UKRAINE: MAIDAN, ODESSA: TWO YEARS LATER

Public conference, Geneva, 21 March 2016

A CALL FOR AN INTERNATIONAL INVESTIGATION

PURPOSE OF THE CONFERENCE

On 21 March 2016, a Side Event in the context of the session of the Council of Human Rights was convened in the Palais des Nations, the headquarters of the United Nations in Geneva. The conference’s purpose was to provide an independent forum to some of the families of the victims of the violence in Maidan and Odessa, but also elsewhere in Ukraine to share their experience as direct witnesses of these events and their efforts to seek justice. Thus far, by all accounts, none of the investigations undertaken in the past two years have yielded any tangible result. The conference also invited an independent observer and analyst of the situation in Ukraine in the past two years, to put these developments in context.

The purpose of the conference was thus primarily to promote truth, justice and accountability for the violence of the past two years, even if the polarised and partisan politics of the Ukrainian situation and conflict, domestically and internationally, tended to dominate the discussion, at the risk of covering the voices of the mothers of victims of Odessa.

Against the background of this lack of serious efforts to establish the truth about the violence that occurred in Maidan, Odessa, Mariupol and elsewhere, and to bring perpetrators to justice, the conference called for an international, independent, impartial and credible investigation into the violent events that have plagued the country since November 2013, and resulted numerous deaths, injuries, arrests, detentions, and restrictions of the most fundamental freedoms of expression, assembly and association in Ukraine (The UN estimates that at least 9,167 people have been killed in the past two years, 21,044 have been injured, and 1.5 million people have been forcibly displaced.)

Such an investigation should look into the most egregious instances of violence that have led to deaths, injuries, torture and disappearances all over Ukraine, whoever those responsible for this violence are. In addition to the rights to life (Art. 6), integrity (Art. 7), liberty and personal security (Art.9), the investigation should also assess the current state of the rights to fair trial (Art. 14), to freedom of opinion and expression (Art. 19), assembly (Art. 21), association (Art. 22), the right to privacy (Art. 17), the rights to freedom of thought, conscience and religion (Art. 18), as well as the right to participate in political life (Art. 25). The investigation may also be to look into the extent to which all parties to the conflict respect of Article 20, which prohibits « any propaganda for war » as well as « any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence ».

The organisers of the conference agree with the Council of Europe and the UN Special Rapporteur on summary executions that “Deep scars left in Ukrainian society by the violent events in Maidan will take long to heal. An important part of any such healing process is the conduct of an effective and independent investigation into the acts of violence so that the truth is established, justice is delivered to the victims, their families, and society as a whole, perpetrators are punished, and the essential principles of the rule of law are upheld.

CURRENT STATUS OF INVESTIGATIONS TO DATE

1. MAIDAN VIOLENCE:

At the request of the Ukrainian authorities, the Council of Europe formed an International Advisory Panel to assess progress in the Maidan and Odessa investigations[1] (report publicly released on 15 April 2015, including in Ukrainian).

Main conclusions:

– Investigations prior to 22 February 2014: The Panel concludes that there was no genuine attempt, prior to 22 February 2014, to pursue investigations into the acts of violence of the Maidan demonstrations.

– Investigations after 22 February 2014: Para 535 : The Panel considers that substantial progress has not been made in the investigation into the violent incidents during the Maidan demonstrations.

Panel’s conclusions [Para 536]: “Deep scars left in Ukrainian society by the violent events in Maidan will take long to heal. An important part of any such healing process is the conduct of an effective and independent investigation into the acts of violence. As has been widely acknowledged, there has been a clear lack of public confidence in Ukraine in any such investigations. On the contrary, there has ben widespread perception of impunity on the part of law-enforcement agencies and of an unwillingness or inability on the part of the investigatory authorities to bring to justice those responsible for the deaths and injuries. As is noted in the report, this perception has been highlighted on previous occasions by various Council of Europe bodies. The Council itself has expressed the view that « impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations, and to uphold the rule of law and public trust in the justice system. »

The Panel finally call for « effective progress [to] be made in the investigations, thereby instilling public confidence in the legal system and helping to bring closure to this tragic chapter in the history of Ukraine. »

2. ODESSA VIOLENCE:

The same Council of Europe’s International Advisory Panel looked into the 2 May 2014 violence in Odessa in order to assess progress in the official investigations. The report was publicly released on 4 November 2015 (also available in Ukrainian)[2].

Main conclusions:

« 294. The Panel considers that substantial progress has not been made in the investigations into the violent events in Odessa on 2 May 2014.While this outcome may be explained to some extent by the contextual challenges, the Panel considers that the deficiencies identified in this Report have undermined the authorities’ ability to establish the circumstances of the Odessa-related crimes and to bring to justice those responsible.

295. In its Report relating to the Maidan investigations the Panel noted the deep scars left in Ukrainian society by the violent events in Kiev and the important part played in any healing process by the conduct of an effective and independent investigation into those events. The Panel there found a clear lack of public confidence in Ukraine in any such investigation and a widespread perception of impunity on the part of the law enforcement agencies and of an unwillingness or inability on the part of the investigatory authorities to bring to justice those responsible for the deaths and injuries.

296. Very similar considerations apply in the case of the tragic events in Odessa on 2 May 2014, the evidence obtained by the Panel revealing a comparable lack of confidence in the adequacy of the investigations and in the ability of the authorities to bring to justice those responsible for causing or contributing to the many deaths and injuries on that day. In particular, despite the lapse of some eighteen months after the events in question, not a single charge has been brought in respect of the deaths resulting from the fire in the Trade Union Building. As in its Maidan Report, the Panel has in the current Report drawn attention to serious deficiencies, both structural and operational, in the independence and effectiveness of the investigations which have been so far carried out and which the Panel has found not to comply with the requirements of the European Convention or the case-law of the European Court. »

Several official investigations were undertaken into the 2 May 2014 events, but none of them has so far been conclusive:

1) Ministry of Interior and General Prosecutor’s Office ‘s investigations: Concerning the quality of these investigations, the Panel noted some positive efforts but deplored that [Para 288] « in respect of each of the matters under investigation, the relevant authorities failed to show sufficient thoroughness and diligence in initiating and/or pursuing the investigations, with the result that their overall effectiveness was compromised. ». With regard to the independence of these investigations, the Panel noted that [Para 284] « Given the evidence indicative of police complicity in the mass disorder of 2 May 2014 in Odessa, Articles 2 and 3 require that the investigation into the mass disorder as a whole be carried out by an organ entirely independent from the police. Similarly, the investigation into the conduct of the fire service cannot be regarded as independent, given the structural links between the SES and the Ministry of Interior. These concerns again highlight the need for an independent and effective mechanism for the investigation of serious human rights violations committed by law enforcement officers and other public officials.

The Panel added [Para 285] « In addition, the Panel considers that it is of central importance for the purposes of maintaining the confidence of all sectors of the public in the criminal justice system that the authorities, including the judicial authorities, are seen to act in an impartial and equal manner in the conduct of the investigations and court proceedings.

2) The Temporary Investigation Commission established on 14 May by the former Verkhovna Rada under the chairmanship of Mr. Kisse. The Panel regretted [Para 298] « that, following the expiry of the mandate of the Commission after the parliamentary elections, its Report, adopted in September 2014, was never examined by the Verkhovna Rada and that a draft resolution to set up a new Commission, with the role, inter alia, of identifying those who had organised, aided and abetted crimes in the course of the mass disorder, is still under examination in the Verkhovna Rada, some ten months after the draft resolution was introduced. ». In other words, the investigation report remained dead letter

3) The Ombudsperson enquiry: The Panel noted that [Para 299]: « Although the Ombudsperson notified the PGO of her findings and requested the latter to carry out a comprehensive, objective and impartial investigation into the events, it is unclear what use if any was made of the findings, the PGO limiting its response to saying that the relevant investigations had been instituted and were underway. In other words, the Ministry of Interior ignore it and its recomendations.

4) The 2 May Group investigation: The Panel noted that [Para 300] although the 2 May Group produced some useful information for those responsible for the investigations (…) the investigating authorities largely ignored its work. The 2 May group expressed serious reservations about the willingness of the new authorities to effectively investigate the Odessa violence and event stated that the investigation is clearly being sabotaged at the highest level in the Ministry of Interior.

According to the Council of Europe Panel’s report [Para 4, page 90], the 2 May Group’s report concluded that « the high number of deaths [in the Trade Union Building] was caused by the incompetent acts and omissions of the fire service, including the delay in arriving at the scene and the failure to take emergency reanimation measures. »

The conference organisers estimate that this conclusion disregards a significant body of evidence that shows that the attackers of the Kulikovo Pole protestors chased them up physically into the building, and killed a number of them either with firearms, as several autopsy report photographs show, or by other means, including beatings, stabbing and strangulation. This conclusion also ignores the video evidence showing Kulikovo demonstrators that has taken refuge in the building in flames, jumping from the windows from the second or third floors, smashing themselves on the ground and being beaten to death by the attackers. Concluding that the high number of death was thus accidental due to neglect and incompetence discredits seriously this otherwise, apparently serious and independent investigation effort. The political affiliation of the leadership of that 2 May group with pro-Maidan political forces casts some doubts as to their political independence and impartiality.

3. OFFICIAL VISIT TO UKRAINE OF THE UN SPECIAL RAPPORTEUR ON SUMMARY EXECUTIONS (8-18 September 2015)[3]

At the end of his visit to Ukraine, the Special rapporteur issued a statement entitled « Lives lost in an accountability vacuum » on 18 September, which summarises his initial observations and recommendations to the Government. The full report his this visit, including its conclusions and recommendations, will be presented by the Special Rapporteur before the Human Rights Council at its next session in June 2016 and made public.

The Special Rapporteur’s initial observations on the Maidan violence: « With respect to the use of force against protesters in the Maidan protest, most significantly between 18-20 February 2014, I am concerned that more than 100 people were killed as a result of the firing, allegedly by Berkut and other law enforcement officers of live ammunition at participants. In addition, thirteen police officers were also reportedly killed. As with any use of lethal force by police officers it is vital that there be a prompt, thorough, and impartial investigation into the events to establish that the use of force was both necessary and proportionate. In this connection, I am greatly concerned by the apparent shortcomings of the investigation into these events. While what process there is seems to be progressing very slowly, having reached court-level proceedings now in a very limited number of cases, there are more systemic failings. The escape of a principal suspect from house arrest, as well as the loss of a great deal of vital physical evidence are both issues that should themselves be independently investigated. »

With regard to the Odessa events he noted: « While both pro-unity and pro-federalism groups played a part in the escalation of violence on that day, the subsequent criminal prosecutions for hooliganism or public disorder appear to have been initiated against participants in a partial fashion. »

« I am concerned by allegations of numerous failings in the official investigation into the events of that day. By allowing almost immediate access of the scene to ‘pro-unity’ protesters, members of the public or to municipal authorities, investigators lost a large proportion of potentially valuable forensic evidence. Meanwhile I am worried by indications that the Government has significantly reduced the size of the team investigating these events in the past year, before it has had an opportunity to report. The slow progress of the investigation and the lack of transparency with which it is being conducted have contributed to a great deal of public dissatisfaction and provided a fertile environment for rumour and misinformation. It is disconcerting that the Special Unit of the Ministry of Internal Affairs that investigates the 2 May events cancelled our appointment in Odesa at short notice, without any explanation. »

« I am further concerned that administrative and personal impediments seem to have been imposed to prevent or at least discourage the families of those who died from obtaining the status of suffering or affected persons before the Courts. Meanwhile I am greatly alarmed by reports of the extent to which authorities are tolerating both verbal and physical intimidation both of families attending court proceedings and of the judges of those cases, not only outside the court building, but also inside it and in the court room itself. »

The Special Rapporteur’s initial recommendations concerning the events in Maidan and Odessa echo those of the Council of Europe’s assessment Panel that no serious, independent and impartial investigation efforts have been undertaken to shed the full light on these episodes of violence, bring justice to the victims and their families, and the perpetrators to account.

The Special Rapporteur recommended that « The investigations into the events at Maidan in February 2014 and the 2 May events of the same year at Odessa must be completed as a matter of priority and accountability for losses of life must be established. The systemic failures that contributed to the eventual losses of life – such as the low profile of the police and the delayed response of the fire brigade in Odesa – should also be investigated and where appropriate rectified. »

He also stressed that « The difficult situation of the families of those who lost their lives should be acknowledged by the Government. Their safety, physical and psychological well-being, dignity and privacy must be protected, and they must be promptly informed of progress in the investigations. Public officials must treat them with respect at all times. »

More broadly, the Special Rapporteur observed: « Long term security will depend on the extent to which a fully functioning human rights protection system which guides the actions of all members of the society is established. The approach that I saw too often during my mission in Ukraine is that when asked about human rights protection one side immediately invokes the transgressions of the other. Human rights are treated as an instrument with which to assail the opponent; not as a shared system of accountability. »

4. SESSION OF THE HUMAN RIGHTS COUNCIL ON UKRAINE (22 MARCH 2016)

On 22 March 2016, the Assistant Secretary General for Human Rights and head of OHCHR New York Office, Mr. Ivan Simonovic presented his regular oral briefing on Ukraine to the Council of Human Rights. With regard to the violence in Maidan and Odessa, Mr. Simonovic concurred with the Council of Europe and the Special Rapporteur’s findings that “Two years after the Maidan events, we are particularly concerned about the lack of progress in the investigations and proceedings into the killings that happened there, as well as the killings on 2 May 20124 in Odessa and 9 May 2014 in Mariupol. The slow progress in these cases undermines public confidence in the criminal justice system. It is essential that they be addressed promptly and with impartiality.”

5. CALL FOR AN INDEPENDENT AND IMPARTIAL INVESTIGATION

The 2 May Group (at the national level), the Council of Europe (at the regional level) and the United Nations (at the global level) are thus concurring that no serious effort by the Ukrainian Government to effectively investigate the violent events of Maidan and Odessa in order to establish facts and responsibilities, and bring the perpetrators to justice. It is against this background and finding that this conference was held in Geneva, as a parallel event to the Human Rights Council session, in support to the families of the victims, to call for an international, independent, impartial and credible investigation into these events, so that an independent tribunal in Ukraine can initiate proper judicial proceedings and deliver long-awaited justice to the peoples of Ukraine.

Human Rights Agency (HRA)

[1] See the full report at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016802f038b

[2]See full report at : https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168048851b

[3]See full statement at : http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16460&LangID=E