A/HRC/43/CRP.7 hearings. These concerns had already been highlighted following the previous simultaneous release on 27 December 2017.52 75. At least 47 detainees released and transferred to territory controlled by the selfproclaimed ‘republics’ had been convicted of various crimes and were serving their sentences. Notably, three men had been convicted of setting off an explosion at a pro-Maidan rally in Kharkiv on 22 February 2015 which killed two men, a boy and a police officer. On 28 December 2019, a court in Kharkiv found the three defendants guilty and sentenced them to life imprisonment. However, contrary to normal practice, the court released them from custody under a personal commitment to remain in their place of official residence pending the entry into force of the verdict.53 By transferring the convicts to territory controlled by the self-proclaimed ‘republics’, the authorities have allowed them to avoid serving their sentences and paying damages to the victims.54 OHCHR notes that although the simultaneous release of detainees is aimed at promoting peace and reconciliation, it should be balanced with Ukraine’s obligations to investigate and prosecute human rights violations and ensure victims’ right to an effective remedy. 76. Similarly, the release and transfer of defendants pending trial infringes upon victims’ right to justice, truth and redress. The release of five former Berkut officers (all men) being prosecuted for the killing of 48 male protesters and the attempted killing of another 80 protesters on 20 February 2014 in central Kyiv is particularly striking. On 28 December 2019, the court lifted the pre-trial detention and house arrest imposed on the defendants and the next day they were transferred to Donetsk and Luhansk as part of the simultaneous release. In interviews after being released, two of the Berkut officers underlined their intention to seek asylum in the Russian Federation and continue participating in court hearings via videoconference.55 OHCHR notes that two other accused returned to Kyiv on 8 February, allowing the trial against them to proceed. 77. According to the Prosecutor General’s Office of Ukraine, the trial of the released Berkut servicemen will continue, and defendants who fail to appear will be prosecuted in absentia.56 OHCHR reiterates its concern that in absentia proceedings in Ukraine do not comply with international human rights standards.57 The Criminal Procedure Code only allows for a retrial if the verdict has not yet been delivered,58 contrary to the Human Rights Committee’s position that retrial should be available for defendants at any time following initial proceedings in absentia.59 OHCHR notes that this non-compliance with international human rights standards may lead to rejections of future extradition requests. Further, it 52 53 54 55 56 57 58 59 OHCHR, Report on the Human Rights Situation in Ukraine, 16 November 2017 to 15 February 2018, paras. 56-82. See the verdict of Frunzenskyi district court of Kharkiv of 28 December 2019, available at http://reyestr.court.gov.ua/Review/86718700, which was envisaged to enter into force 30 days after being pronounced, if not appealed. The court obliged the convicts to pay victims UAH 4.3 million (approximately $176,000) of nonpecuniary damages caused by the crime. Interview published on 3 January 2020 [16:30], available at https://youtu.be/7ZWRqBGmar8. Press statement of the Prosecutor General’s Office, 28 December 2019, available at https://old.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=263976. In this regard, OHCHR notes that none of the other Berkut personnel investigated in absentia for the same crime have been charged. According to the Prosecutor General’s Office, an in absentia investigation is being conducted in relation to 21 of 22 absconded Berkut officers suspected of killing 48 and attempted killing of 80 Maidan protesters on 20 February 2014, available at https://rrg.gp.gov.ua/reestrkriminalnih-provadzhen/golovne-slidche-upravlinnja-generalnoi-prokuraturi-ukraini/zlochynnepereshkodzhannya-rozsliduvannyam-zlochyniv-vchynenyh-pid-chas-revolyutsiyi-gidnosti. OHCHR, Report on the human rights situation in Ukraine 16 May to 15 August 2018, para. 63, available at www.ohchr.org/Documents/Countries/UA/ReportUkraineMay-August2018_EN.pdf. Article 323.4. Annex to Views of the Human Rights Committee under Article 5, para. 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/66/D/699/1996/Corr.1, paras. 9.49.5. The European Court of Human Rights has also stated that the lack of opportunity to obtain a fresh determination of the charges against a person by a court in full respect of their defence rights, after they had been apprehended, constitutes a violation of the right to a fair trial. See, e.g., Colozza v Italy (para. 29), Sanader v. Croatia, para. 93. 19