IAP PRESS BRIEFING IN KYIV/ODESA, 4/5 NOVEMBER 2015
Ladies and Gentlemen,
It is a privilege for me to be able to present the Report of the International Advisory Panel on its review of the investigations into the tragic events in Odesa, which resulted in numerous deaths and serious injuries on 2 May 2014. The mandate of Panel, which was established by the Secretary General of the Council of Europe in April of last year with the original role of overseeing the investigations into the violent events in Maidan, was subsequently extended to cover the events in Odesa. The Panel delivered its Report on the investigations in Maidan at the end of March, at the same time as it began its current review. I am here today with the other two members of the Panel, Mr. Volodymyr Butkevych and Mr. Oleg Anpilogov.
May I reiterate at the outset the two points I made when presenting the Panel’s Maidan Report. First, it was not the Panel’s function to conduct, or to assist in, the investigation of the events in Odesa. That was, and remains, exclusively a matter for the Ukrainian authorities themselves and, more particularly, for the public prosecution service and the Ministry of the Interior, which shared responsibility for the various pre-trial investigations. The Panel’s role under its Mandate was a very different one. It was to examine whether the investigations that were and are being carried out at national level met and continue to meet all the requirements of the European Convention on Human Rights, as developed through the case-law of the European Court of Human Rights. These requirements are, in summary, that the investigations are independent, that they are carried out promptly and expeditiously, that they are effective and that they allow for sufficient public scrutiny and sufficient involvement of the victims and the families of the victims.
The second point I would stress is that it was not the Panel’s task to examine the quality of the investigation of individual cases of death or injury, or to establish for itself the particular facts which resulted in those deaths or injuries. Its role was rather to examine and report on whether the investigations at national level, seen as a whole, complied with international standards.
The Panel’s Report has been prepared after receiving detailed submissions, both in writing and in a series of meetings in Kyiv and Odesa with representatives of the investigating authorities and other official bodies and of non-governmental organisations. The meetings took place between June and August, and the end of August was set as the cut-off date for the filing of submissions to the Panel.
As in the case of the Maidan Report, the current Report is a detailed one, in which the Panel have found that in several respects the investigations carried out at national level have failed to satisfy the requirements of the Convention.
Again, as in the earlier Report, the Panel expressly acknowledged the very substantial challenges which had confronted the authorities when taking on their investigatory role. Four specific challenges were identified – first, the sheer scale and breadth of the investigations into the events in Odesa, given the number of persons involved in the violent disorder on 2 May and the resulting toll of dead and injured; second, the lack of specialist investigators with experience in dealing with large-scale disorders; third, the competing demands made of the authorities in pursuing other complex investigations, including those concerning the violent events in Maidan and the abuse of power and economic crimes committed by high-ranking officials of the former regime; and fourth, the problems posed by the identification of those responsible, since many of the participants in the mass disorder concealed their identities with masks and scarves and since witnesses were reluctant to come forward to provide evidence to the authorities. These factors undeniably placed an additional burden on the investigative authorities in their attempts to unravel an already complex case.
However, as the Report makes clear, these challenges could not excuse failings or shortcomings which did not inevitably flow from them; the authorities remain under a continuing obligation to take all steps to ensure that the investigations comply with the requirements of Articles 2 and 3 of the European 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.
As appears from the Report, three main investigations were opened into the violent events in Odesa. These covered, first, the conduct of the police in respect of the mass disorder on 2 May and the release of detainees on 4 May; second, the mass disorder itself, in the city centre and Kulykove Pole, and the fire in the Trade Union Building; and third, the conduct of the staff of the State Emergency Service in respect of the fire. The first investigation is being conducted by the Prosecutor General’s Office; the other two investigations are currently being conducted by the Main Investigation Department of the Ministry of the Interior.
It was the view of the Panel that both the second and third investigations lacked the necessary degree of institutional and practical independence. As to the investigation into the mass disorder and fire, the Panel noted that there had been numerous allegations, supported by video evidence, of collusion between certain members of the police force deployed to protect public order and activists involved in the mass disorder in the city centre. This made it in the view of the Panel essential that the investigation into the mass disorder as a whole should be carried out by a body independent of all the actors under investigation. The Ministry of the Interior did not satisfy this criterion. The same is true of the investigation into the conduct of the State Emergency Service. That Service, while a separate State body, is not only financially accountable to the Ministry of the Interior and funded from the State budget through funds allocated to the Ministry, but its activities have since April 2014 been coordinated and directed by the Cabinet of Ministers, through the Minister of the Interior, who participates in the process of the appointment and dismissal of the head of the Service and may represent it in Government. This hierarchical relationship with the Ministry was found by the Panel to be problematic.
The Panel further emphasised, as it had in its Maidan Report, the importance of the appearance of independence and impartiality in the investigation in a context such as the present, where the public trust in the criminal justice system was at stake. It expressed its concern in this regard that, even though the mass disorder had involved a conflict between two opposing groups of activists, all but one of the 23 suspects currently being tried for participating in the mass disorder belonged to the same group, namely the pro-federalists. Moreover, all those detained, including the seven defendants still detained some 18 months later, come from that same group. By contrast, none of the suspects belonging to the pro-unity group has been subjected to pre-trial detention, save for a few days immediately after the events; these include one person charged with the offence of murder.
The Report further contains a series of criticisms of the lack of effectiveness of the investigations. This was considered, first, to result from the organisation of the investigative work between the Prosecutor General’s Office and the Ministry of the Interior, which the Panel found to be inefficient and not conducive to the effectiveness of the investigation. As in the Maidan Report, the Panel found that the reduction made in the size of the investigating teams of both authorities had had a detrimental effect on the progress, quality and effectiveness of the investigation of such complex cases. This was indeed expressly acknowledged by certain of the investigators who gave evidence to the Panel.
The quality of the investigations was also found by the Panel to be deficient in a number of respects. In particular, it took two weeks for the authorities to obtain a warrant for the arrest of the principal suspect, by which time he had absconded from the jurisdiction. Despite the terms of the report of the Ombudsperson drawing attention to discrepancies in the police records, it took the authorities nearly a year to conclude that the “Wave” plan, which had been designed to counter mass disorder, had never in fact been implemented and that the records had been falsified. The Panel also found serious deficiencies in the way in which the authorities gathered and secured the evidence, notably through their failure to seal off the Trade Union Building immediately after the fire and their failure promptly and diligently to carry out certain forensic examinations. Even more striking in the Panel’s view were the deficiencies in the investigation of the conduct of the State Emergency Service: despite the fact it had taken the fire brigade 40 minutes to arrive on the scene of the fire, a pre-trial investigation was not commenced for over five months and, even then, only following the complaint of a third party. It was not until December 2014 that any real effort was put into pursuing the investigation, by which time the head of the SES in the Odesa Region had left the Service. These deficiencies were found by the Panel seriously to have compromised the effectiveness of the investigations.
The Panel also expressed concern about certain aspects of the prosecution and trial of the suspects. Particular criticism was made of the decisions to terminate the pre-trial investigations in two cases on grounds of the insufficiency of evidence. The Panel also noted the adverse impact on the progress of the court proceedings which stemmed from the repeated recusal of judges and the decision to charge 21 individuals in a single indictment, without individualising the charges against them.
The Panel found 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 in Odesa 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. It was acknowledged that efforts had been made by the investigatory authorities to provide the public with basic information and updates on the investigations. However, the Panel found that there was no effective communication policy in place. As a result, the information was sometimes inconsistent and uneven and provided with insufficient regularity. It found also that there were no coordinated measures in place directly and regularly to keep the victims and next-of-kin informed about the progress of the investigations.
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. While this might to some extent be explained by the challenges faced, the deficiencies found had undermined the authorities’ ability to establish the full circumstances of the events in Odesa on that day and to bring to justice those responsible.
I would wish however to end on a more positive note. The Panel was struck at the outset by the considerable amount of information about the tragedy which had been made available to the public at an early stage in the reports of the Temporary Investigation Commission and of the Ombudsperson. This was more than matched by the invaluable work of the 2 May Group, which made a major contribution to an understanding of the events of that day. In its concluding remarks, the Panel drew attention to the need for closer cooperation with the Group by the investigative authorities. However the Panel also acknowledged the cooperation which it had itself received from those authorities in what has been a demanding form of inquiry and at an acutely difficult time for the country. It noted, too, what it had found to be the efforts made to preserve continuity in the investigations and to keep the public informed about the progress made.
The Panel went on to note that some further progress had been made during the course of this year. In particular, further charges have been brought in the case concerning police misconduct. And an inter agency group of experts has been established to examine how the fire started and progressed, as well as the conduct of the SES during the course of the fire. The Panel was also encouraged by the assurances that further cases were under preparation and would be sent to court soon. But the Panel could not but note that these developments had occurred a considerable time after the events that were the subject of the investigations.
As was the case in the Panel’s Maidan review, these events had in the Panel’s view only served to reinforce the need for the establishment of the State Bureau of Investigation. While welcoming the more active steps recently taken to establish such a body the Panel concluded by emphasising the importance that the Bureau should meet all the requirements of independence and effectiveness demanded by the European Convention and the case-law of the European Court.
As in the case of the Maidan tragedy, the tragic events of 2 May in Odesa have left a deep scar on Ukrainian society. The investigation of those events is far from over and the challenges still facing the authorities remain formidable. It is earnestly to be hoped that, with the benefit of the views of the Panel, further progress in the investigations will be made, that public confidence in the investigation will be restored and that some closure will be brought to this further painful chapter in Ukraine’s history.
Ladies and Gentlemen, thank you for your attention.