Investigation of May 2014 events in Odesa failed to comply with requirements of European Human Right Convention, says International Advisory Panel’s report

Kyiv, 04.11.2015—The report of the International Advisory Panel on its review of the investigations into the tragic events in Odesa of May 2014 has been published and presented in Kyiv today. The Panel has found that the investigations have failed to satisfy the requirements of the European Convention of Human Rights.

The clashes in the centre of Odesa and the fire in the Trade Union Building on 2 May 2014 resulted in 48 deaths and injuries to several hundreds of persons.

The Ukrainian authorities initiated three investigations. The first investigation covers the conduct of the police on 2 May 2014 and the release of detainees on 4 May 2014 after protesters attacked the local police station. The second investigation focuses on the mass disorder in the city centre, and the fire in the Trade Union Building. The third one investigates the conduct of the State Emergency Service (SES) staff during the fire.

The Panel found that the investigations faced significant challenges but noted that these challenges “cannot excuse any failings which did not inevitably flow from them”. The authorities were, and are under, an obligation to take all reasonable steps to ensure that the investigations comply with Article 2 (Right to life) and Article 3(Prohibition of torture and inhuman and degrading treatment) of the Convention.

The Panel considered that the second and third investigations lacked institutional and practical independence. Given the evidence indicative of police complicity in the mass disorder of 2 May 2014 and the hierarchical relationship between the SES and the Ministry of the Interior, the investigations as a whole should have been carried by an organ independent of the Ministry.

The Panel further considered that the investigations were ineffective for a number of reasons: in particular, the division of the investigative work was inefficient and the resources allocated were inadequate. The quality of the investigation was also deficient, the authorities failing to show sufficient thoroughness and diligence in initiating and pursuing the investigations. The “most striking example of a lack of diligence”, in the Panel’s view, was that the first real efforts to investigate an unexplained delay of over 40 minutes in the arrival of fire-fighters to the Trade Union Building, were not made until December 2014.

The Panel also addressed the question of the prosecution and trial of suspects. It expressed serious concern about the decisions to terminate the proceedings against two suspects on the grounds of lack of evidence and noted that the repeated recusals of judges had delayed the start of criminal proceedings, and that the decision to charge 21 persons in a single indictment without individualising the charges against them had had an adverse impact on the proceedings.

As for the public scrutiny of the investigations and the involvement of the victims and next-of-kin, the Panel acknowledged that the authorities had promptly provided the public with basic information and facts but found some shortcomings, the most serious being the lack of consistency, evenness and regularity of the information provided. In contrast to the Maidan investigations, the authorities did not take any co-ordinated measures directly and regularly to inform the victims and next-of-kin about the progress of the investigations.

The Panel concluded that, as a result of these investigative deficiencies, substantial progress had not been made in the investigations into the violent events in Odesa on 2 May 2014.

The International Advisory Panel was constituted by the Secretary General of the Council of Europe in April 2014, initially to oversee the Maidan violence investigations. In September 2014, the Panel’s mandate was extended to examine whether the Odesa investigations met all the requirements of the European Convention on Human Rights and the case-law of the European Court.

SUMMARY OF THE PANEL’S CONCLUSIONS

Based on its review of the investigations into the violent events in Odesa on 2 May 2014, the Panel has reached the following conclusions.

As regards the challenges facing the investigations:

The challenges confronting those responsible for the investigations into the events in Odesa on 2 May 2014 have been significant and their impact on the investigations cannot be under-estimated. However, these challenges cannot excuse any failings which did not inevitably flow from them. The authorities clearly were, and are, under an obligation to take all reasonable steps to ensure that the investigations comply with the requirements of Articles 2 and 3 of the Convention.

As regards the independence of the investigations:

Given the evidence indicative of police complicity in the mass disorder of 2 May 2014 in Odesa, Articles 2 and 3 require that the investigation into the mass disorder as a whole be carried out by an organ entirely independent from the police. Similarly, the investigation into the conduct of the fire service cannot be regarded as independent, given the structural links between the SES and the MoI. These concerns again highlight the need for an independent and effective mechanism for the investigation of serious human rights violations committed by law enforcement officers and other public officials.

In addition, the Panel considers that it is of central importance for the purposes of maintaining the confidence of all sectors of the public in the criminal justice system that the authorities, including the judicial authorities, are seen to act in an impartial and equal manner in the conduct of the investigations and court proceedings.

As regards the effectiveness of the investigations:

Organisation of the investigative work: The Panel finds the division of investigative work between the PGO and the MoI to be inefficient and detrimental to the effectiveness of the investigations, given that they concern the same set of closely connected events and overlap to a certain extent as regards evidence, witnesses and victims. The Panel also finds that the quality, progress and effectiveness of the investigations were affected by the decision to allocate the investigation of the actions of the SES to the local MoI, which remained inactive during the crucial early stages.

Staffing and resources: The Panel finds it commendable that both the PGO and the MoI have sought to ensure continuity as regards the main investigators in Odesa. However, it finds that the reduction of each authority’s investigating team has had a detrimental effect on the progress, quality and effectiveness of investigations and it considers the current staffing levels to be inadequate.

Quality of the investigations: The Panel finds that, in respect of each of the matters under investigation, the relevant authorities failed to show sufficient thoroughness and diligence in initiating and/or pursuing the investigations, with the result that their overall effectiveness was compromised.

Prosecution and trial: The Panel expresses serious concern about the decisions to terminate the proceedings against two suspects on the grounds of lack of evidence.

The Panel finds that the repeated recusals of judges led to delays in the commencement of the criminal proceedings as a whole. The Panel further finds that the decision to charge 21 individuals in a single indictment, without individualising the charges, has contributed to the delay and risks having an adverse impact on the progress of the court proceedings.

As regards requirement of promptness and of reasonable expedition:

The Panel considers that the investigation into the conduct of the SES staff was neither promptly commenced nor pursued with reasonable expedition. The investigations into the mass disorder and the fire on 2 May 2014 and into the conduct of the police on 2 and 4 May 2014, while promptly instituted, have been subject to a number of deficiencies that have significantly protracted the investigative response.

As regards public scrutiny of the investigations:

The Panel considers that the events in Odesa on 2 May 2014 were of such importance that the authorities were required to provide sufficient information about the investigations to facilitate meaningful public scrutiny. While the authorities provided a considerable amount of information, there was no effective communication policy in place, with the result that some of the information provided was difficult to understand, inconsistent, and unevenly presented and was provided with insufficient regularity.

As regards involvement of victims and next-of-kin:

The Panel’s role is not to determine whether the investigation of an individual case satisfied the requirements of the Convention and, in this regard, it limits its conclusions to recalling the case-law of the European Court relating to the involvement of victims and next-of-kin in any criminal investigation.

The Panel notes with regret that, in contrast to the Maidan investigations, the investigatory authorities did not take any co-ordinated measures directly and regularly to ensure that victims and next-of-kin were informed about the progress of the investigations. It finds that the information provided to the general public was not of itself sufficient to protect the rights and legitimate interests of the victims and next-of-kin.

As regards the Panel’s evaluation of the current status of investigations:

The Panel considers that substantial progress has not been made in the investigations into the violent events in Odesa on 2 May 2014. While this outcome may be explained to some extent by the contextual challenges, the Panel considers that the deficiencies identified in this Report have undermined the authorities’ ability to establish the circumstances of the Odesa-related crimes and to bring to justice those responsible.

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