Last Updated on February 10, 2021 by LawEuro
Information Note on the Court’s case-law 247
January 2021
Lutsenko and Verbytskyy v. Ukraine – 12482/14 and 39800/14
Judgment 21.1.2021 [Section V]
Article 11
Article 11-1
Freedom of peaceful assembly
Deliberate strategy to stop initially peaceful Maidan protest through excessive force resulting in escalation of violence and multiple abuses by non-State agents hired by police: violation
Article 3
Degrading treatment
Inhuman treatment
Ill-treatment of Maidan protestors by police and non-State agents hired by it, and lack of effective investigation: violation
[This summary also covers the judgment Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, 21 January 2021]
Facts – The cases concerned mass protests, which took place in Ukraine between November 2013 and February 2014 (the so-called “Euromaidan” or “Maidan” protests) in response to the suspension of the Ukraine-European Union Association Agreement. The Automaidan movement organised car rallies to support the Maidan protesters in various parts of Ukraine, including by protesting in front of the homes of high-ranking officials and bringing supplies to protesters. The protests led to the ousting of the President of Ukraine and a series of political and constitutional changes. Initially the protesters numbered up to 100,000 people, rising to up to 800,000 people. Special police forces were mobilised to disperse the protests which led to clashes. The authorities also used non-State agents aligned with the police (titushky – private individuals, including those with a criminal background), who are alleged to have carried out numerous assaults, kidnappings and murders of protesters. Reportedly there were over 100 deaths (including 70 by gunfire) and thousands injured between both the protestors and the police.
Law –
General remarks
These judgments pointed to a deliberate strategy on the part of the authorities, or parts thereof, to hinder and put an end to a protest, the conduct of which had initially been peaceful, with rapid recourse to excessive force which had resulted in, if not contributed to, an escalation of violence. Some of the abuse had been committed by non-State agents who had acted with the acquiescence if not the approval of the authorities.
In Shmorgunov and Others, the Court found multiple violations of Articles 3, 5 § 1 and 11 of the Convention as a result of the manner in which the law-enforcement authorities had engaged in the public order operations undertaken to deal with the Maidan protests in 2013 and 2014, the excessive force and, in certain cases, deliberate ill-treatment used in relation to some protesters, amounting, in relation to two applicants, to torture, and, in one case, failure to provide adequate medical assistance during detention.
In Lutsenko and Verbytskyy, the Court found violations of Articles 2, 3, 5 § 1 and 11 of the Convention on account, in particular, of the abductions, ill-treatment and persecution of the first applicant and the torture and death of the second applicant’s brother as a result of their implication in the Maidan protests.
In both cases, the Court found that to date no independent and effective official investigation had been conducted into crimes committed by law‑enforcement officers and non-State agents, who had been allowed to act with the acquiescence, if not the approval of the latter.
Article 3: Use of excessive force by police during dispersal of demonstrations (Shmorgunov and Others)
a) Substantive limb
There was no evidence or information indicating that the police’s recourse to physical force against the applicants in relation to dispersals had been made strictly necessary by their conduct, nor that the force had been used in compliance with domestic law. The applicants had been subjected to beatings, including with rubber and/or plastic batons, which had been done publicly and accompanied by verbal abuse in some cases, which had amounted to ill-treatment. In addition, two applicants had been subjected to torture.
b) Procedural limb
There had been significant shortcomings in the investigations into the events of the respective dates and evidence had not been collected in a timely fashion. On the whole, the investigations into the events and the related court proceedings had not so far resulted in the circumstances pertaining to the applicants’ alleged ill-treatment being established. Nor had they led to the identification of all those who had actually used force against the applicants. There had been no substantial progress in court proceedings concerning suspects whose cases had eventually been referred for trial, some of which had been ongoing at first instance since 2015. Domestic and international reports suggested that the trials had been protracted and that not all necessary measures had been taken to ensure the appearance of victims, witnesses and defendants at court hearings. As a result of delays and omissions, by the time investigations had intensified, some suspects and possible offenders appeared to have fled Ukraine and were consequently out of the authorities’ reach. Moreover, there had been reported instances of the Ministry of the Interior refusing to cooperate with the investigations.
Those serious shortcomings, and the fact that after more than six years the circumstances pertaining to the applicants’ alleged ill-treatment had not been established and those who had allegedly used excessive force against them had still not been identified, was sufficient to find that, so far, no effective investigation had been conducted into the applicants’ complaints of ill-treatment by the police.
Conclusion: violations (unanimously).
Articles 2 and 3: Abduction and ill-treatment by private individuals (Lutsenko and Verbytskyy)
a) Substantive limb
Both individuals had clearly been subjected to ill-treatment. That was done in order to obtain information relating to their involvement in the Maidan protests and/or to intimidate and/or punish them in that connection. There was no dispute between the parties that those suspected of being responsible had been under the control of the authorities or had acted on the authorities’ instructions. That version of events also had considerable basis in the available domestic and international material, notably regarding the involvement of titushky. The Court therefore found these circumstances to be sufficiently established.
Having been subjected to torture, Mr Y. Verbytskyy had been left in a remote location by the suspects who had been hired by law-enforcement officials, in weather conditions which had been particularly harsh, where he had been unlikely to survive for long if left unattended. The responsibility for his death therefore rested with the respondent State.
b) Procedural limb
No effective investigation had been conducted into the applicants’ abduction and ill-treatment, nor into Mr Y. Verbytskyy’s murder. Only one of the suspects had stood trial, and two more suspects had been committed for trial but there was no information that they had been concluded. Although the authorities had tried, unsuccessfully, to extradite one of the suspects found in Russia, it remained unclear whether any further steps had been taken to establish the whereabouts of all of the other suspects who had absconded and to ensure their availability for the investigations. Although the investigating authorities had acknowledged suspicion that the suspects had been hired by law-enforcement officials and that the crimes had been part of the authorities’ attempt to suppress the Maidan protests, there was no information that any meaningful efforts had been made to identify the law-enforcement officials concerned. There was no information that any other substantial progress had been made in the investigations in order to shed light on all the circumstances of the applicants’ abduction and ill-treatment or to verify whether there had been a discriminatory motive based, on Mr Y. Verbytskyy’s Western Ukraine origin, behind his ill-treatment and murder.
Conclusion: violations (unanimously).
Article 11 (both cases):
There were ample indications that the rapid recourse by the authorities to excessive and at times brutal force against the protesters on 30 November 2013, in particular, and instances of unjustified detention appeared to have disrupted the initially peaceful conduct of the protest and resulted in, if not contributed to, an escalation of violence. After that dispersal, the number of people involved had risen considerably and the scale of the protests had become larger.
a) Whether the applicants enjoyed protection under Article 11
Most of the protestors, including the ten applicants (in Shmorgunov and Others), had appeared to offer little or no resistance to the police during the dispersal on 30 November 2013. Two further applicants had taken part in protests in the early hours of 11 December. Although by that time the protestors had erected barricades, set up tents and platforms and occupied several administrative buildings, there was no information indicating that the protestors’ original goal of being obstructive but peaceful had changed at that point. In the course of the dispersal on that date, some of the protestors had appeared to offer resistance to the police, however, the applicants had offered no such resistance. Two further applicants had taken part in protests between January and February 2014, which had involved substantially more violent clashes between the police and the protestors, leading to numerous persons being wounded and several police dying. However, there was no evidence demonstrating that the specific applicants had intended to commit or engaged in acts of violence or offered any resistance to the police. Similarly, in Lutsenko and Verbytskyy, there had been no evidence that the first applicant and second applicant’s brother had intended to commit or had engaged in any acts of violence during their participation in the protests. Consequently, each of the foregoing had enjoyed the protection of Article 11.
b) Whether there was a justified interference
In Shmorgunov, the authorities had detained several of the applicants concerned and also used force against many of them in connection with their participation in the protests. Those measures had led to the termination of their participation in the protests on those dates, amounting to interferences with their freedom of peaceful assembly. The Court proceeded on the assumption that the interferences had pursued a legitimate aim and had a basis in domestic law, while reiterating the problems concerning the quality of the applicable domestic legislation which it had identified in previous Ukrainian cases in relation to Article 11. The Court emphasised, however, that there was no legal basis in domestic law for the authorities to engage the services of titushky in any law-enforcement operations for the purposes of dispersing, apprehending and dealing with protesters.
The Court had already found that the relevant applicants’ treatment had violated Articles 3 and/or 5. Those findings might be sufficient to conclude that there was a disproportionate interference under Article 11, on account of the unjustified use of force against them by the police, which had entailed termination of their participation in the protests.
However, the Court also noted that, in relation to the complaints under Article 3 and/or 5 of the applicants concerned, there had been indications that the actions of the authorities in relation to the protestors had generally appeared to have formed part of a deliberate strategy to put an end to and further hinder the Maidan protests. Viewing the relevant applications and complaints raised thereunder as a whole, the Court could not but conclude that the increasingly violent dispersal of the series of protests at issue and the adoption of the repressive measures, examined in that and other Maidan cases, had clearly had the serious potential, if not as regards some parts of law enforcement, the aim, to deter the protestors and the public at large from taking part in the protests and more generally form participating in open political debate.
In light of the foregoing, the interferences of all concerned applicants had been disproportionate to any legitimate aims which they might have pursued and thus had not been necessary in a democratic society.
In Lutsenko and Verbytskyy, there were cogent and substantial elements demonstrating that the abuses suffered by the first applicant and second applicant’s brother had been aimed at punishing or intimidating them on account of their involvement in the protests and/or preventing their further participation therein. There was nothing in the case file capable of demonstrating that the interference at issue, which had consisted of treatment in violation of Articles 2 and 3, had been prescribed by law, or pursued a legitimate aim. Nor was there any ground to suggest it had been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 to Mr I. Lutsenko in respect of pecuniary damage; sums ranging between EUR 15,000 and 30,000 in respect of non-pecuniary damage.
(See also Kadura and Smaliy v. Ukraine, nos. 42753/14 and 43860/14, 21 January 2021; Dubovtsev and Others v. Ukraine, nos. 21429/14 and 9 others, 21 January 2021; and Vorontsov and Others v. Ukraine, nos. 58925/14 and 4 others, 21 January 2021, Information Note 247)
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