“The Yanukovych case”: what lesson have we drawn?

Expert: “There is no understanding that political processes need to be separated from legal issues”

These days four years ago, there was not much time left before the tragic apogee of the Maidan. A week later (February 18-20, 2014), dozens of people were shot in the center of the Ukrainian capital. Then Viktor Yanukovych fled the country, and our current rulers came to power. Has any representative of the then authorities been brought to account for the terrible crimes committed? They have fled, you will say. Yes, but has a quality investigation been carried out at least? Or have we seen a trial in absentia happening?

On the latter matter, some new information has appeared lately. It is quite likely that the current government decided to accelerate the process precisely due to the approaching anniversary of the tragic events. They are just used to working this way – marking an important date with some actions.

Thus, Prosecutor General Yurii Lutsenko wrote on Facebook: “From my first day in office, I have felt that my main task is to answer the question: who is to blame for the deaths of the Heavenly Hundred? During this year-and-a-half, a lot has been done: 280 individuals who executed criminal orders to commit acts of violence against Maidan protesters are being tried. But the public rightly asks: who was the organizer of the shootings of peaceful protesters? ... Today, after months of controversial actions by Yanukovych’s defense team, the Pecherskyi District Court of Kyiv allowed us to hold a special (in absentia) preliminary investigation of former president Yanukovych, former head of the Security Service of Ukraine (SBU) Oleksandr Yakymenko, and former first deputy head of the SBU Volodymyr Totskyi’s involvement in the Maidan shootings. This means that after the completion of the Yanukovych high treason trial, Ukrainians will witness the next trial dealing with criminal orders to attack the Maidan. As to the other three persons involved in this criminal proceeding, namely Vitalii Zakharchenko, Viktor Ratushniak, and Petro Fedchuk, similar prosecutorial motions will be considered in the near future.”

The investigation team blames ex-president Yanukovych and other former high-ranking officials of involvement in the Maidan shootings. From February 18-20, 2014, clashes between protesters and law-enforcement officers saw more than 100 activists of the Euromaidan and 19 police officers killed.

In response, Yanukovych said that he was dissatisfied with the court’s permission to hold an in absentia investigation into his actions, and accused the current government of preventing his lawyers from attending the court hearing, This claim is contained in a statement by the ex-president which was posted on Facebook by the spokesman of his son Oleksandr Yanukovych, Yurii Kyrasyr. “The current Ukrainian regime has stooped to criminal measures, namely using force to remove my lawyers from the trial in the so-called Maidan case, which is allegedly being ‘heard’ by the Pecherskyi District Court of Kyiv,” stated Yanukovych.

Let us recall that the Obolonskyi District Court of Kyiv is already hearing a case against Yanukovych on charges of high treason. Yanukovych himself, who is currently residing in Russia, rejects all the allegations against himself. He testified in court through a video link.

A very important point in this whole story is to see not just criminal cases against former high-ranking officials, but high-quality investigations. After all, any mistakes made during them may then serve as grounds for the annulment of judgments in European courts, if, for example, Yanukovych decides to bring the matter there. There are even examples where representatives of the former regime have already won cases in European courts: for example, Andrii Portnov. Journalists, of course, can be blamed for interviewing Portnov or Olena Bondarenko (this is a separate matter, though), but what has the current Ukrainian government done to prove the guilt of former officials? Therefore, this story, in fact, is not just indicative, but also instructive, both from a legal and a political point of view. It is these key matters that are dealt with in the commentary below, offered by lawyer, Candidate of Law, senior research fellow at the Koretsky Institute of State and Law (the National Academy of Sciences of Ukraine) Mykola SIRYI.

“I would like to recall the statement of Prosecutor General Lutsenko that the conviction in the first case involving treason had to be obtained by September 2017. It is February 2018 now, that is, it has already been six months since this stated date, and we see that the end of this proceeding is nowhere in sight. This implies irresponsible attitude on the part of the state, in particular the Prosecutor General’s Office (PGO), towards the construction of its strategy. It must be understood that if a certain action is announced, the PGO must exhibit professionalism and understanding of the situation, that is, they must know how the events will develop. If you want to amend the law, and in fact the in absentia procedure needs this to be legal, then it was necessary to do so a year ago and understand how the trial will develop. Unfortunately, we are seeing a situation instead when people are starting to act blindly, not knowing what consequences these actions will have.

“As for the Maidan killings, we also see that the prosecutor general is again in a hurry to make statements and demonstrate seemingly dynamic progress. I would not want to offer a negative forecast, but it is likely that we will have the same situation in that latter trial too. In general, those people who take important decisions in the legal sphere today lack understanding that political processes need to be separated from legal issues. Beginning one or another legal proceeding, including a trial, one needs to have a good hold on one’s tools and to separate political information from purely legal proceedings. In my opinion, it is in this area that we have serious problems and the corresponding consequences.

“With regard to the formal issues of defense provision, the accused person always takes lead in choosing a counsel. That is, the state cannot impose on the person a counsel that it considers to be the best from its own perspective. Therefore, any actions aimed at ignoring the right to legal defense can be perceived positively neither in Ukraine nor abroad. It should also be remembered that an in absentia trial is a quasi trial, after which it is still possible to return to the complete trial mode. Therefore, when starting any in absentia trial, it is necessary to conduct it as one, that is, in an abbreviated form. After an in absentia trial, the person against whom the verdict is pronounced is still entitled to a complete trial.

“The fact that we need to raise the issue of the legal responsibility of Yanukovych and the then supreme leadership of the nation, who used excessive force and weapons against people which led to numerous deaths – that fact is indisputable. But if the state is involved in this trial, in particular the PGO, then everything must be done in a professional, authoritative manner, with an understanding of how this trial will develop. What we are seeing now is the prosecution team lacking full understanding of the essence of the trial. Therefore, we see the high treason trial expanding its scope beyond belief. The impression is that they plan to question the entire military establishment and the entire political class of Ukraine, including past, present, and future figures. This indicates a nonprofessional approach.”