Report Summary

Accountability for Violations Committed During and in the Aftermath of the EuroMaidan Protests in Ukraine

The absence of independent judges and public prosecutors remains a serious obstacle to bring justice to the many protesters who took part in the EuroMaidan protests in Ukraine from November 2013 to February 2014. This summary explores Ukraine’s struggle to try the perpetrators of the EuroMaidan protests, including government officials, law enforcement bodies and judicial authorities, which is followed by recommendation[1].

I. Introduction

Generally, the Ukrainian judiciary has long been suffering from intense political pressure and high levels of corruption, resulting in a great loss of public confidence in the justice system[2]. There are constitutional safeguards that protect the independence of judges[3] but “buying” or “settling” judicial decisions is perceived as common practice in the public mind[4]. Criminal trials, for example, are often subject to irregularities and major delays. It is reported that these delays are caused by political obstruction. As judges barely face disciplinary action for their wrongdoings, the mistrust in the judiciary remained. Not surprisingly, only 2.9 % of the Ukrainian population conceives the judiciary as a fair and just institution[5]. Besides, the World Justice Project ranks Ukrainian criminal courts 78th (out of 113 countries) in its corruption index for 2016[6].

 

While joining the Council of Europe in 1995, the Ukrainian government attempted to improve the independence of the judiciary[7]. A judicial reform was introduced but the country struggled to meet important deadlines. Thereafter, the judiciary remained untouched for almost two decades. In the 2007 report, the Commissioner for Human Rights[8] listed among the shortcomings of the Ukrainian judicial system: severe attempts to interfere in the administration and decision-making of courts and pressuring judges through physical threats and blackmailing. Courts were “not always guided solely by the constitution and laws of Ukraine” and subjected to wrongful influence of public office holders. The performance of the judiciary became even worse when the former president Viktor Yanukovych came into power in 2010. With the help of his close ally Andrii Portnov, his administration managed to shift the courts’ power to the executive branch. After Mr. Yanukovych’s escape, the law “On Restoring Confidence in the Judicial System of Ukraine” entered into force in 2014. The new law removed the former court chairmen, who reputedly took orders from the political elite to assign cases to judges who were known for sharing the same viewpoints as the government. The chairmen were also in charge to determine the salary and other working conditions of lower rank judges which gave them a powerful position within the judiciary. The new law, however, enabled the judiciary to select new chairmen by itself[9]. In 2016, another judicial reform, the law “On the Judiciary and Status of Judges”, transferred partly the power to select, promote and discipline judges from the president and parliament to the high council of justice, a purely judicial body elected by its peers[10]. The latest judicial reform also furthered the merit-based promotion of judges and restructured the Supreme Court. The recruitment of new judges started in December 2016. According to the Venice Commission, “the time has come to proceed with this long overdue reform in order to finally move towards achieving an independent judiciary”. The reforms “represent an important step towards reaching this goal”. Nevertheless, the success of these judicial reforms strongly depends on the judiciary and its willingness to implement the new rules into practice. Currently, it looks like many judges, as this summary will explore, reject any changes to their profession.

 

Similarly, the prosecution service is conceived as traditionally loyal to the prevailing interests of the political elite. In short, one can say that the basis of Ukraine’s judicial system is a Soviet heritage that ignores the separation of power and provides the prosecution service with far-reaching competencies[11]. The prosecution office is generally regarded as understaffed and underfunded, leading to widespread bribery within the profession and delayed and fabricated initiations of criminal proceedings. According to Ukrainian law, public prosecutors are tasked with representing the state’s and the victim’s interest, and bringing perpetrators of crimes to justice. Their independence is protected by law. The service is headed by the prosecutor general who oversees, in cooperation with her or his deputies, all investigations carried out by the service and administrative matters (such as technical and financial support to prosecutors).

 

II. The EuroMaidan protests

 

While in office, Mr. Yanukovych’s party held a majority in parliament that enabled him to make far-reaching changes to the constitution. As a result, his administration eroded the balance of power, restricted the freedom of assembly and heavily infiltrated the judiciary and law enforcement bodies (e.g., through controlling the appointment and dismissal process of judges). Lastly, Mr. Yanukovych rejected to sign an association agreement with the European Union to strengthen fundamental principles and values in Ukraine, such as improving the rule of law and democracy. This and other shortcomings of Yanukovych’s administration took thousands of protesters onto the streets and led to mass demonstrations in the period from November 2013 to February 2014. These protests became known as the “Euromaidan protests” (or “Revolution of Dignity”) internationally. During that period, many judges and public prosecutors aligned with the government and charged and convicted protesters. They were persecuted by administrative and judicial authorities for their non-violent participation in the rallies. In total, about 115 people were killed (among them at least 100 activists), 700 people were injured (about 100 people suffered from severe injuries) and 18 people went missing during the Maidan protests.

 

The first spontaneous and peaceful rally was organized through social networks and took place at Kyiv’s central square, Maidan Nezalezhnosti, on 23 November 2013 when Mr. Yanukovych suspended preparations for signing the EU-Ukraine Association Agreement. Protesters installed tents that were banned the very same day by a court. Several protesters ignored the ruling. Their tents belonged to members of the opposition party to whom the ban did not apply. The next day the rally was joined by about 20,000 students and other peaceful demonstrations across Ukraine and in front of Ukrainian embassies abroad. The protests were mostly organised by civil society organisations, bloggers and student leaders. In turn, Yanukovych restricted the freedom of assembly (unsuccessfully) and discredited journalists for supporting the Maidan protesters. Pro-government media outlets dismissed the protests as small and unpopular. On 29 and 30 November 2013, Mr. Yanukovych attended the EU summit in Vilnius but did not sign the EU-Ukraine agreement. This led more than 100,000 people to protest in Kyiv and other parts of the country, calling for Yanukovych’s resignation. Police officers tried to violently disperse the protests. People who wanted to join the rallies and travelled by car to Kyiv were stopped by special forces and were not allowed to continue their journey.

 

During that period, it is well documented that judges and public prosecutors received instructions from Yanukovych’s administration and court presidents to stop the mass protests. For instance, testimonies given by a current member of the high council of justice, Mr. Mamontova, who previously served as a chairman of the Obolonskiy district court of Kyiv, and the former president of the court of appeal of Kyiv, Mr. Chernushenko, show that public prosecutors deliberately arrested protesters and supported criminal charges against them. They also authorised police operations that resulted in the kidnapping, torture, shootings at and killings of supporters of the Maidan rallies.

 

For now, it does not seem likely that judicial authorities will face justice for their misconduct and that this culture of impunity will come to an end through the latest judicial reforms. After Mr. Yanukovych and other senior officials (such as the former prosecutor general Viktor Pshonka) had fled the country, the prosecutor's office was tasked with investigating the crimes committed during the Maidan protests, with only little success. Overall, progress has been slowly and only a small number of judges and public prosecutors faced disciplinary action for their wrongdoings. As of July 2016, fourteen (mostly lower rank) judges and thirteen public prosecutors were brought to justice.

 

III. Failures of the prosecution service

 

In short, delayed reforms, grave misconduct during pre-trial investigations and the failure to solve personnel issues made it difficult for the prosecution office to carry out effective investigations into the Maidan protests. First, there are only a few public prosecutors who are in charge of the Maidan events. Working with the prosecutor’s office is seen as less attractive for many jurists as the position lacks job security and appointees are normally overwhelmed by the workload of the service. Another shortcoming is the involvement of “Maidan public prosecutors”, public prosecutors who served under Yanukovych, in the Maidan proceedings. Many of these public prosecutors were assigned to the Maidan cases which raises serious doubts about their impartiality during the investigations. For instance, Mr. Nichiporenko, public prosecutor under Yanukovych and currently deputy chief of the department of procedural management of Kyiv, has not been held responsible for his actions until now. Instead he was promoted under the post-Maidan government and tasked with overseeing the investigations of the prosecutor's office of Kyiv, a position in which he has broad authority. Furthermore, each change of leadership meant a major setback for the Maidan investigations. The prosecutor’s office has been headed by five different general prosecutors since 2010. The prosecutor's office repeatedly abused its power and interfered with the work of lower rank public prosecutors, thereby delaying the coordination of investigative actions, suspicions and measures. As a result, investigation bodies missed opportunities to collect evidence and were unable to identify perpetrators in a significant number of cases. It is also reported that evidence was destroyed (such as photos, video and audio recordings).

 

The first investigations into the “Maidan cases” were led by the former prosecutor general Viktor Pshonka who later left the country. Mr. Pshonka was appointed head of the prosecution office on 4 November 2010 and an active supporter of Yanukovych’s administration. In an interview with the TV channel “Inter”, Mr. Pshonka described himself as a member of the government who is loyal to the president. His period of office was marked by fabricated evidence, which was used against supporters of the Maidan protests, and impunity for those who committed grave human rights violations during the rallies. It can be said that the political elite and higher rank officials escaped justice under his leadership. They were not tried because they disappeared or law enforcement bodies and other agencies destroyed the evidence against them. For instance, corpses of activists who were killed by the police were brought from the scene of the crime to another location right after the killing. Documents showing that political authorities gave instructions to the special forces unit “Berkut” to violently disperse protests disappeared. Civil society activists who, however, tried to shed light on the Maidan events were harassed and tortured by government officials and intelligence.

 

During the Maidan events, Mr. Pshonka met with the key figures who oversaw the police operations during the Maidan events. This included senior government officials and intelligence, such as the head of the Kyiv state administration, the deputy secretary of the national security and defence council (“NSDC”), the head and other officials of national police of Ukraine (“MIA”) and officers of the ministry of interior. Many people who attended the Maidan rallies were beaten up by police officers and security forces, and claims of protesters who wanted to bring criminal charges against the perpetrators were ignored. Mr. Pshonka also initiated the law “On eliminating negative consequences and preventing prosecution and punishment of persons regarding the events that took place during the peaceful assemblies”[12] that entered into force on 16 January 2014 and guaranteed impunity for all public officials in the context of the Maidan events. Based on this new law, the Pecherski district court of Kyiv, for example, closed cases against law enforcement bodies on 31 January 2014.

 

Mr. Pshonka also ordered to drop cases concerning severe crimes, such as police killings. In other cases, police officers conducted only “internal investigations”, meaning that investigations were not carried out, evidence was not collected and cases were never transferred to the prosecutor’s office. In total, protesters filed 166 cases. Most cases were closed in the period from 19 to 22 February 2014. Only five individuals were tried but not convicted. Four cases were dropped due to the new amnesty law and one case was closed for lack of evidence. Mr. Ivanenko, for example, was an active supporter of the Maidan rallies for which he was kidnapped and tortured by MIA officers. Thereafter, Mr Ivanenko had obvious signs of torture on his body and was able to identify his attackers. His case was, however, dropped by the Obolonskiy district prosecutor’s office of Kiev. Mr. Ivanenko then filed a complaint to a special unit of the general prosecutor’s office. Some of his perpetrators were tried but the prosecution ignored Mr. Ivanenko’s allegations of torture against the officers. In another case, Viacheslav Zagorovko, Yegor Previr and others who attended a rally at Bankova street were arrested, beaten up and left outside in freezing temperatures. This case became known as the “Bankova prisoners” case. While in court, some suspects collapsed. Despite this, the prosecution continued to press the court for charges. Mr. Zagorovko has suffered from chronic illness since then. Two other Maidan supporters, Andrei Shmindiuk and Denis Rubtsov, were accused of hooliganism. Officers of MIA destroyed cars and hit both activists. Afterwards, the two men were driven through the city and interviewed in various police departments, without access to medical treatment. On 21 January 2014, Mikhail Nyzkohuz was repeatedly beaten whilst laying on the floor and stabbed in the leg by officers of the special forces unit “Berkut” at Grushevsky Street in Kyiv. At that day, the temperature was twenty degrees below zero. Mr. Nyzkohuz did not receive any medical treatment. His allegations of torture were dismissed. The investigations into his attackers are still ongoing.

 

Mr. Pshonka was succeeded by Oleh Makhnitskiy, who headed the prosecution office from 22 February 2014 to June 2014. The very same day he was appointed Mr. Makhnitskiy replaced the entire senior staff of the main investigation department. But also Mr. Makhnitskiy failed to try the perpetrators of the Maidan protests. During his period of office, only two cases were brought to justice[13]. It is said that Mr. Makhnitskiy lacked the experience to work on a large scale of complex cases, such as the Maidan cases. Specifically, a body overseeing and coordinating all Maidan investigations that were carried out by law enforcement bodies, intelligence and other state agencies was missing. During Mr. Makhnitskiy’s leadership, 50 investigators worked on 77 killings and 185 attempted killings in different state agencies. During his leadership, it was also decided to reassign 25 out of 28 investigators who had worked on the “Maidan cases” to other departments. This is why some state agencies decided to transfer their ”Maidan cases” to the prosecution office of Kyiv, without overseeing its work. Besides, regular meetings to coordinate the actions of all state departments in the context of the Maidan cases were not held. Urgent matters were only communicated in written. This caused further trial delays and loss of evidence. In some cases, it took months to conduct internal investigations. Strangely enough, no attempt was made to find the documents that disappeared under Mr. Pshonka’s leadership. Additionally, interviews with police officers who served during the Maidan events were stopped. It was argued that the interviews would have had a “negative psychological impact” on the police officers. Later, a minister who headed one of the state departments investigating the Maidan events called for the resignation of Mr. Makhnitskiy, citing the many shortcomings of his leadership[14].

 

The third period of investigations took place from June 2014 to February 2015 under the leadership of Yarema Vitaliy Hryhorovych. But Mr. Hryhorovych did not succeed either. It is said that he lacked the necessary independence and impartiality to investigate the Maidan events. For instance, investigations into the “Berkut killings” were not conducted. The suspects managed to leave the country shortly before their arrest in July 2014. Besides, Mr. Hryhorovych did not tackle any of the organisational and administrative flaws of his office and other state agencies. Instead, Mr. Hryhorovych restructured his department and hired people who had no experience in carrying out investigations.

 

On 10 February 2015, Viktor Shokin replaced Mr. Hryhorovych. Mr. Shokin, a well experienced public prosecutor, first seemed willing to improve the coordination of the Maidan investigations. He served from February 2015 to May 2016. Mr. Shokin recognised, for example, that the high volume of cases involving cases from many different parts of the country required further structural changes within the criminal justice system. He therefore called for a more efficient cooperation of national and regional investigation bodies. He consulted with the regional prosecution offices and held regular meetings with them. They agreed to support the Maidan investigations and identify the perpetrators[15]. Additionally, Mr. Shokin tackled his understaffed department and the lack of technical facilities. Some computers, notebooks and photocopiers were delivered in February 2016. Moreover, Mr. Shokin created the new office of special investigations, responsible for carrying out investigations into the misconduct of senior officials and regional prosecutors. More than 500 Maidan cases were transferred to the new body. Despite this, no regional public prosecutor stood trial during Mr. Shokin’s term in office. It is reported that Mr. Shokin shielded fellow prosecutors from disciplinary actions and encouraged them to rush through investigations. As a result, many charges against Maidan perpetrators were dropped.

 

The fifth period of investigations was marked by major changes. In June 2016, Mr. Yurii Lutsenko succeeded Mr. Shokin. Mr. Lutsenko restructured the office of special investigations and renamed it “department of special investigations”. Nevertheless, an independent supervisory body overseeing the department’s appointments is still missing and a great number of perpetrators managed to escape justice under Mr. Lutsenko’s leadership. This is due to a new law that decriminalises many crimes committed during the Maidan protests. The law “On the State Bureau of Investigation”, which came into force on 12 January 2016, contains many vague terms. It lacks, for example, a definition when an act commences. 314 Maidan cases were investigated until July 2016, including 45 former government officials, 168 police officers, 16 investigators, 12 prosecutors and 14 judges. 130 cases were brought to court and 22 suspects faced trial. These cases involved 170 individuals including 32 former government officials, 102 members of MIA, 9 investigators, 6 public prosecutors and 2 judges. In total, the department of special investigations conducted approximately 95,000 investigative measures, held about 6,000 interviews with victims and witnesses and brought 2,300 cases to court. It is reported that the number of people standing trial was deliberately kept low due to the unwillingness of many investigation bodies to try former officials.

 

IV. Failures of the judiciary

 

Another reason why progress has been slowly is the lack of judicial independence in Ukraine. Generally, judges who opposed the policies of Mr Yanukovych are largely outnumbered by justices who supported his administration. Only a small number of judges was held to account for their wrongdoings in criminal or disciplinary proceedings. Additionally, there are strong indications that judges, who remained in office after the government change and are in charge of the Maidan cases, are unwilling to try perpetrators. Many “Maidan judges” hinder investigations by delay tactics and making unlawful decisions (as the cases of Dmitri Sadovnyka, a former major of the anti-riot police unit, and Serhiy Arbuzov, the former deputy prime minister, who were released from custody show). “Maidan judges” barely face consequences for this misconduct. The Pecherskiy Court, however, ruled that judges should be disqualified should there be the “slightest feeling of doubt” about their impartiality[16]. The very same court also required the public prosecutor Donskoho to be replaced because he and the suspect had met to discuss the case[17]. Furthermore, it is reported that judges face internal pressure to align their viewpoints with superiors.

 

Judges repeatedly ignored fundamental rights of activists during the Maidan protests. They banned peaceful assemblies, granted arrest for regime critics for no apparent reason and suspended their driver’s licence to prevent them from joining the rallies. While the rallies took place, judges received multiple phone calls from Yanukovych’s administration, including the head of the justice department, to speed up proceedings against regime critics. Activists were often accused of administrative offences (such as participating in unlawful assemblies). The judges were also advised to consider large fines and imprisonment for the suspects. When judge Mamontova, the former president of Obolonskiy district court of Kyiv and currently member of the high council of justice, refused to instruct his fellow judges, he was threatened to be dismissed and resigned. In January 2014, another judge replaced him as head of Obolonskiy district court. Under his leadership, several political activists were tried. Mr. Mamontova’s testimony was verified by another judge of Shevchenkivskiy district court, Mr. Makarenko, who was pressured by his superior, Mr. Mielieshak, to speed up trial proceedings against Maidan activists[18].

 

High-profile cases, such as the killing of 39 protesters by a former police officer who belonged to the special forces unit “Berkut”, are accessible for the public and broadcasted through live transmissions. Judges also respect fair trial rules in these the trials. But things are different for cases that are considered as less important and therefore draw less public attention. In those cases, political obstruction is common. In total, about 300 judges who served with the Yanukovych administration and convicted Maidan protesters remained in office in the post-Maidan government. There are many cases in which “Maidan judges” dismiss to call witnesses or base their decisions on fabricated evidence[19]. Judicial misconduct is likely, for example, when judges exclude the public from hearings[20] and refuse to publish their rulings in the national court register[21]. These and other practices were also acknowledged by a ruling of the court of appeal of Kyiv on 10 June 2015[22].

 

At some courts, the “Maidan judges” outnumber impartial colleagues, such as in Shevchenkivskiy, Obolonskiy, Darnitskiy, Desnianskiy and Podolskiy. Pecherskiy court of Kiev, for example, where many Maidan protesters were tried, is still headed by the very same judges, Mr. Tsarevych and Mr. Kitsiuk. The court cleared several perpetrators. In another court, Vyshgorodskiy district court, five out of eight judges are “Maidan judges”[23]. One of these “Maidan judges“ is Ms. Scarlat who also presided the case of Maidan protester Arseniy Tolstykh. The tactic used by Ms. Scarlat to considerably delay trials against Maidan perpetrators has become common practice in Ukraine[24]. Due to this, Mr. Tolstykh was not allowed to exercise his right to self-defence for the period of two years. First, Ms. Scarlat transferred the case, without giving any reasons, to the court of appeal from which it was returned to the district court on 21 December 2014. The case of Mr. Tolstykh was then assigned to Mr. Pidkurhanniy, another Maidan judge, who did not hold any hearing for a period of eight months. In August 2015, Ms. Scarlat was reassigned to the case. The prosecution office opposed her assignment due to her conflict of interest in the case. The claims were dismissed by Mr. Deviatko, another Maidan judge, stating that there was no reason to disqualify Ms. Scarlat. Thereafter, Ms. Scarlat transferred the case to the prosecution office and required its disclosure for lack of evidence. The prosecution appealed against her decision. On 2 December 2015, the court of appeal required the district court to re-open the case. The case was first assigned to judge Kotliarova and, after a period of six months, reassigned to Ms. Scarlat. On the request of the prosecution office, the court of appeal affirmed its previous decision on 8 July 2016 and transferred the case to Mr. Rudiuk, another “Maidan judge”, at Vyshgorodskiy District Court[25].

 

A similar delay tactic was also used in another case concerning the special forces unit “Berkut”. Two activists were arrested unlawfully on 24 January 2014 by “Berkut” officers. The prosecution transferred the case to the Solomenskiy district court of Kiev on 26 May 2015. The district court, presided by Maidan judges, did not hear any witnesses for a period of fifteen months. The case was then transferred to the court of appeal affirming impartiality of the judges of Solomenskiy district court. Thereafter, the judges Agafonov, Gubko, Zakharova and Moskaliuk, who were in charge of the case, recused themselves and the case was transferred to another district court, the Obolonskiy district court of Kiev. The judges of Solomenskiy district court were not required to make a statement on the grounds of their recusal. It is likely that the responsible judges at Obolonskiy district court, supporters of Yanukovych, will use the same delay tactic[26].

 

There are also several cases involving close allies of Mr. Yanukovych who were accused of grave crimes and were not convicted. For instance, the former director of Ukraine’s national bank, Mr. Arbuzov, was accused of possession of an illegally seized property. The investigating judge, Mr. Pidpalyi, however, did not see any grounds to convict him[27]. In another case, Mr. Ivaniushchenko, another close ally, was accused of severe crimes. His lawyer filed a motion that was forwarded to the court of appeal.

 

The court of appeal decided to clear Mr. Ivaniushchenko[28]. The “Berkut” commander, Dmytra Sadovnyka, was accused of mass killings of Maidan protesters that took place on 19 to 20 February 2014. Despite the gravity of his crimes, he was released and later disappeared. He was set free by judge Volkova, a “Maidan judge”, who decided to release Mr. Sadovnyka on house arrest on 19 September 2014[29]. With this decision, Mr. Volkova breached Ukrainian law as he ignored a decision made by the investigating judge to detain Mr. Sadovnyka until 28 September 2014. According to Ukrainian law, a suspect can only be released unless there is no other decision in force. Anatolii Logvynenko, another commander of “Berkut” and accused of severe crimes, was also placed under house arrest[30]. Public prosecutors also brought about 50 cases against former law enforcement officers to district courts. The suspects had tampered evidence against Maidan protesters and were accused of forgery. In July 2016, most suspects, however, were released from custody and only one fifth of them faced trial[31].

 

Moreover, there are strong indications that the high council of justice shields Maidan judges from justice. According to article 375 of the criminal code, a judge who willingly or knowingly delivers an unlawful judgement shall either be suspended from the service or imprisoned for up to five years. Seven cases have been transferred to criminal courts concerning judges who are accused of politically motivated convictions against Maidan protesters. For instance, the judges Tsarevych and Kitsiuk convicted several protesters for attending a car rally to Mezhyhiriia and disqualified them from driving on 29 December 2013. It is well documented that they both based their decisions on fabricated evidence. Later, Mr. Tsarevych was tried by by Mr. Buhil, another “Maidan judge”. In a disciplinary hearing against Mr. Buhil, the high council of justice found that Mr. Buhil had compromised his professional duties during the Maidan protests but that there was not sufficient evidence to disqualify him from the case[32]. After the disciplinary hearing, Mr. Buhil rejected to call witnesses in the case of Mr. Tsarevych for a period of seven months. He also adjourned each hearing of Mr. Tsarevych for several reasons (e.g., witnesses were three minutes late), though such short delays do usually not justify to adjourn a hearing under Ukrainian law. In another hearing, the witnesses arrived on time but Mr. Buhil was late. Similarly, the criminal trial against Mr. Kitsiuk was delayed and presided by the Maidan judge, Mr. Linnyk. Mr. Linnyk was not disqualified either[33].

 

Generally, it is unlikely that these practices will change in near future. Currently, there are about thirty Maidan judges across the country who should be dismissed. The post-Maidan government created the temporary special commission, composed of 15 members, to address the misconduct within the judiciary. The Supreme Court, the government and the parliament were entitled to appoint five commission members each. According to article 3 of the “On Restoring Confidence in the Judicial Power”, only judges who served under Yanukovych and passed the backgrounds checks of the commission shall be allowed to return to the bench. More than 2,000 applications were filed to the commission of which only 331 judges were reappointed. The commission investigated 66 individuals out of which it transferred 45 cases to the high council of justice to open disciplinary proceedings against them[34]. When the commission’s work came to an end, it transferred another 260 cases to be investigated by the high council of justice[35]. Based on the findings of the commission, the high council revoked 29 judges. Their disciplinary proceedings met international standards (e.g., hearings were held in public and the council’s decisions were accessible online).

 

However, the credibility of the high council raises serious concern in other cases. Since June 2016, the law “On Judicial System and Status of Judges” has required the high council of justice to sanction judges for their misconduct (e.g., delivering willingly or knowingly unlawful decision, violating the right to a public trial, omitting facts, using fabricated evidence, delaying a hearing for no apparent reason and pressuring judges in lower ranks). It is reported that members of the high council have strong links to Yanukovych’s administration and are pressured by senior judges to drop cases (as the testimony given by the general prosecutor shows[36]). For instance, the high council ruled that, first, “Maidan judges” responsible for “Maidan cases” do not comprise their judicial duties of independence and impartiality and, second, their misconduct in these cases was only caused by vague rules on judicial integrity and their lack of experience[37]. Thus, some Maidan judges were cleared (including the judges Trubnikov, Kiziun, Zakharchuk, L’on, Makarenko, Lozynska and Sanin). The access to their files was denied. Besides, another notorious Maidan judge, Mr. Chaus of Dniprovskiy district court of Kyiv, was investigated by the temporary special commission. Later, Mr. Chaus was called to a disciplinary hearing by the high council of justice on 17 December 2015 but fell ill[38]. Shortly afterwards, he was assigned to a Maidan case and cleared Yurii Ivaniushchenko, a key figure of Yanukovych’s administration and ally of the current government[39]. Thereafter, the national anti-corruption department accused Mr. Chaus of bribery as 150,000 USD were transferred to his bank account[40]. Until now, Mr. Chaus has, however, not faced any disciplinary action[41]. It worth noting that Mr. Chaus and many other “Maidan judges” might be barred by statute soon. This is for two reasons. First, the high council is understaffed and received 9,000 cases only in 2016[42]. Second, the law “On Judicial System and Status of Judges” sets out a limitation period of three years. Thus, should the high council of justice not manage to speed up proceedings, many cases concerning “Maidan judges” will be likely to be dropped.

 

This document is produced in the framework of the Initiative “Increasing Accountability and Respect for Human Rights by Judicial Authorities" by the Netherlands Helsinki Committee (NHC) and the Helsinki Foundation for Human Rights (HFHR). © NHC, HFHR, 2016.

 

Footnotes 

 

[1] This summary was written by Stefanie Lemke, Research Associate with the Netherlands Helsinki Committee based on the report by the Advocacy Advisory Panel NGO, Accountability for violations during and in the aftermath of the EuroMaidan protests in Ukraine (2016).

[2] See, e.g., Freedom House, ‘Freedom in the World: Ukraine’ (2016), https://freedomhouse.org/report/freedom-world/2016/ukraine (accessed on 24 February 2017).

[3] Article 126 of the Constitution.

[4] Council of Europe, Parliamentary Assembly regarding the application of Ukraine for membership in the Council of Europe, Conclusion No. 190 (1995), http://zakon3.rada.gov.ua/laws/show/994_590 (accessed on 24 February 2017); Commissioner for Human Rights, Report on his visit to Ukraine from December 10-17, 2006, CommDH(2007)15 (15 September 2007), https://wcd.coe.int/ViewDoc.jsp?p=&id=1190727&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679&direct=true (accessed on 24 February 2017).

[5] http://ua.korrespondent.net/ukraine/politics/1405614-korrespondent-riven-doviri-do-ukrayinskih-sudiv-nablizhaetsya-do-absolyutnogo-minimumu (accessed on 24 February 2017).

[6] World of Justice Project, ‘Rule of Law Index 2016: Ukraine’ (2016), http://data.worldjusticeproject.org/#groups/UKR (accessed on 24 February 2017).

[7] Council of Europe, Parliamentary Assembly regarding the application of Ukraine for membership in the Council of Europe, Conclusion No. 190 (1995), http://zakon3.rada.gov.ua/laws/show/994_590 (accessed on 24 February 2017).

[8] Council of Europe, Commissioner for Human Rights, Report on his visit to Ukraine from December 10-17, 2006, CommDH(2007)15 (15 September 2007), https://wcd.coe.int/ViewDoc.jsp?p=&id=1190727&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679&direct=true (accessed on 24 February 2017).

[9] Freedom House, ‘Freedom in the world: Ukraine’ (2016) https://freedomhouse.org/report/freedom-world/2016/ukraine (accessed on 24 February 2017).

[10] Assembly of Law Bar Association of Ukraine, ‘Concept of Judicial reform in Ukraine’ (adopted on 19 September 2014), http://uba.ua/eng/projects/38/ (accessed on 24 February 2017).

[11] Council of Europe, Commissioner for Human Rights, Report on his visit to Ukraine from December 10-17, 2006, CommDH(2007)15 (15 September 2007), https://wcd.coe.int/ViewDoc.jsp?p=&id=1190727&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679&direct=true (accessed on 24 February 2017).

[12] http://zakon3.rada.gov.ua/laws/show/712-18 (accessed on 24 February 2017).

[13] This included the killing of a protester that took place at Institutska Street in Kyiv on 20 February 2014 and another crime that was committed on 18 February 2014 at Volodymyrska and Velyka Zhytomyrska street in Kyiv.

[14] Letter No. 8755/AV (12 May 2014).

[15] No. 17/1-1771вих14-910окв (written by the office of special investigations).

[16] http://www.reyestr.court.gov.ua/Review/59553524 (accessed on 24 February 2017).

[17] http://www.reyestr.court.gov.ua/Review/56532770 (accessed on 24 February 2017).

[18] http://news.liga.net/ua/news/politics/7166587-shche_odna_suddya_rozpov_la_pro_tisk_na_sudi_p_d_chas_maydanu.htm (accessed on 24 February 2017). This was also verified by the former president of the court of appeal of Kyiv, Mr. Chernushenk. He admitted that he had been repeatedly instructed by Aleksei Filatov, the deputy of Yanukovych’s administration, to align lower rank judges with government policies. But Mr. Chernushenko made this statement only after he had been accused of bribery and improper interference into cases. He escaped Ukraine. See also http://www.pravda.com.ua/news/2015/08/28/7079283/; http://www.pravda.com.ua/news/2015/06/22/7072073/ (accessed on 24 February 2017).

[19] http://www.reyestr.court.gov.ua/Review/58995138 (accessed on 24 February 2017).

[20] This is illustrated by the case of the journalist Veremiia who was killed during the Maidan protests, http://www.5.ua/hronika-maidany/rodichi-ybitogo-jyrnalista-veremiya-vimagaut-zaminiti-syddu-y-spravi-65060.html (accessed on 24 February 2017).

[21] htp://zakon5.rada.gov.ua/laws/show/3262-15 (accessed on 24 February 2017).

[22] http://www.reyestr.court.gov.ua/Review/44808407 (accessed on 24 February 2017).

[23] Criminal proceeding No. 42014230000000058.

[24] See also the case of Mr. Militsiian who fabricated evidence against Maidan protesters, http://www.reyestr.court.gov.ua/Review/42426861; and the case of Mr. Kushnir, http://www.reyestr.court.gov.ua/Review/54692067 (accessed on 24 February 2017).

[25] http://www.reyestr.court.gov.ua/Review/51799926;http://www.reyestr.court.gov.ua/Review/52439822;http://www.reyestr.court.gov.ua/Review/54139380;http://www.reyestr.court.gov.ua/Review/58077389;http://www.reyestr.court.gov.ua/Review/59092998;http://www.reyestr.court.gov.ua/Review/59638461 (accessed on 24 February 2017).

[26] http://www.pravda.com.ua/news/2014/01/27/7011416/;http://www.reyestr.court.gov.ua/Review/44808407;http://www.reyestr.court.gov.ua/Review/53830809; http://www.vru.gov.ua/news/1250 (accessed on 24 February 2017).

[27] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=147485http://www.reyestr.court.gov.ua/Review/54850487 (accessed on 24 February 2017).

[28] https://stopcor.org/genprokuratura-vzyalasya-za-suddyu-chausa-yakiy-skasuvav-rozshuk-ivanyushhenka/ (accessed on 24 February 2017).

[29] http://www.reyestr.court.gov.ua/Review/54850802 (accessed on 24 February 2017).

[30] http://ukr.lb.ua/news/2014/01/23/252759_tsentre_kieva_Berkuttt_zaderzhal.html; http://www.reyestr.court.gov.ua/Review/49203034;

 http://www.reyestr.court.gov.ua/Review/52534744; (accessed on 24 February 2017).

[31] http://www.reyestr.court.gov.ua/Review/42353517http://www.reyestr.court.gov.ua/Review/42209610 (accessed on 24 February 2017).

[32] http://www.vru.gov.ua/news/1250 (accessed on 24 February 2017).

[33] http://www.reyestr.court.gov.ua/Review/59216480 (accessed on 24 February 2017).

[34] As of June 2015.

[35] http://zakon3.rada.gov.ua/laws/show/1188-18 (accessed on 24 February 2017).

[37] http://www.vru.gov.ua/news/1648 (accessed on 24 February 2017).

[38] http://www.vru.gov.ua/add_text/35;http://www.vru.gov.ua/news/1092; http://www.pravda.com.ua/articles/2015/12/29/7094064/ (accessed on 24 February 2017).

[39] http://ua.censor.net.ua/video_news/392135/leschenko_pro_znyattya_ivanyuschenka_z_rozshuku_interpolu_my_mayemo_spravu_zi_zmovoyu_za_uchasti_prezydenta (accessed on 24 February 2017).

[40] https://nabu.gov.ua/novyny/detektyvy-nabu-vykryly-na-habari-suddyu-dniprovskogo-rayonnogo-sudu-kyyeva (accessed on 24 February 2017).

[41] http://court.gov.ua/log_documents/11984554/2604/ (accessed on 24 February 2017).

[42] http://www.ukrinform.ua/rubric-society/1988740-visa-rada-usticii-otrimala-majze-9-tisac-skarg-na-suddiv.html (accessed on 24 February 2017).