Preliminary observations of the Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Ukraine (11-20 June 2018)

20 June 2018 

Introduction 

A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) concluded a ten-day official visit to Ukraine. The visit took place from 11 to 20 June 2018. 

The delegation was composed of the Vice-Chair of the WGEID, Mr. Tae-Ung Baik, Mr. Luciano Hazan and Mr. Henrikas Mickevicius, members of the WGEID. 

At the outset, the WGEID wishes to thank the Government of Ukraine for extending an invitation to visit the country, and for the efforts made before and during the visit to facilitate its smooth undertaking. It also thanks the de facto authorities in Donetsk and Luhansk for the cooperation during the visit in the territory under their control. 

The WGEID also wishes to thank the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) for the continuous support during the visit.

The WGEID met inter alia with the Ministry of Foreign Affairs, the Ombudsperson of Ukraine, the National Preventive Mechanism, the Supreme Court, the Ministry of Internal Affairs, the Ministry of Justice, the State Enforcement Service Administration and the Centre for Free Legal Aid, the Security Service of Ukraine (SBU) and the Ministry of Defence, the National Police in Kyiv and Mariupol, the Office of the Prosecutor General in Kyiv and the Military Prosecutors in Kyiv and Kramatorsk. 

They also met with the ‘ombudsperson’ of the self-proclaimed ‘Donetsk people’s republic’ , the ‘forensic bureau’ in Donetsk, the ‘acting minister of foreign affairs’ of the self-proclaimed ‘Luhansk people’s republic’ and the representative of the ‘Luhansk people’s republic’ in Working Group on Humanitarian Issues of Trilateral Contact Group on Ukraine in Minsk. 

The WGEID also met victims and relatives of disappeared persons throughout the country and held meetings with representatives of civil society, including NGOs, and lawyers. It wishes to thank all stakeholders met, and in particular the survivors and the relatives of disappeared persons who shared their testimonies with the WGEID. 

Over the years, the WGEID has transmitted nine cases of enforced disappearances to the Government of Ukraine, of which six are still outstanding. The cases relate to disappearances occurred between 1995 and 2015, reportedly perpetrated mainly by the SBU officers. 

Two of the individuals whose cases were clarified were released from detention and one individual was found dead. 

As in virtually all countries facing the issue of enforced disappearances, in Ukraine the number of cases reported to the WGEID is not illustrative of the real dimension of the problem. 

The Working Group heard numerous accounts of disappearances occurring in particular at the beginning of the conflict and its aftermath, notably in 2014 and 2015. The stories indicated that all parties to the conflict have been responsible for such acts, with the allegations pointing mainly at the SBU and volunteer battalions, and at the security services established by de facto authorities in Donetsk and Luhansk. A number of new allegations of disappearances have been received by the WGEID during the visit. 

The WGEID reminded that all parties to the conflict in Ukraine have obligations under both human rights law and international humanitarian law prohibiting enforced disappearances under any circumstances, including situation of conflict. 

The experts also noted that the politicization around the humanitarian issues resulting from the conflict has a direct and severe impact on the right to truth and justice for the victims. Decisive measures have to be taken to assist the family members who are looking for their loved ones, punish perpetrators and provide reparation and psychosocial assistance to victims. 

There is almost total impunity for acts of enforced disappearances on both sides of the contact line, mainly due to a lack of interest and political will. In Kyiv as well as in the territory controlled by ‘Donetsk people’s republic’ and the ‘Luhansk people’s republic’, the WGEID perceived little interest in pursuing cases unless the perpetrator is identified as someone supporting the opposite side. Bringing to justice anyone from its own side appears to be perceived as ‘unpatriotic’ . 

Below are a number of preliminary and non-exhaustive observations and recommendations on a number of issues, which will be developed further in the country visit report to be presented to the United Nations Human Rights Council in September 2019.

Situation in territory controlled by the Government of Ukraine

Legislation

The Working Group welcomes Ukraine’s ratification of the Convention on Enforced Disappearances (the Convention) in 2015 as well as its recognition of the competence of the Committee on Enforced Disappearances to receive individual communications under article 31. However, it notes with concern that there is no crime of enforced disappearances included in the criminal legislation. 

The ratification of the Convention should be accompanied by implementing legislation making enforced disappearances an autonomous crime in the Criminal Code consistent with the definition given in the 1992 Declaration on the Protection of All Persons from Enforced Disappearances (the Declaration) and punishable by appropriate penalties that take into account its extreme seriousness.

The legislation should also cover the various modes of criminal liability, including in relation to any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. It should also expressly provide for the application of command or superior individual criminal responsibility for such crime. In addition, it should expressly mention that enforced disappearance is a continuous crime to which amnesties or immunities cannot be applied. 

The WGEID also invites the Government to submit as soon as possible its report to the Committee on Enforced Disappearances on the implementation of the Convention.

The delegation of the WGEID noted the current legislative proposal to adopt a Law on Missing Persons to regulate their status, though it is not clear whether and how the bill will address the situation of victims of enforced disappearances. The WGEID recommends that the Government adopts a policy providing for the issuance of certificates of absence, which could permit the recognition of some rights and entitlements to the relatives of the disappeared . This law should also regulate the issues of reparation and psychological assistance for victims. 

The WGEID was also informed of a forthcoming reform of the security sector. The WGEID notes that the current SBU operate without any real scrutiny or adequate control and has virtually unlimited powers, including that of investigating crimes and detaining individuals.

The WGEID was also informed of an ongoing reform providing for the creation of a new State Bureau of Investigation (SBI). The WGEID acknowledges that the investigative functions of the SBU will be transferred to the SBI. The reform of the security sector should provide for independent mechanisms of oversight to monitor the conduct of law-enforcement and security officials. 

Truth and reparation

The WGEID, in its General Comment on the right to the truth in relation to enforced disappearance, stated that the right to the truth “means the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, and the circumstances of the disappearance, and the identity of the perpetrator(s)” (A/HRC/16/48, para. 39). 

The experts observed that while a number of those missing at the beginning of the conflict have been released within simultaneous releases under the Minsk agreements, or otherwise released or their whereabouts have been clarified, many others remain unaccounted for.

The experts were concerned that the list of those detained or captured during the conflict is seldom revealed to the concerned families, who are therefore left in the uncertainty and anguish as to the fate of their loved ones, also noting that there is currently an impasse in the process of simultaneous releases of detainees in the context of the Minsk agreements. The last simultaneous release took place on 27 December 2017. The WGEID recommends that families on both sides of the contact line be informed about the fate of their disappeared relatives and whether they are on the lists of detainees to be simultaneously released. 

It is very important that all existing information concerning the whereabouts of the persons is shared among the parties on a humanitarian basis. Even if more difficult while the conflict persists, information available in the archives in the State institutions should also be made available to those in charge of the search of the disappeared. 

The experts also regretted that in May 2018 an attempt of relatives of disappeared from both sides to meet in order to join forces to try locate their loved ones was frustrated by the Security Service impeding their crossing of the contact line. The WGEID noted that these initiatives should be facilitated and supported rather than discouraged and obstructed. 

The WGEID received information on the existence of unidentified graves on both sides of the contact line. While some bodies have been exhumed, identified and handed over to the families, others have not been yet exhumed or secured. It is of utmost importance that exhumation and identification are conducted as soon as possible, with the help of international organizations, and guaranteeing internationally recognized standards including the respect for victims and their religious beliefs. The WGEID also received information that there is no centralized system of data collection on burial sites and is concerned about reported misidentification of remains. 

In terms of reparation for enforced disappearances, the WGEID could not come across any case in which the relatives of the disappeared have been compensated or have been provided with any psychological, social, medical or other assistance from the State. 

Proactive measures should be taken to minimize and redress the suffering of victims. It is of special concern in this regard the fact that the new draft Law on Missing Persons does not clarify whether the situation of victims of enforced disappearances will be addressed in this respect.  

Justice

The WGEID notes that there is almost total impunity for acts of enforced disappearance as, according to the information received, there have been only few convictions of state officials for the crime of illegal deprivation of liberty under article 146 of the Criminal Code. In all these cases, however, the whereabouts of the victims were known. 

This lack of accountability for the disappearance occurred in the context of the conflict essentially depends on a combination of factors, notably the lack of political will and loopholes in the legal framework, particularly due to the absence of an autonomous crime of enforced disappearance in the Criminal Code. The WGEID has also received information in relation to the excessive length of proceedings.    

The WGEID would like to underline that the introduction of an autonomous crime of enforced disappearance in the legislation is not just a formal requirement resulting from the ratification of the Convention. In fact, as heard during the visit, the lack thereof creates a situation whereby acts of enforced disappearances are investigated and prosecuted by different investigative bodies under other crimes (e.g. murder, abduction or arbitrary deprivation of liberty), which is highly problematic in terms of the specific investigation required from the outset in cases of enforced disappearances. This may also result in suspects of enforced disappearances being acquitted if the standards of proof for the other crimes of which they are accused are not met.

In addition, as mentioned above, there seems to be little will from the relevant State authorities to seriously investigate these crimes, unless they concern disappearances occurring at the hands of armed groups of the ‘Donetsk people’s republic’ or ‘Luhansk people’s republic’. Trial in absentia have been initiated by a special unit in the Office of the General Prosecutor for acts conducted by armed groups related to the conflict, though they are very difficult to investigate and prosecute due to the lack of access to the territories which are not under the Government’s control. 

The Working Group emphasizes that while de facto authorities in Donetsk and Luhansk may incur in responsibility under international law for their conduct, this does not diminish State’s obligation to take all possible measures, including judicial, to protect human rights of the population in the part of territory outside its control. At the same time, there should not be double standards when it comes to accountability for enforced disappearances and all acts that may constitute enforced disappearances should be investigated and prosecuted irrespective of the perpetrator.

The WGEID notes that criminal acts performed by State officials are prosecuted by the Military Prosecutor under the supervision of the General Prosecutor. The new SBI mentioned above would take over all pending cases as of the end of 2019. There was also information on current discussions about the possibility to reintroduce full-fledged military justice for the crimes committed by military. It has been reported that a draft law has been presented before the Parliament thereon. The WGEID emphasized that, in accordance with article 16 (2) of the Declaration, those who are alleged to have committed enforced disappearances shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts . In addition, there must be more clarity on the competence and mandate of the forthcoming SBI and the way in which the effective continuation of the cases currently managed by the Military Prosecutor will be ensured. 

It is also unclear which authority is competent to investigate and prosecute the disappearances committed by the volunteer battalions - which operated at least with State acquiescence and virtually without control at the beginning of the conflict - before they were integrated into the armed forces or the police in 2015. The lack of specific investigative bodies with clear competence and responsibility to investigate acts of enforced disappearance affects the effectiveness in the investigation of this crime.     

The WGEID also received reports by a consistent number of individuals about the existence of unofficial places of deprivation of liberty, especially at the beginning of the conflict, including that managed by the SBU in Kharkiv between 2014 and 2016 . The authorities have either denied this or indicated that the investigation could not verify until now the existence of such place. There were also a number of allegations of individuals being held in other unofficial detention facilities, including in Kramatorsk, Mariupol, Odesa and Pokrovsk. Consistent allegations of torture and other forms of ill-treatment in these places were also received. 

The WGEID emphasizes that any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention. Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members and lawyer.

All these allegations should be thoroughly and independently investigated. 

The lack of accountability for these crimes is also linked to the difficult access to justice for victims, including due to the lack of an effective and functioning legal aid system, which should provide for qualified legal assistance. 

Prevention

Awareness-raising, training and human rights education 

In order to prevent recurrence of enforced disappearances, it is essential to properly educate generations to come and to provide society in general, and civil servants in particular, with adequate human rights training. The WGEID emphasizes the importance of including the necessary education and information regarding the relevant provisions of the Declaration in the training given to law enforcement personnel, civil or military, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty. Professional training for judges, prosecutors and lawyers is essential.

Registration of deprivation of liberty 

According to the Declaration, an official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention and all States should take steps to maintain centralized registers (article 10(3)) . The WGEID could observe that such centralized system does not exist in Ukraine though notes that a bill addressing this issue will shortly be tabled in Parliament. 

As also noted by the Subcommittee on Prevention of Torture, the system of transfer of detainees also appears to have gaps in terms of both registration and the detainee’s contact with lawyers and the outside world, especially for individual accused of crimes in connection with the conflict in the east . 

Victims and witness protection

The Working Group met with a number of victims of enforced disappearance who were released after being detained secretly from periods varying from few days to several months. Many of them reported having been threatened by the perpetrators after their release.

 In addition to ensuring accountability for the crimes, Ukraine needs to develop an adequate system of protection of victims and witnesses outside the control and purview of the regular law enforcement apparatus.

The situation in the territory controlled by ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’  

The Working Group also visited certain districts of Donetsk and Luhansk regions, which are not under control of the Government of Ukraine. In these districts, the ‘officials’ of the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ act as de facto authorities. The Working Group visited this region following very worrisome reports of serious human rights violations committed in these territories, including numerous acts that are tantamount to enforced disappearances. 

The experts noted how the systems of administrative and preventive detention in the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ are particularly concerning. These provisions allow for the deprivation of liberty of a person without effective supervision for 30 and 60 days respectively, on the suspicion of involvement in some illegal activities. The fact that during this period there is no obligation to reveal the whereabouts of the person to the relatives or lawyers virtually renders this provision an authorization to disappear individuals.  

It is also very concerning that several detainees that have been released from detention in these regions have reported about being held in unofficial places of detention under very dire conditions, and in a number of instances being subjected to torture and ill-treatment. As those de facto authorities in Donetsk and Luhansk are responsible for the acts committed in the territory under their control and for the human rights violations committed by those acting on their behalf, including acts that are tantamount to enforced disappearances. 

The WGEID recommends that the de facto authorities in Donetsk and Luhansk ensure unimpeded access of OHCHR and other independent international observers to all places of deprivation of liberty, in accordance with international standards.

In meetings with the ‘ombudsperson’ of the ‘Donetsk people’s republic’ and the  representative of the ‘Luhansk people’s republic’ in the Working Group on Humanitarian Issues of the Trilateral Contact Group on Ukraine in Minsk, the WGEID was informed about the impasse in the process of simultaneous releases of detainees and their readiness to reactivate it.

The WGEID urges all involved to depoliticize this process as much as possible and consider the issue of disappeared persons as a purely humanitarian issue.

The situation in the Autonomous Republic of Crimea and the city of Sevastopol 

Unfortunately, the Working Group was not able to visit Crimea in the context of its country visit to Ukraine. 

According to reliable information received, there have been 42 cases of enforced disappearances in Crimea since March 2014. As of today, 27 individuals have been released, 2 have been detained, 1 is reported dead and 12 are still disappeared. In 2014, most of the perpetrators reportedly belonged to the Crimean Self Defence Forces. In the following years, most disappearances were attributed to officers of the Russian Federal Security Service (FSB). In none of those cases have perpetrators brought to justice. The Working Group was informed by some of the relatives and civil society organizations that a number of those detained in Crimea would have been transferred to the Russian Federation without notifying the families nor informing them of the location of detention. 

The Working Group welcomes the information that a meeting is planned in the next future among the Ombudspersons of Ukraine and the Russian Federation to discuss the issue of those missing in Crimea and visit those who have been detained.

The Working Group requests the Russian Federation to take measures to ensure the protection of all those residents in Crimea from enforced disappearances and recommends that independent human rights monitoring missions be allowed to visit the region in order to assess the situation. 

Conclusions

Even during conflicts, there should be respect for human values and efforts to alleviate human suffering. The pain and anguish of relatives of disappeared people cannot be used for political purposes. Decisive measures have to be taken to assist the family members who are looking for their loved ones, provide them with reparation - including psychosocial, economical and other support - and punish perpetrators.

The WGEID reminds that enforced disappearances are prohibited under any circumstances, including a state of war or any other public emergency. This prohibition is absolute and non-derogable and must be also respected by the de facto authorities in Donetsk and Luhansk. 

The WGEID reiterates its willingness to continue its constructive dialogue with the Government of Ukraine and offers its unreserved support for the full implementation of the Declaration.

The WGEID recommends that the international community continue engaging all parties involved to implement all obligations foreseen in the Minsk agreements, in particular in relation to missing persons. 

The WGEID reaffirms its solidarity with the victims of enforced disappearance and their relatives. Their continued suffering is the living proof that enforced disappearance is a continuous offence and a permanent violation of their human rights until the fate or whereabouts of the victim is clarified.

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