MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-42

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-42 Fedorchenko and Lozenko group v. Ukraine (Application No. 387/03) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)119, CM/Del/Dec(2020)1377/H46-41

 

Application	Case	Judgment of	Final on	Indicator for the classification
387/03	FEDORCHENKO AND LOZENKO	20/09/2012	20/12/2012	Complex problem
63409/11	GRIGORYAN AND SERGEYEVA	28/03/2017	28/06/2017
3289/10	BURLYA AND OTHERS	06/11/2018	06/02/2019
47283/14	KORNILOVA	12/11/2020	12/11/2020
36046/15	MIGORYANU AND RELIGIOUS COMMUNITY JEHOVAH’S WITNESSES OF THE CITY OF IZMAIL	12/11/2020	12/11/2020
60977/14	ZAGUBNYA AND TABACHKOVA	12/11/2020	12/11/2020
54476/14	PASTRAMA	01/04/2021	01/04/2021

·         EU-JP3523 - Support for implementing European standards relating to anti-discrimination and rights of national minorities in Ukraine ·         VC3471 - Supporting the reform of the national minority legal framework and the resilience of national minorities and Roma in Ukraine ·         VC3587 - Supporting the reform of the national minority legal framework and the resilience of national minorities and Roma in Ukraine - phase II

Case description

This group of cases mainly concerns the lack of effective investigations into violent acts against the applicants in 2001-2013, sometimes with the involvement of police officers, including into possible motives of racial or religious hatred behind the attacks on Roma[1] ^[2], other national minorities^[3] or Jehovah’s Witnesses^[4] (substantive and/or procedural violations of Articles 2 and 3, in conjunction with Article 14).

It also concerns the authorities’ failure to comply with their positive obligations to protect the homes of the applicants (the Burlya case), to ensure effective respect of private life (the Burlya and the Pastrama case) or to ensure mutual tolerance between opposing religious groups (the Migoryanu and Religious Community Jehovah’s Witnesses of the City of Izmail case) (violations of Article 8 and Article 9).

Status of execution

At its examination at 1377^th meeting (June 2020) (DH), the Committee noted with interest the range of measures taken in an effort to ensure that law enforcement authorities effectively investigate hate crimes and possible racist motives, including the development of Practical Guides for the police and the free legal aid available to victims. However, it noted with concern reports and NGO submissions on the often still inadequate response of the police and justice system to hate crimes. Moreover, it noted with regret the lack of consistent data on hate crimes and strongly urged the authorities to establish a mechanism for accurately recording hate crimes and to monitor the responses of law enforcement authorities and the progress of cases through the justice system.

The authorities submitted several updated action plans and communications, most recently on 12 October 2023, a summary of which is set out below (for full details see DH-DD(2023)1223).

Individual measures:

a) Just satisfaction: The just satisfaction in respect of non-pecuniary damage has been paid in all cases.

b) Reopening of investigations:

In the action plan of 2022, for the Fedorchenko and Lozenko case the authorities indicated that the initial investigation criticised by the Court can no longer be rectified in the reopened investigation due to various obstacles, including the impossibility to interrogate Major I. who in 2016 left for the territory outside of governmental control and the first applicant’s death. Thus, the information on the involvement of the Major I. in the attacks on applicants’ house could not be confirmed and the State Bureau of Investigations (SBI) terminated the criminal proceedings due to “the lack of elements of crime”. The authorities also underlined that the criminal offence in question is time-barred.

As regards the other participants of the arson attack, as previously reported, six persons were convicted for their involvement in it. This included one person convicted of wilful destruction of property, which caused death and sentenced to nine years’ imprisonment. Two additional suspects remain on the wanted list.[5] They requested closure of the supervision in the Fedorchenko and Lozenko case.

In the latest action plan, the authorities indicated that all the other reopened proceedings are pending, without providing more details.

General measures:

1.  Current situation in Ukraine and martial law

Since the beginning of the Russia’s full-scale invasion against Ukraine on 24 February 2022, the focus of state bodies has shifted, prioritising national security.

2.  Legislative measures – hate crimes

All legislative proposals and regulatory acts are subject to a compulsory anti-discrimination expertise.

In response to the Committee’s previous decision, the authorities clarified the envisaged changes to legislation regarding the punishment for offences of discrimination in the action plan of 2022. Respective draft laws were submitted to the Parliament in 2023, but not yet reviewed by it.

3.  Protection and Integration of national minorities and religious groups

The Strategy to promote the rights and opportunities of persons belonging to the Roma national minority in Ukrainian society until 2030 (the “Strategy”) was adopted in July 2021. It includes, inter alia, provisions on legal protection; development and implementation of anti-discrimination policies such as free legal aid, increased personal security of Roma people in local communities; and measures on proper qualification in criminal law of hate speech and hate crimes. The programme sets out achievement indicators. For the implementation of the Strategy, an Interdepartmental Working Group on Coordination of the Implementation of the Strategy was created. An Action plan for its implementation for 2024-2025, following its update related to the full-scale war and public consultation, is pending approval.

The Law “On National Minorities (Communities) of Ukraine” (No.2827-IX) was adopted on 13 December 2022, and then amended on 21 September 2023, taking into account the Venice Commission’s recommendations, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.

Aimed at integration of all the national minorities and of the implementation of European integration recommendations for Ukraine,[6] the authorities adopted on 26 September 2023 the State Targeted National and Cultural Programme “Unity in Diversity” for the period up to 2034 (the “Programme”).

The authorities indicated that the State Service of Ukraine on Ethnic Policy and Freedom of Conscience (the “Service”) – a central executive body that implements state policy in religious matters and protection of the rights of national minorities in Ukraine, started to function in March 2020. Since then, it held meetings with religious organisations and participated in the development of the above-mentioned Programme.

The authorities indicated that an inter-denominational institution, the Ukrainian Council of Churches and Religious Organisations, coordinates dialogue on religious matters in Ukraine.

4.  Practical measures

a)  Training of all actors involved, awareness raising and capacity building activities

The authorities continue their work on holding training sessions, round tables and consultations on prevention and effective investigation of hate crimes and combating hate speech mainly for law enforcement authorities, involved in investigation of hate crimes – the National Police, as well as for prosecutors and judges. Since 2021, specialised courses were included to the curricula for the students of law enforcement specialisation.

A large part of those trainings, held in cooperation with international partners and non-governmental organisations,^[7] was dedicated to protection of the rights of minority groups, including Roma, and on building dialogue between Roma communities and police.

As a part of positive obligations of the state to protect the rights of national minorities, to prevent conflicts and to ensure proper communication, the National Police take into account the specific features of the territorial communities and is guided by the “Plan on Measures to Prevent Offenses Related to Violation of Equality of Citizens for 2023”.

b)  Free legal aid mechanism

In the previous submission of 2022, the authorities indicated that free legal aid was open to everyone including victims of hate crimes or discrimination. In response to the Committee’s last decision encouraging them to ensure that Roma and minority groups are aware and able to access legal aid, the authorities explained that there were 500 local access points, which could be contacted by any means of communication, including via mobile applications. Free legal aid lawyers were undertaking specific trainings to assist victims of discrimination.[8]

The authorities also indicated that the Police authorities have developed information guides for victims of hate crimes about their rights and ways to seek to enforce them in six languages and distributed them in regions.

No updated information has been submitted in the latest action plan.

c.  Registration and classification of hate crimes

In the government's submission of 2022, the authorities reiterated that in accordance with Article 214 of the Criminal Procedure Code, the law-enforcement authorities are obliged to register any complaints or reports on alleged crimes within 24 hours and to launch an investigation. The registration includes a preliminary classification of the offence, which can be changed by the investigator or prosecutor at a later stage. The prosecutor may change the indictment in the course of the trial if new factual circumstances are revealed or change legal qualification and/or scope of the initial indictment as necessary. The court may only do so not to the detriment of the accused person. The authorities provided three examples of the judicial practice of the lower courts, and in the latest submission – one example of the Supreme Court’s decision, in which hate crimes motives were taken into account by the judiciary.

d)  Mechanism for ensuring accurate recording of hate crimes

In response to the Committee’s latest call to establish a mechanism for accurately recording hate crimes and to monitor the responses of law enforcement authorities and the progress of cases through the justice system, the Ukrainian authorities again recalled that the legislation in force does not provide for the establishment of a separate mechanism to record particular categories of crimes, including hate crimes. However, they clarified that such qualifying factors as racial, national or religious intolerance are prescribed in six corpus delicti of criminal offences in the Criminal Code. In 2021 - 2023, only two pretrial investigations have been registered in the Unified Register of Pre-trial Investigations under special qualifying factors.

As of 2022, the National Police has implemented a new data collection form within its reporting system, which includes a special field with information on circumstances of the event that may indicate possible discrimination. Such types of investigation are monitored at the regional level.

In the latest submission, the authorities provided updated statistics for 2022-2023 from the Office of the Prosecutor General and the National Police of Ukraine on deliberate actions of discrimination, intentional acts aimed at incitement of racial, national or religious hatred (Article 161 of the Criminal Code) with very low ratio of indictments and convictions. No updated information from the State Bureau of Investigation and from the State Judicial Administration has been provided. The authorities consider that the low numbers of hate crimes are explained by the positive effect of the measures adopted to overcome intolerance and an absence of systematicity.

A separate mechanism for launching complaints of discrimination including on religious grounds to the Ombudsperson and the Service has been established. In 2022-2023, the Ombudsperson received 56 complaints, and the Service – three complaints on discrimination based on religious grounds respectively.

e)  Compensation schemes available to the victims of hate crimes and respective judicial practice

The authorities provided general information on the legislative framework guaranteeing the right to compensation for victims of hate crimes. The Ministry of Justice has also developed two Draft Laws regarding the compensation for victims of violent crimes with a view for its further submission to the Government.

As to the judicial practice concerning compensation schemes available to the victims of hate crimes, the authorities provided one example and indicated that such complaints are not numerous as the problem has no systemic character.

NGO submissions:

On 6 October 2021, the European Association of Jehovah’s Witnesses (the Association) made a submission under Rule 9.2 (DH-DD(2021)1051). They raised concerns that religiously motivated hate crimes are not correctly qualified nor prosecuted, further they:

·         questioned the authorities’ statistics on hate crimes and indicated that they do not include data on refusal to register or to qualify actions as hate crimes by police and prosecutors respectively;

·         noted that while having an important role in pre-trial investigatory proceedings of hate crimes, prosecutors are rarely included in the targeted training programmes;

·         noted that the training programmes on hate crimes mainly focus on racial discrimination and not religious hatred;

·         provided concrete examples of alleged hate crimes on the grounds of religious hatred that have not been properly investigated.

In response to the Association’s submission, the Ukrainian authorities indicated that the role of prosecutor in the criminal proceedings is prescribed by the Criminal Code and that prosecutors act independently in exercising their functions. They further reiterated that the information previously submitted in their Action Plan included the official statistics.

In its communication of 16 May 2022 (DH-DD(2022)567) the Ukrainian Helsinki Human Rights Union (the UHHRU) criticized the authorities’ reluctance to institute investigations of racially motivated violence as well as to consider a possible hate motive of crimes; it raised concerns as regards the overall effectiveness of investigations. The UHHRU pointed out shortcomings in the applicable legal framework, such as inconsistencies in terminology and ambiguous wording of certain provisions of the Criminal Code. The UHHRU also criticized the existing system for collecting and publishing statistical data on hate crimes.

Analysis by the Secretariat

At the outset it may be noted that broader measures related to the independence and effectiveness of criminal investigations into Article 2 and Article 3 violations, caused by acts of private individuals or of law enforcement officers are being examined in the Khaylo and the Kaverzin groups of cases respectively.

The key aspect under the Committee’s supervision in the present cases is the prevention of discrimination against minorities, notably within the following two categories:

·     measures to improve the effectiveness of investigations into alleged hate crimes against racial and religious minorities (to effectively investigate whether religious hatred or prejudice may have played a role in the events and any causal link to discriminatory attitudes); and

·     measures to ensure that the authorities fulfil their positive obligations to protect minorities from attacks, including on their homes and property (in the context of Articles 3 and 8) and to ensure mutual tolerance between opposing religious groups to secure rights under Article 9.

In view of the postponement of examination of this group in March 2022, as requested by the authorities (see, see DH-DD(2022)255 and DH-DD(2022)284), the action plans submitted in 2022 and 2023 should be read as a whole for the current analysis.

Individual measures:

In the case of Fedorchenko and Lozenko, the Committee may note with regret the information about the impossibility to conduct further investigative actions regarding the Major I.’s involvement in the attack on the applicant’s house. It appears that no steps were taken in the reopened investigation to establish if the racist motive, ethnic hatred or prejudice may have played a role in the attack, [9] which is deeply regrettable. The investigation is now time barred, However, in the light of the Court’s findings in particular in relation to the discriminatory aspect of the failure to investigate effectively, the Committee may wish to request the authorities to clarify the reasoning of the termination decision, including on the grounds relied on for the termination of the investigation (“absence of the lack of elements of crime”). It may also wish to request information on whether the termination decision based on the classification of the crime has been challenged before the domestic courts and if so, the outcome.  

It is essential that the outstanding investigations in relation to the pending cases are accelerated and completed without any further delay. In addition, all possible investigatory steps should be taken to identify possible links between the actions and motives of the perpetrators. Moreover, given the obligation to examine ex officio the possibility of reopening investigations in cases where the Court finds a violation of the substantive and/or procedural aspect of Article 3 and the need for a prompt reaction in this respect to avoid impunity, the relevant competent independent authorities should be urged to examine rapidly the investigations in all the related cases of the group. The competent authorities must take into account the Court’s findings and criticisms when re-examining these cases, in particular with regard to possible racist motives behind the offences and should then adopt reasoned and detailed individual decisions open to challenge through relevant judicial review mechanisms.

General measures:

The range of measures such as widespread training, awareness raising measures with police and other law enforcement authorities as well as work and trust building measures with civil society, various minority groups and more specifically Roma communities has been positively noted by the Committee. It may wish to encourage the authorities to double their efforts with wide participation of all actors in the justice system.

The adoption of a Strategy to promote the rights and opportunities of persons belonging to the Roma national minority in Ukrainian society until 2030 is a positive development. For it to be functional, it is important that the authorities expedite the approval of an updated Action Plan on its implementation without delay.

The requirement to pass the obligatory anti-discrimination expertise and to obtain a positive conclusion for the draft laws and regulatory acts to be eligible for submission for further adoption by respective body is a positive development.[10]

In order to understand the effectiveness and a positive impact of a model within the National Police when at the local level there is no specialised hate crimes investigators, but the constant control over such pretrial investigation is held at the regional level, more information with this regard from the authorities should be requested.

Given rather general information about the compensation to the victims of hate crimes and the draft Laws pending, the Committee might wish to reiterate its call to submit detailed information on compensation schemes available to the victims of hate crimes and assessment of practice of their application, taking into account the standards established in the Recommendation Rec(2006)8 of the Committee of Ministers to member states on assistance to crime victims[11] and 2011 Guidelines on eradicating impunity for serious human rights violations.[12]

It is regrettable that the authorities have not yet developed a consistent disaggregated data collection mechanism for hate crimes, despite the Committee’s call. The absence of such a mechanism in existing legislation does not respond to the problem that the existing data collection system on hate crimes is disjointed and doesn’t allow conclusions to be made on the adequacy of the authorities’ identification, classification, investigation, prosecution and judicial response to hate crimes.

Whilst the authorities’ promise to present comprehensive statistics in the near future is welcome, it must be noted that concerns about efficient data collection are widely held, as set out in the Rule 9 submissions by the European Association of Jehovah’s Witnesses, the Ukrainian Helsinki Human Rights Union, and in the recent Report on data collection system for hate crimes, hate speech and discrimination in Ukraine.[13] The Committee therefore may wish to recall its previous call concerning the establishment of a separate mechanism to enable the recording and follow up of hate crimes.

The authorities have unfortunately not fully addressed the request for information as regards the general measures taken with the aim of ensuring mutual tolerance between opposing religious groups. The information about the work of the State Service of Ukraine on Ethnic Policy and Freedom of Conscience and the Ukrainian Council of Churches and Religious Organisations is too general to allow a meaningful assessment. It is nevertheless positive that police and prosecutors are involved in targeted training on effective investigation of crimes committed on the grounds of religious intolerance, as carried out by the Council of Europe designated project. The authorities should be encouraged to continue their work to ensure that motives of religious hatred and intolerance are effectively investigated and addressed by investigative authorities in their decisions.

The authorities should take full advantage of existing Council of Europe specialised projects and technical co-operation programmes, directly related to the protection of minorities and improvement of data collection system in Ukraine, to further enhance the capacity of law-enforcement and judicial authorities to effectively investigate and prosecute hate crimes.

Financing assured: YES