MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-39

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-39 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(2023)1483/H46-41

 

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
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
52212/13	KOZLOVSKA	05/10/2023	05/10/2023
67158/13	PULNYEV AND GVALIYA	30/11/2023	30/11/2023
26815/16+	PETRAKOVSKYY AND LEONTYEV	21/03/2024	21/03/2024
13577/16+	STOROZHUK AND KONONOV	08/02/2024	08/02/2024
51984/17	MYTSYK AND KRAVCHUK	16/05/2024	16/05/2024
AFANASYEV GROUP
38722/02	AFANASYEV GROUP (List of cases CM/Notes/1514/H46-39-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) ·         Strengthening Ukrainian Law Enforcement Agencies During War and Post-War Period (PMM 3473, 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.”[2]

Status of execution

In response to the Committee of Ministers’ decisions at the last examination of these cases in December 2023, the Ukrainian authorities submitted information on 2 May and on 8 October 2024 (DH-DD(2024)492 and DH-DD(2024)1134), which is summarised below.

Individual measures

Just satisfaction: In the DH-DD(2024)1134 the authorities provided information on the payments made in 12 more cases.

Reopening of investigations after the Court’s judgments

The authorities requested the Committee to examine the possibility of closure of the supervision in:

·         six cases[3] in which the reopened investigations were terminated by domestic courts as the alleged offences had become time-barred;

·         two cases[4] in which the authorities submitted that they had taken all possible measures to establish the circumstances of alleged ill-treatment. However, despite the measures taken, the investigation could not remedy the shortcomings identified by the Court and the reopened investigations were terminated by the investigators’ decisions.

In response to the Committee’s invitation to provide clarifications on the grounds for terminating investigations in the Kovalchuk and Vergelskyy cases, the authorities noted that, given the complexity of the issue, they would provide the Committee of Ministers with clarifications on this matter in their further submissions.

The authorities further provided information on the course of the investigations reopened after the Court’s judgments (see for details Memorandum H/Exec(2024)13.

As regards other pending cases, the State Bureau of Investigations[5] (“the SBI”) is working, under the procedural guidance of the Office of Prosecutor General of Ukraine (“the OPG”), to carry out, where it is still possible, effective investigations. In practice it is often impossible to conduct necessary investigative actions due to the aggregation of the following factors:

·         some applicants and crucial witnesses died or their whereabouts are unknown or reside abroad or in the temporarily occupied territories of Ukraine;

·         some applicants refuse to participate in the criminal proceedings;

·         in some cases the storage period of documents expired and they were destroyed or are located in the territories outside the governmental control;

·         in most cases, the time lapse of 10-20 years affects the collection of evidence.

All these obstacles are aggravated by the continuing aggression by Russia, occupation of the Ukrainian territories and ensuing loss of access to evidence in the territories concerned.

Ex officio practice of re-examining investigations at an earlier stage of the Convention proceedings

A procedure for the Interaction between the OPG, the SBI and the Office of the Government Agent before the European Court of Human Rights (“the GAO”) in the framework of the execution of the European Court’s judgments has been adopted[6]. It envisages ex officio opening of criminal investigations into allegations of ill-treatment, or review of justification for termination of closed investigations, upon communication of the respective applications to the government by the Court. It also sets guidelines for the effective investigation of cases where relevant violations were established by the Court.

Rule 9 submission

In several communications to the Committee, most recently on 21 October 2024, the applicant in the Buglov case complained that the renewed investigation is being protracted, and that the police officer identified by him as being involved in his ill-treatment, had not even been notified of suspicion, despite the applicant’s testimony and the other evidence at the investigator’s disposal.

General measures

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

(a).  Strategy setting

The implementation of the measures envisaged by the 2021-2024 Strategy on Combating Torture in the Criminal Justice System (the “Anti-torture Strategy”) and its Action Plan[7] was impeded by the ongoing aggression of the Russian Federation. In view of the above, the deadline for implementation of some of these measures was extended[8] until 2026, and several other changes to the Action Plan were made, including the introduction of the Mendes principles[9] (on efficient interviewing and information gathering) in the work of the law enforcement.

On 11 May 2023, the President approved[10] the Comprehensive Strategic Plan for Reform of Law Enforcement as a Part of the Security and Defense Sector of Ukraine for 2023-2027 (the “Law Enforcement Reform Strategy”), and on 23 August 2024 the Cabinet of Ministers approved the action plan for its implementation.[11] These documents envisage measures aimed at strengthening the institutional capacity of the OPG and SBI, improving the interaction between law enforcement agencies, implementing best practices in investigations, elaboration of legislation on compensation to victims of crimes, introduction of new ways of collecting information about crime rates and other measures.

(b).  Legislative developments

The amendments[12] to the Article 212 of the Code of Criminal Procedure streamlined the status, rights and obligations of the law enforcement officers “responsible for custody and ensuring rights of the detainees”. Their independence from the police agents involved in the investigative activities was strengthened. They have an obligation to interview each newly arrived detainee about the circumstances of their arrest, and if signs of ill-treatment are detected, to report it to the head of the respective police unit and the prosecutor’s office.

(c).  Ensuring early access to a lawyer

The free legal aid (“FLA”) centres and the National Police are working together to ensure automatic exchange of information between the Custody records system and the FLA information system. The FLA centres are operating 24/7 and the FLA lawyers are using specific guidelines allowing them to identify and report possible instances of ill-treatment.

(d).  Implementation of “Custody Records” system

The authorities reported about further extension of the “Custody records” information system within the police units in Ukraine. The functioning of the system is accompanied by the establishment of a Human Rights Inspector’s position within police departments. The efficiency of this system for the prevention of ill-treatment was confirmed by the NPM [13] during its visits to several police units.

(e).  The Card of Primary Fixation of External Injuries[14]

The Procedure for Informing Territorial Departments of the SBI about possible ill-treatment by law enforcement[15], in force from June 2023, envisages an obligation for the heads of the respective healthcare institutions to notify the SBI about any possible case of ill-treatment at the hands of law enforcement. On 2 February 2024 the Ministry of Health approved a Card of primary fixation of bodily injuries and respective instructions.[16] In addition, methodological recommendations for medical professionals were developed.

(f). Awareness raising and capacity building activities

The authorities reported about extensive human rights trainings of law-enforcement officers (including National Police, the SBI and prosecutors).

The competent authorities benefited from support of Council of Europe co-operation projects in the design and implementation of many of these measures.

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

(a).  Methodological recommendations:

The OPG developed[17] methodological recommendations for procedural guidance during pre-trial investigation of criminal offences of torture. The recommendations include standards of effectiveness of investigation in accordance with the Court’s case-law with relevant references to the Court’s judgments. The recommendations were sent to regional prosecutor’s offices, the SBI investigators and heads of pre-trial investigation bodies for practical use in their work.

(b).  Co-operation between main stakeholders

On 20 December 2023 the heads of law enforcement agencies and other state authorities adopted a joint Resolution, which envisages a number of measures aimed at combating and preventing ill-treatment, including strengthening coordination between state agencies to implement the Court’s judgments concerning torture/ill-treatment, strengthening cooperation between state agencies and civil society to prevent human rights violations in places of deprivation of liberty and to implement the NPM recommendations.

(c).  Judicial practice of application of the amended Article 127 of the Criminal Code

The authorities noted that the judicial practice on the application of the new[18] Article 127 of the Criminal Code (the CCU) has not yet been formed.

(d).  Institutional developments

In 2023 the establishment of specialised units within regional prosecutor’s offices to provide procedural guidance in pre-trial investigations into torture/ill-treatment was completed. As of September 2024, 150 prosecutors are providing procedural guidance in pre-trial investigations into allegations of torture by law enforcement officers. However, due to the significant workload related to the investigation of war crimes, prosecutors from the specialised unit have to be seconded, from time to time, to other units. The SBI, in its turn, proposed to create specialised units responsible for the investigation of torture and ill-treatment in police custody, which requires increase in the SBI staff. The respective legislative amendments are pending with the parliament. For the time being 157 specialised SBI investigators are responsible for pre-trial investigation of this category of cases.

(e).  Prompt investigation of ill-treatment cases

One of the goals set in the Anti-torture Strategy, to have 90 % of criminal cases regarding il-treatment investigated within one year and processed by courts within two years, has not been achieved. The length of pre-trial investigations varies from one to two years, while 60% of criminal cases are pending before courts for three and more years. The main impediment was the increase in the workload of the SBI investigators caused by the need to investigate war crimes. The length of judicial proceedings is explained by a number of factors, including abuse of procedural rights by parties, insufficient number of judges, mobilisation of the accused (a ground for suspension of the proceedings) etc. The deadline for achieving the target length of investigations has been extended to 2026.

(f).  Statistics

In 2023 the SBI was carrying out pre-trial investigations in 2,466 criminal proceedings of ill-treatment by law enforcement officers, including 768 new criminal cases; 125 individuals were served with notices of suspicion; indictments in 73 criminal proceedings against 113 law enforcement officers were forwarded to courts. During the first seven months of 2024, the SBI completed pre-trial investigation in 29 criminal proceedings and forwarded to courts indictments against 41 law enforcement officers.

The authorities further provided examples of recent (2020-2024) criminal proceedings regarding allegations of torture in law enforcement and penitentiary systems, in particular they invoked the so-called “Kaharlyk” case, where on 24 May 2023 two officers of the Kaharlyk Police Unit were convicted of torture, unlawful deprivation of liberty and rape and sentenced to 11 years of imprisonment. They further invoked five more cases of investigation into recent alleged ill-treatment cases to demonstrate that effective measures are being taken to promote “zero tolerance” policy and to eradicate impunity for ill-treatment by law enforcement officers.

Analysis of the Secretariat

Individual measures

In its last decisions adopted in December 2023 the Committee notably invited the authorities to resolve the issue of the payment  of just satisfaction to the special deposit account, by making the sums available to the applicants for a period longer than one year; invited the authorities to supplement the information on the review of investigations in the pending cases and encouraged them to consider introducing an ex officio practice of re-examining such investigations at an earlier stage of the Convention proceedings; invited them to identify adequate ways to provide meaningful redress to the victims, where investigations are no longer possible or pursuing them would be a burden out of all proportion to the benefit.

Just satisfaction: The authorities could be again invited to resolve the issue related to the payment of just satisfaction by enacting the relevant legislative amendments[19], which would make the sums available to the applicants for a period longer than one year before they are transferred back to the state budget.

Reopened investigations after the Court’s judgments:

Out of 98 pending cases in this group (some of which concern multiple applicants):

-       only in two cases the criminal proceedings resulting from renewed investigations reached the trial stage;

-       in nine cases, the renewed investigations led to no result despite the investigative measures taken and were terminated by investigator’s decision;

-       in nine cases, investigations were closed by domestic courts due to prescription and in five more cases, the prosecutors’ requests to close the case as time-barred are pending consideration by the court;

-       the investigations in other 78 cases are still pending, many of them for a considerable period of time, without any formal conclusive findings and with several rounds of reopening. This is a matter of concern.

No further individual measures appear possible in six cases[20], where the investigations were terminated by domestic courts, due to the impossibility to identify alleged perpetrators, while statutory limitation period had expired. The Committee might wish to close these cases with regret and to remind the competent Ukrainian authorities that as far as crimes involving torture or ill-treatment by State agent are concerned, it is of the utmost importance that criminal proceedings and sentencing are not time-barred to ensure that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined.[21]

The Committee may also note the authorities’ explanations that in two other cases[22], in which the Court found only procedural violations of Article 3, irrespective of the measures taken by the renewed investigations, it was impossible to fully rectify some of the key shortcomings of previous investigations due to the obstacles encountered (passage of time, impossibility to determine the whereabouts and question the applicant/alleged perpetrators/witnesses given their possible location on the territories outside the Ukrainian authorities’ control, inaccessibility of the case file, etc.). While no further individual measures appear possible in these cases, it is regrettable that there have been considerable and unexplained delays in their re-examination/re-investigation after the Court’s judgments. [23] The Committee might therefore wish to close their supervision with regret in view of the lack of timely and effective response to the findings of the Court.

As regards pending investigations, the authorities could be strongly urged to redouble their efforts to avoid further loss of evidence and prescriptions in the pending cases and to complete investigations promptly, in line with the Convention standards.Furthermore, the authorities are expected to report in a clear and consolidated manner, in respect of each of the reopened investigation:

·         what investigatory steps have been taken for addressing the problems raised in the judgments;

·         what investigatory steps are still needed and can still be taken;

·         what investigatory steps can no longer be takenin view of legal or practical obstacles;

·         what means can be/have been 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.

Information is awaited on the possible means of redress envisaged for the victims, where investigations are no longer possible or pursuing them would be a burden out of all proportion to the benefit.

Moreover, the authorities’ attention should be drawn to the Committee’s practice, according to which the sufficiency/adequacy of individual measures and the possibility of closure of supervision in this type of cases is assessed on a case-by-case basis, bearing in mind the Court’s factual findings in each case and the steps taken by the authorities to address them.

Given the burden placed on the State to provide a plausible explanation for injuries sustained by a person under its control, it is of outmost importance that the decisions taken after the review of all these cases do take into account the Court’s factual findings that ill-treatment/torture occurred and/or that no effective investigations were conducted at the time into applicants’ allegations and this should lead to rectification of shortcomings in the new investigations.

Finally, the Committee might wish to note with interest the adoption of the Procedure for the Interaction between the OPG, the SBI and the Office of the Government Agent on ex officio re-opening of criminal investigations upon communication of the respective applications by the Court and the guidelines for conducting such investigations. It is hoped that the application of this Procedure will prevent further loss of evidence and prescriptions as much as possible and contribute to the effectiveness of the renewed investigations in similar cases.

General measures

In its last decisions in December 2023, the Committee notably: urged the authorities to finalise the adoption of the draft laws on compensation for victims of violent crimes; called upon them to adopt a methodology and other tools for improving effectiveness of investigations; urged them to further strengthen the central role of the SBI in investigating ill-treatment allegations and ensure that the SBI implements the “zero tolerance” policy with the aim of fully eradicating impunity for ill-treatment. The authorities were invited to report on the impact of all the institutional and capacity building measures taken to prevent and eradicate torture.

Strategic and legislative developments

The Committee may wish to note the changes made to the implementation of the Anti-torture strategy and its Action Plan, and to invite the authorities to provide updates on the implementation of the measures foreseen in these documents, as well as on the practice of the application of the new Article 127 of the Criminal Code by the investigative and judicial bodies, after its amendments in 2022.

The adoption of the Law Enforcement Reform Strategy and its Action Plan are positive developments. These documents envisage strengthening of the institutional capacity of the OPG and SBI, improving the interaction between law enforcement agencies, implementing best practices in investigations, as well as elaboration of a draft lawon the compensation of damages to the victims of violent crimes. It is important that due regard is given to the relevant Council of Europe standards[24] during the development of this legislative act.

The amendment to Article 212 of the Code of Criminal Procedure, streamlining the status and obligations of law enforcement officers “responsible for custody and for ensuring rights of the detainees”, is a welcome development for further prevention ill-treatment in police custody, as it rectifies the existing shortcomings stemming from the combination of this position with other duties.[25]

Effectiveness of investigations

The adoption of the methodological recommendations for the procedural guidance during pre-trial investigation of torture in December 2023 can be noted with interest. It remains to be seen what impact these recommendations will have on the practice and effectiveness of investigations of ill-treatment by law enforcement.

Concerns are still being expressed as to the lack of the required level of priority towards investigations of ill-treatment by the SBI. The NGOs’ “Shadow report”[26] notes that allegations of ill-treatment and torture by law enforcement officers are not investigated effectively and promptly by the SBI. In its Report[27] on the visit to Ukraine from 16 to 27 October 2023 (“the 2023 CPT Report”), the CPT also noted certain issues of concern, in particular, regarding inadequacy of the number of the SBI investigators specialised in ill-treatment cases.

While it is understandable that, in view of the ongoing aggression of Russia, the significant part of the law enforcement agencies’ resources had to be redirected to investigating war crimes and crimes related to threats to national security, this does not exempt the authorities from their continuous obligation to effectively prevent and combat impunity for ill-treatment. They should therefore find means to ensure that pursuing other important tasks and priorities of the SBI, a body established with a primary goal to investigate torture in law enforcement, is not carried out to the detriment of investigating of ill-treatment by law enforcement officers.

Custody Records system and access to a lawyer

The further expansion of the “Custody Records” system and the introduction of the card of primary fixation of injuries are to be welcomed, especially in view of the CPT’s recommendations to introduce the “Custody Records” system in all police establishments[28] and the NGOs’ positive assessment of its functioning.[29]

It is also encouraging that, according to the CPT, the police swiftly informed the relevant FLA Centres about placing people into police custody and there was quasi-systematic presence of (usually ex officio) lawyers during police questioning.[30]

Impact of the measures taken

Overall, there are some positive indications that, as a result of the measures taken, there is a trend of reduction of ill-treatment in police custody. The CPT indicated improvement in recent years in the treatment of persons detained by the police as well as in the application of the fundamental legal safeguards against ill-treatment.[31] It noted that unlike on previous visits, no allegations were received concerning physical
ill-treatment in the context of questioning (with the aim of extracting confessions or obtaining other information). The civil society also observed improvement of conditions in temporary detention centres and better protection of the rights of the detainees as a result of implementation of the Custody Records system.

Still, the problem of ill-treatment by police is far from being resolved. Allegations of physical ill-treatment (shortly after apprehension, in the vehicle or at the police establishment, before questioning), excessive use of force upon apprehension and psychological pressure, were still recorded by the CPT. Furthermore, in his 2023 Human Rights report[32] the Ukrainian Ombudsperson indicated that the problem of ill-treatment in police custody, persisted. In his special report[33]  covering the same period of 2023 the Ombudsperson noted that despite positive tendencies with regard to observance of human rights in police custody, there are still instances of infringement of the detainees’ rights by officers of the national police. Therefore, the Ukrainian authorities should remain vigilant and persistently pursue their policy of “zero tolerance” of ill-treatment by law enforcement.

Finally, the statistics provided by the authorities do not allow to discern any trends (positive or negative) with regard to the number of instances of torture and ill-treatment, as well as effectiveness of investigations into them. In order to monitor the dynamics and assess the impact of the measures taken, it may be useful to produce comparative annual statistical data with the following breakdown: numbers of reports of ill-treatment, launched criminal investigations (registered criminal cases), pending criminal investigations, closed investigations, indictments sent to domestic courts, length of judicial proceedings, number of convictions/acquittals, as well as types of sanctions imposed. It is desirable that the statistics be accompanied by the analysis explaining the relevant trends.

Financing assured: YES