Monitoring the trial of S. Zinchenko, P. Ambroskin, A. Marinchenko, S. Tamtura, O. Yanishevsky (session- December 17, 2019)

On December 17, a regular court session was held in Kiev on the case of ex-employees of the Kiev riot police “Berkut” regarding the events that took place on Maidan in January 2014. All five are accused of obstructing public rallies, abuse of power, murders, and other crimes. Experts from the International Society for Human Rights (ISHR) continue to monitor this lawsuit.

During the trial, as a witness, court questioned Elena Lukash, ex-Minister of Justice. The interrogation itself lasted more than an hour, so we will single out several key points from it:

  1. Representatives of the Maidan (A. Yatsenyuk, V. Klitschko, etc.) repeatedly came to the administration of the President of Ukraine with various proposals for a ceasefire, in addition, they complained that activists on the Maidan were uncontrollable and “bad.”
  2. She noted that V. Yanukovych was against the force dispersal of the Maidan.
  3. She emphasized that she considers the amnesty of all activists and the parallel criminal prosecution of law enforcement officials unfair.
  4. She argued that the protests were not peaceful, a confirmation of this is the fact that even in the Law of Ukraine “On the Prevention of Harassment and Punishment of Persons Related to Events that Occurred During Peaceful Meetings and the Recognition of Certain Laws of Ukraine as invalid” refers to that activists committed a number of crimes in the flesh before seizing state power and are exempted from punishment for these crimes, that is, the phrase “peaceful protest” is inappropriate to use when describing the events of that time.
  5. She noted that her employees personally faced aggression by activists (employees were taken hostage in the building of the Ministry of Justice and watched how activists destroyed property of the state agency).

In general, the ISHR experts cannot single out any violations at this court hearing. The ISHR observer tried to find out from the defendants themselves whether they could point out any violations in their favor, but they said that there are no problems at this time.

The only point that caused concern was the lengthy stay of the accused in custody. Since, as you know, the right to liberty and security of the person is of paramount importance in a democratic society in the meaning defined by the Convention (“Medvedyev and others v. France”, § 76; “Ladent v. Poland”, § 45, 18). Undoubtedly, under certain circumstances, the application of a measure of restraint related to the restriction of human freedom is an admissible phenomenon, but the court decision in this case should be motivated by very strong arguments, otherwise prolonged detention may be regarded as a violation of Article 5 of the Convention.

The case law of the ECtHR confirms our findings. Thus, the Court noted that the absence of any grounds indicated by the judicial authorities in their decisions on long-term detention may not be compatible with the principle of protection against arbitrariness, as enshrined in paragraph 1 of Article 5 (“Stasaitis v. Lithuania”, § § 66-67).

At the moment, we cannot ascertain the fact of an unjustified extension of the measure of restraint, since we are not familiar with the motivation of the prosecutors when submitting the application and the motivation of the board of the court when deciding on the extension of the measure of restraint.

Nevertheless, the issue of detention has lost its relevance in connection with the inclusion of ex-Berkut officers in the exchange lists between Ukraine and the LPR-DPR and the exchange that was subsequently made.

The International Society for Human Rights wants to note the professionalism of the presiding judge in this criminal proceeding. So, despite the fact that phrases sounded from the witness that could lead to the idea that the witness was trying to interpret the law to the court, the judge answered very respectfully. We consider this point to be important, since more than once we observed during the sessions the openly boorish attitude of judges even towards the parties to the lawsuits while expressing their legal position (the case of V. Yanukovych, the case of A. Chibirdin).

Experts from the International Society for Human Rights will continue to monitor and clarify the details of this trial, clarifying the decision made in the case, taking into account the exchange of accused.