Crime and (il­lu­sory) pun­ish­ment:

The Ukrainian Week - - CONTENTS - Stanislav Ko­zliuk

What coun­ter­ar­gu­ments Berkut lawyers use in Maidan tri­als

In the three years since it be­gan in­ves­ti­gat­ing this case, the Pros­e­cu­tor’s Of­fice has man­aged to track down a sig­nif­i­cant num­ber of sus­pects in cases re­lated to events on the Maidan in 2013 and 2014. These in­clude the beat­ing of stu­dents on Novem­ber 30, 2013, at­tempts to break up protests on the Maidan, the beat­ing of ac­tivists on vul. Hru­shevskoho, the or­ga­ni­za­tion of ti­tushky, and the so­called ATO in the cen­ter of Kyiv in late Fe­bru­ary 2014 with its tragic out­come: mas­sive shoot­ings on vul. In­sty­tut­ska. More­over, from time to time news tick­ers in­clude no­tices that new sus­pects have been ar­rested.

For in­stance, on July 17, the Pech­ersk District Court de­tained Bo­hdan Mel­nyk for nearly a month, un­til Au­gust 13, the lat­est ex-Berkut of­fi­cer sus­pected of crimes dur­ing the Euro­maidan rev­o­lu­tion. Mel­nyk is ac­cused, among oth­ers, of par­tic­i­pat­ing in the beat­ings of Au­tomaidan on the night of Jan­uary 23, 2014. That night, the po­lice ef­fec­tively or­ga­nized an am­bush on the pro­tes­tors and at­tacked them on vul. Schorsa and in Kri­pos­niy al­ley, an at­tack that was video-recorded and

broad­cast at the time. Not only were Au­tomaidan ac­tivists beaten, de­tained and even­tu­ally re­manded to court based on false ac­cu­sa­tions, but the Berkut also trashed their cars.

A num­ber of court cases are cur­rently be­ing heard re­gard­ing this par­tic­u­lar episode, in­clud­ing against Se­nior Of­fi­cer of the 1st Spe­cial Team of Berkut Mykhailo Do­bro­vol­skiy. The man de­tained this week, Bo­hdan Mel­nyk, was his sub­or­di­nate. In­ves­ti­ga­tors were search­ing for their man for 18 months and fi­nally found him in Ch­er­nivtsi Oblast. The Pros­e­cu­tor’s Of­fice says that the sus­pect was de­tained just as he was about to make his es­cape to Odesa. To sup­port this claim, the PO ar­gues that the young man had a ticket for the train. Mel­nyk him­self says that he had no idea he was wanted, that he had re­signed from the law en­force­ment agency in the spring of 2014 and moved back closer to his fam­ily. There, how­ever, he had a hard time get­ting a job, money got tight, and he de­cided to join his fa­ther as a mi­grant la­borer. He says he had no in­ten­tion of hid­ing from the in­ves­ti­ga­tion. On the con­trary, Mel­nyk says he is pre­pared to co­op­er­ate with the in­ves­ti­ga­tion and to tes­tify—but only about his own ac­tions. What­ever the case may be, the man is spend­ing nearly a month be­hind bars. Which could turn into more, given that the in­ves­ti­ga­tion is con­tin­u­ing. But de­tain­ing a for­mer Berkut of­fi­cer is not enough. The courts need to prove his guilt.

And this is where pos­si­bly the big­gest prob­lem arises, one that de­fense lawyers con­stantly use on be­half of their for­mer spe­cial forces clients: the fail­ure to prove the guilt of their clients. Put sim­ply, there is not enough in­for­ma­tion that say a hy­po­thet­i­cal Berkut of­fi­cer Petro Pe­trenko shot at ac­tivists, beat them or dam­aged their prop­erty. From time to time, the de­fense claims in court that in­di­vid­u­als who have been sep­a­rately de­tained can­not be re­spon­si­ble for the ac­tions of their col­leagues. Even lawyers at the Le­gal Aid Cen­ter in­sist that Ukraine only rec­og­nizes in­di­vid­ual re­spon­si­bil­ity, not col­lec­tive re­spon­si­bil­ity. In other words, it has to be proved that Petro Pe­trenko him­self beat, in­jured or killed an ac­tivist or dam­aged some­one’s prop­erty.

At any case, so the lawyers say. The story seems pretty log­i­cal. How­ever, the other point is that dur­ing the Euro­maidan events, most of the po­lice were with­out any mark­ings, wear­ing masks and hel­mets with­out iden­ti­fy­ing num­bers. In prac­tice, this could re­sult in dif­fi­cul­ties rec­og­niz­ing in­di­vid­u­als and prov­ing their guilt. Even if the case in­volv­ing the shoot­ings on In­sty­tut­ska man­ages to prove guilt us­ing bal­lis­tics, and prove that a given firearm was in the hands of a spe­cific in­di­vid­ual, what can be done to prove any­thing against those who sim­ply beat some­one up in the dark? Most of the vic­tims are only likely to rec­og­nize their at­tack­ers’ voices, but the guilty in­di­vid­ual has to be de­tained first—prefer­ably ar­rested, so that they can­not in­flu­ence wit­nesses, dis­tort ev­i­dence and so on. That’s why the PO ap­pears to be jus­ti­fy­ing its pre­ven­tive mea­sures by ap­peal­ing to ev­ery pos­si­ble op­tion and risk pro­vided for in the Crim­i­nal Code.

This prob­lem brings up an­other one: pun­ish­ing the in­di­vid­u­als who gave the or­ders. It has been brought up in courts, and not only there, for more than a year now. If we take the lat­est ex­am­ple of Mel­nyk, his su­pe­rior, Do­bro­vol­skiy, should re­ceive the harsher pun­ish­ment. Af­ter all, he’s the one re­spon­si­ble for de­ter­min­ing the ac­tions of his sub­or­di­nates. Real­is­ti­cally, the rank-and-file Berkut did not de­cide on their own to set up an am­bush for the Au­tomaidan ac­tivists. This was a planned op­er­a­tion, which means some­one had to put it to­gether. This means that the Pros­e­cu­tor’s Of­fice and Ukrainian so­ci­ety as a whole should be in­ter­ested in bring­ing these in­di­vid­u­als to jus­tice. But here, again, there are com­pli­ca­tions. If we look at the pre­ven­tive mea­sures taken by the courts, they leave an im­pres­sion that there is not enough ev­i­dence of the guilt of one or an­other of the Berkut. De­fense lawyers in­sist that the ev­i­dence in these cases lacks concreteness: who was beaten, when they were beaten, whose prop­erty was dam­aged, who was shot. More than that, who specif­i­cally suf­fered as a re­sult of the ac­tions of a spe­cific de­fen­dant. With­out this in­for­ma­tion, even the mat­ter of ar­rest­ing peo­ple, let alone su­ing them, be­comes ques­tion­able.

What might help in this sit­u­a­tion is tes­ti­mony from other par­tic­i­pants in the event, i.e., other sus­pects. Tes­ti­mony about the ac­tions of their su­pe­ri­ors by rankand-file Berkut would also help strengthen the body of ev­i­dence. Un­for­tu­nately, most of them are choos­ing to re­main silent, for a va­ri­ety of rea­sons. First of all, it doesn’t re­ally mat­ter that se­nior of­fi­cers of the Berkut like Dmytro Sadovnyk and Ser­hiy Ku­siuk fled to Rus­sia, be­cause other top of­fi­cers man­aged to suc­cess­fully re-cer­tify and re­main in law en­force­ment ranks. This al­lows them to in­flu­ence the process of in­ves­ti­gat­ing and hunt­ing down sus­pects.

Se­condly, as the PO ex­plains, the ac­cused Berkut of­fi­cers con­tinue to be in con­tact with one an­other and to share in­for­ma­tion. And, as the lat­est case shows, the sus­pect is pre­pared to tes­tify against him­self, but not against his own su­pe­ri­ors. What the rea­sons be­hind this are is some­thing only the de­tained Berkut him­self can an­swer.

If in­stead of po­lice of­fi­cers, the ques­tion is raised about the ti­tushky or hired thugs, who were par­tic­u­larly vis­i­ble in the last days of the Euro­maidan, the story is al­most the same: the bosses of these “sports­men” not only don’t have an elec­tronic bracelet around their an­kles in some cases—they have no per­sonal li­a­bil­ity. The best ex­am­ple of this is the story of Yuriy Krisin, who is sus­pected in the mur­der of jour­nal­ist Vi­ach­eslav Ver­miy. Both in­ves­ti­ga­tors and ac­tivists have iden­ti­fied Krisin as one of the lead­ers of the group of ti­tushky who were beat­ing ac­tivists and shoot­ing them at the end of Fe­bru­ary 2014. Yet in three years, no one’s even been able to de­tain him in a CIZO, even though he’s man­aged to com­mit yet an­other se­ries of crimes in the mean­time, while rank-and-file beefed-up thugs are al­ready sit­ting be­hind bars.

Add to this an un­re­formed ju­di­ciary, where those ser­vants of Jus­tice who once judged the Maidan ac­tivists are now judg­ing ti­tushky and riot po­lice—we end up with al­most the same story as with the Berkut: the top of­fi­cers are very likely to avoid pun­ish­ment while those who car­ried out their or­ders are sit­ting si­lently be­hind bars, await­ing a sen­tence.

LAWYERS FOR BERKUT OF­FI­CERS IN­SIST THAT THE EV­I­DENCE IN THEIR CASES LACKS CONCRETENESS AS TO WHO SUF­FERED AS A RE­SULT OF THE AC­TIONS OF A SPE­CIFIC DE­FEN­DANT. TES­TI­MONY FROM OTHER SUS­PECTS MIGHT HELP BUT MOST OF THEM RE­MAIN SILENT

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