7 years with no answers. What is lacking in the investigations of the events in odesa on 2 May 2014?

1. What happened on 2 May 2014 in Odesa?

After the end of the Maidan protests in Kyiv, Odesa anti-Maidan groups – critical of the newly established central Government – called for the federalization of Ukraine, while Maidan supporters opposed this.

Tensions in Odesa increased after 19 February 2014, when a group of ‘pro-unity’ protesters and local journalists were attacked by organized groups in front of the Odesa Regional State Administration. During March and April 2014, however, the two opposing groups held rallies in Odesa every week without significant violence.

On 2 May 2014, around 300 well-organised ‘pro-federalism’ supporters attacked a march of about 2,000 ‘pro-unity’ protesters,  including local residents and a large number of football fans known for their strong ’pro-unity’ position, who had arrived from Kharkiv for the football game that was taking place later that day. Clashes between the two groups broke out in the city centre, lasting several hours. Both groups used firearms, resulting in six people being shot and killed (four on the ‘pro-federalism’ side, and two on ‘pro-unity’ side). We were present on the scene and witnessed how the ‘pro-federalism’ groups began throwing stones and Molotov cocktails at the participants of the unity march. The situation spiralled out of control as the police failed to respond effectively to violence from both sides, even though they had been warned in advance of the high possibility of violence.

The presence of ‘pro-unity’ groups was overpowering in numbers and forced the ‘pro-federalism’ groups to scatter: some sought refuge at the top of a shopping centre close to where the clashes were taking place, others ran to a camp they had set up at Kulykove Pole square. While a large group of ‘pro-unity’ supporters marched towards Kulykove Pole, openly demonstrating their aggressive attitude, the police failed to respond, neither restraining the aggressive crowd nor securing the square. 

When they arrived, the ‘pro-unity’ individuals destroyed the camp and the ‘pro-federalism’ supporters barricaded themselves in the House of Trade Unions. Mission’s staff saw both sides throwing stones and Molotov cocktails and heard the sounds of gunshots coming from both sides, and then saw the House of Trade Unions on fire. Firefighters from the State Emergency Service (SES) responded with significant delay to numerous emergency calls made by eyewitnesses, including one of our colleagues. By the time they arrived, some forty-five minutes after the first call, forty-two people had lost their lives (34 men, 7 women and a boy). In the absence of the emergency services, we observed some ‘pro-unity’ supporters assisting their trapped opponents to leave the burning building. However, some of those saved from the building were then heavily beaten by the crowd.

2. What is the outcome and the present status of the investigations?

Only one person has been charged with murder. This member of a ‘pro-unity’ group is accused of firing a lethal shot that killed a member of the ‘pro-federalism’ groups during the clashes in the city centre. The alleged shooter was identified quickly and arrested on 18 May 2014, however the case has seen little progress, with multiple recusals of judges, disruption of hearings by the defendant’s supporters, and 18  months lost as the prosecution revised the charges. Over the last two years, systemic problems in the judiciary, including the lack of judges and underfunding of courts, as well as COVID-19-related restrictions, have further slowed the trial.

The police have not identified those responsible for the killings of the other five men during the clashes in the city centre. Instead of focusing on identifying the perpetrators of the murders, the police concentrated its efforts on investigating and prosecuting ‘pro-federalism’ supporters for their participation in clashes. The most notable criminal case, highlighting the partiality and bias of the investigation and prosecution, is the case against 19 alleged ‘pro-federalism’ supporters charged with participating in the unrest in the city centre. In September 2017, the court acquitted the 19 men accused, stressing the ineffective investigation and the biased and politically-motivated prosecution of the alleged ‘pro-federalism’ supporters. Recently, Mykolaiv Court of Appeal considering the prosecution appeal on the verdict has placed the case on hold, while they look for some of defendants who have systematically failed to appear for hearings.

In relation to the fire in the House of Trade Unions, while there were investigations into who started the fires, there were no results and no charges have been laid against the supporters of either group.  Instead, the investigation focused on the role of the police in ensuring the safety of people and preventing violence (which started in the city centre), and on the role of the SES officers and officials, who failed to adequately react to emergency calls and deploy firefighters to the scene. None of the court proceedings regarding the role of police or SES officials have been completed. The COVID-19-related slowdown of trials has contributed to further protracting these proceedings.

3. Given the passage of time, and with so many other pressing issues in Ukraine, why is it important to keep these investigations going?

Victims deserve justice. Crimes should be prosecuted and perpetrators should be brought to account regardless of their political opinions.

In relation to the 2 May 2014 violence, Ukraine is obliged – by the regional and international human rights treaties Ukraine is a party to –  to identify, prosecute and bring to account those responsible for the deaths of 48 persons. The authorities must also ensure equal and effective access for all victims and their families to justice and adequate, effective and prompt reparation for harm suffered.

When authorities fail to investigate human rights violations, people are forced to seek justice through other avenues. In a series of recent judgments by the European Court of Human Rights on the Maidan protests, Ukraine was found to be in breach of its obligation to investigate and prosecute human rights violations and was ordered to pay compensation to the victims. Such findings negatively impact Ukraine’s international reputation.

The prosecution of perpetrators and remedying harm also helps to prevent the recurrence of violations. Finally, the truth uncovered during criminal proceedings can serve as a strong basis for reconciliation efforts.

4. How independent, transparent and fair are the investigations and trials?

Our monitoring of the trials related to the 2 May 2014 cases has raised particular concerns regarding the criminal proceedings involving those who participated in the clashes.

The court itself found that the investigation in the case of 19 ‘pro-federalism’ supporters was biased. The authorities only investigated the misconduct of the ‘pro-federalists’ during the clashes and not the misconduct of ‘pro-unity’ supporters.

We have also observed a lack of security and safety for judges and other legal professionals threatened and attacked by ‘pro-unity’ supporters, attempting to influence their decisions or conduct in criminal cases related to the 2 May events. In order to ensure that the members of the ‘pro-federalism’ movement, tried for creating public disorder in the city centre, remained in detention, ‘pro-unity’ supporters attempted to force judges to take decisions to this end. For example, on 27 November 2015, after the trial court released five ‘pro-federalism’ defendants on bail. Following aggressive demands of the ‘pro-unity’ supporters, the prosecution appealed the judge’s decision to grant bail, although it was not provided by the legislation at that time. Three days later, some 50 men prevented the appeal court judge from leaving his office until he initiated the appeal proceedings, and police did nothing to unblock the judge’s room and simply watched what was happening. The same day, ‘pro-unity’ supporters also refused to allow the trial court judges, who had granted the defendants’ release on bail, to leave the courtroom until they signed resignation letters, which, however, they withdrew the next day. In the case of the ‘pro-unity’ supporter accused of killing a supporter of the ‘pro-federalism’ movement, other members of the ‘pro-unity’ movement violently disrupted hearings and verbally abused judges at hearings in order for the case against him to be dropped. The police again did not ensure security of the courtrooms or investigate the interference into justice.

Members of ‘pro-unity’ groups also threatened to kill a lawyer representing ‘pro-federalism’ supporters. Later, as a result of a clash outside the court with a mob of ‘pro-unity’ supporters, the lawyer sustained a fractured finger. Even though some of these incidents occurred in the presence of the police, were caught on camera or perpetrators were identified by victims or witnesses of the attacks, the respective investigations simply remained open without any tangible progress. Impunity for such attacks has understandably affected judges and lawyers’ sense of security, thereby jeopardizing their independence.

A broader sense of intimidation and impunity was also created by attacks against relatives.  ‘Pro-unity’ groups attacked relatives of the victims of the fire at the House of Trade Unions during commemoration events in 2014-2016. The attacks, combined with the police’s failure to ensure security of the commemoration and to investigate such incidents, create an impression that ‘pro-federalism’ supporters are less protected than others in Odesa. The lack of a sense of security, of visible progress and of broad public demand for justice in these cases has led to victims’ relatives losing hope and interest in participating in the court hearings, which in many cases proved the only effective means to ensure some progress toward justice.

5. Why are the 2 May 2014-related trials not progressing?

Trials fail to progress mainly due to a lack of political will. Arguments about the complexity of the case or difficulties in getting victims to attend the trials cannot be excuses seven years after the events. The lack of security for judges has also contributed to their reluctance to adjudicate such cases. This can be seen in the case against the 19 ‘pro-federalism’ supporters, which was passed between all four district courts of Odesa before finally being sent to a court outside Odesa three years after the case was referred to trial. Similarly, between June 2015 and January 2017, the case against the only ‘pro-unity’ supporter was passed between all four district courts in Odesa, which resulted in a further delay in the trial of more than a year and a half.

6. How can the fugitives be brought to justice?

Several individuals prosecuted in relation to the 2 May events have managed to flee abroad, to Crimea, Ukraine, occupied by the Russian Federation, or to territory controlled by self-proclaimed ‘republics’ in eastern Ukraine and remain out of reach of Ukrainian justice. They include high level officials from the police and the SES, as well as ‘pro-federalism’ supporters. In October 2014, Parliament introduced a procedure for in absentia prosecution, which allows for the prosecution of fugitives in their absence.

However, under the Criminal Procedure Code, those convicted in absentia are not entitled to an in-person retrial of their case, which is required by international human rights standards. Countries they flee to may, therefore, lawfully refuse to extradite them to Ukraine. Unless amendments are made to the Criminal Procedure Code to rectify this, all efforts taken to prosecute perpetrators of human rights violations in Ukraine will be in vain, for the verdicts delivered in absentia will likely be unenforceable.

7. Can we hope for any progress?

In order to avoid further delays in the 2 May trials, courts should grant them priority status. Judges and parties to the proceedings, including prosecutors, lawyers and relatives of victims, should enjoy a sufficient level of security, including in the courtrooms, to allow the trials effectively to proceed. In order to ensure the transparency and impartiality of ongoing investigations, the Office of the Prosecutor General should consider transferring them from Odesa to Kyiv.

Moreover, the lack of progress in the appeal proceedings against 19 ‘pro-federalism’ supporters for the past three years due to the failure of the court and police to compel attendance of the defendants, makes us wonder whether we will ever find out who was responsible for the clashes that eventually ended with the loss of 48 human lives.  

Seven years on, it may seem that the obstacles are insurmountable and no further results could be expected. But progress is possible. We have seen in the past year, for example, some significant advancements in the investigation of the Maidan events in Kyiv, including the identification of individuals now charged with causing the deaths of protesters and a person, who died in the fire at the Party of Regions office. Moreover, history is strewn with examples of prosecutions that have happened even decades after grave human rights violations took place. Trials in absentia are also possible. Although the punitive aspect of such trials may be disputed, they can help to bring justice to victims, allow for compensation, foster reconciliation, create a historical record and deter future crimes.

Ultimately, what is needed is the political will to ensure justice in these cases.The seventh anniversary is the perfect occasion for the authorities to take firm action to move forward on accountability in relation to the 2 May 2014 events and to show that the rule of law is a guiding principle in Ukraine, rather than a biased system based on political positions.

The courts should prioritize these cases to demonstrate that accountability can be achieved, irrespective of the affiliation of the alleged perpetrators. Parliament should also amend the Criminal Procedure Code to enable those who fled Ukraine to be tried in absentia in full compliance with their right to retrial, thereby allowing for their future extradition.

All victims deserve justice and Ukraine deserves the rule of law.