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Guest Post: A new model for transitional justice process in democracies facing challenge

Gaiane Nuridzhanian works as assistant lawyer at the Secretariat of the International Advisory Panel on Ukraine in Strasbourg. The views expressed herein are solely those of the author; they do not bind or reflect in any way the views of the International Advisory Panel on Ukraine.

On 31 March 2015 the International Advisory Panel on Ukraine (“the Panel”, “IAP”) delivered its report on effectiveness of the Maidan investigations conducted by the Ukrainian authorities. The presentation of the report took place in Kyiv on the same day. In its findings the Panel concluded that the investigations into the violent incidents during the Maidan demonstrations failed to comply with the procedural requirements of Articles 2 and 3 of the European Convention on Human Rights (“the Convention”) and case law of the European Court of Human Rights (“the European Court”).

This post will provide a brief description of the Panel itself and its working methods followed by an overview of the Panel’s report and its findings on effectiveness of the Maidan investigations. It will conclude with the proposition that the Panel may constitute a new model of transitional justice, which may serve to provide helpful guidance to a democracy facing various challenges in the process of establishing truth and justice.

Composition of the Panel, its mandate and working methods

Sir Nicolas Bratza, former President of the European Court, chairs the Panel that also includes Volodymyr Butkevych, former Judge of the European Court, and Oleg Anpilogov, Member of the Kharkiv Regional Council, former prosecutor.

The idea to establish the International Advisory Panel on Ukraine was first expressed by the Secretary General of the Council of Europe immediately after the first incident of violent dispersal of demonstrations that took place in the night of 30 November 2013 in the centre of Kyiv. However, it was not until April 2014 that the Panel was constituted and began functioning.

The Panel’s overview was mainly focused on the investigations into violent acts during four episodes of the Maidan demonstrations between November 2013 and February 2014. These are the violent incidents that took place early in the morning of 30 November, on 1 December 2013, 19-22 January and 18-21 February 2014. In the Panel’s understanding, its mandate required it to assess compliance of the investigations into these incidents with procedural requirements of Articles 2 and 3 of the Convention.

In order to fulfill its task the Panel requested information from different state authorities by putting written requests as well as holding follow-up meetings in Kyiv for detailed discussion of the written submissions and obtaining further information. The Panel’s principal interlocutors were the main investigating authorities such as the Prosecutor General Office and the Ministry of the Interior. The Panel has also received written and oral submissions from representatives of civil society as well as lawyers representing certain victims who had been shot during the Maidan demonstrations.

The Panel’s report

The report of the Panel is available both in English and Ukrainian languages on the Panel’s webpage.

The report begins with the outline of the background facts and contains certain information on relevant domestic law and structure and staffing of the main investigating authorities. One of the most valuable features of the Panel’s report is that it includes a section on the structure and current status of the investigations into the violent incidents. The Panel was able to piece together this information owing to the direct communication with the investigating authorities and was thus able to present the public with a comprehensive and clear overview of specific incidents investigated and results of such investigations to date.

Another aspect of the report, which should be underlined, is the emphasis the Panel puts on the longstanding problem of impunity for ill-treatment by law enforcement officials in Ukraine. Referring to the pertinent observations of the European Court as well as other Council of Europe bodies, the Panel’s report seems to suggest that before it even started, this process of establishing justice following a conflict between the state and the individuals had been already compounded by the long history of impunity and lack of accountability for human rights abuses committed by state agents.

The report is accompanied by a set of the IAP Information Notes which provide detailed description of the domestic legal framework as relevant to the events that took place during Maidan demonstrations in Ukraine and to the investigations of the crimes committed during that period as well as comments by various Council of Europe bodies on such matters. The IAP Information Notes may be of interest to those who would like to study in more detail the legal backdrop against which the Maidan revolution and ensuing investigations took place.

The Panel’s conclusions on effectiveness of the investigations

The Panel interpreted its mandate as requiring it to oversee whether the investigations into certain violent incidents during the Maidan revolution complied with the procedural requirements of Articles 2 and 3 of the Convention.

The Panel started with noting lack of genuine effort to conduct investigations before the change of regime at the end of February 2014, which affected the effectiveness of subsequent investigations. The Panel did not remain blind to the challenges facing the investigations after the change of power took place, among which it considered the unprecedented breadth and seriousness of the Maidan-related crimes for Ukraine, absconding of numerous officials involved in the violent suppression of demonstrations and destruction of any materials related thereto, lack of identification marking of the law enforcement officials on public order duties, change of the leadership in the investigating bodies, as well as post-Maidan developments (such as annexation of Crimea, tragic events in Odessa, and the conflict in the eastern regions).

Nonetheless, in the Panel’s view, none of these challenges exonerated the state from its obligation to comply with the requirements of the Convention. It observed that the requirements of an official investigation were the same whether the perpetrators of a crime were State officials or private individuals and proceeded with examining each of the elements of procedural requirements under Article 2 and 3 of the Convention. 

The Panel established instances of lack of practical independence where the official under investigation belonged to the same authority that carried out the investigation. The Panel noted the importance of appearances of independence of investigating bodies for the purposes of maintaining public trust in criminal justice system and condemned appointment of certain officials, who had served under the previous Minister of the Interior involved in violent suppression of the Maidan demonstrations, to the leadership positions in the current Ministry of the Interior.  

The Panel further pointed out certain deficiencies that had contributed to the lack of effectiveness of the investigations. It noted lack of staffing and resources assigned by the Prosecutor General Office, the central investigating authority, for the investigation of Maidan-related crimes and lack of coherent and efficient allocation of investigative work between different offices of the public prosecution service. The Panel also found that the uncooperative behaviour of other bodies involved in the investigations such as the Ministry of the Interior or the Security Service had a negative impact on the progress of investigations. The domestic courts equally undermined effectiveness of the investigations, in particular by creating favourable conditions for absconding of a key suspect in mass shootings or imposing inadequate punishment for ill-treatment committed by law enforcement officers.

Furthermore, the Panel drew attention to the statements of public officials suggesting possibility of amnesty for law enforcement officials involved in crimes committed against protesters and stressed that such amnesties or pardons granted with respect to unlawful killings or ill-treatment would be incompatible with the obligations imposed on Ukraine by the Convention. 

The abovementioned deficiencies protracted investigations which were also marked by instances of delay, for instance in conduct of medical and forensic expert examinations.

Finally, referring to the judgment of Al Nashiri v. Poland, where the European Court stated that in case of allegations of serious human rights violations the right to know the truth belonged not only to the victims but also general public who had the right to know what happened, the Panel recalled importance of ensuring sufficient element of public scrutiny of an investigation and its results. The significance of the Maidan events demanded that the main investigating authorities act in a consistent and comprehensive manner to provide the public with information concerning the progress of investigations or lack of such. However, no such coordinated policy was put in place by the main investigating authorities; neither did the authorities ensure that the rights and legal interests of victims and next-of-kin were adequately safeguarded.

A new model for transitional justice in democracies facing challenge

On number of occasions in the report the Panel refers to the unprecedented character of the Maidan events and ensuing investigations and importance of the latter for the maintenance of public confidence in the willingness of the authorities to establish the truth. It is from this perspective that the Panel, operating in the context of transitional justice, assessed the conduct of investigations.

The Panel may be a new model for the participation of the international community in the process of transitional justice in democracies facing challenge. Under such a model, the domestic authorities remain responsible for criminal prosecutions and eventually establishing truth and justice through judicial measures. However, where a striving democracy faces enormous challenges, such as pervasive corruption of public institutions or widespread perception of impunity of state agents for human rights abuses (as in the case of Ukraine), the presence of an international body assessing the investigations against a set of international standards may provide a helpful guidance for the domestic authorities. By delivering and making public its assessment of domestic investigations, such a body may also serve to give an efficient leverage to civil society in its attempts to bring the authorities to comply with their obligations. Finally, its reporting may constitute a credible source of information for other international agencies present in a country and working towards implementing transitional justice policies.

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