Despite the fact that the war in the Donbass has entered its sixth year, the Criminal code of Ukraine still does not have an article on responsibility for crimes against humanity and there is no full catalogue of war crimes.
The Parliament of the previous convocation has attempted to amend the legislation, but have not brought this process to the end. Representatives of the current composition of the different parliamentary factions and Deputy groups decided to rectify the situation by registering the bill. If it passes, the war crimes would not be Statute-barred, and those who committed them will not be able to grant Amnesty.
THE MILITANTS RESPONSIBLE FOR TORTURE AND MURDER
According to the authors, the bill No. 2689 agreed to the Ukrainian criminal law with the norms of international criminal and humanitarian law and provide a proper legal qualification of the crimes committed in the combat zone and in the occupied territories. In fact, this document was prepared long ago. Prepared by the human rights defenders who are documenting the crimes against humanity, war crimes and human rights violations on the territory of Crimea and Donbass and which first drew attention to the fact that the responsibility for these crimes in the Criminal code is not provided. There is no justice for crimes against humanity, is not written out full line-up of war crimes. Therefore, the platform “human rights agenda” more than three years ago began developing a bill that would punish war criminals. Its preparation has involved the Ministry of justice. And it was made by the Cabinet of Ministers to the Parliament in December 2018 and adopted in the summer of last year in the first reading. But then got stuck. To move this process in the Verkhovna Rada Committee on law enforcement is already present convocation created the working group, the text is improved and at the end of last year was a new bill. Last week, the Committee recommended that the Parliament adopt it in the first reading. And to consider all nuances which can arise in the preparation for the second reading, the Committee proposed to hold a public discussion of this document not only with the participation of human rights defenders, law enforcement officials, international experts, but also include people who survived torture and captivity.
Among those who spoke in support of this bill, – Alexander Grishchenko, the veterinarian who lived in Lugansk and was captured by the militants in July 2014.
“I was captured by the militants of illegal armed groups on 14 July, he recalls. – The basis for my conclusion was that at the moment of capture I with myself did not have a passport and only had his ID. In addition, I was carrying a camera, because I’m a photographer, and on the memory card, the militants found a picture of the Pro-Ukrainian rallies, or as we called them, “Lugansk Maidan”, as well as the Kiev Euromaidan. The militants stopped me, once said that the mere existence of these photos is a sufficient reason to me to shoot on location, or at least shoot me in the legs. I put forward the absolutely absurd charges of espionage and imprisoned in the cellar of a hostel of the East Ukrainian national University. Vladimir Dahl, which was adapted for the detention of prisoners. In the basement I was immediately knocked down, repeatedly struck with shock, and then started beating feet. Then on the neck threw the noose, dragged to the torture”.
Alexander says that he was tortured with a hammer of hard rubber, designed for laying paving slabs, hinges, surgical instruments. Doused with a solution of unknown chemicals poured it down his mouth with a surgical saw made cuts between the fingers of the left hand. After the abuse and torture that lasted for several hours, he was handcuffed and thrown in a cell, which at that time was more than 10 people. It was women and men being held together. “I was forbidden to lie on the floor and another prisoner was announced that for the slightest assistance to me, they will be severely punished. The first few days I could not get rid of the idea that was just crazy. Because what I saw and experienced, it was like a nightmare, which somehow did not end,” he says.
In captivity Alexander Grishchenko was almost six months. During this time he has witnessed many crimes. Among those who were kept in the same cellar, were two men who crossed the road in front of the car of the commander of an illegal armed formation. He didn’t like it, he ordered the guards to stop the car and severely punish these people. In the basement abandoned them already beaten and bloodied. One of them had a broken arm.
He describes how the prisoners incited the dogs, they were shot from a traumatic weapons, used as a punching bag.
“I remember three pensioners who threw up in our chamber one evening, he continues. One of them was from a suburban area in the store to buy groceries. The other two were directed to their plots. They didn’t know there was a detachment of fighters. They first fired and then put sacks on their heads and beaten on charges that they fire spotters for the Armed forces of Ukraine. One of them broke his ribs, the other was beaten to a severe concussion and stabbed him in the thigh with a bayonet. A third tied his hands behind his back, tied a rope to them and threw it over the branch. On this makeshift rack he hung for several hours. When I tried to transfer body weight on the feet to reduce pain, they beat him on the feet. Then he incited a specially trained dog. I saw his wounds, as the camera itself can handle them.
I have also seen, at night, a young woman allegedly regularly taken out for interrogation, but everyone knew that she was just raped in the next room. Saw a minor girl was repeatedly evacuated in a fighting position as the militants gift to satisfy their sexual needs. In other words, it was the multiple gang rape”.
According to a former prisoner, periodically from the basement carried the bodies of dead and tortured. In an illegal armed formation, which was kept in there, was even the staff of the executioner. Listing these facts, Alexander Grishchenko names of the gunmen involved in all these crimes. Emphasizes that most criminals today are left unpunished, and it should not be. He wants what happened to him and other people in that dreadful basement, was seen as a crime against humanity.
“Our center the first three years devoted to the collection of evidence of people who came from captivity – told during a round table organized by the parliamentary Committee the head of Board of “Center of Civil Liberties” Alexandra Matviychuk.
– I talked to people who were raped, beaten in wooden boxes, cut off limbs, removed his eyes with a spoon. When you all these stories himself passed through, you have a wild desire all this horror to stop. And when we began to study the problem of impunity, we saw that it can be divided into two subcategories. The first, which does Ukraine depend, we now have the occupied territory, with a population of 5.5 million people, and none of them from what are not insured and are not protected. And the second, which is fully in the competence of the Ukrainian authorities and which have a long time to solve. This harmonization of the Criminal code with international humanitarian and international criminal law. When you talk to people who came out of captivity, I understand that they have hope for delayed justice. This bill is an important step to ensure that justice be restored”.
In principle, the Criminal code now has an article 127 “Torture”, say lawyers. But to her imputed, it is necessary to prove a specific purpose for which a person was tortured. How to determine the target of the militants, who have subjected the people to severe torture in the basement, similar to that which was spoken of by Alexander Grishchenko? Is it possible that there was happened and is happening, to be considered as a single criminal offence? After all, such torture is systematic mass character. So there are important norms of international law. If we talk about torture as a crime against humanity, this does not provide any purpose. Investigators will be easier to qualify such crimes, and judges – to determine the measure of responsibility for them.
Such torture in the occupied territories is a tool of intimidation, he said, “Institute for the future” Victoria Brain. “I worked for several years in the Prosecutor’s office of AR Crimea and were involved in gathering evidence in such criminal proceedings. Imagine the situation when you take a certain nationality – the Crimean Tatars. Systematically people disappear, then it turns out that they are dead, tortured. How does this affect the situation on the Peninsula as a whole? From the Crimea, and so people are constantly traveling. Would the material the opportunity to travel to the territory of mainland Ukraine have an even greater part of people, they would have done it. What happens next? The Russian Federation imported into the territory of the Peninsula, its population and displaces Ukrainian. This leads to the fact that people cannot normally exist under conditions of constant intimidation and fear of being tortured,” she explains.
According to her, torture in armed conflict are characterized in that they have impact on others. That is why the offence compared to what is described in article 127 of the criminal code, has a higher criminal degree of blameworthiness. That is, for the torture, depending on their scale and regularity may be life imprisonment.
Alexander Matviychuk also focuses on the fact that the parliamentary Assembly of the Council of Europe in several of its resolutions on Ukraine has given recommendations to the Ukrainian authorities. That is precisely drew attention to article 127 of the criminal code. The first part of this article provides a sanction of up to five years and it is not a particularly serious crime. This means that the person who committed it may be pardoned. And if you do not qualify for the second part of this article, that war criminals can be brought under a potential Amnesty.
THE STATUTE OF LIMITATIONS WILL NOT SAVE
Lawyers say that at present the Criminal code of Ukraine there is only one article – 438, which refers to war crimes with specific components: ill-treatment of prisoners of war and civilians, forced labour and looting of national values in the occupied territories. All other offences under this article, the Ukrainian investigators should look for in Ukraine signed international treaties.
Earlier, the Chief military Prosecutor’s office carried out pre-trial investigation in criminal proceedings on the fact of committing on the territory of Donetsk and Lugansk regions members of the terrorist organizations “DNR” and “LNR” widespread and systematic violations of international humanitarian law (treacherous killing, bullying, torture, and other forms of ill-treatment of POWs and civilians, extrajudicial killings, forced labor, etc.).
The preliminary investigation established numerous violations of requirements of part 2 of article 75 of the Protocol Additional to the Geneva conventions relating to the protection of victims of armed conflicts of 12 August 1949. Talking about Protocol I, adopted at the diplomatic conference in Geneva in June 1977.
Information about the collected evidence established facts of aggression, waging a hybrid war and crimes against humanity and international law committed by Russia on the territory of Ukraine, aimed at international judicial institutions.
But also investigators, prosecutors, and judges need legal mechanisms in the national legislation that will adequately qualify such crimes and accordingly to punish those who commit them in Ukraine.
According to Deputy attorney General of Gunduz Mammadov, an important condition for the well-founded criminal prosecution for serious war crimes and crimes against humanity is the proper legal framework: with clear and understandable rules and the same interpretation by all parties to the process.
“Now the law provides for the prosecution of persons only on the basis of article 438 of the criminal code of Ukraine (Violation of the laws or customs of war). The legal basis is, but it is so generalized that to comply with international humanitarian law and properly install the offense, level of criminal responsibility for particular crimes almost impossible. That is, neither national bodies of preliminary investigation nor the courts can carry out the correct classification of those actions that have no Statute of limitations. And guilty of most of the war crimes and crimes against humanity have so far managed to avoid responsibility”, – he explained.
He also added that according to article 438 of the criminal code of Ukraine registered criminal proceedings 138, 9 sent to court and only one sentenced. And said that in the process of reform in the Office of the attorney General created the Department of supervision in criminal proceedings in respect of crimes committed in situations of armed conflict.
“We call it a brain center that coordinates all law enforcement agencies to investigate crimes of this category. Moreover, the Prosecutor’s offices of Donetsk and Lugansk regions, we have established similar units,” – said the Deputy Prosecutor General.
In turn, the head of the Verkhovna Rada Committee on law enforcement activities Denis Monastery said that “in war bill No. 2689, which kriminalisiert the major crimes under international law – genocide, aggression, crimes against humanity and war crimes, is one of the vital documents that MPs should be supported. So law enforcement officers could work more efficiently.
WHEN THE LAW IS NOT RETROACTIVE?
Lawyers who are part of the working group participated in the preparation of the bill, noted that the city of Melbourne implemented a whole set of war crimes, he detailed, every part written out taking into account the terminology of our Criminal code and with the practice of international courts. All concepts, which can raise questions, provided interpretations, and these interpretations were given special attention to ensure that our law enforcement officers and judges as immersed in international humanitarian law, international criminal law and practice could be used effectively.
“This bill is very important in the context of the situation in the Crimea. Because the Peninsula is systematically, starting from February 2014, happen war crimes and crimes against humanity: the persecution of the Crimean Tatars, the resettlement of citizens of the Russian Federation crimes against the Ukrainian people”, – said the permanent representative of the President of Ukraine in Crimea Anton Korynevych.
Complementing it, a Professor of criminal law and criminology of the Kiev national University. Taras Shevchenko Konstantin Zadoya explains: “If you take, for example, persecution of the Crimean Tatars in the Crimea. Persecution is a separate crime against humanity, but the Criminal code proceedings are not discharged as a crime. Even if you find a new norm and to pursue an act which constitutes a crime under international law as ordinary offences, it will not take into account the context of organized violence”.
All who spoke in support of the document, insist it is important because such crimes will have no Statute of limitations. So how long and then no matter where the offender was hiding, he would have to answer. In addition, due to their severity of those who have committed crimes, will not be able to count on Amnesty. “It is absolutely critical for Ukraine in the context of the Minsk agreements, where the point of the Amnesty was discharged in fairly vague terms. Only devotion to international law can put an end to any attempts to pressure Russia to Ukraine, so that Ukraine was forced to grant Amnesty to war criminals,” – said Alexander Matviychuk.
Human rights activists hope that tougher laws will also help to reduce the number of crimes in the future.
Of course, as in any other document, here too there are problems. One of them is the so-called problem of retroactivity of the norms that are introduced this bill in the criminal code. Article 58 of the Constitution of Ukraine States that laws and other normative legal acts have no return action in time, except in cases where they mitigate or annul the responsibility of person. No one can answer for acts that, at the time of their Commission were not recognized by law as an offence.
The Constitution formulated the prohibition of retroactivity in a much more categorical language than it is in international law, convinced the President of the European Committee for the prevention of torture Nikolai Gnatowski. According to him, it is enough to compare it with article 7 of the European Convention on human rights, which actually gives the standard to which you should navigate. He also emphasizes that this Convention has been adopted based on the outcomes of the International military Tribunal in Nuremberg.
So the authors of the draft law is a rather difficult task. They have provided in the transitional provisions, a statement indicating that if the acts provided for in certain articles of the Criminal code, at the time of its Commission was not an offence in accordance with the legislation of Ukraine on criminal liability, “however, admitted the crime of genocide, crime of aggression, a crime against humanity or a war crime under international law, considered that such actions at the time they were committed constitute a crime in accordance with the legislation of Ukraine on criminal liability.” But perhaps the MPs should appeal to the constitutional Court, and he would’ve told article 58 of the Constitution of Ukraine in accordance with the objective which it pursues and obligations of Ukraine under international law. To continue to avoid the reasons for acquittals.