His trial is continuing, and he appears at each hearing, however the hearings are often obstructed.  The last, for example, was adjourned after a fake bomb warning.

The only trial as such is that of the 21 men.  At present only 5 still remain in custody, but all 21 defendants are facing vague charges of involvement in riots which could just as well be laid against a huge number of other people that day. 

The Group has been scathing about the indictment since the outset, and says that it demonstrated the incompetence and sloppiness both of the Interior Ministry’s Central Investigative Department and of the Prosecutor General’s Office which should have been monitoring the case.  The courts have been left with no alternative but to pass lawful, but extremely unpopular procedural rulings, with this often leading to conflict in the courtroom. In addition, and with the connivance of the law enforcement bodies and prosecutor’s office, members of right-wing groups continue to block the court building and put pressure on the court. 

The Group considers the actions of the prosecutor’s office in initiating criminal proceedings against members of the panel of judges to be another form of pressure on the court. 

The statistics are indeed appalling.  Out of 100 court hearings in the trial of the 21 men  over the last 2 years, only 20 have actually studied the evidence.  The others were either disrupted, or adjourned because of the non-appearance of participants.

Since 2 December 2016, the court examination of the case has been stopped, and will be started from scratch.

The Group warns that the trial in the Malinovsky Court has become a focal point of confrontation in Odesa.  They point to the events in the court on Feb 10, when various activists from Automaidan, Right Sector and the Azov Civic Court fought with police and judges and court staff ended up in danger.  Such incidents and the fact that nobody was punished simply demonstration that the situation has reached a dead end. 

This, they stress, cannot continue indefinitely.  Measures need to be taken now, and the Group proposes specific ways of getting the investigation moving in the right direction.  This is vital to prevent the information vacuum around the investigation into the disturbances and the unprecedented pressure on the court becoming the latest grounds for manipulating public opinion in Odesa and stirring up the situation as the third anniversary approaches. 

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