In Background, Ukraine

By Alexander Mercouris, Russia Insider, April 2, 2015

Council of Europe report finds that official Ukrainian investigations into crimes committed during the Maidan protests are a total shambles and are going nowhere

The International Advisory Panel set up by the Council of Europe to review the progress of the various investigations into the crimes that were committed during the Maidan protests has now produced its report. [Maidan violence investigations fail European human rights standards, by the International Advisory Panel of the Council of Europe, March 31, 2015, 116 pages,  read or download report here.]

The Panel consists of three members: a British lawyer who was formerly the head of the European Court of Human Rights, and two Ukrainian lawyers.

'No truth on Maidan from Maidan' says caption on Russia Insider story

‘No truth on Maidan from Maidan’ says caption on Russia Insider story

Media commentary has tended to focus on the highly critical comments in the report concerning the conduct of the investigations by the Ukrainian authorities. These do indeed constitute the key part of the report. However it is not what is important about the report. To understand what is, it is first necessary to say something about its origins and background and to discuss its contents.

Pro-Maidan bias in report

The political institutions of the Council of Europe, which appointed the Panel, have taken a strongly pro-Maidan line throughout the Ukrainian conflict. Not surprisingly therefore, the report has a pro-Maidan position. Thus, it refers to Crimea’s reunification with Russia as an “annexation” (paragraph 126). It calls the protesters in Ukraine’s eastern regions “pro-Russian groups” (paragraph 132).

More importantly, the report seems interested only in crimes committed against Maidan protesters. It shows little interest in crimes committed by Maidan protesters, even when those crimes involved acts of violence.

Thus the report devotes far less time and space to discussing attacks by the protesters on the police as opposed to attacks by the police on the protesters. This despite the fact that there is a strong case that the attacks by the police on the protesters were mostly provoked by the attacks of the protesters upon the police.

The report has nothing at all to say about the fact that there is abundant film and witness testimony confirming that some of the protesters carried and used firearms during the protests.

The seizure and sacking of public buildings like the Kiev City Administration building by a gang of masked protesters led by Tetiana Chornovol on 1 December 2013, or the burning down of the Kiev office of the Party of the Regions on 18 February 2014, or the damage to the Museum of Kiev on the evening of the same day, are reported without criticism or comment (see paragraphs 26, 71 and 78).

The report devotes much time to the “titushky” (hired civilian supporters of the previous Ukrainian government) making (at paragraph 76) an unsubstantiated claim that they shot at protesters. It seems unaware of the doubts many have expressed about their presence in anything like the numbers the protesters have alleged.

Right Sector is mentioned only once in the whole report and then only in passing (at paragraph 9). Right Sector’s leader, Dmitro Yarosh, is mentioned only once (at paragraph 114). His name, however, is not mentioned. He is instead referred to simply as “one of the protesters” who on the night before the coup called for Yanukovych to be removed from power.

Andrei Parubiy, the Maidan “Commandant” responsible for securing Maidan Square for the protesters and a key figure in the protests, is not mentioned at all. Nor is the Maidan Self-Defence Force, which he set up and headed. Nor is the fact that Parubiy subsequently became head of Ukraine’s Security Council, which would have put him in a powerful position to influence the investigations. Nor does the report say that after the coup Parubiy used the Maidan Self-Defence Force to form the core of Ukraine’s National Guard, which is today the most important paramilitary force maintaining the present Ukrainian government in power.

Lastly, the report speaks of Ukraine’s government as having fallen (or “changed”) because Yanukovych “fled”. It repeats without comment the claim that this caused the Ukrainian parliament to “decide” that Yanukovych had “abandoned his duties as President”, leading it to assume power (paragraphs 115 and 116). The report, though otherwise so concerned with legal process, does not concern itself with whether or not this step was constitutional, despite the fact that this has an obvious bearing on the nature of the investigations it is supposed to be examining.

The report also takes basically for granted the illegality of many of the actions of the previous Ukrainian government.

For example, it says the removal of protesters by the riot police from Maidan Square on 30 November 2013 was “unlawful”, though it never really explains why. See, for example, the report’s detailed discussion at paragraphs 9 to 23, where claims the police acted illegally are made by various individuals who, however, are plainly stating only their opinions. At paragraph 215, this is stated again as the opinion of the Procurator General’s Office. The opinions of the previous government’s opponents, who overthrew it in order to gain power so as to become the country’s present authorities, should not be treated as authoritative on this question.

Despite its fairly clear pro-Maidan bias, the report does nonetheless resolve some uncertainties.

  • The total number of security forces deployed by the Ukrainian government in Kiev to contain the Maidan protests was no more than 11,000. The military was not involved.
  • The present Ukrainian authorities no longer say the decision to disperse the protesters on 30 November 2013 was made by Yanukovych himself. Instead, the decision is attributed to the Secretary of Ukraine’s Security Council, Andrei Klyuyev.
  • It is now also clear that claims of mass disappearances of Maidan protesters are untrue. The total number of persons missing is now put at eight or even nil (see paragraphs 108 to 111).

The present authorities in Ukraine as of December 2014 appear to have accepted that the assault on the Maidan activist Tetiana Chornovol in December 2013 was the work of the persons who were arrested at the time of the assault by the police. Chornovol herself, the Maidan movement and the international media insisted at the time that the assault had a political motive. Chornovol even claimed that it was ordered by Yanukovych himself

As to that claim, the report provides no evidence. At paragraph 344 it does, however, say the following: “The PGO submissions to the Panel of December 2014 appear to indicate that the charges under this case file have been re-qualified to one of attempted murder by a group for material gain”. This could point to an attempted contract killing. However, it could equally well point to an attempted murder carried out for some other economic motive — for example theft.

Regardless, it is clear from the report that the investigation has progressed no further than the point it reached in December 2013 when it was being investigated by the police under the previous regime.

That there has been little or no progress in a case even of this sort a whole year after a government, of which Chornovol was for a time a part, came to power should serve as a warning against the repeated demands that are made for rapid solutions of high-profile cases of this sort whether they happen in Ukraine or Russia.

As for Yanukovych, he is in fact spectacularly absent from the whole report. Claims that he personally ordered the violent dispersal or shooting of protesters find no support in it.

Indeed, it is now clear that there is a lack of documentary evidence of illegal orders made whilst the Maidan protests were underway. The report tries to explain this, rather plaintively, by saying that such orders were given verbally or that record of them was destroyed by officials of the previous regime following the coup (paragraph 406).

If orders were made verbally, then that would suggest that members of the previous regime expected it to be overthrown when they gave orders they knew were illegal. Whilst that is possible, it does seem rather unlikely. As for the possibility of records of orders being destroyed, the speed of the takeover following the coup also makes that rather unlikely. A more plausible explanation is surely that there is a lack of documentary evidence of illegal orders because no such orders were given. That of course is what the now exiled members of the previous government say.

Killing of protesters on Maidan Square

For many people, the most interesting part of the report is the part that deals with the killing of protesters (including the so-called “Heavenly Hundred”) on 20 February 2014.

The report shows that news media reports that most of the people killed on 20 February 2014 were shot by riot police after the police were themselves shot at (see Mark Nicholas “How the West Brought About Kiev Sniper Massacre”, Russia Insider, 20 February 2014) have their origins within the Ukrainian investigations.

The Ukrainians claim to have identified the Berkut police unit responsible for most of the killings (paragraph 245). This is clearly the same Berkut police unit discussed in the media reports, which was supposedly driven from Maidan Square after having been itself shot at by armed protesters.

The Ukrainians do not, however, admit that the police were shot at. They even deny there is conclusive evidence that there were snipers present in and around Maidan on the day the massacre took place.

As to that, the report itself makes the point that “as recently as 19 and 20 February 2015 both President Poroshenko and the Chief of the SSU [the Ukrainian Security Service — more often referred to in Russian reports as the SBU] had spoken publicly about the evidence of sniper fire against protesters and law enforcement officers on Maidan and, notably, on 20 February 2014” (paragraph 253).

Instead the Ukrainian investigators claim that “while certain elements could point in that direction [i.e. to the presence of snipers], there was no clear and confirmed material evidence, of any killing or injury by sniper fire” (paragraph 254).

The Ukrainians have tried to muddle the issue by claiming that it is supposedly very difficult or even impossible to tell the difference between gunshot wounds caused by shots from a 7.62 mm Kalashnikov automatic rifle as used by the police and gunshot wounds caused by a 7.62 mm Dragunov sniper rifle as supposedly used by snipers. This line of argument is absurd. The ammunition of the two rifles, though the same caliber, is actually completely different.

Putting that aside, since the Ukrainians themselves admit that Kalashnikovs have the necessary range to have been used by the snipers shooting from Maidan Square or its vicinity (always assuming of course that there were any), this whole discussion about types of wounds caused by two different types of rifles is a complete red herring (see paragraph 257).

To add to the absurdity, the Ukrainians have tried to muddle the issue even more by claiming that if there were any snipers present (something they do not of course “confirm”), they might have belonged to a “third force”, by which they quite obviously mean the Russian state security agency, the FSB.

As to that, the Panel points out “the PGO [Procurator General’s Office] confirmed to the Panel that there was no confirmed evidence, as at November 2014, of third force involvement and no firm view as to the identity or intention of any such force” (paragraph 259).

In paragraph 261, the Panel makes its skepticism of all these Ukrainian denials and fantasies clear to anyone accustomed to reading documents of this sort. At this point, if not before, the Panel would have lost confidence in the objectivity and competence of the investigators. The report in fact shows that the Panel’s confidence in the investigators was indeed at the very least badly shaken (see below).

Reports by the BBC and the Frankfurter Allgemeine Zeitung, discussed by Mark Nicholas in Russia Insider on 20 February 2015, have overtaken this part of the Report. These reports include an interview with a self-confessed sniper who was part of the Maidan Self-Defence force. He says he was stationed in the Kiev Conservatory building on Maidan Square. He claims to have shot at police with a Saiga hunting rifle, which is a civilian adaption of the Kalashnikov rifle the police were using. It can be rifled to use the same 7.62 mm ammunition as the Kalashnikov, and the BBC report in fact says the sniper told them that it was equipped with high-velocity rounds.

Whilst this interview does not put the question of the existence of the snipers beyond doubt, the evidence for their presence is now so strong that it is becoming increasingly difficult to deny it. The unconvincing way the Ukrainian investigators deny their presence — or try to claim they were Russian — shows how difficult and embarrassing this issue has become.

Scathing conclusions of how investigations conducted in Ukraine

The purpose of the report — as its authors repeatedly say — is not, however, to investigate the events that took place in and around Maidan Square during the protests, or to make judgments about guilt or innocence, but to look at the way the Ukrainian investigations are being conducted. Its conclusions are scathing (paragraphs 376 to 520 and the summary of conclusions and recommendations in paragraphs 521 to 540).

The report speaks of three rival investigations — by the Interior Ministry, the Procurator General’s Office and the Ukrainian Secret Service. Far from working together to a common purpose, the three investigations barely communicate with each other. Each investigation has totally different data recording techniques.

The Interior Ministry is actively obstructing the rival investigation carried out by the Procurator General’s Office.

The investigation carried out by the Secret Service is all but invisible and has achieved no results.

The investigation carried out by the Procurator General’s Office lacks strong leadership and is disastrously under-resourced and under-staffed.

All three investigations are chaotic and are being conducted behind a veil of secrecy.

Only the one conducted by the Procurator General’s Office was willing to cooperate with the Panel to any great degree — which is why, incidentally, it is its opinions and conclusions that dominate the report. This is especially ironic since (as the Report itself grudgingly admits) the Council of Europe and the European Court of Human Rights have repeatedly criticized the investigative functions of the Procurator General’s Office in former Soviet states, including Ukraine.

None of the investigations is truly independent of the political authorities. There are obvious conflicts of interest with officials involved in investigating events in which they were themselves involved. All three investigations face constant interference and obstruction, not just from each other but sometimes from their own officials as well as from outside.

The report makes harsh comments about how the investigations are being obstructed by the practice of granting amnesties — without, incidentally, mentioning that the practice was insisted on and initiated by the Maidan movement during the protests.

The report complains bitterly about obstruction by the courts. It makes exceptionally harsh (and possibly unfair) criticisms of Judge Volkova, the judge who granted bail to a police officer who the investigators say commanded the Berkut police unit that was responsible for the bulk of the killings on 20 February 2014. This particular police officer subsequently escaped and his whereabouts are unknown. The Panel makes clear its belief his escape was arranged by the Interior Ministry.

The report complains about a “culture of impunity” on the part of Berkut police officers in relation to the investigations.

Overall, the report’s conclusion is that all three investigations are going nowhere. The report lists the various incidents being investigated (paragraphs 353 to 366). There is deadlock and stalemate in every case.

In truth, to someone of a more skeptical view, the true lesson of the report is of the Maidan movement’s infinite capacity to disappoint the more ill-informed (or naive) amongst its Western supporters.

There have been no more staunch supporters of the Maidan revolution and of the Maidan movement than the political institutions of the Council of Europe. The Parliamentary Assembly of the Council of Europe, for example, has taken an exceptionally strongly pro-Maidan line throughout the conflict. It has also been harshly critical of Russia, on occasion suspending its voting rights. The report clearly reflects this bias. As we have seen, the three members of the Panel (two of whom are Ukrainians) obviously accept the Maidan movement’s version of events. They clearly came to Ukraine assuming the good faith of the new authorities and of their investigators.

What they discovered instead was a total shambles. Moreover, it is a shambles spiced up with fantasies of Russian involvement and with denial and obfuscation of the most obvious facts.

The Panel seems to have found no sign of any serious will to find out the truth. Since the members of the Panel assume the truth to be what the Maidan movement has told them, their disappointment and frustration is obvious. In the end, they simply could not give the investigations the clean bill of health, which was what their original expectation probably was.

The reality is that there is simply no way the truth about what happened during the Maidan protests will ever be established through enquiries set up by a government controlled by the Maidan movement. It is simply naive to think so. The present Ukrainian government owes its very existence to the Maidan protests. It is never going to allow investigations into those protests which can only end up debunking the myths about the protests which are also the present Ukrainian government’s own foundation myths.

The episode of the police officer who was able to escape after being granted bail is a case in point. The Panel is probably right to think his escape was arranged by the authorities. Quite possibly it was the work of the Interior Ministry. However, the Panel is almost certainly wrong about the motive. The police officer may indeed be guilty of serious crimes. He may indeed be in a position to implicate officials more senior than himself.

The more important concern, however, is surely that the police officer is also a key witness to what actually happened on the day of the massacre. The present Ukrainian authorities simply cannot risk putting him on trial if he is a witness to the fact that he gave an order to shoot only because his men were already being shot at. That would explode the myth of “peaceful protesters” being brutally shot down by the repressive agencies of a corrupt and tyrannical government, which is the whole justification for the coup.

Quite apart from the fact that debunking one of the Maidan movement’s central myths would call into question the whole legitimacy of the February coup and of the present Ukrainian government, it would also seriously implicate senior members of the Maidan movement such as Andrei Parubiy and Dmitro Yarosh, who played a key role in the protests and the coup (even though they are not named in the report) and who remain powerful figures in Ukrainian politics to this day.

The true lesson of the report is that it again shows the extent to which the West’s embrace of the Maidan movement is irreconcilable with its own stated principles.

Western politicians and journalists, up to a certain point, have the freedom to pretend otherwise. Lawyers, such as the senior British lawyer who was previously President of the European Court of Human Rights and who chaired the Panel, do not have that freedom to the same degree. The law limits them. However partial they are, their duties as lawyers place limits on what they can say or do.

In the end, despite bending over backwards to accommodate Maidan, the Panel found it impossible to square the circle. The investigations into the events of Maidan are simply too politicized and too chaotic for even the most sympathetic Western lawyers to endorse them. This, incidentally, means that there is almost no chance that the European Court of Human Rights will uphold any convictions produced by them.

This alone should call into question Ukraine’s prospects of joining the EU any time soon. A condition of EU membership is adherence to the European Convention on Human Rights. As the report shows, Ukraine for the moment simply cannot adhere to the European Convention on Human Rights even in relation to investigations into the most important events of its recent history.

Far from integrating itself with what are said to be European norms, Ukraine is actually drifting further away from them. Whether that is something either Western or Ukrainian politicians are willing to accept is another matter.

For more on the Sniper Massacre story, read the report by University of Ottawa researcher Ivan Katchonovski: The ‘Snipers’ Massacre’ on the Madian in Ukraine (revised and updated), Feb 20, 2015



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