war crimes in Ukraine

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Interim Resolution regarding the European Court of Human Rights judgment in the case of Gongadze against Ukraine

Committee of Ministers expresses concern over the failure in 7 years to find and punish those who ordered the killing of Georgy Gongadze

(Application No. 34056/02, judgment of 08/11/2005, final on 08/02/2006)

(Adopted by the Committee of Ministers on 5 June 2008,  at the 1028th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment of the European Court of Human Rights (“the Court”) in the Gongadze case transmitted to the Committee of Ministers once it had become final under Article 44 of the Convention;

Recalling that, in the present judgment, the Court unanimously found a violation of Article 2 of the Convention on account both of the authorities’ failure to protect the life of the applicant’s husband and of subsequent failings in the investigation relating to his disappearance and death as well as a violation of Article 3 of the Convention on account of the investigation authorities’ attitude to the applicant and her family amounting to inhuman and degrading treatment;

Having regard to the fact that the Court also found a violation of Article 13 of the Convention, stating that the failure to conduct an effective investigation for more than 4 years and the impossibility of seeking compensation through civil proceedings pending the outcome of the criminal investigation, constituted a denial of an effective remedy;

Stressing the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court;

Having examined the information submitted by the Ukrainian authorities on the measures taken in this respect (as appears in the Appendix to the present interim resolution).

Individual measures

Recalling that in accordance with the Committee’s well-established practice, the respondent state has a continuing obligation to conduct an effective investigation where procedural violations of Article 2 have been found;

Noting that such investigation must be conducted thoroughly and with reasonable expedition, and must provide for sufficient public accountability and scrutiny;

Taking into consideration in this respect the information provided by the Ukrainian authorities regarding the measures taken to identify and bring to justice the perpetrators, instigators and organisers of the murder of the applicant’s husband;

Noting that the proceedings pending before the Kyiv Court of Appeal since 2006 against the three former police officers charged with the murder of the applicant’s husband resulted in a judgment of 15 March 2008 finding the defendants guilty and sentencing two of them to 12 and the third to 13 years of imprisonment;

Regretting however that the progress in the investigation has been limited to bringing to justice the perpetrators of the crime and that the investigation with respect to the instigators and organisers of the murder of the applicant’s husband has not been completed since 2001;

Stressing that the necessity of taking measures to identify and bring to justice the instigators and organisers of the murder is all the more pressing in this case, considering the seriousness of the violations found and the time that has elapsed since the Court’s judgment became final;

Noting with particular interest that in the course of the investigation an agreement has been reached whereby the original tape recordings, which might contribute to identification of the instigators and organisers of the murder of the applicant’s husband, will be examined by a group of international experts;

Regretting, however, that no international experts have been appointed so far,

URGES the authorities of the respondent state to take with reasonable expedition all necessary investigative steps to achieve concrete and visible progress in identifying instigators and organisers of the murder of the applicant’s husband and bringing them to justice;

INVITES the respondent state to keep the Committee regularly informed of the measures taken and the result achieved, in particular as regards verification of the relevant tape recordings;

General measures

Stressing the importance of securing independent investigations in all cases in which Article 2 of the Convention might be at issue;

Noting in this respect the information provided by the Ukrainian authorities on the measures taken with a view to better guaranteeing the independence and effectiveness of investigations in Ukraine, in particular on reform of the prosecution system which is to be carried out,

ENGOURAGES the Ukrainian authorities to intensify their efforts to strengthen the independence of investigative bodies, in particular, the prosecution service, thus contributing to better guaranteeing the effectiveness of investigations in Ukraine;

INVITES the Ukrainian authorities to keep the Committee informed about the measures taken or envisaged in this respect;

DECIDES to resume consideration of this case, as regards outstanding individual measures, at each of its Human Rights meetings and as regards general measures at intervals not longer than six months.

Appendix to Interim Resolution CM/ResDH(2008)35

Information provided by the Ukrainian authorities in the context of the examination by the Committee of Ministers of the Gongadze case

Individual measures:

1) Trial of the perpetrators of the murder: On 15/03/2008 the Kyiv City Court of Appeal found the three former police officers guilty of murder of the applicant’s husband and sentenced them to over ten years’ imprisonment.

2) Investigation aimed at identifying and bringing to justice the instigators and organisers of the murder: The investigation has been pending since 2001. During this investigation the authorities questioned a number of witnesses, including high state officials, conducted various examinations, reconstructed events in the President’s Secretariat’s premises where the tape recordings which might contribute to identifying the instigators and the organisers of the crime had allegedly been made.

Following a proposal of the Parliamentary Assembly of the Council of Europe, a multilateral agreement has been reached to set up a group of international experts, including FBI specialists, to examine the tape recordings. The government obtained assurances from the key witness that the original tape recordings in question will be handed to the group of experts. According to the authorities, no group of experts has been set up so far, despite several attempts by the Prosecutor General’s office to obtain a list of experts from the Embassy of the United States in Kyiv.

Further measures are being taken to find the whereabouts of the fourth accused who was the superior of the convicted policemen.

General measures:

1) Independence of investigations: On 16/01/2007 the Ukrainian authorities provided information on the rules governing investigation procedures and legislative amendments under way. In particular, in 2006, in compliance with the opinion of the Venice Commission and the Recommendations of the Parliamentary Assembly, the Verkhovna Rada withdrew the draft law “On amendments to the Law of Ukraine “On the public prosecutor’s office” as its provisions were not compatible with the role of the prosecution system in a democratic society. A working group was set up by the Parliament to amend the draft law.
Following the Presidential Decree No. 39 of 20/01/2006, the Ministry of Justice was also entrusted with the drafting of a new law “On the public prosecutor’s office”. The work will start once the general concept of the criminal justice reform has been approved by the President. The concept is at the final drafting stage.

2) Remedies against the excessive length of investigations: In the context of the examination of the Merit case and the Zhovner group of cases, the Ukrainian authorities informed the Committee of a draft law “On amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time)”. The draft provides the possibility of complaining to administrative courts about a violation of the right to pre-trial investigation within reasonable time and claiming compensation for delays. The draft laws also provides for sanctions against those responsible for delays.

3) Publication and dissemination: The judgment of the European Court has been translated into Ukrainian, placed on the Ministry of Justice official web-site and published in the Official Herald of Ukraine, No. 10, 03/2006 as well as in other print sources.

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