“I Don’t Shake Hands with My Colleagues” - Interview with Euromaidan Prosecutor

07 February 2020 19:11

Oleksiy Donskyi has been the main prosecutor on the Euromaidan cases for six years. He is responsible for investigating the murders on Instytutska Street on February 20, 2014, during the Euromaidan. At the time, 48 protesters were murdered, and another 80 wounded. Late last year, Ukraine’s Prosecutor General, Rouslan Riaboshapka, removed Donskyi from the case for an entire monthю

Donskyi was placed back on the case after the security servicemen were sent to the occupied territories.

But is there any point in continuing the case, now that nearly everyone who could have been charged is beyond the reach of Ukrainian law? To find out, hromadske journalist Nastya Stanko spoke to Donskyi on this, and other questions.

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Can the court case continue without suspects?

Right now, there are a few different options in developing this case. In my opinion, it’s very important whether there will be any changes in legislation. I know that there’s active work on this issue, that is in the possibility of holding trials in absentia of people who began to hide from the court during the investigation phase. In that case, we’ll be able to stop this process and hope that in the end, we’ll get a verdict. This can happen if the law is changed, which allows for trials in absentia. There are other options as well. We wouldn’t want to go into details, but I’ll say one thing: whether or not the laws will change, our goal is to move the process forward.

That is there won’t be a return to the start of the case, because there aren’t suspects?

From the point of view of the principles of criminal cases, returning the case to the first stage would be completely illogical. That’s because the makeup of the court hasn’t changed, the principles of investigative evidence in court have not been violated, just like the procedural actions which over the court of the last five years have proceeded with the participation of both suspects and advocates. There isn’t any logic in returning all this to the beginning and starting the investigation of evidence over except without suspects.

You’ve been working on this case since 2014, and already in that year there was supposed to be a verdict on the case. But late last year you were removed from the case. And now you’ve returned, but without suspects. Do you yourself believe that the leadership of the Prosecutor General’s Office is still interested in this case?

Right now, I wouldn’t want to go back to the events that occured at the end of December last year, and I want to move from the situation we have today. I, without a doubt, view positively the fact that they have now decided to return those prosecutors who worked on this case previously. How effectively we work, are we better than others – this is a question with two parts. The first – in accountability. Our return preserves the principle of accountability in this process. This is important for the process itself, and for its participants. And the second point is that this is a very difficult case, with a lot of materials. That is, any new prosecutor, regardless of how good or effective they are, would need to not only understand the process, but also feel it from the inside. And this requires a long period of time, which would affect the duration of the investigation. That’s why the decision to return the prosecutors is a good one.

Don’t you want to blame your leadership?

No, the fact is that there’s a certain process going on. Today, this process, in my view, has received a positive dynamic. We’re getting out of the situation and the reality we were in previously. And for us, the most important thing now is, after all, to develop an algorithm so that this process ends in a logical way. This is our top priority.

I recently spoke to the mother of Maksym Shymko (one of the murdered protesters – ed). Experts have determined that the bullet that lodged itself in the body of her son was shot from an automatic weapon registered to Serhiy Zinchenko, an ex-Berkut officer (the name of a now-disbanded special riot police force that was involved in the Euromaidan case – ed.), who was imprisoned until late December. You talk about a positive dynamic. But can you really call it a positive process when people who were directly accused in concrete murders, are no longer behind bars, but outside the reach of Ukrainian law?

I don’t doubt it. This, certainly, is a giant negative for this process. Why is it important for them to take part in this process in this or some other form? For five years, we’ve had court deliberations, we’ve heard a lot of comments from the defense. But over these five years we still haven’t heard the story from the ex-Berkut officers themselves on this matter. It’s obvious that they were told that they would be freed and exchanged. It’s obvious that they knew this for some time before this decision was implemented. And in our process we have these conditions, that a suspect can at any point in the court process give testimony, as soon as they wish.

When they were sure that they would be exchanged, they could have, if they wanted, told their side of the story during court hearings. Because we often hear from different politicians, including in court hearings: they’re great, they acted within the confines of the law. But we have four different versions from the ex-Berkut officers. The first – they weren’t there.’ The second, ‘they were there, but they didn’t shoot anyone.’ The third, though the ex-Berkut officers themselves never said this explicitly, only their lawyers had – is that they were protecting people, defending someone. But there is no such thing as abstract, necessary defense. And the fourth – that this was absolutely unavoidable in those circumstances. That is, four versions that have been presented by people in this process, but not the ex-Berkut officers themselves.

It seems like Olena Lukash (ex-Minister of Justice in the Yanukovych government – ed.) said that they did well and they were defending themselves. If they weren’t there, or if they didn’t shoot anyone, then why are they great? If they were defending themselves, then there are very concrete questions on what method they used to choose who to shoot.

I only know the simplified version of the position held by Oleh Yanishevskiy (former deputy for the Kyiv division Berkut commander – ed.) thanks to your interviews with him. Pavlo Abroskin and Zinchenko (both ex-Berkut officer suspects from the Kyiv division – ed.) I know from Russian television, but that was very comfortable circumstances for them, no concrete questions were posed by anyone. But during the court hearings, not once did they want to state their version of events. Which of the four versions is real? This, in our opinion, is the key condition. Why? Because the prosecution’s side repeatedly showed evidence of their guilt. And from [the defense] we didn’t hear a word, absolutely nothing.

Ex-members of the Berkut special riot police, suspects in committing terrorist acts on February 20, 2014, in the center of Kyiv, on the suspect bench during a court hearing at the Sviatoshyn Regional Court. November 14, 2017. From left to right: Serhiy Zinchenko, Pavlo Abroskin, and Serhiy Tamtura. Photo: Anastasiya Vlasova / hromadske

Let’s talk about evidence. The UN Human Rights Monitoring Mission in Ukraine stated that these five could not carry responsibility for everyone. What concrete evidence is there that these five are guilty?

The particulars of grouped crimes is exactly in the fact that a group of people, unified with a single mind, commit crimes. It doesn’t really matter who killed who, who hit a victim and who missed. This is not a new idea – in cases of banditism, when a group of people commits crimes, then it’s not that important if someone murdered someone else or not. Regardless of people who hide, they must carry accountability as joint participants in the crime. The same way as those 21 people (in the case about the shootings on Instytutska Street – ed.) who are hiding. And if there will be a trial in absentia, then they’ll be tried on the same charge – the murder of 48 people.

Why wasn’t there a trial in absentia of those people who fled, since most of them fled in 2014-2015?

This question is more related to legislation that regulates trials in absentia. The legislation that could work now requires international manhunts. There’s no concept of international manhunts, as a result, there are different court viewpoints on international manhunts.

Most equate international manhunts with Interpol manhunts, though Interpol itself says that it is simply one of the methods of conducting international manhunts. Interpol refused to search for these law enforcers. They said that the crime occurred in some political events. In relation to the so-calledtitushki(a nickname given to tracksuit-wearing individuals who beat protesters at the Euromaidan – ed.) they did launch a manhunt, but for the law enforcement officers – no. Now we’re waiting for the appearance of a full procedure for holding trials in absentia. After this, we’ll announce a petition with the court on a trial in absentia in relation to those people who are in hiding. This will affect 21 people.

You were a prosecutor on the case, then you were replaced. Were you in court for some time with the new prosecutors? How would you rate their work? This may be the first time you’ve found yourself in such a situation.

I can only talk about colleagues that joined this process. I didn’t understand this from a legal point of view, nor from a decency point of view. I don’t shake these people’s hands, and don’t greet them, despite the fact that they’re still working in the same department as me.

Is there any point in working in an office with these prosecutors?

For myself, I think that I have to work and fulfill my work with the dignity of my duty, which is entrusted to me, where I am a procedural manager, or present the charges. In order for the victims to not have any doubts about me, nor about the prosecutors in general, nor even to the Prosecutor General’s Office.

The suspected ex-Berkut officers have already been exchanged. And they’ll probably never return.

I want to remind you that every time, when detention was extended for an ex-Berkut officer, they tried to convince the court to change their type of pre-trial restriction. They promised to refrain from any violations, to show up for each hearing. And now, seeing as they aren’t part of the court hearings, then the position of their lawyers was this: we have no communication with them and they don’t know where their clients are.

There’s this feeling of a certain kind of deja vu on this matter, when there was an analogous situation with [Dmytro] Sadovnyk (ex-Berkut commander, who fled while under house arrest on October 3, 2014 – ed.) He also said that he wouldn’t go anywhere. I also remember that, not long before he fled, there was this situation where she said that he was ready to testify on the case, he was ready to provide evidence on how he was able to shoot with one hand. (Sadovnyk does not have a left hand – ed.) We visited him at the pre-trial detention center. We had specific questions. And we listened to Sadovnyk’s statement without interrupting. These were general things. And when later we wanted to ask our questions and record them on video, then he refused to testify at all. Shortly after he fled, despite persuading the court that he would completely follow his procedural obligations.

Now, six years later, the same thing is happening with the other defendants. I can concede that they’re not acting independently. That they’re doing certain things, while under pressure from the people who pay for their lawyers. They didn’t have any ability to pay such expensive lawyers, and we know where they’re actually getting funding. According to our information, this was the South-East Fund of Vitaliy Zakharchenko, the ex-minister of internal affairs of Ukraine. And those who helped them flee to the Russian Federation, are not interested in letting the ex-Berkut officers testify about these events.

Ex-members of the Berkut special riot police, suspects in committing terrorist acts on February 20, 2014, in the center of Kyiv, on the suspect bench during a court hearing at the Sviatoshyn Regional Court. November 14, 2017. From left to right: Pavlo Abroskin, Serhiy Tamtura, Oleksandr Marynchenko, Oleh Yanishevskyi. Photo: Anastasiya Vlasova / hromadske

As far as I understand, the court, in this case, was nearing testimonies from the defendants.

Our process is in its final stage. We investigated the stories of the victims, we investigated a significant portion of written evidence in production, and prosecution witnesses. That is, at that point we were interrogating the defense. It’s clear that we were already close to that moment when we would expect that the charged men would be giving testimonies. And we’re following from the fact that this was actually unfortunate in the case of Sadovnyk, for those who added them to the exchange list from the other side.

Did you talk at some point to the prosecutor general about his decision to release the ex-Berkut officers for exchange?

No, I didn’t talk to him on this topic.

But would you agree that this event has tarnished the reputation of both courts, and the prosecutor general?

In my opinion, this has affected the perception of the process and their image.

Oleksiy, you’ve been working on this case since 2014, and most likely, you’ve thought about it a lot. It seems to me that this is the most important court case in the country, because the relatives of the victims aren’t the only ones waiting for justice, but a large part of society as well. How do you rate this process for yourself?

I understand it in the following way – this process should give a legal rating to these events that occured on February 20 on Instytutska Street. This was certainly a defining process, considering how many people died, and the events that had occured in Ukraine after.

We have spoken at length that the view of the prosecution is that the facts have been confirmed and proven. But of course, the actual matter is the court’s verdict. And it’s important that a verdict is issued. That’s why the events in late December of last year had a negative effect. Today this gives politicians and the public the possibility to manipulate the events of February 20. To invent some Georgian snipers or to say that the suspects didn’t shoot anyone. This, without a doubt, is a huge negative. But I hope that in the end the algorithm will be developed.

Regarding concrete defendants, you mentioned Serhiy Zinchenko. The bullet found in the body of victim Maksym Shymko matches the bullet shot from Zinchenko’s gun. As for the other suspects, there’s repeated information about the fact that Yanishevskyi used the rifle of killed ex-Berkut officer Mykola Symysiuk (a member of the Kyiv division of Berkut, who died on February 20, 2014 on Instytutska Street – ed.). Can you confirm this information?

I’ve heard this version. The prosecution does not support the information that Yanishevskyi used the gun of the killed Symysiuk. Because, according to the video, Symysiuk died later. That is, the gun appeared with Yanishevskyi earlier, according to the video evidence we had previously. That’s the first thing. The second – the conclusion of the court medical experts is that a gun registered to Abroskin caused the deaths and casualties. As for the other suspects, we so far can’t say exactly which gun was used by Yanishevskyi. Everyone’s seen the video footage, when the gun was shooting, and how the other members of that unit were firing. And if we were to talk about evidence, there’s a lot of manipulation connected to the fact that law enforcement officers were also killed. And there was gunfire from the conservatory. And this situation, by the way, we noted in our notice of suspicion. If the events had occurred in this way, if there was gunfire from the conservatory, and then that or another unit had tried to detain people, then in that case they would have shot at the conservatory. And then, obviously, there would have been a different consideration of events.

Protesters drag a heavily wounded victim on Instytutska Street, Kyiv, Ukraine. February 20, 2014. Photo: Evgeny Maloletka / UNIAN

Member of the special riot police force Berkut shoot in the direction of protesters on Instytutska Street, Kyiv, Ukraine February 20, 2014. Photo: Evgeny Maloletka / UNIAN

You mean to say that in that case the Berkut officers would have been defending themselves from those shooting at them?

Yes. If they were to shoot at where gunfire was being focused against law enforcement, then the perception of these events could have completely different. We would still set the facts in each case: who shot whom, in what conditions. That is the whole set of circumstances, which is always clarified to distinguish criminal from lawful acts, or to distinguish a crime from unlawful acts that carry extenuating circumstances. That is, the murders could have occurred as a result of necessary self-defense. We could talk about this, if the law enforcement officers had shot there – near the conversatory. But on Instytutska Street we saw a completely different situation. That there were unarmed people there walking at a safe distance from those who had firearms. They didn’t represent any sort of threat, and it was these people who were indiscriminately shot. I want to emphasize the fact that these are different events, which are separated by both time and distance.

But ex-Berkut officer Mykola Symysiukwas killed near The October Palace (International Center of Culture and Arts), and, probably, not from the conservatory.

This is of course a weighty circumstance which we must take into account. But I’ll offer a counterargument – where, in the midst of the killed or wounded on Instytutska Street, was at least one armed person? If we were to talk about the murder of Symysiuk, then the person who could have killed him, was not threatened, not killed or detained, or wounded. But we’ll discuss this in detail during court debates.

When could these debates be held in principle? The court has scheduled a hearing for March, but obviously, nothing will change in the legislation at that point, the necessary things for trials in absentia, nor will the defendants show up in court.

First of all, it’ll be interesting to hear the defense’s side of things. I’m positive that they also have some arguments. Or, we could call it a procedural diversion, in order to sabotage the possibility that this process ever reaches a logical conclusion. We heard some things during the previous hearing on December 29, when they — with apparently total concern — said that they had no contact with their clients.

A question follows: where were the defendants from the period of December 29 to January 31? If these lawyers remain their advocates, then why aren’t they sounding the alarm? Where are the defendants being held, who is holding them, what’s going on? Are they even still alive? Where’s the activity that they’ve demonstrated during this process? If we were to believe them, as of January 14 they don’t know what’s going on with their defendants. Sadovnyk was also “kidnapped” at the time. And this time we’ll see something similar.

Oleksiy, I understand your desire to see this through to a logical end. But it is true that the Ukrainian government itself exchanged them. And you represent this government in court.

No, I’m not making any claims to the defense that they were exchanged. The defense has played out its role in this scenario.

I also quickly wanted to ask about the investigators. Previously, there was a department of special investigations, whose investigators help establish some evidence for the Euromaidan prosecutors. Now this department has ceased to exist, instead there’s the State Bureau of Investigations. Do you trust the investigators working in this bureau?

Specifically, in the case of the five former Berkut members, there isn’t any risk from the court investigative organs. Because at this stage, only the prosecutors take part in the court process.

As for the investigative bureau which has been created in the SBI, then it is important to note that the investigators from the special investigations department had the opportunity to transfer to the SBI and now work in the subdepartment on the Euromaidan cases. It’s very important that the magistral work, as we call it, on the events of 2013-2014 – this includes the events of February 18, the events of February 20, 2014, and the events of November-December 2013 – still have the same investigators who previously worked on the case, or who had been prosecutors on the case.

So we’re talking about the status quo principle with regard to accountability in this matter. This is important. Those things that we consider important and effective, we find that the SBI is in agreement. This relates to investigators working on the case, as well as strengthened investigative groups. That’s why we may assume different things in the future, but currently I have no concerns. If there are some negative factors, then I, definitely, will be talking about them as well.

A casualty from Instytutska Street is brought to the Maidan Square. Kyiv, Ukraine, February 20, 2014. Photo: Evgeny Maloletka / UNIAN

What about the fact that the deputy head of the SBI was Yanukovych’s (former president of Ukraine who fled to Russia during the Euromaidan protests in 2014 – ed.) lawyer? And Yanukovych, according to the indictment on the Euromaidan cases, is the main accused party.

Yes, this relates to a conflict of interests. It’s important that the person who served as Yanukovych’s lawyer have no direct or even side influence on the SBI investigators who are working on the Euromaidan case.

Is this possible?

I don’t know how this will be organized. This was the public promise from the SBI leadership, and I can only hope that they fulfill their promise.

What will you do if the leadership does not fulfill its promise?

That will depend on what sort of actions would be taken, and in whose interest.

What sort of verdict do you want on the Euromaidan case?

As a prosecutor on the case, I want the evidence that we’ve collected to be properly evaluated, the evidence that we’ve connected the suspects with, the evidence that incriminates the suspects in these crimes. That’s the first thing. The second thing, of course, that for us would be important would be to hear the defense’s position and have the ability to question them. Yes, they have the right to refuse to testify, and that would also be a position. That would also support the idea that they have nothing, to deny the hard evidence that we have. And thirdly, that justice would absolutely be served by a verdict in this case, which would give a legally significant answer to the questions of the events of February 20. This verdict is necessary in order to once and for all stop the manipulations that are present in some parts of society and politics in regards to who was killed and why, and in order for people to hear the truth, not just the truth from the prosecution’s side, but the truth that would be established in a court decision. This is extremely important.