MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-41

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-41 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(2022)125, DH-DD(2022)846, DH-DD(2023)1230, DH-DD(2023)1269, CM/Del/Dec(2021)1398/H46-35

 

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
13837/09	A.N.	29/01/2015	29/04/2015
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
12258/09+	IVANOV AND KASHUBA	29/01/2019	29/01/2019
44436/09	BEKETOV	19/02/2019	19/02/2019
37882/08	PANKIV	28/02/2019	28/02/2019
56920/10	CHENCHEVIK	18/07/2019	18/07/2019
24753/13+	BOYKO AND OTHERS	17/06/2021	17/06/2021
7174/11+	DEBELYY AND OTHERS	27/05/2021	27/05/2021
37650/13+	SEVASTYANOV	25/11/2021	25/11/2021
AFANASYEV GROUP
38722/02	AFANASYEV GROUP (List of cases CM/Notes/1483/H46-41-app)	05/04/2005	05/07/2005	Complex problem
4494/07	BELOUSOV	07/11/2013	07/02/2014	Structural/complex problem

Cooperation projects: ·         Fostering Human Rights in the Criminal Justice System in Ukraine (PMM 3141, VC) ·         Supporting implementation of the European human rights standards in Ukraine (PMM 3063, VC)

Case description

These cases 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 effective remedies thereof (violations of Article 13).[1] The systemic nature of the violations was confirmed by the Court in the Kaverzin judgment of 2012, in which it 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 investigations are conducted in accordance with Article 3 in all cases where arguable complaints of ill-treatment are raised and that any shortcomings in such investigations are effectively remedied at the domestic level (§ 182). Since then, the Court reiterated on many occasions, that these violations stemmed “from systemic problems at the national level, which allowed agents of the State responsible for such ill‑treatment to go unpunished.”

Status of execution

In response to the Committee of Ministers’ decisions at the last examination of these cases, the Ukrainian authorities submitted information on 25 January and 11 August 2022 and then on 12 and 20 October 2023 (DH-DD(2022)125, DH-DD(2022)846, DH-DD(2023)1230 and DH-DD(2023)1269), which is summarised below.

Individual measures

Just satisfaction: The authorities provided information on the payment in 23 cases in these groups.

Reopening of investigations after the Court’s judgments: The authorities requested the Committee to examine the possibility of closure of the supervision in the five cases on the basis of the following information:

·         In Kovalchuk, the applicant’s death, impossibility to establish whereabouts of witnesses, and the passage of time since the events in question rendered futile the authorities’ efforts to redress the shortcomings of the initial investigation. The criminal proceedings were closed “due to absence of elements of criminal offence” in June 2023.

·         In Vergelskyy, due the passage of considerable time, destruction of materials and documents of previous inquiries the investigative measures taken to establish the objective circumstances of the events, brought no results. The criminal proceedings were closed “due to absence of elements of criminal offence” in December 2021.

·         In Aleksakhin, the authorities recalled that on 3 July 2006 the perpetrator was sentenced to a suspended sentence for infliction of grievous bodily harm on the applicant and abuse of power and, although according to the Court the punishment was not adequate, the respect for “non bis in idem” principle precluded them from reopening of the proceedings.

·         In Oleksiy Mykhaylovych Zakharkin, the authorities reported that on 4 June 2013, the domestic court terminated the criminal proceedings against the alleged perpetrators due to the expiry of the prescription period. They invoked “non bis in idem” principle.

·         In Savin, the authorities recalled that by the judgment of 2 March 2010 the perpetrator was found guilty under Article 365 § 2 of the Criminal Code[2] but released him from criminal liability as the statutory limitation period of ten years had expired. They invoked “non bis in idem” principle. In addition, the authorities informed that in 2012 the perpetrator was dismissed from Police.

The authorities further reiterated that the General Prosecutor’s Office provides procedural guidance inter alia in the criminal proceedings on torture and abuse of power by law enforcement officers, and thus reviews also the reopened investigations after the Court’s judgments in these cases. They underlined, however, the difficulties they face when reopening investigations, as in practice it is often impossible to conduct necessary investigative actions due to an aggregation of factors:

-       some applicants and crucial witnesses died or their whereabouts are unknown;

-       some are now located in the temporarily occupied territories of Ukraine;

-       some applicants refuse to participate in the criminal proceedings;

-       in other cases the storage period of documents expired or they are located in the territories outside the governmental control;

-       in most cases, 10 to 20 years have passed since the events and collection of evidence is affected.

All these obstacles are aggravated by the continuing aggression by Russia and the occupation of territories in the eastern and southern parts of Ukraine, namely the parts of Donetsk, Luhansk, Kherson, Zaporizhzhia Regions, and by the annexation of Crimea. 

General measures

1.  Safeguards against torture and ill-treatment and compensation of victims of violent crimes

(a).  Strategy setting: The medium-term Strategy on Combating Torture in the Criminal Justice System until the end of 2024 and its Action Plan, mentioned in previous submissions, have now been adopted. Following a series of high-level governmental meetings, the extension of deadlines for the implementation of its Action Plan was approved. The draft of the revised Action Plan was finalised on 10 October 2023[3] and after its text is approved by all the authorities concerned it will be sent to the Cabinet of Ministers for their approval.

(b).  Updating legal instruments: Amendments to the Criminal Code concerning criminal liability for torture, mentioned in previous submissions and aimed at bringing the definition of torture in line with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, have now been adopted. According to the new wording of Article 127 § 3 of the Criminal Code[4], torture is now classified as a crime for which state agents could be prosecuted. In addition, in the latter case, the statute of limitations no longer applies. On compensation of victims of violent crimes, two draft laws on improving the system are under preparation.

(c).  Ensuring early access to a lawyer remains a priority for the legal aid system. As a part of the cooperation with the National Police, the Coordination Center of Legal Aid conducted an information campaign to raise awareness of detainees’ rights to protection and free secondary legal aid. Furthermore, the Coordination Centre and the National Police are working on the introduction of a mechanism for an automated exchange of information from the “Custody Records” system between them.

(d).  The National Police order on the implementation of “Custody Records”, mentioned as a pilot-project in previous submissions, is now being implemented in several police units across Ukraine (66 police units in August 2023). It aims to ensure protection of both rights of detainees and security personnel by accurately recording the detention until transfer to a pre-trial detention centre or release. 

(e).  The Card of Primary Fixation of External Injuries and the Instruction for its filling, also mentioned in previous submissions, were approved. ThisCard is based on the United Nations’ Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). The relevant sections of the Card indicate the main complaints of the person at the time of examination and clearly describe the injuries, with mandatory photographs, under signature and/or seal of the doctor which would certify the authenticity of the information.

2.            Effective investigations into allegations of torture and ill-treatment by law enforcement officers

Institutional developments within the State Bureau of Investigations (the SBI[5])

(a).  Training: The SBI started implementing its Standards and Standardised Programmes of Initial and In-Service Training. In 2021, it organised training on standards in international and human rights law and use of relevant technologies. In 2020-2023 more than 200 investigators took part in trainings and workshops on prevention and effective investigation of torture/ill-treatment. In addition, the Council of Europe experts together with the SBI officials developed a model course of standardised professional training programmes for the SBI officers on the topic: “Human rights protection: role of the State Bureau of Investigation”.

In 2023, 150 investigators of the SBI and its territorial departments are specialising in investigation of torture and ill-treatment cases.

(b).  Methodological updates: The SBI developed recommendations on “Special Aspects of Investigation of Torture by the Investigators of the SBI” in 2020 and a practical guide on “Qualification by investigators of the State Bureau of Investigation bodies of certain criminal offences”, which includesscientific and educational legal materials, statistical data, law and regulatory acts, and practice of the SBI investigation bodies and domestic courts. In 2022-2023 it also prepared proposals for creating specialised units on the investigation of torture and other ill-treatment of detainees in SBI’s territorial departments and central office. 

(c).  Cooperation between the SBI and the General Prosecutor’s Office: The General Prosecutor’s Office, the SBI and the Ministry of Justice are continuing to collaborate on drafting of the Methodological recommendations on procedural guidance of investigations of the SBI, and the Procedures for interaction between prosecutors, SBI and the Government Agent in cases of torture, mentioned in previous submissions. Also, the OPG and the Ministry of Justice of Ukraine have drafted the Procedure for interaction between the OPG, the State Bureau of Investigation and the Agent of Ukraine before the Court in ensuring the implementation of judgments of the European Court of Human Rights on the effective investigation of torture, inhuman or degrading treatment or punishment. In addition to that procedure a "model decision of the investigative authority”, based on the examples of judgments of the Court has been developed. As of today, the Procedure and the model are awaiting approval and implementation by the SBI.

            Capacity building in the National Police and the General Prosecutor’s Office

Relevant trainings are provided to police officers and prosecutors regularly.

Judicial review of the decisions of the SBI and of the prosecutors

The authorities confirmed that the decision of the investigator or prosecutor to terminate investigations may be appealed in court. Responding to the Committee’s last decision, they provided examples of cases where the victims successfully appealed to the investigating judge to quash the decisions on termination of investigations into alleged ill-treatment. In accordance with Article 307§3 of the Code of Criminal Procedure[6], the decisions of the investigating judge refusing to quash the decision on termination of investigation may also be appealed.

Statistics

In December 2021 the Council of Europe presented the results of a research on “Investigation into Alleged Ill-Treatment Contrary to Article 3 of the European Convention on Human Rights in Ukraine”.[7] On this occasion, the Deputy Prosecutor General stated that the General Prosecutor’s Office is firmly committed to “zero tolerance” policy towards ill-treatment. According to the report, the SBI reported a 57% increase in the ill-treatment cases investigated in 2021 compared to 2020 and a 21% increase in indictments.

According to recent information provided by the General Prosecutor’s Office, both investigations and court referrals for torture or excess of powers by State officials decreased between 2021 and 2023. In the first seven months of 2023, 1,653 complaints were received by the National Police about torture, beatings, and unlawful use of physical force by police officers, and pre-trial investigations were initiated in 37 of them.

According to the authorities’ latest Action Plan, and the SBI annual report[8] in 2022, the SBI initiated 856 investigations and was conducting 2,547 pre-trial investigations of torture or ill-treatment by law enforcement officers (48,868 number of all investigations) and issued 79 indictments (4,524 number of all indictments) against 118 law enforcement officers. In other words, while in 2022 the share of the torture/ill-treatment cases constituted 5,2% of all the cases investigated by the SBI, the respective indictments constituted only 1,7% of all the indictments issued by the SBI in 2022.

In the first seven months of 2023, the SBI conducted pre-trial investigation in 1,948 criminal proceedings on torture or other ill-treatment by law enforcement officers; 93 individuals were served with notices of suspicion in 52 criminal proceedings and 48 indictments against 69 law enforcement officers were forwarded to courts. 

NGO submissions (Rule 9)

On 31 January 2022 the Kharkiv Human Rights Protection Group made a submission on the general measures in these cases, relevant parts of which may be summarised as follows:

·         implementation of the “custody records” remains poor (data is inaccurate, incomplete or late);

·         ill-treatment remains a widely spread practice in Ukraine and one of its causes is the system of numerical “targets” in solving crimes by investigators and prosecutors, which leads to hasty investigative steps;

·         complaints of ill-treatment are often not registered in the Unified Register within 24 hours;

·         relevant investigative steps are often not taken, notably the victim status is not formally recognised;

·         investigations into allegation of ill-treatment remain poor and statistics provided by the General Prosecutor’s Office are incomplete as they reflect only complaints registered in the Unified Register.

Analysis by the Secretariat

Individual measures

Just satisfaction: While noting the information as to the payment of just satisfaction, which is being provided on regular basis, the authorities should also be encouraged to resolve the issue related to the payment of just satisfaction to the special deposit account and to make the sums available to the applicants for a period longer than one year before they are transferred back to the state budget.

Reopening of investigations after the Court’s judgments: The Committee might wish to welcome the extensive information provided on the review of the majority of these cases after the Court’s judgments (see for details Memorandum H/Exec(2023)13).

No further individual measures appear possible in the cases of Aleksakhin, Oleksiy Mykhaylovych Zakharkin, and Savin in which the domestic courts’ decisions to sanction police officers to lenient sanctions or exempt from liability on account of prescription are final. Consequently, the Committee may wish to close the supervision of these cases with regret and underlining the obligation to counteract impunity with a view to eradicating torture, under the general measures. In the cases of Oleksiy Mykhaylovych Zakharkin, and Savin the Court also established violations of Article 5§1 and 3 on account of unlawful detention and lack of judicial review compatible with the standards laid down in the Court’s case-law. It should be noted in this respect the applicants are no longer in police custody, and the just satisfaction awarded by the Court was paid to them, while the relevant general measures are being examined by the Committee in the context of the supervision of the Ignatov group of cases.

Regarding the cases of Kovalchuk and Vergelskyy, the authorities submitted detailed information on the investigative steps taken and informed that the decisions to close the investigations were not appealed against.However, the legal ground for the closure ("absence of elements of a criminal offence”)appears to be at odds with the Court’s findings as to the circumstances in which the applicants were injured. The authorities may therefore be invited to provide clarification on this matter.

Regarding the cases where the reopened investigations are pending or where no information has been provided, to allow a full assessment of the adequacy of the investigative steps taken so far in light of the Court’s findings under Article 3, the Committee might wish to remind the Ukrainian authorities to include the following information into their submissions:

·         what investigatory steps are still needed;

·         what investigatory steps can still be taken in view ofthe legal or practical obstacles;

·         what investigatory steps can no longer be taken;

·         what means can be deployed to overcome obstacles and/or accelerate proceedings, and

·         the time-limits to achieve concrete results, while striving to avoid further loss of evidence due to passage of time.

The pending investigations and criminal proceedings in these cases should be completed quickly,in line with the Convention standards, so to avoid time-barring.The authorities are further expected to submit information on the possible means of redress envisaged for the victims, where the shortcomings in the initial investigation can no longer be eliminated,in the light of the Court’s findings of substantive violations of Article 3 in the majority of these cases.

Information on the individual measures to redress the other violations found by the Court in these cases is also awaited (see for details Memorandum H/Exec(2023)13).

General measures

At its last examination of these cases in March 2021, the Committee urged the authorities to step up their efforts to resolve all the outstanding issues. In particular, it called for the adoption of the necessary amendments to the legal framework, elaboration of adequate methodologies to ensure effective investigations and of assessment tools capable of showing reliable data on reduction of instances of torture and ill-treatment. In addition to that the authorities were to report whether the evolution of the domestic case law ensures compliance with the requirements of the Convention on combatting impunity for such acts.

Strategic and legislative developments

It is positive that the medium-term Strategy on Combating Torture, the corresponding Action Plan, the Penitentiary System Reform Strategy, and the amendments aimed at bringing the definition of torture in line with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have all now been adopted.

It is a welcome development that the new wording of Article 127 of the Criminal Code now covers the crime of torture also by state actors and that in such cases no statutory limitations apply. Given the importance of eliminating impunity for such acts, the Committee might wish to request information on the application of these amendments in practice, in particular on prosecutorial and judicial practice to show how the relevant authorities adhere to the affirmed “zero-tolerance” policy towards ill-treatment by law enforcement officers.

However, the Committee might wish to note with regret that the draft laws on improving compensation for victims of violent crimes have still not been adopted. It could urge the authorities to step up their efforts towards adoption, taking into consideration the Council of Europe legal standards.[9].  

Institutional and capacity building efforts

The implementation of “Custody Records” by the Police and of Cards of fixation of injuries in the Penitentiary system, as regards specifically pre-trial detention facilities, are relevant and positive steps. More detailed information is needed as to their practical impact on improving the protection of rights if detainees, also in the light of the concerns expressed by civil society that the custody records are poorly maintained.

The General Prosecutor’s Office’s work on the review of investigations on allegations of ill-treatment, as well as acknowledgment of the importance of a “zero tolerance” policy to ill-treatment inflicted by law enforcement officers could be noted with interest. The Committee might wish to invite the authorities to step up their efforts to finalise the elaboration of the methodological instruments necessary for the improvement of the investigations in acts of torture and ill treatment.

As regards the SBI, it is positive that it continues its efforts to ensure adequate staffing and training, the elaboration of methodologies of investigation being of particular interest. However, in light of the systemic nature of the problem[10], and, in particular, the high number of complaints compared to the low number of investigations launched and resulting indictments, it appears that either these efforts are still insufficient to cover the institution’s need, or the problem of counteracting impunity for torture/ill-treatment is still not seen as a priority in the operation of the SBI. In addition, the Court continues to deliver judgments as regards ill-treatment and most recently, in 2022-2023, 8 judgments were adopted underlining the systemic nature of deficiencies in investigations undertaken. The Committee might wish to invite the authorities to adopt additional measures, both at the central and territorial offices of the SBI, to ensure that the investigations of torture/ill-treatment cases are a priority for the SBI in entirety, and that it has the necessary tools for this task.

Reduction of instances of ill-treatment

The statistical data provided by the General Prosecutor’s Office and the SBI to date is not sufficiently comprehensive to discern a clear trend in the reduction of instances of ill-treatment. This is mainly because this data does not include the overall number of allegations raised of torture/ill-treatment, as compared with the number of complaints registered in the Unified Register and indictments, nor the length of such investigations, which has an undeniable impact on the effectiveness of investigations.

Moreover, the submission from civil society raises concerns that complaints are often not registered in the Unified Registry within 24 hours, as required by the law; that relevant investigative steps are often not taken, and the complainants’ victim status is not granted.The Committee might wish to urge the authorities to provide clear and decisive information on the current situation and the impact of the measures taken.

Effective investigations

The reports about the low number of initiated investigations in comparison to the overall number of complaints raise concerns. Moreover, the low number of indictments in comparison to the overall number of ongoing investigations[11] remain unexplained and leads to doubts as to efficiency of the investigations of such cases. It is worth recalling that in the Strategy on Combating Torture in the Criminal Justice System a goal was set that about 90 percent of cases of torture are investigated within one year or less by specialised units of the SBI and prosecutor’s offices and are considered by courts within two years. No information has been provided as to the extent to which the said goal was achieved.

In light of the above, the Committee might wish to urge the authorities to ensure effective and prompt investigations into ill-treatment allegations and thus reconfirm their commitment to implement a “zero tolerance” policy towards ill-treatment inflicted by law enforcement officers, in strict adherence to the Guidelines on eradicating impunity for serious human rights violations[12].

As concerns the evolution of the domestic case law, the examples provided by the authorities so far indicate some positive developments, but they are too few to allow an assessment of its compliance with the Convention requirements to avoid impunity for acts of torture and ill-treatment, in particular in light of the recent legislative amendments on the definition of torture in the Criminal Code. The Committee might therefore reiterate its invitation to the Ukrainian authorities to submit information on the evolution of domestic case-law on allegations of torture and ill-treatment by State officials.

Financing assured: YES