On December 29, the five ex-Berkut officers accused in the mass shootings at the Instytutska Street in February 2014 – Oleh Yanishevskyi, Serhiy Zinchenko, Pavlo Abroskin, Oleksandr Marynchenko and Serhiy Tamtura – were handed over to the self-proclaimed "DPR" and "LPR" as part of the prisoner exchange between the government of Ukraine and the "republics".
The day before, the judge of the Kyiv Court of Appeal Marharyta Vasylyeva changed their pre-trial detention to personal recognizance, that is, released them.
The trial on the shootings at Instytutska on February 20, 2014, lasted more than four years. It heard all the victims and most of the witnesses. The investigation into this case is a colossal work of a team of investigators and prosecutors of now non-existing department of the Prosecutor General’s Office. Its former head, Serhiy Horbatiuk, was fired from the PGO, and most of the group that had worked on dozens of Maidan cases for years either moved to other departments, or failed certification, or changed jobs.
Despite the demand of the victims’ families and the hunger strike of their lawyer Yevhenia Zakrevska the department was not transferred to the State Bureau of Investigation.
The case was led by three professional judges and three jurors. The accused themselves should have been heard at the court in several months, and the verdict should have been announced by the end of 2020. But we will never hear these testimonies in court.
In 2016, we recorded two interviews at the Lukyanivske pre–trial detention center in Kyiv. Oleh Yanishevskyi and Pavlo Abroskin argued that they are not on the videos where the investigation identifies them, and were contesting the ballistic expertise.
However, both were at the Instytutska street on February 20 and had to testify in detail about their actions that day.
At a sitting of the Kyiv Court of Appeal, the PGO replaced prosecutors who had been in the case for almost 5 years – those who opposed the release of the accused from the pre-trial detention center. And three new prosecutors sought to change the measure.
We look at what the decision to include the ex-Berkut officers to exchange means for the victims’ families. Here are some of the speeches during the court session on December 28.
Victoria Opanasyuk, wife of the murdered Valeriy Opanasyuk
I have four young children at home. I've been raising them myself for six years. No one knows this pain, what is going on in my soul. I am not against the exchange of prisoners, I am all for, I am sorry for the people who are now in those barracks.
But they [ex-Berkut officers] did it before the war began. They were killing peaceful people. How can we, the ordinary people, appeal to the court and believe that you will make the right decision?
Volodymyr Bondarchuk, son of the murdered Serhiy Bondarchuk
This crime happened before the Ukrainian-Russian war. It does not relate to the military conflict and such an exchange cannot be considered by the court. In my opinion, such an exchange is impossible. If we are already following this path and after so many violations in this process, turning the state prosecution into a farce, let's come to the end and in the best traditions of the Russian Federation turn to the [NKVD] troika, maybe announce a sentence here and finish it.
To me, everything that happens here is a farce, a total violation of human rights that in the future sets a precedent for violating the right to justice and fair trial of any citizen.
Speaking of exchanges, in the case of the Kharkiv terrorists, the victims had at least a verdict – and there is a clear risk that 200 people who have been going to courts for five years, more than 20 of whom have not survived to this day, will never have justice.
Roman Ushnevych, brother of the murdered Oleh Ushnevych
The case is nearing completion and all procedural steps must be completed, all those who have not been questioned should be questioned, and only then we’ll see if their guilt is proven. These persons cannot be related to the conflict, they cannot be tied to prisoners of war. Berkut cannot be on the same list as prisoners. It is necessary to bring the case to its logical conclusion.
Anna Adamchuk, daughter-in-law of the murdered Heorhiy Arutyunyan
We have been waiting for a fair sentence for five years. Parents do not survive because they can't withstand. Children do not understand why their parents, who gained a democratic state for them, were killed. The defendants are not victims of the military conflict. I'm not against the exchange. Our family is volunteers – we are constantly supporting and caring for our military. I worry about our captives.
I have a minor sister – the daughter of the murdered. What will I tell her when she grows up? How can we live with the fact that no one is punished for murder?
Hanna Varenytsia, mother of the murdered Roman Varenytsia
My son was peaceful. He never dealt with weapons. He went to the Maidan for justice and dignity. And today I'm scared to see how justice and dignity are trampled on in this court.
I do not understand how the Prosecutor General, who must fight for justice, could write such a letter. How can Ukrainian citizens be exchanged to Ukrainian citizens? I do not understand this, as we all do. How can the authorities give away their citizens?
My son was fatally shot in the chest. His liver, heart, and trachea were mutilated, but that wasn’t enough for them – when he was already lying down, they shot him in the legs, wounded both feet and hips. Are they humans? I am against letting them go.
Yuriy Aksenyn, son of the murdered Vasyl Aksenyn
I am a volunteer, I had been defending the territorial integrity of our state. The families of those murdered at the Maidan are very sympathetic to the families of the prisoners, believe me. But really, consideration of this case is very important for society. Unless such a crime is punished legally, the current police or the future one may do even worse.
Zoya Shymko, mother of the murdered Maksym Shymko
My son was killed with [Serhiy] Zinchenko's weapon. The bullet hit the neck, stuck under the shoulder blade. Do you know how hard it is when people wait six years? For six years I have been waiting for my son to come home and say, hi, I'm home. But this will never happen. His father did not overcome this terrible grief, the loss of a son, he died. And now we are left alone with our younger son, it is difficult for us to live. It's hard because there is no justice.
READ MORE: Prisoner Exchange in Donbas: How It Happened
Back in 2014, my husband and I were asked in court: What do you want for these guys – to let them go or to be in jail? I said "be in jail". Honestly, I wanted these guys to live. Who knows what could happen to them at large. When I was taking [the body of] my son from the Maidan, a priest came and said, tell that you forgive them. I said I forgive. But when I saw these court hearings, how these guys cynically and arrogantly treat us, the victims ... I very much want a sentence, a fair sentence. When evil is not punished, it generates evil further.
And these are the summary statements of two lawyers of the victims that were heard by the court before reaching a decision.
Olena Storozhuk, lawyer for the families of the Heavenly Hundred victims
We are now in the status of litigants, but a decision has already been made. It is actually a political decision, and it has nothing to do with the Criminal Procedural Code.
Justice should be exercised only by a court, by no one else. If there is no justice, there will be no state. Now we have a destroyed institution of the state prosecution because the prosecutors who took the case are not independent. Actually we support the exchange. Our captives are very important. But it [exchange] cannot be done at the cost of undermining the state. The state institution of courts and Prosecutor's Office is not just broken, but kneeling, we are actually hostages to these events.
We will not be able to continue the lawsuit in the occupied territories. I believe that if a political decision was made at the highest level, there would have to be a pardon decision that would have legitimate grounds for release and transfer for exchange.
Yevhenia Zakrevska, lawyer for Heavenly Hundred families
They [prosecutors] knowingly brought evidence of pressure and interference with their activities. They voluntarily acknowledged this interference and completely absolved themselves of responsibility and shifted it to court. [In fact] They said that the prosecutor's office did not exist in this process. We have only the will of the president, transferred with the prosecutor general.
If we start exchanging people who are in no way involved in this [Russian-Ukrainian war] conflict, we are expanding it. We do the opposite of what we declare. We are not just expanding the conflict, we are allowing the Russian Federation to intervene in Ukraine's internal affairs.
And when it enters the civil domain, not in the territory of the conflict, not during the conflict, not to the parties to the conflict, it is a violation not only of the Criminal Procedural Code, but also a violation of the international norms that are invoked in order to carry out this exchange.
If the persons who are now asking to cancel their preventive measure disappear from the territory of Ukraine – and they will disappear, we know it – then criminal proceedings will actually cease. We all understand that they will need to be declared wanted. It will be necessary to file a request for delivery in order to change the preventive measure and to stop criminal proceedings.
We have been reviewing this case twice a week for five years. This organization has not been contested by anyone. This is a unique situation where the defense, the prosecution, and the victims understand that at least procedurally this suits everyone. This means that the decision to be made also has a very high chance to suit the vast majority of people in Ukraine. And it can be a solution to social conflict and an agreement. Instead, we are offered to do the exact opposite. To deepen the rift. To exacerbate the situation. Where are the victims – who have been patiently coming to court and awaiting the sentence – offered to go? What responsibility do the people who do this take on?