Read the original text at pravda.com.ua.
The Day of Remembrance of the genocide of the Crimean Tatar people’s standing next to 1932-1933 Holodomor. This date is known, discussed, and hurting.
However, unfortunately, often historical dates are the reason for some politicians merely seizing the opportunity for their own PR. This year it was Prosecutor General Yuri Lutsenko.
On 18 May, he stated that the Crimean Autonomous Republic prosecutor's office had announced suspicion of genocide of Crimean Tatars to Communist Party Secretary General Joseph Stalin and NKVD Chairman Lavrentiy Beria.
Though both died in 1953, according to the prosecutors, “law allows criminal proceedings even for those who have already died.” The official purposes of the process include rehabilitation of victims and restoring the legally relevant facts.
Rectification of historical justice and evaluation of the actions of authorities of the past are really important issues that need careful and professional approach. Prosecutors, however, treated the issue negligently committing a bunch of legal errors quite difficult to correct.
Prosecutor General's Office accuses Stalin and Beria in the crime that was committed in 1944 under the Criminal Code of 2001. Those Soviet leaders are accused of committing a crime under Part 1 of Art. 442 of the Criminal Code, namely genocide.
Ukraine, like all civilized nations, follows the principle of Nullum Crimen, Nulla Poena Sine Lege, the essence of which is to ensure that actions can be recognized crime and the offender can be punished for such actions even without criminal legislation in force at the time of such actions.
However, neither the Criminal Code of the Ukrainian SSR nor any other criminal laws of the Soviet era did include the category of "genocide".
This does not mean that such crimes should go unpunished. In fact, criminalization of crimes against humanity’s conducted at the supranational level.
This’s confirmed by the best known trials: the Nuremberg and Tokyo tribunals, and their respective case-law.
Thus, according to documents of the tribunals, national states are obliged to punish war criminals, even if at the national level there’s no appropriate criminal prohibitions. Since then, international criminal law is an integral part of national jurisdictions.
Thus, the wrongfulness of an act of genocide is independent of national criminal law and the time of its adoption.
For Ukraine, the abovementioned principles and obligations are in force in view of the fact that the USSR has ratified the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968. In addition, the USSR ratified the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, under which a person charged with genocide or other acts enumerated in article III (Art. 442 of the Criminal Code of Ukraine fully duplicated them) should be tried by a competent tribunal of the state in which the act was committed.
In 2012, a new Criminal Procedure Code was adopted setting out a different procedural order fixing the fact of belonging to a person of a crime.
In particular, the investigation regarding the deceased can occur only for his or her rehabilitation. As in this case it is necessary to rehabilitate the rights of the Crimean Tatar people, not Stalin and Beria, the criminal proceedings would be closed immediately after establishing the fact of defendants’ death.
However, the prosecution announced the suspicion of Stalin and Beria deliberately ignoring the rules of law.
Now let's see what the Criminal Procedure Code says. Article 42 stipulates that suspects are:
1) the person to whom the procedure envisaged by the Code of Ukraine a. 276-279 informed of suspicion;
2) the person detained on suspicion of a criminal offense;
3) the person against whom the message of suspicion is composed, but it has not been delivered because of unidentified location of the person, though the measures to assure it in the manner prescribed by this Code had been taken.
Stalin and Beria obviously weren’t detained on suspicion of committing a criminal offense. Also, one can hardly say that they are hiding. It remains one last ground which was eventually used by the prosecutor's office: charging in the manner provided by the Code of Ukraine a. 276-279.
However, this creates no less problems. The procedure for reporting charges to the person assumes that the suspect is physically handed over on the day of its drawing up by the investigator or prosecutor, and, in case of failure of the delivery, in the manner prescribed by the Code of Ukraine for delivery of charge papers.
That is, the prosecution would send a suspicion to Stalin and Beria ... say, by e-mail (!), or fax (!), or to report by telephone or telegram.
In this case, one would have to send it to the criminals’ graves: Stalin’s at the Kremlin wall, and Beria’s… well, no one knows where, since his remains were either buried or scattered over the Moskva River.
Moreover, after reporting of suspicion, investigator or prosecutors are obliged to immediately inform the suspect of his or her rights, and the latter has to sign he has been explained about the rights and duties ...
As it could be in reality, one can only imagine perhaps only in Stephen King’s fantasies.
The key in this regard is that even under the recognition of Stalin and Beria as suspects, the prosecution will not be able to transfer materials to the court because the proceedings would miss the crucial actor: the person charged.
Of course, the prosecution can entertain itself and the society by various procedural practices, i.e.: issuing an interstate and / or international wanted notice for Stalin and Beria, initiating a special pre-trial investigation, and also making use of a special seizure of Soviet property.
But, anyway, the initiative prosecutor Lutsenko is pointless and frankly looks like a bad joke. If prosecutors and Prosecutor General personally really wanted to restore historical justice, they should start by initiating the adoption of appropriate procedures or amendments to the Criminal Procedure Code.
Hastily done purely political statements without any procedural framework look like rather a manifestation of disrespect for the living descendants of witnesses and victims of the genocide.