Mr. Chairman, Secretary General, Excellencies, Ladies and Gentlemen,
I am very grateful for the opportunity you have given me to speak briefly about the Report of the International Advisory Panel, which was delivered in Kyiv on 31 March. As you are aware the Panel was set up by the Secretary General with the original role of overseeing the investigation into the violent incidents in Kyiv during the Maidan demonstrations between November 2013 and February 2014. The tragic events that occurred in those months resulted in the deaths of a hundred civilians and some 13 law enforcement officers and in grave injuries being caused to very many more. The role of the Panel under its Mandate was to establish whether the investigations into those incidents had met and continued to meet all the requirements of the European Convention and the case-law of the European Court of Human Rights. Those requirements are in summary that the investigations are independent, that they are carried out promptly and expeditiously, that they are adequate and effective and that there is sufficient public scrutiny and sufficient involvement of the victims or the families of the victims.
As the introduction to the Panel’s report made clear, the Panel’s function was not to conduct the investigations into the violent incidents in question. That was and is for the Ukrainian investigatory authorities themselves namely, the Prosecutor General’s Office, the Ministry of the Interior and the State Security Service, which were charged with responsibility for the various case-files in the Maidan-related investigations. Nor did the Panel have the task of examining individual cases or of trying to establish for itself the facts which resulted in the deaths and serious injuries, whether of civilians or law enforcement officers. Its role was rather to examine and report on whether the authorities’ own investigations into the events, seen as a whole, complied with international standards and, in particular, the requirements of the European Convention.
The Panel which I chaired was made up of three members, the other two members being Mr. Volodymyr Butkevych, my former colleague as a judge of the European Court of Human Rights, and Mr. Oleg Anpilogov a former prosecutor of Ukraine. I would also wish to place on record that the work of the Panel was greatly facilitated by the Secretariat of the Committee of Ministers and by the Registry of the Court in providing it with both legal and administrative assistance.
The Panel’s Report was prepared after receiving detailed information and submissions from the main government departments and from a number of non-governmental organisations in Ukraine. This information was provided to the Panel both in detailed written submissions and in a series of meetings in Kyiv with representatives of the various actors held between August and December of last year. But the Panel also sought to take account in its Report of relevant developments which had occurred up to 23 February of this year, insofar as these could be gleaned from information in the public domain.
The Report is a very detailed one, in which the Panel set out a full description of the structure and current status of the investigations into the Maidan events before turning to its assessment of the compliance of those investigations with international standards.
May I before looking briefly at the main conclusions of the Panel make two preliminary points.
The first is this. The Report drew attention at the outset to the very real problem of impunity and lack of accountability of law enforcement officers in Ukraine, which had over several years been the subject of serious criticism by the European Court, as well as by international governmental and non-governmental authorities. During its inquiries in Kyiv, the Panel regrettably found continuing evidence of this sense of impunity, specific instances of which are described in the Report. It was in recognition of the need to restore public trust in the investigation and thereby dispel public disquiet about the lack of accountability of law enforcement officers that the Panel was first established by the Secretary General.
The second point is a related one. The Panel found that in several respects the investigations carried out at national level had failed to satisfy the requirements of the Convention. However, in reaching these findings, the Panel expressly acknowledged the very substantial challenges which had confronted the authorities since taking on the investigatory role in February of last year – the unprecedented scale and breadth of the investigations into the Maidan events; the lack of any effective investigations by the authorities of the previous regime in the first three months of the Maidan demonstrations; the considerable problems posed by the fact that key figures of the former government had absconded from Ukraine and that documents had been lost or destroyed and weapons had disappeared; the lack of any identifying marks on the law enforcement officers who took part in the violent events; and the competing demands made of the authorities in investigating other serious events which post-dated those in Maidan. These, of course, included the major conflict in the eastern regions of Ukraine and the investigation into the violent events in Odesa in May of last year, which the Panel has already begun to review under its Mandate.
However, as the case-law of the Court makes clear, despite these undeniably serious challenges, the authorities remained and continue to remain under an obligation to take all reasonable steps to ensure that the investigations complied with the requirements of Articles 2 and 3 of the Convention. In several respects, the Panel found that they did not comply. The conclusions in the Report must be read as a whole but I would like to give a very brief summary of some of the principal findings of the Panel.
It was the view of the Panel that, despite the numerous calls which had been made to introduce an independent and effective mechanism within Ukraine for investigating crimes committed by law enforcement officers, there were several examples of a lack of practical independence in the Maidan investigations. In particular, the Ministry of the Interior had been given an investigative role in crimes which had undeniably been committed by law enforcement officers and had been allocated the investigation of crimes allegedly committed by the so-called titushky, despite the undisputed evidence that titushky had been engaged, supported, and armed by former officials of the Ministry.
The Report further contains a series of criticisms of the lack of effectiveness of the investigations. This was considered, first, to result from a number of deficiencies in the staffing and resources of the Prosecutor General’s Office and in the allocation of the investigative work. The number of investigators devoted exclusively to the Maidan investigations was found by the Panel to have been wholly inadequate and the lack of direction and continuity which resulted from the appointment of three Prosecutors General within a year, as well as the removal from their role of two of the leaders of the Maidan investigations, was found to have had a serious impact on their progress, quality and effectiveness. Further, the distribution of certain of the case-files between the Prosecutor General’s Office, on the one hand, and the Kyiv City Prosecutors’ Office and the Ministry of Interior, on the other, was found to have been neither coherent nor efficient.
The effectiveness of the investigations into the Maidan events was, in the view of the Panel, vitally dependent on close cooperation between the investigating authorities. The lack of such cooperation with the Prosecutor General’s Office by the other two investigating authorities was found by the Panel to have had a seriously negative impact on their effectiveness. There were, in its view, strong grounds to believe that the attitude of the Ministry of the Interior had been uncooperative and, in certain respects, obstructive.
A similar lack of cooperation was found on the part of the State Security Service in the investigations into the counter-Maidan operation in February of last year. While the Panel questioned whether all had been done by the Prosecutor General’s Office to ensure effective cooperation on the part of the other two authorities, the principal responsibility lay in the Panel’s view with those two authorities.
I accept that these criticisms are strong and they have provoked an equally strong reaction from the Minister of the Interior, who has claimed that the Panel’s findings were “surprising and baseless” and has made a series of charges against the integrity and independence of the of the Panel. I do not believe that it is appropriate for me to seek to respond in detail to these claims. The Report, I think, must speak for itself. But I think that at least one comment is called for. As will be clear from a reading of the Report, it was not the Panel which first claimed that there had been a lack of cooperation on the part of the Ministry. This was a claim that was repeatedly made in correspondence, in public press briefings and to the Panel itself by representatives of the Prosecutor General’s Office. It was those representatives who gave the Panel examples of the lack of cooperation, which in their view had had a seriously adverse impact on the progress and effectiveness of the Maidan investigations, particularly those relating to the deaths and injuries on Instytutska Street on 20 February. Contrary to the claims made by the Minister, the Panel did meet representatives of the Ministry on several occasions. At those meetings, as well as in its written questions, the Panel put to the representatives the specific criticisms made by the Prosecutor General’s Office. Regrettably, as is noted in the Report, it received no satisfactory answers to dispel the clear impression of a lack of effective cooperation. It is said that the information at the Panel’s disposal was outdated. As to this, the Panel accepted in its Report that the developments at the end of last year suggested better cooperation and were encouraging. But as was also noted in the Report, these developments occurred 10 months after the main Maidan events, during which time very limited progress had been made in the investigations.
The Panel also expressed concern about the decisions of the courts, which had in its view undermined the effectiveness of the Maidan investigations and, more generally, weakened the deterrent effect of the judicial system. In particular, the decision of the Percherski District Court to release to house arrest the commander of the Berkut unit, who had been charged with 39 murders and who has since his release disappeared, has had a serious impact on the progress and outcome of the investigations into one of the gravest episodes of violence at Maidan.
It was the view of the Panel that, as a direct consequence of these deficiencies, the investigative response to the violent events had been significantly protracted.
The Panel was further of the view that the events at Maidan were of such importance that the authorities were required to provide sufficient information about the investigations to facilitate meaningful public scrutiny of them. Here again, failings were found. While it was acknowledged that efforts had been made to inform the public, the Panel concluded that there was no coordinated communication policy in place between the three investigating bodies so as to ensure the delivery of consistent and comprehensive information about the investigations as a whole. Nor did the Panel consider that the information provided to the public was of itself sufficient to protect the rights and interests of the victims and next-of-kin.
Having reviewed the current status of the various case-files, the overall conclusion of the Panel was that substantial progress had not been made in the investigations and that, while this might to some extent be explained by the challenges faced, the deficiencies found had undermined the authorities’ ability to establish the circumstances of the Maidan-related crimes and to identify those responsible.
I would wish however to end on a note of cautious optimism. The Panel established by the Secretary General is a new and, in many ways, a unique model. The investigatory responsibilities remain exclusively with the competent national authorities; but those investigations have been under continuous review by an international body as they have progressed. The Panel would wish to acknowledge not only the cooperation which it received from the authorities in what has been a novel and demanding form of inquiry and at a very difficult time for the country, but what it found to be the genuine efforts, especially on the part of the representatives of the prosecuting authorities, to address more closely the international requirements which should govern the investigations.
In its concluding remarks, the Panel drew attention to the encouraging changes made during the course of the year to improve the level of compliance with international standards. Chief among these has been the creation of the Special Investigation Division, dedicated to the Maidan investigations and with staff from each of the three investigative bodies. There have already been signs of progress in the investigations since the Division was set up. But, as the Report notes, the Division was established many months after the events which it was to investigate and it remains to be seen whether it is able to provide solutions for both the lack of independence and the lack of effectiveness of the investigations, which have been identified in the Panel’s Report.
The Panel was further encouraged by what it found to be the more active position adopted by the current Verkhovna Rada to improve the quality of the Maidan investigations and to achieve more positive results; the decision of the Joint Parliamentary Committees to recommend to the authorities measures for improving the investigations and to require the provision of monthly reports containing information on the completion of pre-trial investigations and the bringing of cases before the courts, is a very welcome initiative.
The challenges facing the Maidan investigations remain formidable. When I last appeared before you, I said that I believed that the very decision to set up the Panel had had a positive and beneficial effect in creating public confidence in that justice would be done. I still believe that. I also believe that, given the improvements that can already be witnessed, those challenges can be overcome and public confidence in the investigation can be instilled.
The Panel’s focus is now on the violent events in Odesa in May of last year. I regret to say that the strong public criticisms made by the Minister of Interior of the Panel’s work on Maidan are neither helpful nor promising. I wish to express to you my strong hope that, despite these criticisms, the Panel will receive from the authorities the full cooperation in its work that was promised by the Government of Ukraine when its Mandate was extended to cover the events in Odesa.
Thank you very much.