The decision of the ECHR of January 21, 2021 in the case "Lutsenko and Verbytsky v. Ukraine" (aplications N 12482/14 and 39800/14), "Shmorgunov and Others v. Ukraine" (aplication No. 15367/14 and other aplications).
In 2014, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Ukraine.
The case successfully dealt with aplications about the failure to conduct an effective investigation of the applicants ' allegations of unlawful deprivation of liberty, ill-treatment, persecution, torture and the murder of the brother of one of the applicants. The case involved violations of the requirements of articles 2, 3 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants ' complaints related to mass protests that took place in Ukraine between November 2013 and February 2014 (the so-called Euromaidan or "Maidan" protests) in response to the suspension of the signing of the Association Agreement between Ukraine and the European Union. The public movement "Automaidan" organized car rallies in support of the Maidan protesters in various parts of Ukraine, including protests in front of the houses of high-ranking government officials and food supplies to the Maidan protesters. The protests led to the removal of the President of Ukraine from office and a number of political and constitutional changes. At first, there were almost 100,000 protesters, and later their number increased to 800,000. Special forces of the internal affairs bodies of Ukraine were mobilized to disperse the protesters, which led to clashes. The Ukrainian authorities also used groups of persons associated with the internal affairs bodies (the so - called titushki-private individuals, including those with a criminal record), who allegedly carried out numerous attacks, kidnappings and murders of protesters. It was reported that more than 100 deaths were registered (including 70 deaths from firearms), thousands of people were injured, both protesters and law enforcement officers.
General remarks. The rulings on these cases indicated a deliberate strategy on the part of the Ukrainian authorities or their individual groups to prevent and stop protest actions, which were initially peaceful, with a rapid transition to the use of excessive violence, which led, if not contributed, to an escalation of violence in the country. Some of the offenses were committed by non-State representatives who acted with the knowledge, if not the consent, of the Ukrainian authorities.
In the case "Shmorgunov and Others v. Ukraine" (Shmorgunov and Others v. Ukraine) The European Court found numerous violations of Article 3, paragraph 1 of Article 5 and Article 11 of the Convention due to the ways in which the law enforcement agencies of Ukraine participated in public order operations conducted to resolve the situation with protesters on the Maidan in 2013 and 2014, due to excessive violence and in certain cases deliberate ill-treatment committed against some protesters, which in relation to two applicants led to the fact of torture, and in another case - failure to provide proper medical care to a person in custody.
In the case of Lutsenko and Verbytsky v. Ukraine, the European Court found violations of Articles 2, 3, paragraph 1 of Article 5 and Article 11 of the Convention, in particular, in connection with the abductions, ill-treatment and persecution of the first applicant and the use of torture and murder of the second applicant's brother, E. Verbytsky, as a result of their participation in the Maidan protests.
In both cases, the European Court found that to date there has not been an independent and effective official investigation of crimes committed by law enforcement officers and non-State representatives who were allowed to act with the tacit consent, if not with the approval, of the law enforcement agencies of Ukraine.
Regarding compliance with article 3 of the Convention. The use of excessive force by law enforcement officers when dispersing demonstrations ("Shmorgunov and Others against Ukraine" (Shmorgunov and Others v. Ukraine)). (a) The substantive aspect. There was no evidence or data indicating that the officers of the internal affairs bodies of Ukraine used force against the applicants during the dispersal of public meetings for reasons directly related to the behavior of the applicants themselves, and that force was used in accordance with the legislation of Ukraine. The applicants were beaten, including with rubber and/or batons, and this was done in public and was accompanied in some cases by verbal insults, which together amounted to ill-treatment. In addition, two applicants were subjected to torture.
(b) The procedural and legal aspect. There were significant shortcomings in the investigation of the events under consideration, and the evidence was not collected in a timely manner. In general, the investigation into these events and the relevant judicial proceedings have not yet led to the establishment of the circumstances of the alleged ill-treatment of the applicants. Moreover, they did not lead to the identification of the persons who actually used force against the applicants. There was no significant progress in the judicial proceedings with regard to the identification of suspects whose cases were eventually transferred to the courts for consideration on the merits, some of them are still being considered by the court of first instance since 2015. Reports of human rights organizations of Ukraine and international organizations suggest that the court proceedings were delayed and that not all necessary measures were taken to ensure the appearance of victims, witnesses and defendants at the court session. As a result of delays and inaction, by the time the investigations were accelerated, some suspects and possible perpetrators apparently left Ukraine and, as a result, were outside the competence of the Ukrainian authorities. Moreover, there were reported cases when the Ministry of Internal Affairs of Ukraine refused to cooperate with the investigation.
These serious shortcomings and the fact that, after almost six years, the circumstances of the alleged ill-treatment of the applicants and the persons who allegedly used excessive force against the applicants were not established, were sufficient to establish that no effective investigation had been carried out to date on the applicants ' complaints of ill-treatment by internal affairs officers.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
Regarding compliance with articles 2 and 3 of the Convention. Abduction and ill-treatment of private individuals (the case of Lutsenko and Verbytsky v. Ukraine). (a) The substantive aspect. Both applicants were clearly subjected to ill-treatment. This was done in order to obtain information about their participation in the Maidan protests and/or to humiliate and/or punish them in this regard. The parties did not dispute that the persons suspected of these acts were under the control of the Ukrainian authorities or acted on their instructions. This version of events was also confirmed by available domestic and international information materials, in particular, concerning the participation of aunts in the events. Consequently, the European Court held that these circumstances were sufficiently established.
As for the torture of E. Verbitsky, the suspects, who were allegedly hired by the law enforcement agencies of Ukraine, left him lying in a remote place in difficult weather conditions, where E. Verbitsky most likely would not have survived without outside help. Therefore, the Ukrainian authorities are responsible for the death of E. Verbitsky.
(b) The procedural and legal aspect. No investigation was conducted into the abduction and ill-treatment of the applicants, as well as into the death of E. Verbitsky. Only one of the suspects was brought to court, and there is information about two more suspects that their cases were referred to the court, but it is not known whether they were considered. Although the Ukrainian authorities unsuccessfully tried to obtain the extradition of one of the suspects from the territory of the Russian Federation, it is unclear whether any additional measures were taken to establish the whereabouts of all of the remaining suspects who disappeared and ensure their presence during the investigation. Although the investigation authorities confirmed the suspicion that the suspects were hired by the law enforcement agencies of Ukraine, and that the crimes in question were part of the attempts of the Ukrainian authorities to suppress the protests on the Maidan, there is no information that any significant actions were carried out to identify the relevant law enforcement officers. There is also no evidence that any significant progress was made during the investigations that could clarify all the circumstances of the abduction and ill-treatment of the applicants or confirm whether there was a discriminatory motive based on the victim's Western Ukrainian origin in the case of ill-treatment and murder of E. Verbitsky.
Violations of the requirements of articles 2 and 3 of the Convention were committed in the case (adopted unanimously).
Concerning compliance with article 11 of the Convention (both cases). There were clear indications that the immediate use of excessive and at times brutal force by the Ukrainian authorities, in particular against the protesters on November 30, 2013, and cases of unjustified detention of people, apparently disrupted the initially peaceful course of the protests and led, if not completely contributed, to an escalation of violence. After the dispersal of public meetings, some people who participated in them decided to express their indignation by their actions, and the scale of the protests increased.
(a) Whether the applicants were guaranteed the protection provided by article 11 of the Convention. The majority of the protesters, including 10 applicants (the case "Shmorgunov and Others v. Ukraine"), apparently did not show any resistance (or showed weak resistance) to the employees of the internal affairs bodies during the dispersal of public meetings on November 30, 2013. Two more applicants took part in protest actions in the early morning of 11 December 2013. Although by this time the protesters had already erected barricades, erected tents and platforms and occupied several administrative buildings, there was no indication that the initial goal of the protesters to interfere with the authorities, but in a peaceful way, would have changed by this time. During the dispersal of the protests on that day, some of the protesters apparently resisted the officers of the internal affairs bodies, but the applicants did not resist.
Two more applicants took part in protest actions between January and February 2014, which were associated with much more violent clashes between law enforcement officers and protesters, which ended in injuries to many participants and the death of several law enforcement officers. However, no evidence was provided that certain applicants planned to commit or committed acts of violence or resisted the officers of the internal affairs bodies. Similarly, in the case of Lutsenko and Verbytsky v. Ukraine, there was no evidence that the first applicant and the brother of the second applicant intended to commit or committed any acts of violence during their participation in protest actions. Consequently, each of the mentioned persons has benefited from the protection provided by article 11 of the Convention.
(b) Whether there was a reasonable interference. In the case "Shmorgunov and Others v. Ukraine" (Shmorgunov and Others v. Ukraine), the Ukrainian authorities detained several applicants and also used force against many applicants in connection with their participation in protest actions. These measures led to the termination of the applicants 'participation in protest actions on the relevant days and were an interference with the applicants' right to freedom of peaceful assembly. The European Court proceeded from the assumption that the interference had a legitimate purpose and was based on the legislation of Ukraine, while recalling the quality problems of the applicable legislation of Ukraine, which the European Court noted in previous cases against Ukraine concerning the violation of Article 11 of the Convention. However, the European Court stressed that there were no grounds in the legislation of Ukraine for the Ukrainian authorities to attract titushkas to participate in any operations of law enforcement officers in order to disperse public meetings, detain or eliminate protesters.
The Court has already established that the treatment of the applicants constituted a violation of Articles 3 and / or 5 of the Convention. These conclusions were sufficient to conclude that there was a disproportionate interference with the rights guaranteed by article 11 of the Convention due to the unjustified use of force against the applicants by the officers of the internal affairs bodies of Ukraine, which led to the termination of the applicants ' participation in protest actions.
However, the European Court also noted the following: As for the complaints of violations of articles 3 and/or 5 of the Convention related to the applicants concerned, there was evidence that the actions of the Ukrainian authorities towards the protesters in general seemed to be part of a deliberate strategy aimed at stopping the Maidan protests and suppressing them in the future. Considering the arguments presented to it and the complaints in general, the European Court could not but conclude that the increasingly violent dispersals of the above-mentioned protest actions and the adoption of repressive measures considered in the present case and in other complaints about the events on the Maidan had the potential ability, if not the purpose (as far as some law enforcement agencies were concerned), to deter protesters and the public as a whole from participating in protest actions and, more generally, from participating in public political debates.
In the light of the above, the interference with the rights of all the applicants in the present case was disproportionate to any legitimate goals that it could have pursued, and thus it was not necessary in a democratic society.
In the case of Lutsenko and Verbytsky v. Ukraine, there were convincing and justified elements that demonstrated that the violence suffered by the first applicant and the brother of the second applicant was aimed at punishing and humiliating these people because of their participation in protest actions and/or preventing their further participation in such actions. There was no evidence in the case file that could confirm that the interference in question, which was treatment that violated the requirements of articles 2 and 3 of the Convention, would have been provided for by law or would have pursued a legitimate goal. There was also no evidence that the intervention was necessary in a democratic society.
The case involved a violation of the requirements of article 11 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant Lutsenko 3,000 euros as compensation for material damage, and it also awarded each of the applicants of the complaints under consideration amounts in the amount of 15,000 to 30,000 euros as compensation for non-pecuniary damage.