ECtHR’s Euromaidan decision: Ukraine’s chance to redeem justice

A Euromaidan protester lays on the asphalt, shot by snipers on 20 February 2014. Photo: Maksym Liukov, from the project Human Factor: Last Edition (https://www.facebook.com/humanfactor.lastedition) 

Maidan

Article by: Maksym Vishchyk Legal Consultant of the Global Rights Compliance, and Lidia Volkova

Editor’s Note

The recent decision of the European Court of Human Rights regarding the Yanukovych government’s violation of human rights during Euromaidan not only serves justice to the victims. It also reconstructs crucial events of the consequential uprising, dispelling Russian propaganda, and admonishes the Ukrainian government’s tedious lack of progress on investigating crucial events of its recent history.

Here is what the Court decided, and why it matters.

From Euromaidan in the winter of 2014 to the European Court of Human Rights (ECtHR). This is the path activists and their families took to find justice and reconstruct the events of the protests termed the Revolution of Dignity. On 21 January 2021, the ECtHR issued its decisions in relation to 39 applicants in five cases against Ukraine.

Overall, the Court found that the government of Ukraine had violated a range of fundamental human rights during the Euromaidan protests and subsequently failed to investigate these violations and provide redress to victims.

This is not the end of the road, rather the beginning. It is not a magical list of answers to all the questions that concern Ukrainian society. Yet this is a significant step towards full reconstruction of this revolutionary period in Ukraine’s history, which began in the fall of 2013 and still continues.

What did the ECtHR actually hold, why is it so important – for Ukraine as a state and for the human rights system in general, and what happens next?

From Kyiv to Strasbourg: key facts

A man holds a Ukrainian flag amid the Euromaidan protests in central Kyiv. Photo: Maks Levin. 22 January 2014. From the project Human Factor: Last Edition

The ECtHR’s decisions concern the events of the Revolution of Dignity, when the political regime of Viktor Yanukovych used both State forces and non-State groups, paid thugs controlled by the police (called titushky; notably, this very term was adopted by the Court itself and used without quotation marks) against peaceful protesters.

Clashes between the two sides culminated in February 2014, when more than a hundred people were killed by gunshot wounds or otherwise, while thousands were injured.

Ukrainian authorities launched a series of investigations into human rights violations against high-ranking officials and law enforcement. As will be observed, the efforts appeared insufficient.

This is a rather short and general overview of the Ukrainian situation. It can be supplemented by thousands of individual stories, revealing the full extent of this period of Ukrainian history since November 2013.

Many victims, having been unable to find justice at the national level, turned to the ECtHR.

So far, the Court pronounced its decisions in relation to 39 such individuals, all of whom are Ukrainian citizens, except for one Armenian national.

These ECtHR decisions are not the end of the era of Ukrainian cases before international courts. They are only a small part of decisions regarding the events in Ukraine, while many more are yet to come.

The ECtHR still needs to address Ukraine’s interstate claims against Russia regarding alleged human rights violations in Donbas and Crimea.

Meanwhile, other courts will decide on individual criminal responsibility (the International Criminal Court) and Russia’s accountability for its alleged failure to comply with the obligation to refrain from financing terrorism and employing discriminatory practices (the International Court of Justice).

Legal battle: How Ukraine sues Russia in international courts

The five cases considered thus far by the ECtHR concerned the general context of the Euromaidan events and unique situations of human rights abuses faced by individuals. These are:

  • Shmorgunov and Others v. Ukraine: between 30 November 2013 and 18 February 2014, Ukrainian police used physical force, plastic bullets and tear gas against protesters in Kyiv. Some of the protesters were detained because of their participation in the Revolution and beaten for hours. Although a domestic investigation into those violations had been launched, it resulted in only one conviction. Internal inquiries of Ukrainian law enforcement established that the use of force was excessive, but failed to identify those responsible. In many other cases, the investigation is still ongoing.
  • Lutsenko and Verbytskyy v. Ukraine: activists Ihor Lutsenko and Yuriy Verbytskyy were abducted from a hospital, ill-treated, and left in a freezing cold forest. Ihor Lutsenko managed to reach a highway, find help and survive, while Yuriy Verbytsky’s body was later found in a strip of forest. All these acts were allegedly committed by titushky. The suspects have been identified, some evidence has been collected, and an investigation has been launched, but it is still ongoing.
  • Kadura and Smaliy v. Ukraine: Volodymyr Kadura was an activist of the Automaidan, the automobile “cavalry” of the Euromaidan revolution. He was beaten by people dressed in civilian clothes. Kadura was then detained because of his participation in protests and suffered physical abuse in the police station as well. The domestic courts that upheld Kadura’s detention dismissed the allegations of ill-treatment. Viktor Smaliy was arrested and beaten, and the investigation is still ongoing.
  • Dubovtsev and Others v. Ukraine: fourteen applicants were detained in Dnipro after clashes with police and titushky. Although some of them were compensated for illegal detention, the criminal proceedings instituted against judges, prosecutors and police have been closed or are still ongoing.
  • Vorontsov and Others v. Ukraine: the applicants took part in the Euromaidan protests in Kharkiv. They were detained for disobeying the police and found guilty of administrative offenses, in particular, for using offensive language against the police.

Overall, the claims were mainly focused on four issues:

  • right to life (in the context of the murder of Yuriy Verbytskyy),
  • prohibition of ill-treatment (including inadequate medical care during detention) and lack of effective investigation into those acts;
  • right to liberty and security (due to illegal and unjustified detentions, and the absence of an enforceable right to compensation);
  • right to freedom of assembly, in particular through attempts to prevent or disperse protests.

Additionally, some complaints also concerned the right to privacy, freedom of expression and prohibition of discrimination.

The Euromaidan cases, though different in details, have something in common apart from taking place during the Revolution of Dignity.

The phrase “the investigation is still ongoing” concludes the description of the majority of them.
Sometimes this remark is preceded by mention of internal inquiries or court proceedings where justice has been sought and is still wanted.

Peaceful protest and neglected rights: what did the Court say?

A Euromaidan protester is detained by the riot police. Photo: Maksym Kudimets. 29 November 2013. From the project Human Factor: Last Edition

The Court found Ukraine responsible for both human rights violations against Euromaidan protesters and further failure to investigate them.

It is important to note, for the purposes of international law, both the abuses committed by Yanukovych’s regime against the Maidan protesters and the failure of the subsequent political establishment to inquire into such violations are attributable to Ukraine.

Following the undisputed evidence of police use of force against Maidan participants, the Court found that numerous cases of ill-treatment amounted to a deliberate strategy of Ukrainian authorities. According to the ECtHR, in three situations the actions were severe and cruel enough to amount to torture.

Probably the most remarkable part of the judgments concern failure of Ukrainian authorities to properly investigate ill-treatment, torture, abductions and murder despite the significant amount of time passed.

The Court also satisfied most complaints on the breach of right to liberty and security. It concluded that the protesters’ detentions were arbitrary and without sufficient grounds and also constituted part of a deliberate strategy of Ukrainian authorities.

The ECtHR noted that some abductions were committed by titushky acting under the control of the State.

This finding, taken together with the Court’s other conclusions about relations between titushky and the State forces, refute a common misconception that such groups acted purely voluntarily as private individuals.

The Court then found that violent practices against protesters, including their dispersal, unjustified use of force and unfounded detention, prevented the applicants from their enjoyment of the right to freedom of assembly and participation in open political debate. It became evident that excessive and brutal force and an escalation of police violence disrupted the applicants’ rights to protest.

The Court also debunked a myth, commonly spread by pro-Russian propaganda, that protesters were themselves widely engaged in violence against government forces.

After examining government materials and statements supporting this view, the ECtHR emphasized that even despite individual instances of violence by some protesters, such actions did not indicate the demonstrators’ overall intent either to commit violence, or to resist the police.

Finally, the Court’s reference to the State’s deliberate strategy may indicate elements of other international crimes, such as crimes against humanity.

Arguments about the alleged commission of crimes against humanity during Euromaidan were raised by Ukraine in another forum – the International Criminal Court. Although they were not successfully substantiated, this does not render it impossible to return to this matter in the future.

Lessons to consider

Volunteer nurses traverse the devastated Euromaidan camp, searching for wounded protesters. Photo: Maksym Liukov. 20 February 2014. From the project Human Factor: Last Edition

The ruling of the ECtHR provokes sharply contrasting feelings for many Ukrainians. On the one hand, Ukrainian society finally gained more certainty about some events of Euromaidan. On the other hand, these same conclusions shed much light on the structural and institutional defects of the Ukrainian justice system.

So what conclusions are to be drawn from the Court’s decisions for both Ukrainian society and the wider international community?

  • Crucial facts have been reconstructed. Now Ukrainian society can benefit from the findings of an authoritative and independent international institution. They concern circumstances which frequently become targets for manipulation and propaganda, and the Ukrainian case demonstrates how international justice and forums promoting it can help to combat such factual misconceptions. The key facts concerning Euromaidan, outlined by the Court, are:
    • the Maidan protest was peaceful in nature, while individual acts of violence by some protesters in no way refute this fact;
    • it was the State’s deliberate strategy to disperse the protest, and excessive force was used for that purpose;
    • titushky acted under the control of the State.
  • Applicants will be paid awards, but it’s unclear when. The Court ordered Ukraine to pay some applicants compensations for pecuniary and non-pecuniary damage, ranging from € 1,200 to € 30,000, depending on the gravity of the violation. However, the Court’s decision is not enforced immediately – the applicants still have to go through the enforcement phase in Ukraine. This applies in particular to the receipt of payments; when they will be made in reality is difficult to predict. But more importantly, the Court’s decisions demonstrate that international justice may become a valuable alternative when domestic mechanisms appear ineffective.
  • Victims were forced to seek justice outside the homeland. After seven long years, the investigation into the historical events of the Euromaidan Revolution has progressed much further at the international level than at home in Ukraine.

A woman weeps at a tree where a protester was killed by sniper fire. Photo: Andriy Lomakin. 23 February 2014. From the project Human Factor: Last Edition

The Court dealt with the stories of only 39 persons, while thousands of others are still awaiting the determination of facts specific to their case and justice. The Court’s message reiterates a pragmatic rule to be followed by every state dealing with matters of special concern for their societies – every day of procrastination is a road to nowhere.

The obligation to conduct a prompt and effective investigation exists not only to satisfy public interest. There is a significant practical value of being efficient: information can be destroyed or lost and witnesses and culprits can forget details.

So, as a lesson for Ukrainian authorities, their strategy in the Maidan cases should be changed immediately, if they still want to achieve justice for hundreds of victims and for society in general.

This is a landmark victory for the Euromaidan participants and reward for their efforts to establish justice. It reminds us of common problems that societies face in transitional periods.

However, the ECtHR will not replace the efforts of the Ukrainian state. The Court only relies on the facts provided by the parties. Applicants, as individuals, do not have access to the heaps of information that the Ukrainian government may potentially discover. Yet, in the absence of a full-fledged investigation, the state also cannot offer its society a complete picture.

Although in the Euromaidan cases the Court described the events in general terms, justice at the national level can provide incomparably more answers. Only the national justice system is capable of identifying specific culprits, restoring the facts to the smallest detail, and recreating a final picture – not only of what happened during the Euromaidan protests in Kyiv or Dnipro, but in the wider societal context of that period. Thus, Euromaidan participants and Ukrainian society as a whole will fully succeed when Ukrainian authorities take into account all the findings and recommendations made by the ECtHR.

The roads to justice have always been lengthy, complex, and painful. But they are worth the effort. There is still room for hope that one day the former challenge to justice will finally become its triumph.

Maksym Vishchyk, legal consultant of the Global Rights Compliance, and Lidia Volkova who together work on the GRC project “International Law and Defining Russia’s Involvement in Crimea and Donbas”. The project aims to equip Ukraine and its allies with an authoritative international legal opinion on Russia’s role in Crimea and Donbas.

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Maksym Vishchyk, legal consultant of the Global Rights Compliance, and Lidia Volkova work together on the GRC project “International Law and Defining Russia’s Involvement in Crimea and Donbas.” The project aims to equip Ukraine and its allies with an authoritative international legal opinion on Russia’s role in Crimea and Donbas.

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