The families of slain Maidan activists, as well as lawyers representing all Maidan victims, have issued an urgent appeal to President Volodymyr Zelensky following multiple reports that five men on trial for the killing of 39 activists have been included on the list of prisoners to be exchanged with the Russian-controlled Donbas militants. While there has been no official confirmation that the five ex-Berkut officers have been included on the list, there has also been no denial, despite the clear public interest in this case. Concern is further exacerbated by the fact that the men are being gradually released from custody, despite the very grave charges against them and the fact that a number of other suspects have fled to Russia while under milder restraint measures.

Agreement on an exchange by the end of 2019 was announced on 23 December after a previous meeting had ended in failure. No details have been provided about the prisoners whom the Ukrainian side is to hand over, and the only information Ukraine’s representative at the talks, Valeria Lutkovska gave was that POWs who fought in the battles of Ilovaisk and Debaltseve are to be included.

Agreement in principle on an exchange “of all for all” was achieved during the Normandy Summit, although it became clear almost immediately that “all” in this case did not refer to the almost 100 Crimean Tatar and other Ukrainian political prisoners held in occupied Crimea or Russia, nor to all hostages and POWs in occupied Donbas, only those that the Russian proxy ‘Donetsk and Luhansk people’s republics’ recognized.

Russia made the exchange of 35 Ukrainian political prisoners in September this year contingent upon the controversial inclusion of MH17 suspect Vladimir Tsemakh. It would not be surprising if, via the so-called ‘republics’, it insisted upon the inclusion of men charged with grave crimes on Maidan and in Kharkiv, if only because of the intense controversy this would provoke in Ukraine.

It has long been feared that three men on trial over a 2015 terrorist attack in Kharkiv which killed four participants in a Unity March on the first anniversary of Euromaidan or the Revolution of Dignity, including 15-year-old Danil Didyk, were to be added to the exchange list.

The families of Maidan victims are now confronting strong rumours that the only five men currently on trial over the gunning down of Maidan activists could also be handed over before even this one trial reaches its conclusion. Hromadske TV, for example, cited two unnamed sources involved in the trial, in reporting that the men were to have their restraint measures changed and were to be included in the exchange.

On 23 December, the Advocacy Advisory Panel, and the NGO ‘Families of Nebesna Sotnya Heroes [the slain victims] to President Zelensky, noting that they had received information about the inclusion of the five defendants from different sources.

The appeal begins by pointing out that the ex-Berkut officers in question: Serhiy Tamtur; Serhiy Zinchenko; Pavlo Abroskin; Oleh Yanishevsky and Oleksandr Marynchenko, are neither participants, nor victims of the conflict in eastern Ukraine. The crimes that they are charged with have nothing to do with the conflict, nor with separatism. All of them are, in addition, Ukrainian citizens. “Their release as part of an exchange aimed at resolving the conflict in eastern Ukraine does not therefore comply either with international law or the stated objectives, or common sense.”

Furthermore, they state, the men’s release will make it impossible to conclude the main court trial in Maidan cases which was likely to end next year. It is specifically with this trial, they add, that the families of slain activists, have pinned their hopes for justice. All other trials have been many times slower, with some of the victims unlikely to live to see their end. “The deliberate and lawless destruction of this trial by removing the defendants will cause irreparable damage both to the victims, and to Ukrainians’ hopes of justice and of trust in the justice system in Ukraine. It could also lead to division in society, a wave of protests and social upheavals”.

The lack of a verdict in this trial will also make it impossible to establish the truth about the events during the Revolution of Dignity, to reach consensus within Ukraine on this subject and clarity on the international arena. It would be no exaggeration, the authors say, to say that this would destroy the main trial in Ukraine. Russia is well aware why it wants the collapse of this trial, and the aim has nothing to do with resolving the conflict in Donbas.

The authors believe that it is no accident that these developments are coinciding with renewed efforts by paid propagandists to foist an ‘alternative reality’ about the Revolution of Dignity. Russia’s real aim, they believe, is to achieve a reassessment of Maidan and a change in Ukraine’s course from pro-European to pro-Russian.

There are easily enough people imprisoned in Ukraine on charges linked with the conflict to make up a list of individuals for exchange. This is not a question of finding the people for the list, but of Russia deliberately seeking to broaden the conflict, both in time and in space. The lawyers also point out that such a release would be flagrant interference in the legal and justice systems in Ukraine, with such interference provoked by the Russian Federation.

They call on the President to ensure that this does not happen and that the trial is allowed to reach its just conclusion. It is vital that such efforts by the Russian Federation, under the guise of steps to resolve the conflict in eastern Ukraine, to extend the conflict to all of Ukraine are resisted.

The five men on trial are charged over the killing of 39 activists in one particular area of Instytutska St. They do not deny having been there on 20 February 2014, but assert that they did not shoot any of the victims. Due to the potential life sentences that they face, they applied for and were granted Ukraine’s version of ‘trial by jury’. In such cases, the court is made up of two professional judges and three jurors. The role of the jurors is fairly limited – even in a situation where the three jurors were in agreement, they could not override the position of the two judges. They nonetheless serve as lay judges, and must be selected in the proper manner.

Although there are very grave doubts about other Maidan trials, the fact that this one is taking so long appears to be partly because the recently disbanded Special Investigations Department were concerned that the eventual verdicts stand. There are also simply a very largely number of witnesses, family members, etc.

The men’s commander, Dmytro Sadovnyk, was effectively allowed to escape and flee to Russia after being released under house arrest in September 2014. That escape, and others since, make it clear why, even without the fears that the men are to be released as part of an exchange, the fact that three have now been placed under house arrest has caused considerable concern.