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Real danger that Yanukovych would win against Ukraine in European Court over trial for Maidan killings

Halya Coynash

The chief investigator into Euromaidan-related crimes has warned that failings in legislation on in absentia trials could result in any convictions against former President Viktor Yanukovych being quashed.   Such warnings have been made since the law was passed and Serhiy Horbatyuk is not alone in suspecting that there are some who find it convenient to retain doubts about the legitimacy of any trial and conviction. 

The trial in absentia of Yanukovych on State treason charges began in June 2017 and is ongoing.  On 7 February the Pechersky District Court in Kyiv issued a ruling allowing a criminal investigation in absentia against Yanukovych, the former head of the SBU [Security Service] Oleksandr Yakymenko and the former First Deputy Head of the SBU and head of the so-called ‘Anti-terrorist centre’, Volodymyr Totsky.  Similar applications are to be considered against the former Interior Minister Vitaly Zakharchenko, his deputy Viktor Ratushnyak and Petro Fedchuk, a former top Kyiv Police head.  All those named are in hiding, and Fedchuk is one of two key Maidan suspects now believed to be employed crushing protests in Russia.

The criminal proceedings are specifically related to the bloodiest days of Euromaidan – 18-20 February 2014.   In a pathos-filled post on Facebook, Prosecutor General Yury Lutsenko presented this as major progress, stating that “after the end of the trial of Yanukovych for treason, Ukrainians will witness the next trial – over the criminal order regarding Maidan”. Lutsenko further asserts that from his first day as Prosecutor General, he viewed his main task as being to answer the question: who bears responsibility for the deaths of Nebesna Sotnya [the 104 men and women killed during the Euromaidan protests]. 

In fact, the restructuring under Lutsenko of the Special Investigations Department which Horbatyuk heads, and removal of certain investigations, have not helped achieve this alleged aim.  In an interview to Radio Svoboda, Horbatyuk notes that the reduction in number of investigators and prosecutors has significantly hampered their work.

He is most concerned right now about the real danger of any conviction being overturned due to flaws in current legislation, as well as the unwise manner in which high-ranking officials have spoken about the aims of such legislation.

Law No. 4448a, passed in October 2014, introduced amendments to the Criminal and Criminal Procedure Codes making trial of a person who is in hiding possible in cases where the alleged crimes involve threats to national security, public order, or corruption.  Horbatyuk only mentions this law, however there was also Law No. 5610 , passed in March 2017 to overrule the time limit on in absentia investigations imposed with earlier legislation.   Civic organizations also spoke out in protest against this bill which imposed norms potentially infringing the rights of ordinary citizens, while being so openly aimed at getting Yanukovych on trial, that it could ultimately derail any resulting conviction.

It is quite clear that Yanukovych’s own lawyers are recording all statements about the need for such legislation as being “to bring Yanukovych to trial”, including from President Petro Poroshenko, to later use at the European Court of Human Rights as supposed proof of ‘political persecution’. 

While the ill-considered public statements can be explained away as populist attempts to get public approval, the failure to introduce the amendments advised by both Ukrainian and international experts is harder to understand.  The problem is not per se in the use of trial in absentia. Stringent requirements must be applied in any such case (regardless of how specific defendants are viewed) to safeguard the right to a fair trial,

It is worth noting that the Pechersky District Court’s ruling on 7 February comes a full four months after the Special Investigations Department applied for the permission, but in the run-up to the fourth anniversary of the killings.  Given that only two real prison sentences have been passed over any Maidan crimes, and only one person is currently imprisoned, the timing for this supposed ‘achievement’ would seem convenient. 

On the other hand, Tyzhden’ explains that there have been problems with ensuring attendance by Yanukovych’s defence lawyers, who claim that they are busy at the treason trial underway at the Obolon District Court. 

In fact, the ruling on Feb 7 was passed in the absence of all Yanukovych’s lawyers.  The prosecutor asserts that the case has been systematically dragged out by the defence, while the latter claim that Yanukovych’s right to defence has been breached. In addition to the lawyers from whom Yanukovych himself appointed, another lawyer from Ukraine’s Legal Aid Bureau has been taken on.  This is reportedly against Yanukovych’s wishes, so could also prove a stumbling block.

Not enough progress and it may get much worse

Horbatyuk warns that if the so-called ‘Lozovy amendments’ really do come into effect on 15 March, “then we can close the investigative divisions, and prosecutors’ since there are such a huge number of factors imposed so that a case doesn’t reach the court, that I don’t see the sense in criminal investigations”.

As reported, the amendment to the Criminal Procedure Code proposed by MP Andriy Lozovy could force the termination of all unsolved crimes committed during Maidan, as well as corruption cases, including that hanging over Lozovy himself.

The Lozovy amendment to the CPC, adopted on October 3 with a small majority (234 votes) restricts the period of pre-trial investigation into grave and especially grave crimes to six months prior to a person being informed of the suspicion and to two months after this (details here).  

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