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 so-called 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 rank-and-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.
The Ukrainian Week asks American think-tankers and diplomats three questions: 1. Is Ukraine seen as part of Russia’s sphere of influence in the US? 2. Why a part of the American establishment believes that Ukraine should be attributed to Russia’s orbit? 3. What can Ukraine do to counter this approach?