General Prosecutor Office of Ukraine in cooperation with the Council of Europe. Conference: Effective investigations through cooperation
Investigations: the Challenges and Human Rights Standards
In my contribution today I would like to set out the standards that states, governments and law enforcement officials need to comply with in these investigations and give some examples of challenges that confront such investigations.
Articles 2 and 3 of the ECHR imposes positive obligations, including the duty for States to investigate allegations of torture, inhuman or degrading treatment or punishment or deaths that may have occurred in breach of the Convention (that is, such treatment imposed by the police or other law enforcement officials). Art 3 violations may occur when police officers use excessive force or (unnecessarily) inflict serious injuries.
The right to truth
The Court may be developing a “right to truth” El-Masari , see the position taken in that case by a “minority” – Judges Tulkens, Spielmann, Sicilianos and Keller:
“we consider that the Court should have acknowledged that in the absence of any effective remedies – as conceded by the Government – the applicant was denied the “right to truth”, that is the right to an accurate account pf the suffering endured and the role of those responsible for that ordeal…
The UN’s Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had submitted in two other cases (Husayn v Poland) that there was a right to truth that should be acknowledged. The Court agreed:
“Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened.
An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.”
Given the conflict between the Grand Chamber case of El-Masari and the latest two more recent cases it is difficult to be assured that this right now exists in the ECHR but in view of the UN’s position on this as expressed by the Special Rapporteur in these cases the better view is that it does. The extent of this right as developed so is probable captured in the above quotes limiting the right to circumstances where there are “serious human rights violations”.
In McCann and Others v. the United Kingdom:
“The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility”
- promptness and expedition,
- capacity to establish the facts, and
- accessibility to the public and the relatives.
Jularic v Croatia
“The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible. In particular, the authorities must take the reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death
Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling foul of this standard.
- There must also be an implicit requirement of promptness and reasonable expedition. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in preserving public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
- For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests”
In the case of Association 21 v Romania the applicants were, or represent, participants, injured victims or relatives of those who died in the crackdown on anti-communist demonstrations in Romania in December 1989. They complained of the lack of an effective investigation into their son’s death during those events and, relying on Article 3 (prohibition of inhuman or degrading treatment), complained of the lack of an effective investigation into the ill-treatment to which he was subjected while taking part in the demonstrations in question.
“The procedural obligation imposed by Article 2 requires that an effective obligation be conducted where the use of force, particularly by State agents, has resulted in the loss of human life. This involves the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings, capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken reasonable steps to secure the evidence concerning the incident. A requirement of promptness and reasonable expedition is implicit in this context. Equally, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events, which means not only a lack of hierarchical or institutional connection but also a practical independence
“The Court also reiterates that while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is essential in maintaining public confidence in their adherence to the rule of law. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness”
From Council of Europe’s “The Prohibition Against Torture: A Guide to Article 3”
“Positive obligations on states designed to prevent, and provide redress for, torture and other forms of ill-treatment.
In Assenov and Others v. Bulgaria the Court held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Article 1of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in…[the] Convention”, requires that there should be an effective official investigation. The investigation should be capable of leading to the identification and punishment of those responsible.
“the investigating authorities must also commence their investigation and inquiries on the basis that if victims provide prima facie evidence that they are injured at the time of release from custody although they were healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation as to how those injuries were sustained. As with an investigation under Article 2, an investigation into an allegation of torture or inhuman treatment should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. Those investigations must be sufficiently thorough and effective to satisfy the aforementioned requirements of Article 3. Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process which the Commission and Court have found to exist in other systems.
Those reviewing investigations should ensure that:
_ Public prosecutors or investigating officers do not omit to, or are not inhibited from questioning, or taking statements from members of the security forces or police with regard to allegations of misconduct.
_ Public prosecutors or investigating officers take the necessary steps to verify documentary materials which may reveal the truth or otherwise of claims of ill-treatment, e.g. custody records, or to pursue any contradictions, inconsistencies or gaps in the information provided by the police or security forces.
_ Prosecutors take steps to seek independent, corroborative evidence, including forensic evidence with respect to the allegation of torture.
_ Prosecutors have not permitted delays to develop before seeking evidence, or statements from applicants or witnesses.
_ Prosecutors react promptly to visible signs of ill-treatment or complaints of ill-treatment.
_ Public prosecutors pursue investigations against perpetrators who are agents of the State, actively or vigorously. In some cases, instead of pursuing the perpetrators of torture, public prosecutors have chosen instead to prosecute the apparent victim of the misconduct. For example in Ilhan v. Turkey, where the applicant was injured on arrest he was prosecuted for failing to stop on order of the security forces, while no action was taken against the security forces who mistreated him.
_ Public prosecutors do not display a deferential or blinkered attitude towards members of the law-enforcement or security forces, with a tendency to ignore or discount allegations of wrongdoing on their part. In particular, public prosecutors must not make assumptions that the agents of the State are in the right and that any signs of ill-treatment are the result of lawful action, or have been necessitated by the behaviour of the complainant. This is often the case where allegations of torture are made.
The Court has previously found there to be problems with the inadequate nature of the procedural rights of Article 3 in cases where there has been
_ inadequate forensic medical examinations of detainees, including lack of examination by
appropriately qualified medical professionals;
_ the use of brief, undetailed medical reports and certificates which do not include a description of the applicant’s allegations or any conclusions;
_ a practice of handing over an open report to police officers;
_ inadequate forensic examinations of deceased persons, including reports which do not include thorough descriptions of injuries;
_ failure to take photographs or make analyses of marks on the body or examinations carried out by doctors with insufficient expertise.
It is also essential that no legal impediments be placed in the way of the jurisdiction of public prosecutors to prosecute certain categories of offences committed by State officials, such as compromising the independence of the prosecutor in his or her decision to prosecute perpetrators of torture. Another problematic aspect of investigations can be the lack accessibility of applicants or the relatives of alleged victims to the structures of remedies, including a failure to give information as to the progress of any proceedings or the results of investigations; and a lack of information, or delay in information, being passed on to relatives of persons involved in the incident.”
In the judgment of 2012 the Court raised serious questions about the independence and effectiveness of investigations:
“Under Article 46 (binding force and implementation of judgments) the Court noted that Mr Kaverzin’s ill-treatment in police custody reflected a recurring problem in Ukraine. In about 40 of its judgments, the Court had already found that the Ukrainian authorities had been responsible for ill-treatment of people held in police custody and that no effective investigation had been carried out into their allegations. Currently there are more than 100 other such cases pending.”
Set up in 2003 to ensure independence in the oversight of complaints against law enforcement officials and independent investigation of serious incidents, deaths in custody and the use of lethal force by the police.
Maybe the biggest and most powerful police oversight body in the world? Last year 426 staff, including 169 in investigations.
Duty of forces to refer serious incidents and deaths immediately. 24 hour service. Call in power and appeal function for less serious complaints.
Challenges in investigations
Resources and independence
Never enough of its own investigations staff to investigate all the incidents – demand by victims and complainants for independent investigations. Can direct investigations by police forces but in some cases that is not enough.
Ramashai v Netherlands
The applicants were the grandfather, grandmother and father, respectively, of R who was shot dead by a policeman in July 1998.
In the evening of Sunday in 1998, during the “Kwakoe” festival (a celebration by the Surinamese immigrant community of the abolition of slavery in Suriname 135 years earlier), R stole a scooter from its owner at gunpoint and drove off on it.
The police were notified. Two uniformed police officers on patrol, spotted a scooter driven by a person fitting the description they had been given and tried to arrest him. R raised his pistol and pointed it towards the Officer who drew his pistol and fired and R was hit in the neck.
A criminal investigation was ordered. Parts of the investigation were carried out by the force to which Officers belonged (Amsterdam/Amstelland police force): the technical examination of the scene of the shooting, the door-to-door search for witnesses and the initial questioning of witnesses including police officers who also belonged to the Amsterdam/Amstelland police force. The Amsterdam/Amstelland police force remained in charge of the investigation for the first fifteen-and-a-half hours; after that, they were involved only under the authority of an officer of the State Criminal Investigation Department (Rijksrecherche).
Ultimately the public prosecutor, finding that Officer B had acted in legitimate self-defence, decided that no prosecution should be brought.
“275. the Court has concerns about the independence and quality of the investigation into R’s death. In particular, there is an apparent discrepancy between the statements of Officers themselves, who both stated that it had been Officer B who had fired the fatal shot and [the other] Officers, the police officers in charge of monitoring police radio traffic, who both stated that they had heard [the other] Officer report that he had fired the shot and call for an ambulance.
“340. As to the investigations of the [national] police force after the National Police Internal Investigations Department took over, the Court finds that the Department’s subsequent involvement cannot suffice to remove the taint of the force’s lack of independence.
- On these grounds alone the Court therefore finds that there has been a violation of Article 2 of the Convention in that the police investigation was not sufficiently independent.
(iii) The role of the public prosecutor
- The police investigation was carried out under the supervision of an Amsterdam public prosecutor who was specifically responsible for the police work carried out at [the police officers’] police station. The same public prosecutor took the decision not to prosecute Officer B under authority delegated to her by the Chief Public Prosecutor.
- In the Netherlands the Public Prosecution Service, although it does not enjoy full judicial independence, has a hierarchy of its own, separate from the police, and in operational matters of criminal law and the administration of justice the police are under its orders.
- Public prosecutors inevitably rely on the police for information and support. This does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police. Problems may arise, however, if a public prosecutor has a close working relationship with a particular police force.
- In the present case, it would have been better if the investigation had been supervised by a public prosecutor unconnected to the Amsterdam/Amstelland police force, especially given the involvement of the Amsterdam/Amstelland police force in the investigation itself. Even so, note must be taken of the degree of independence of the Netherlands Public Prosecution Service and the fact that ultimate responsibility for the investigation was borne by the Chief Public Prosecutor. What is more, the possibility of review by an independent tribunal existed and the applicants actually made use of it.
- [But] There has not therefore been a violation of Article 2 on this point.
Relationship with the police
Police reluctance to allow investigations by those who do not understand the difficulties, risks and stresses of the job. Police concern that other investigations will get in the way of their work.
On the morning of Thursday, 7 July 2005, four British men detonated four bombs—three in quick succession aboard London Underground trains across the city and, later, a fourth on a double-decker bus. As well as the four bombers, 52 civilians were killed and over 700 more were injured in the attacks, one of the United Kingdom’s worst terrorist incidents. On 21 July 2005 there were four failed bomb attacks on the London Transport network and on 22 July 2005 Jean Charles de Menezes shot and killed by officers from the Metropolitan Police Service.
Immediately following the shooting of Jean Charles DE MENEZES, the Commissioner of the Metropolitan Police gave a direction that the IPCC would not be given access to the scene of the shooting and the matter would not be referred to by the IPCC.
“He states that he was told that this was on the authority of the Commissioner of the Metropolitan Police and the Prime Minister. The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independent body established by an Act of Parliament to investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004 was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again.”
Stockwell 1 report
Complexities and overlapping investigations
In practice difficult to conduct parallel and interconnected investigations:
- Sharing forensics;
- Treating police officers as suspects;
- Contaminating evidence
Protests – and another IPCC example
“On Wednesday 15 September 2004, there was large-scale public disorder in Parliament Square in Central London. A rally organised by the Countryside Alliance had gathered in Parliament Square from approximately 11am to protest against the Government’s Bill to ban hunting with dogs.
It was estimated by the Countryside Alliance that 30,000-40,000 people turned up for this demonstration. The Metropolitan Police Service (MPS) who were expecting approximately 10,000, put the actual figure of people who attended at 20,000. There were 1,300 police officers involved in policing the demonstration.”
“It is clear that missiles were being thrown at the police lines. It is also clear that from 3.30 pm some of the demonstrators surged towards the police lines, there were attempts to breach the police lines, and a number of police officers used their batons to strike demonstrators on the head, causing injuries. On occasions officers are seen to be pinned back to the police vehicles being used as barriers. It is not surprising therefore that police officers chose to use force. They were entitled to use force to protect themselves, their colleagues and other demonstrators or members of the public from violence or to prevent protesters from invading Parliament.”
- Chaos and confusion;
- Protesters confused incidents, couldn’t identify police officers;
- Tracing witnesses;
- Police officers couldn’t take detailed notes during protest;
- Some police officers and civilians did not tell the truth;
- Problems with forensic evidence;
- CCTV issues;
- Court orders for media video footage;
- Issues of self-defence;
The IPCC was forced to prioritise those cases involving actual injuries – less significant allegations of police misconduct had to be referred back for the police force itself to investigate (although complainants retained a right of appeal against the decisions made by the local police force).
Thirty-one officers were served with Regulation 9 Notices advising them they were subject of complaint. Thirteen of the Regulation 9 Notices were withdrawn as evidence came to light that officers had acted properly. Nineteen were interviewed under caution.
Seventeen complaint files went to the Crown Prosecution Service who advised:
- No criminal proceedings 10
- of which no disciplinary action 8
- of which returned to MPS for disciplinary action 2
- of which officer given ‘words of advice’ 1
- of which officer faced discipline tribunal 1
- of which ‘not proven’ 1
Here is an example closer to the circumstances that we are discussing at this conference
The case of Association 21st December 1989 v Romania concerned a crackdown in 1989 following protects and demonstrations – more than 1,200 people died.
“The Court does not underestimate the undeniable complexity of the present case, which, since the joinder decision of 9 January 2006, is also intended to establish those responsible for the entirety of the armed crack-down which occurred in the closing days of December 1989 in several Romanian towns…
It considers, however, that the political and social stakes relied on by the Government cannot by themselves justify either the length of the investigation or the manner in which it was conducted over a very lengthy period, without the applicants or the public being informed of its progress. On the contrary, its importance for Romanian society, which consisted in the right of the numerous victims to know what had happened, implying the right to an effective judicial investigation and a possible right to compensation, ought to have prompted the domestic authorities to deal with the case speedily and without unnecessary delay, in order to prevent any appearance of tolerance of or collusion in unlawful acts, para 104
The Court has already emphasised the importance of the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights as fundamental as that of the right to life, which implies the right to an effective judicial investigation and a possible right to compensation. For that reason, in the event of widespread use of lethal force against the civilian population during anti-Government demonstrations preceding the transition from a totalitarian regime to a more democratic system, as in the instant case, the Court cannot accept that an investigation has been effective where it is terminated as a result of the statutory limitation of criminal liability, when it is the authorities themselves who have remained inactive. Moreover, as the Court has already indicated, an amnesty is generally incompatible with the duty incumbent on the States to investigate acts of torture and to combat impunity for international crimes. This is also true in respect of pardon – para 106
Giuliani v Italy, GC, 23.3.11
The application concerns the death of the applicants’ son and brother, 23-year-old Carlo Giuliani, which occurred while he was taking part in an anti-globalisation demonstration in connection with the G8 summit held in Genoa in 2001.
In the context of the G8 summit held in Genoa, from 19 to 21 July 2001, numerous anti- globalisation demonstrations were held in the city and substantial security arrangements were put in place by the Italian authorities, including deployment of the armed forces.
On 20 July an authorised demonstration involving large numbers of participants gave rise to violent clashes between demonstrators and the security forces. At around 5 p.m. a group of about 50 carabinieri withdrew in disorderly fashion near Piazza Alimonda, with the result that two jeeps which had been bringing up the rear were left isolated.
Following a driver error, one of the vehicles, with three carabinieri inside, remained on Piazza Alimonda, unable to move. Objects, mainly stones, were then thrown at the jeep and some demonstrators ran towards it. One of the carabinieri, panicking, seized his weapon, which he pointed outside the vehicle, shouted to the crowd to leave and then fired two shots. Carlo, who had just picked up a fire extinguisher, was a few metres away from the jeep; the first bullet hit him just below the eye and he fell to the ground. In an attempt to move the jeep out, the driver reversed over Carlo’s body; he then engaged first gear and drove over him again. When the demonstrators had been dispersed, a doctor arrived at the scene and pronounced Carlo dead.
An investigation was opened immediately by the Italian authorities, in the course of which statements were taken from the three carabinieri in the jeep and evidence was heard from other carabinieri and from some of the demonstrators. Criminal proceedings were instituted against the officer who had fired the shots and the driver of the jeep for intentional homicide. The autopsy performed on Carlo’s body within 24 hours of his death revealed that the bullet impact to his head had been sufficient to cause death within a few minutes, whereas the jeep’s driving over his body had resulted only in minor injuries. The forensic expert found that the shot had been fired at a downward angle.
“320. The Court also notes that the procedural obligations arising out of Article 2 require that an effective “investigation” be carried out and do not require the holding of public hearings. Hence, if the evidence gathered by the authorities is sufficient to rule out any criminal responsibility on the part of the State agent who had recourse to force, the Convention does not prohibit the discontinuation of the proceedings at the preliminary investigation stage. As the Court has just found, the evidence gathered by the prosecuting authorities, and in particular the footage of the attack on the jeep, led to the conclusion, beyond reasonable doubt, that M.P. had acted in self-defence, which constitutes a ground of justification under Italian criminal law.
- Furthermore, it cannot be said that the prosecuting authorities accepted without question the version supplied by the law-enforcement officers implicated in the events. They not only questioned numerous witnesses, including demonstrators and third parties who had witnessed the events on Piazza Alimonda, but also ordered several forensic examinations, including an expert medical examination and three sets of ballistics tests. The fact that the experts did not agree on all aspects of the reconstruction of events (and, in particular, on the distance from which the shot had been fired and the trajectory of the bullet) was not, in itself, such as to make further investigations necessary, given that it was for the judge to assess the pertinence of the explanations given by the various experts and whether they were compatible with the existence of grounds of justification exempting the accused from criminal responsibility.
- It is true that the carabinieri, that is, the armed force to which M.P. and F.C. belonged, were given the task of conducting certain checks. However, in view of the technical and objective nature of those checks, this fact cannot be said to have adversely affected the impartiality of the investigation. To hold otherwise would be to impose unacceptable restrictions in many cases on the ability of the courts to call on the expertise of the law-enforcement agencies, which often have particular competence in the matter. In the instant case, the law-enforcement agencies were already present at the scene and were thus able to secure the area and search for and record any items of relevance to the investigation. Given the number of people on Piazza Alimonda and the confusion reigning after the shots were fired, the authorities cannot be criticised for not finding objects as small as the bullets fired by M.P.
- In the Court’s view, Mr Romanini’s appointment as an expert raises some more delicate issues, as he had openly defended the view, in an article written for a specialist journal, that M.P. had acted in self-defence. It should be observed in this connection that the expert reports ordered in the context of the investigation were designed, among other things, to provide evidence for or against that view. The presence of an expert who had preconceived ideas on the subject was therefore far from reassuring. Nevertheless, Mr Romanini was just one member of a four-expert team. He had been appointed by the prosecuting authorities and not by the investigating judge and was therefore not acting as a neutral and impartial auxiliary of the latter. Furthermore, the tests he was required to carry out for the purposes of the ballistics report were of an essentially objective and technical nature. Accordingly, his presence was not capable, in itself, of compromising the impartiality of the domestic investigation.
- Furthermore, it has not been established by the applicants that the investigation lacked impartiality and independence or that the branch of the police which performed certain steps in the investigation was implicated in the events to such an extent that the entire investigation should have been entrusted to the revenue police.
No one should underestimate the difficulties that are faced by the authorities in complying with these standards given the significant nature of the public order issues that confronted them nine months ago. It will be impossible now to reconstruct a perfect picture of all of the incidents. The priority must therefore be to start to investigate the most serious incidents, the most serious issues of assault, injuries and death.
Resources, particularly significant expert and experienced investigators are necessary, together with logistical expertise, forensics, and computer systems to collect and cross-reference statements and any photographs or videos. There also has to leadership and vision to ensure that the investigations are effective and that those that broke laws and violated fundamental rights are brought to justice. The difficulties are likely to be even more significant where law enforcement officials are investigating their colleagues and where the evidence points to the guilt of those whose duties are to uphold the law and to protect the public (including those protesting and even those who are breaking the law themselves).
Note pending cases in the ECtHR:
Derevyanko v Ukraine
“The applicant, Yuriy Derevyanko, is a Ukrainian national. According to his submissions, he has taken part in the ongoing protests in central Kyiv since November 2013. He states that since then and, in particular, starting from 18 February 2014 onwards the police have made violent attempts to disperse the protesters in central Kyiv. According to Mr Derevyanko, the police have been using live ammunition, explosives and water cannons – despite low temperatures – and other means, which resulted in the deaths and in serious injuries of a large number of protesters.
Mr Derevyanko complains that the measures the authorities have been employing to deal with the demonstrations have been in violation of his – and other protesters’ – rights under Article 2 (right to life), in substance, Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security), Article 8 (right to respect for private life), Article 11 (freedom of assembly and association) and Article 13 (right to an effective remedy) of the European Convention on Human Rights and Article 1 of Protocol No. 1 to the Convention (protection of property). The application was lodged with the European Court of Human Rights on 23 January 2014” ECtHR Press release
Sirenko v Ukraine
“The applicant claims to have been taking part in the on-going protests in central Kyiv since 29 November 2013. He states that he was beaten up by the special police units during the violent dispersal of protesters on 30 November 2013. According to the medical documents submitted together with the request, the applicant had multiple bruises on his limbs dated 30 November 2013. Subsequently, he was placed in police custody for several hours, for which no reason has been given. He complains in this respect of a violation of Articles 3, 5, 11 and 13 of the Convention.” ECtHR communication.
Application also for interim protection, rule 39.