MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1355/H46-26

25 September 2019

1355th meeting, 23-25 September 2019 (DH) Human rights   H46-26 Kaverzin group (Application No. 23893/03), Afanasyev group (Application No. 38722/02) and Belousov (Application No. 4494/07) v. Ukraine Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2019)35, DH-DD(2019)710, CM/Del/Dec(2018)1324/H46-27

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
KAVERZIN GROUP
23893/03	KAVERZIN	15/05/2012	15/08/2012	Structural / complex problem
2585/06	DANILOV	13/03/2014	13/06/2014
24439/06	DZHULAY	03/04/2014	03/07/2014
20602/05	GERASHCHENKO	07/11/2013	07/02/2014
13406/06	OSAKOVSKIY	17/07/2014	17/10/2014
40514/06	RUDYAK	04/09/2014	04/12/2014
24938/06	VITKOVSKIY	26/09/2013	20/01/2014
10493/12	ADNARALOV	27/11/2014	27/02/2015
28825/02	BUGLOV	10/07/2014	15/12/2014
17416/03	TARASOV	31/10/2013	31/01/2014
13837/09	A.N.	29/01/2015	29/04/2015
70758/12	IGNATKINA	21/05/2015	21/05/2015
10397/10	KULIK	19/03/2015	19/06/2015
55749/08	YEVGENIY PETRENKO	29/01/2015	29/04/2015
57980/11	ZHYZITSKYY	19/02/2015	19/05/2015
29644/10	OGORODNIK	05/02/2015	05/05/2015
47351/06	TYMCHENKO	13/10/2016	13/10/2016
44436/09	BEKETOV	19/02/2019	19/02/2019
12258/09+	IVANOV AND KASHUBA	29/01/2019	29/01/2019
37882/08	PANKIV	28/02/2019	28/02/2019
38722/02	AFANASYEV GROUP (List of cases CM/Notes/1355/H46-26-app)	05/04/2005	05/07/2005	Complex problem
4494/07	BELOUSOV	07/11/2013	07/02/2014	Structural and complex problem

Case description

The Kaverzin andAfanasyev groups concern physical or psychological torture and/or ill-treatment by the police, mostly in order to obtain confessions (substantive violations of Article 3); lack of effective investigations into such complaints (procedural violations of Article 3) and lack of an effective remedy in this respect (violation of Article 13).

The systemic nature of the problem was confirmed by the Court in the Kaverzin judgment, in which the Court added, under Article 46, that the problem called “for the prompt implementation of comprehensive and complex measures” (§ 180). It “stress[ed] that Ukraine must urgently put in place specific reforms in its legal system in order to ensure that practices of ill-treatment in custody are eradicated, that effective investigation is conducted in accordance with Article 3 in every single case where an arguable complaint of ill-treatment is raised and that any shortcomings in such investigation are effectively remedied at the domestic level” (§ 182).

The Kaverzin case concerns, in addition, inhuman and degrading treatment in prison due to the systematic handcuffing of the blind applicant when taken out of his cell (violation of Article 3). In some cases in these groups, the Court also found other violations: inadequate medical assistance in detention; irregularities in detention on remand; excessive length of proceedings and lack of effective remedies; non-enforcement of judicial decisions and lack of effective remedies; unfairness of proceedings and unauthorised searches (Articles 3, 5 §§ 1, 3 and 5, 6 §§ 1 and 3, 13, Article 1 of Protocol No. 1).

Status of execution

The authorities submitted information most recently on 21 June 2019 (DH-DD(2019)710), a summary of which is set out below.

Individual measures

a) Just satisfaction: The authorities have now provided complete information on the payment of just satisfaction in the cases where it was awarded. In two cases, in the absence of the applicants’ bank details, the sums awarded have been transferred to a special account of the Ministry of Justice, where they were held at the applicants’ disposal for a period of one year.

b) Investigations: The authorities supplemented the information previously submitted related to the investigations opened after the European Court’s judgments in 16 of the cases. These investigations are either pending or have already terminated, mostly because of lack of evidence of a crime. In the terminated investigations, conducted either by regional prosecutors, the Ministry of Internal Affairs or the State Security Service, some investigative steps were taken, such as examination of the case files, identification and localisation of victims or witnesses and interviews of the same. These steps failed to establish any evidence of the alleged crimes.

General measures

Effective investigations into allegations of torture and ill-treatment (institutional measures)

The authorities submitted that the State Bureau of Investigations (SBI), the recently established body responsible for carrying out investigations of crimes committed by high-ranking officials, judges and law enforcement officers, (the establishment of which was noted with satisfaction by the Committee at its last examination of the cases) started functioning on 27 November 2018.

A department for Procedural Guidance in criminal proceedings falling under the competence of the SBI was established within the Prosecutor General’s Office, in order to exercise procedural control over the pre-trial investigations carried out by the SBI and to handle prosecutions in these cases. Furthermore, during the transitional period until 20 November 2019, the Prosecutor General retains the competence in conducting pre-trial investigations initiated prior to 20 November 2017 for crimes which now fall within the jurisdiction of the SBI.

Even though recruitment competitions for posts in central and territorial offices are still ongoing, the SBI has already launched investigations in over 4,000 cases, out of which 400 concern ill-treatment allegations. In 2018, based on the SBI’s work, prosecutors opened 41 criminal proceedings against state agents. 48 police officers were disciplined and seven police officers were dismissed. In 2019, SBI officers began investigations in 158 cases in which the European Court had found violations against Ukraine. 11 of those cases concerned alleged acts of torture and ill-treatment by law enforcement officers.

Effective investigations into allegations of torture and ill-treatment (legislative measures)

The authorities submitted information on recent efforts to improve relevant domestic legislation, notably the drafting of amendments to the Criminal Code aimed at bringing criminal liability for torture and several other serious crimes into line with the requirements of the European Convention and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, including by excluding the application of the statute of limitations to the crime of torture. The relevant amendments to Article 127 of the Criminal Code have passed the first stage of the legislative procedure.

Safeguards against torture and ill-treatment

The authorities supplemented the information previously submitted on steps taken towards eradicating torture and ill-treatment in custody, notably:

·         a recent decision of the Constitutional Court of 24 April 2018 reaffirming the constitutional principles of the positive obligations on the state to protect the life, health and dignity of its citizens and to conduct effective investigations into allegations of torture and ill-treatment;

·         ongoing reform of the police that includes efforts to, inter alia, adopt measures capable of shortening the length of pre-trial investigations (by creating specialised investigators); to increase responsibility of police officers/investigators for their results;[1] and to improve the system for the recording of detention and providing information to detainees about their rights;

·         continued operation of the National Preventive Mechanism in the format of the Ombudsman+ with monitoring visits aimed at disclosing and preventing human rights violations. 1,710 visits were carried out between 2014 and 2018 and about 282 up until May 2019 in detention facilities under the control of the Ministry of Education and Science, the Ministry of Justice, the Ministry of Social Policy and the Ministry of Internal Affairs. In 2018, 74 criminal proceedings were initiated following monitoring visits or detainee complaints to the Ombudsman+;

·         introduction by the Prosecutor General, in 2012, of a unified system of reporting on investigations into allegations of torture and ill-treatment, that allows the generation and publication of statistical data;

·         ongoing implementation of the United Nations Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol);

·         training sessions for prosecutors, law enforcement officials, investigators and lawyers on the relevant standards of the Council of Europe and the United Nations in the field of human rights protection, as well as on case law of the European Court regarding procedural obligations under Article 3;

·         awareness raising campaigns implemented by the government on the prevention of ill-treatment in custody;

·         publication of the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) and the European Court judgments, via the section on “Preventive Human Rights Mechanisms” on the website of the State Criminal Executive Service of Ukraine and via the section on “The ECHR Judgments” on the website of the National Academy of Public Prosecution to further raise awareness;

·         ongoing cooperation between the SBI and other relevant institutions including the Prosecutor General, the Ministry of Internal Affairs, the Ministry of Justice, the Security Service of Ukraine, and the Ombudsman;

·         continued work with the Council of Europe’s project “Continued support to the criminal justice reform in Ukraine” which resulted in the drafting of the Instruction on the procedure for detention, termination, disclosure and investigation of crimes of torture and/or ill-treatment. This instruction is aimed at improving the system of recording of deprivation of liberty and of registration of complaints, raising awareness on the prohibition of such acts, as well as improving the effectiveness of investigations into the same.

The authorities consider that the positive impact of the recent changes of law and practice, in particular the entry into force of the Code of Criminal Procedure in 2012, is demonstrated by the conclusions of the most recent report from the CPT[2], namely that “the majority of persons who were, or recently had been, in police custody indicated that the police had treated them correctly; no allegations of physical ill-treatment were received in respect of officers of the State Security Service of Ukraine or of police officers performing custodial tasks in temporary holding facilities.”

Compensation for victims

Draft laws are in a preparatory phase which would improve redress to victims, notably by recognising the right to compensation for victims of serious crimes, aimed at ensuring the necessary legal basis and provision of funds: “On Ratification of the European Convention on the Compensation of Victims of Violent Crimes”; “On Compensation for Damage of Victims of Violent Crimes”; and “On Amending the Budget Code”. The establishment of a State Fund of Compensation for Damage to Victims of Violent Crimes is also foreseen.

Analysis by the Secretariat

Individual measures

At its last examination of these cases, the Committee invited the authorities to explore the necessity of adopting specific measures to enable a competent independent body to carry out a comprehensive review of all of the cases in these groups and to adopt reasoned decisions, in accordance with Convention standards. It urged them to rapidly submit clear and complete information on the measures taken to address the violations found.

It is regrettable that the information submitted is incomplete. It remains unclear whether a competent independent body carried out the necessary ex officio comprehensive review in each of these cases. Although it appears that the SBI, now responsible for carrying out investigations of crimes committed by high-ranking officials, judges and law enforcement officers (see general measures), may have taken over investigation in some cases, the extent of its role also remains unclear.

Furthermore, the authorities have provided little information on the investigative steps taken. It appears that they limited themselves to a superficial re-examination of the initial case files without formal decisions being adopted. It is essential that a competent independent body make every effort to examine in detail all these cases, establish what investigative measures may be necessary based on the Court’s findings and whether they can still be taken. Reasoned decisions including, if applicable, practical or legal obstacles in taking those measures (for example whether offences are time-barred) should be adopted in each case and should be open to challenge by judicial review. In those cases which are not yet time-barred, the investigations and any consequent criminal proceedings should be completed as a matter of priority. The authorities should also provide information as to when they expect that these investigations will be finalised.

General measures

Effective investigations into allegations of torture and ill-treatment (institutional measures)

At its last examination of these groups of cases, the Committee noted with satisfaction the establishment of the SBI and called upon the authorities to intensify their efforts to ensure its full staffing and effective functioning without further delay. It also invited the authorities to submit information on follow-up steps to ensure adequate resources to make this body fully operational to conduct effective investigations into allegations of torture and ill-treatment, i.e. its primary area of work.

It is positive that the SBI has started its activity and that, even though it is not fully staffed yet, it has started taking investigative steps in some criminal proceedings, including in cases decided by the European Court. However, the scope of its mandate remains unclear. It would be useful if the authorities could submit information on the cases in which the Court found violations that the SBI has either taken over or intends to take over and how many of these cases concern allegations of torture and ill-treatment. It would be helpful if they could also provide information as to the state of proceedings in these cases.

In their submissions, the authorities indicated that the Prosecutor General exercises procedural control over the pre-trial investigations carried out by the SBI. In some cases it still conducts pre-trial investigations for crimes which fall under the competence of the SBI. Clarification is therefore needed as to the separation of tasks between the SBI and the Prosecutor General and the extent of any procedural oversight of investigations. It should be recalled in this context that independence is the cornerstone for the SBI’s ability to conduct prompt, impartial and effective investigations into complaints of torture and ill-treatment. Thus, the dual nature and responsibilities of the Prosecutor General’s office, for example for prosecution and for oversight of the proper conduct of investigations, should be avoided because of the potential conflict of interest between these two responsibilities. This may result in a lack of independent oversight of cases where the Prosecutor General’s office fails to initiate an investigation into allegations of torture and ill-treatment by state officials.

In addition, as the end of the transition period towards full transfer of tasks to the SBI is fast approaching, the Committee might wish to invite the authorities to submit information on the legislative and administrative measures taken or envisaged to ensure continuity and the smooth transfer of files from the Prosecutor General to the SBI, in order to make the latter fully operational to conduct effective and independent investigations into allegations of torture and ill-treatment.

Effective investigations into allegations of torture and ill-treatment (legislative measures)

It is positive that the authorities continue their efforts to improve legislation in this respect. The fact that the amendments to Article 127 of the Criminal Code aimed at inter alia aligning these provisions with the requirements of Article 3 of the Convention and excluding prescription for torture and other serious crimes have passed the first stage of the legislative procedure is welcome. This shows political willingness to address this issue. The authorities should be encouraged to continue to reflect on the most appropriate version to be adopted, in accordance with obligations arising under the European Convention.

Safeguards against torture and ill-treatment

At its last examination of these cases, the Committee called upon the authorities to develop relevant assessment tools in order to evaluate the impact of the recent legislative changes, including the changes introduced by the Code of Criminal Procedure, as well as to conduct an assessment of further needs to improve legislation, including the provisions of the Criminal Code as regards torture, to bring it into compliance with the requirements of Article 3 of the Convention. It further invited the authorities to submit up-to-date information on the impact of the National Preventive Mechanism on the eradication of torture and ill-treatment and to ensure its efficient functioning in complete independence, as well as to take capacity-building and preventive measures aimed at ensuring a zero-tolerance policy towards ill-treatment.

It is regrettable that the authorities do not seem to have developed any specific tools for assessing the impact of the legislative and administrative measures taken or envisaged to address the systemic problems identified by the European Court in these cases. Nor have they indicated any periodic reviews of these measures or expected results. Furthermore, the authorities’ reference to the latest CPT report intended to show the positive impact of such legislative changes is incomplete, as the CPT’s conclusions are far from being as positive as the authorities imply, as the CPT did receive some allegations of ill-treatment.[3] The Committee might therefore wish to reiterate its invitation to the authorities to develop the necessary assessment tools and provide complete and reliable data on the impact of the measures taken and the expected results of the measures envisaged to address all the violations found by the Court in these cases.

In addition, the Committee might wish to invite the authorities to explore other avenues to further improve safeguards against ill-treatment and torture by notably reinforcing the system of free legal aid, ensuring that victims of ill-treatment are provided with necessary legal assistance in a timely manner. The authorities should also ensure that the National Preventive Mechanism operates effectively. The Committee might further wish to seek information from the authorities as to the system of judicial review of any decisions not to investigate allegations of ill-treatment, in the context of the activities of the SBI, as well as any available judicial practice in this respect. In addition, the authorities should couple administrative and legislative measures with further awareness raising measures in order to ensure effective prevention against, and a zero-tolerance policy towards, acts of torture and ill-treatment.

Compensation for victims

The lack of compensation schemes for victims is regrettable. In the current legislation, the Civil Code[4] provides for the State to compensate the victims of a crime if the offender is not identified or is insolvent.[5] The Law of Ukraine “On the Procedure of Compensation for Damage to Citizens Caused by Illegal Actions of Bodies of Inquiry, the Pre-Trial Investigation, the Public Prosecution and the Court” establishes a compensation procedure. According to the Code of Civil Procedure, such damage must be compensated by the State in full regardless of the guilt of the public servants. The Committee might wish to invite the authorities to clarify whether these provisions could apply to instances of ill-treatment or torture and, in the affirmative, how they function in practice. It would be useful to receive examples of their application by the domestic courts.

The drafting of laws on compensation for victims of serious crimes is a step towards addressing this aspect and the authorities should make sustained efforts to finalise the drafting process, also taking into consideration the Recommendation Rec(2006)8 of the Committee of Ministers to member states on assistance to crime victims. In addition, authorities could consider ratification of the European Convention on the Compensation of Victims of Violent Crimes, signed by Ukraine in 2005.

Financing assured: YES