TABLE OF CONTENTS
List of abbreviations and acronyms ........................................................................................................ 4
Introduction ............................................................................................................................................. 5
The Facts ................................................................................................................................................. 8
I.

Background facts ............................................................................................................ 8
A.

Events in Ukraine ........................................................................................................... 8B.

The situation in Odesa prior to 2 May 2014 ................................................................... 8C.

The events of 2 May 2014 in Odesa ............................................................................. 10

D.

Other relevant events .................................................................................................... 16

II.

Inquiries other than those carried out by the investigative authorities ......................... 17
A.

Parliamentary inquiry ................................................................................................... 17

B.

Ombudsperson’s inquiry .............................................................................................. 19C.

Activity by the Odesa Regional Council ...................................................................... 19

D.

Inquiry by the 2 May Group ......................................................................................... 20

III.

Relevant domestic law on pre-trial investigations........................................................ 21IV.

The structure and status of the investigations .............................................................. 21A.

Investigation of the police conduct .............................................................................. 22

1. Pre-trial investigations.................................................................................................. 22(a) Events of 2 May ..................................................................................................... 23(b) Events of 4 May ..................................................................................................... 27
2. Staffing ......................................................................................................................... 27(a) Leadership .............................................................................................................. 28(b) Investigating team and procedural supervisors ...................................................... 28
B.
Investigation of the mass disorder, fire at the Trade Union Building and conduct of the
SES staff ...................................................................................................................................... 29
1. Case concerning the mass riots and the fire in the Trade Union Building (casefiles
nos. 3700 and others) ................................................................................................... 29(a) Scope of the investigations..................................................................................... 29(b) Individuals granted victim status ........................................................................... 30(c) Pre-trial investigations ........................................................................................... 30(d) Current status of the investigations ........................................................................ 33
2. Case concerning the conduct of the SES staff .............................................................. 38(a) Internal inquiry by the SES .................................................................................... 39(b) Pre-trial investigation ............................................................................................. 40

3. Staffing ......................................................................................................................... 41(a) Leadership .............................................................................................................. 41(b) Investigating team and procedural supervisers ...................................................... 41
The Panel’s assessment ......................................................................................................................... 42
I.

Procedural requirements ............................................................................................... 42

II.

Preliminary remarks: challenges .................................................................................. 44

III.

Compliance with Articles 2 and 3 of the Convention .................................................. 46

A.

Independence................................................................................................................ 46

B.

Effectiveness of the investigations ............................................................................... 48

C.

1. Organisation of the investigative work ........................................................................ 48
2. Staffing and resources .................................................................................................. 49(a) PGO........................................................................................................................ 49(b) MoI ......................................................................................................................... 50
3. Quality of the investigations ........................................................................................ 51
4. Prosecution and trial ..................................................................................................... 54(a) Decisions to terminate pre-trial investigations ....................................................... 54(b) Completing the pre-trial investigations and sending the cases to court ................. 54(c) Trial ........................................................................................................................ 55
Promptness and reasonable expedition......................................................................... 56

D.

Public scrutiny of the investigations ............................................................................ 57

E.

Involvement of victims and next-of-kin ....................................................................... 61

IV.

The Panel’s evaluation of the current status of the investigations ............................... 63

The Panel’s conclusions ........................................................................................................................ 65
I.

Summary of the Panel’s conclusions............................................................................ 65

II.

The Panel’s concluding remarks .................................................................................. 67

Annex I ................................................................................................................................................. 69
Mandate of the International Advisory Panel ................................................................................... 69
Annex II ................................................................................................................................................ 70
Procedure followed by the Panel ...................................................................................................... 70
A.

Written procedure ......................................................................................................... 70

B.

Oral procedure .............................................................................................................. 71

Annex III ............................................................................................................................................... 72-2-

Dramatis Personae ............................................................................................................................ 72
Annex IV............................................................................................................................................... 75
Information on deaths relating to the events in Odesa on 2 May 2014............................................. 75
Annex V ................................................................................................................................................ 76
Relevant Domestic Law on Pre-Trial Investigations ........................................................................ 76
Annex VI............................................................................................................................................... 78
Public statements by the investigative authorities with respect to the events of 2 May 2014 in Odesa
and the ensuing investigations .......................................................................................................... 78
A.

Statements on 2 May 2014 ........................................................................................... 78

B.

Statements after 2 May 2014 ........................................................................................ 78

1. On 3 May 2014............................................................................................................. 78
2. On 4 May 2014............................................................................................................. 80
3. On 5 and 6 May 2014 ................................................................................................... 81
4. On 7 May 2014 and later .............................................................................................. 82
Annex VII ............................................................................................................................................. 90
Summary of the Conclusions of the 2 May Group as to the Fire in the Trade Union Building and theCauses of the Related Deaths ............................................................................................................ 90
Annex VIII ............................................................................................................................................ 91
Map showing the mass disorder in Odesa on 2 May 2014 ............................................................... 91-3-

LIST OF ABBREVIATIONS AND ACRONYMS(in alphabetical order)CC

Criminal Code

Convention

Convention for the Protection of Human Rights andFundamental Freedoms

CPC

Criminal Procedure Code

ECHR or European Court

European Court of Human Rights

GC

Grand Chamber of the European Court of Human Rights

IAP

International Advisory PanelMID

Main Investigation Department

MoD

Ministry of Defence

MoI

Ministry of the InteriorNGO

Non-governmental organisation

OHCHR

Office of the United Nations High Commissioner for Human
RightsOmbudsperson

Commissioner for Human Rights of the Verkhovna Rada

PGO

Prosecutor General’s Office

SES

State Emergency Service

SID

Special Investigations Division

SSU

Security Service of Ukraine

TIC

Temporary Investigation Commission of the Verkhovna
Rada

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INTRODUCTION
The International Advisory Panel
The International Advisory Panel (“the IAP” or “the Panel”) was established by
the Secretary General of the Council of Europe in April 2014, with the role of overseeing thatthe investigations of the violent incidents which had taken place in Ukraine from30 November 2013 onwards met all the requirements of the European Convention on Human
Rights and the case-law of the European Court of Human Rights (“the ECHR” or“the European Court”).
The members of the Panel are Sir Nicolas Bratza (Chair), a former President of
the European Court, Mr Volodymyr Butkevych, a former Judge of the European Court and
Mr Oleg Anpilogov, a former prosecutor of Ukraine.
The Mandate of the Panel, the full terms of which are set out in Annex I to the Report,
provided that the investigations into the violent incidents in question would be conducted by
the relevant Ukrainian authorities in accordance with Ukrainian law; that the Panel should
receive regular reports from the Prosecutor General’s Office (“the PGO”) on the progress of
the investigations and should have full access to all relevant information and the right torequest and receive any additional information as it deemed necessary; and that civil society
should have the right to contact and communicate freely with the Panel. The Mandate further
provided that at the end of the Panel’s Mission, a final report should be prepared by the Chairof the Panel and presented to the Secretary General of the Council of Europe andthe Ukrainian authorities.
The scope of the Panel’s review
The Mandate of the Panel explained that the Secretary General had first proposed to create
an International Advisory Panel in the light of the then existing political crisis in Ukraine andthe need to create public confidence in the investigation into the violent incidents.
The proposal was first made in December 2013, immediately following the violent events
during the protest demonstrations in the Maidan area of Kyiv on the night of 29/30 November
and on 1 December and prior to the violent events in that city in January and February 2014,
which resulted in the tragic loss of life of numerous protesters and police. In April 2014 thefinal member of the Panel was appointed and the Panel was thereby constituted. In the samemonth, the Panel’s Mandate was sent by the Secretary General to the Prime Minister of
Ukraine. In a letter of response dated 1 May 2014, the Minister of Foreign Affairs of Ukraine
affirmed that the Ukrainian Government welcomed the constitution of the Panel andundertook to facilitate its work. This undertaking was subsequently repeated by Mr Petro
Poroshenko, the President of Ukraine, during his visit to Strasbourg in June 2014.
On 2 May 2014 the tragic events in Odesa occurred, during which six persons were killedand very many were injured during mass disorder in the streets of the city and some
42 persons died as a result of a fire in the city’s Trade Union Building. Soon after those
events, numerous calls were made, notably by the Council of the European Union and byPresident Poroshenko, for the Panel to review the investigation to be conducted into those
events. In a letter of 12 September 2014, the Permanent Representative of Ukraine to theCouncil of Europe reiterated the full support of the Government of Ukraine to the review ofthe Maidan-related investigations. While underlining that the main focus of the Panel’s work
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Introduction

should continue to be the Maidan investigations, the letter went on to confirm the Ukrainian
Government’s acceptance that the investigation into the events in Odesa on 2 May should
also be regarded as covered by the Panel’s Mandate. The letter concluded by stating that the
Mandate of the Panel would be fulfilled on completion of the review of the Maidan andOdesa investigations.
The Panel announced its readiness to undertake a review of the investigation of the Odesa
events but indicated that it would begin work on those events only after its review ofthe Maidan-related investigations had reached an advanced stage.
On 31 March the Panel delivered the Report on its inquiry into the Maidan investigations.
In February 2015 the Panel began its review of the Odesa investigations by requesting
information from the Ukrainian authorities and various non-governmental organisations(“NGOs”).
As in the case of its Maidan inquiry, the Panel interpreted its role under the Mandate as
relating to the compliance with Articles 2 and 3 of the Convention, and the relevant case-lawof the European Court, of the investigations into the incidents of deaths and serious injuries in
Odesa, to the exclusion of incidents which might have given rise to violations of other
Convention rights of those participating in acts of mass disorder. In particular, the Panel did
not see it as its role to examine whether the treatment of those detained or the conditions of
their detention complied with Article 3 or whether the arrest, detention and trial of numerous
persons for acts of disorder or other offences, or the investigation into those events, were incompliance with the requirements of Articles 5 or 6 of the Convention. Nevertheless, asappears from the Report, the charges and court proceedings arising out of the violent eventswere of a certain relevance to the Panel’s assessment of the effectiveness of theinvestigations. The Panel further interpreted its Mandate as extending not only to theinvestigations of the deaths and serious injuries of civilians but as including injuries caused tothose responsible for law enforcement, in particular members of the police forces, of whomsome 34 sustained injuries.
As is clear from the terms of the Mandate, it was never the role of the Panel to conduct orassist the investigation into, or to establish the facts concerning, the violent incidents inquestion. This was and is exclusively the responsibility of the Ukrainian investigatory
authorities, namely the PGO and the Ministry of the Interior (“the MoI”), both of which werecharged with responsibility for certain of the casefiles in the Odesa-related investigations.
Nor did the Panel have the role of determining whether the investigation of any individual
case satisfied the requirements of the Convention. Its role was essentially a supervisory one,
the Panel reviewing in broad terms whether the investigations carried out at national level
into the deaths and injuries complied with international standards. In making this assessment,
the Panel has on various occasions scrutinised the adequacy of the investigation of individual
incidents that had attracted particular public attention. This was done not for the purpose ofarriving at a conclusion on the quality of the specific investigation but rather as providing
useful indications of the adequacy and effectiveness of the investigations seen as a whole.
The Panel’s working methods
The procedural steps taken by the Panel in carrying out its review are fully set out inAnnex II to the Report. In summary, the Panel made a series of detailed requests for
information in writing from the various Ukrainian authorities and officials and, through its
Internet page, invited NGOs to submit written material. In early June and late July 2015, thePanel held a series of meetings in Kyiv and in Odesa with representatives of the relevant-6-Introduction

Ukrainian authorities, with the Chair of the Verkhovna Rada’s Temporary Investigation
Commission (“TIC”) and with representatives of the NGOs, to follow up on the information
provided in writing. In August 2015 the Panel made further requests for information and set
31 August as the cut-off date for the formal submission of material to it.
As in the case of the Maidan inquiry, in carrying out its review, the Panel was confronted
with a task of exceptional difficulty. The violent events in Odesa, which resulted inconsiderable loss of life, were of the utmost gravity and the investigations which followed
were and are of some complexity. As an international body, the Panel was, throughout its
review, required to follow the investigations by working through interpretation andtranslation. Its task was not assisted by the fact that it was refused access to certain classified
documents which were of direct relevance to its work. The Panel would nevertheless wish toacknowledge the assistance that in general it received during the course of its review from theauthorities, particularly the investigators based in Odesa, from the chair of the TIC and theCommissioner for Human Rights of the Verkhovna Rada (“Ombudsperson”), as well as fromthe NGOs (in particular, the 2 May Group).
The Panel would wish to record its appreciation in the preparation of this Report of theprofessional assistance given to it by its Legal Adviser, Ms Clare Ovey; its legal assistants,
Ms Gaiane Nuridzhanian and Mr Michael Siroyezhko; its administrative assistant,
Ms Anastasiia Sheina; and its two interpreters, Mr Vadym Kastelli and Ms Larysa Sych.
The Panel’s Report
The functions of the persons referred to in the Report may be found at Annex III. In orderto provide the fullest information, the Panel has also included at Annex VI the main publicstatements made by the investigating authorities between May 2014 and August 2015. All
references in the Report are to the bodies and laws of Ukraine unless otherwise indicated.
The Panel would underline that the descriptions of the facts emerging from the pre-trial
investigations should not be interpreted as prejudging any facts that may be found at trial or
the liability of any suspect to whom reference is made.
Most of the materials referred to in the Report are in Ukrainian or Russian; the case law of
the European Court and documents of international organisations and NGOs are in English or
French. Hyperlinks are provided for ease of reference. The Panel accepts no responsibility forthe accuracy of the sites linked to.
The Report may be subject to editorial revision.

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THE FACTSI.

BACKGROUND FACTS
A. Events in Ukraine

1. In late November 2013, following the decision of the Ukrainian authorities not to sign
the long-awaited EU-Ukraine Association Agreement, pro-European and anti-government
demonstrations took place in Kyiv. The Ukrainian authorities’ ensuing attempts to disperse
those demonstrations led to an increase in the number of protesters, the scope of their activity
and their geographical spread. Between November 2013 and February 2014 a number ofclashes took place, resulting in more than 100 protest-related deaths and more than
1,000 injuries (civilians and law enforcement officers) and some missing persons. The
conflict between the Ukrainian authorities and EuroMaidan protesters ended in late February
2014 when several high-ranking individuals (including President Yanukovych) fled or
resigned and there was a change in the government of Ukraine.1
2. In spring 2014, following the political changes in Ukraine, groups of protesters(variously referred to in this Report as “pro-federalism” activists or as “the pro-federalists”)2
took positions ranging from mere opposition to the newly formed government to claims forthe federalisation of Ukraine, and even secession of certain regions and their further
annexation to the Russian Federation. EuroMaidan activists, for their part, countered the profederalists by holding demonstrations in support of a united Ukraine (also referred to in thisReport as “the pro-unity” activists).
B. The situation in Odesa prior to 2 May 2014
3. By May 2014 Odesa was unstable following numerous mass demonstrations, seizuresof official buildings, incitements to violence and clashes between the pro-federalism and prounity activists. On 3 March 2014 the Odesa Regional Council held an extraordinary session
dedicated to the situation in the region and Ukraine as a whole. In the course of the meeting,pro-federalism protesters stormed the building of the Regional State Administration,3 where
the Regional Council was based, trying to force the Council to adopt decisions in favour offederalisation and a local referendum. They also raised a Russian flag on a flagpole in frontof the building, having taken down the Ukrainian flag. The Regional Council adopted adecision in which it deplored extremism and any attempt to breach the territorial integrity of1

For a more detailed overview of those events, see International Advisory Panel, Report of the International
Advisory Panel on its review of the Maidan Investigations, 31 March 2015 (hereinafter referred to as “IAP
Maidan Report”), §§ 1-124.
2
It is the understanding of the Panel that the AntiMaidan movement was not homogeneous and that not allits members supported the idea of federalisation as such, still less separatism or the use of violence. Therefore,
the terms “pro-federalism” protesters or “pro-federalists” – which, along with “AntiMaidan” activists, are usedin the present Report interchangeably – should not be understood literally but as terms of art used to denote oneof the activist groups that took part in the events under examination.
3
Regional Councils are local self-government bodies at regional level, members of which are elected,
whereas the Regional State Administrations are the executive bodies representing central government in a given
region; heads of the Regional State Administrations are appointed and dismissed by the President of Ukraine.

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The Facts: Background facts

Ukraine, held unacceptable the deployment of foreign troops on the territory of Ukraine andurged political parties, movements and people in Odesa to avoid any illegal mass action andto seek a compromise through democratic means.4 The pro-unity activists also arrived on thescene and, to avoid serious clashes, the police, reinforced by extra personnel, formed a
cordon between the two sides. The confrontation lasted until late evening when, following
negotiations, the protesters dispersed.5
4. According to the media,6 on 17 March 2014 the law enforcement authorities arrested
Mr Anton Davydchenko, alleged to be the leader of AntiMaidan in Odesa during this period
and a person who had actively participated in the incident of 3 March 2014. He was charged
under Article 110 §§ 1 and 2 of the Criminal Code (“CC”) (offence against the territorial
integrity and inviolability of Ukraine) for his repeated public statements and actions. He
pleaded guilty and on 22 July 2014 the Shevchenkivskyi District Court of Kyiv sentenced
him to five years’ imprisonment but commuted it to three years’ probation. He was releasedin the courtroom.7 Following his failure to report on a regular basis to the authorities inaccordance with the terms of his sentence,8 he was put on a wanted list.9 Although
incitements to violence and clashes had not ceased, the law enforcement authorities do notappear to have arrested any other activist.
5. Against this background, the Odesa municipal authorities planned to hold the Victory
Day (9 May) commemorations on a square near the railway station called Kulykove Pole, theusual place for such events.10 As this square had been occupied by AntiMaidan protesters,
living in tents, the authorities began negotiating with them to remove the camp. The
Temporary Investigation Commission of the Verkhovna Rada (“TIC”)11 explained in its
report12 that, after the local police and the Odesa City Council had agreed with the
AntiMaidan representatives gradually to move the camp to another site chosen by theauthorities on the outskirts of Odesa, the Odesa Regional State Administration announced theforced removal of the camp on its website. As a result, some of the AntiMaidan protesters
refused to leave and started to erect barricades on Kulykove Pole.
6. Representatives of the 2 May Group13 told the Panel that there had been an unofficial
arrangement, which was favoured by all stakeholders (namely, the local authorities, including
the police, the EuroMaidan and the AntiMaidan leaders), whereby, after the football match on
2 May 2014 (see below), the football fans were to be allowed to demolish the remaining tents
on Kulykove Pole, the police being present to check that excessive force was not used. This
would have liberated the square for the Victory Day commemorations and allowed the4

Odesa Regional Council website, decision no. 1072-VI.
See the description of events (with pictures and video footage) by, among others, Odesa news web-site,
Dumskaya, 3 March 2014.
6
See, for instance, Odesa news web-site, Timer, 17 March 2014.
7
Unified State Register of Judicial Decisions, case no. 761/17442/14-к, judgment of 22 July 2014 (all namesof private persons omitted).
8
See, for instance, Timer, 26 August 2014.
9
MoI website, Wanted Persons. According to this webpage, Mr Anton Davydchenko fled on 30 October
2014.
10
See the map of the relevant part of Odesa in Annex VIII.
11
For detailed information about the TIC and its activity, see paragraph 42 et seq. below.
12
Report of the Temporary Investigation Commission of the Verkhovna Rada on its Inquiry into the Facts of
Citizens’ Deaths in Odesa, Mariupol and Other Cities in the Donetsk and Luhansk Regions, 2 September 2014
(hereinafter referred to as the “TIC Report”).
13
For detailed information about the 2 May Group and its activity, see paragraph 53 et seq. below.
5-9-The Facts: Background facts

AntiMaidan leaders to depart without losing face. However, because of disunity among theAntiMaidan groups, the agreement was not implemented.
7. According to the TIC, on 28 April 2014 the local office of the State Security Service(“the SSU”) obtained intelligence that there was a risk of possible incitements to violence,
clashes and disorder taking place during the demonstrations by football fans and theiropponents scheduled for 2 May 2014. On the same day an inter-agency meeting was held
between the heads of the local offices of the SSU and the MoI, the Prosecutor’s Office andthe head of the Odesa Regional State Administration, during which the intelligence wascommunicated.
8. The following day, according to the TIC, a meeting was held in Odesa chaired by
Mr Andrii Parubii, the then Secretary of the National Security and Defence Council,
concerning the challenges and threats to national security, as well as the joint responses tosuch threats. The meeting was attended by the heads of the local offices of the SSU, the MoI,
the State Emergency Service (“the SES”) and the Ministry of Defence (“the MoD”).
9. On 30 April 2014, in a letter addressed to Mr Petro Lutsiuk, the then Head of the MoI
Office in the Odesa Region, the local SSU office noted that the possibility of incitements toviolence, clashes and other unlawful acts in Odesa “was not excluded”. 14 In doing so, theSSU took into account the fact that about 500 football fans were to arrive in Odesa for the
football match on 2 May and that before the match the fans planned to hold a rally in support
of a united Ukraine. The local SSU office also referred to the tense social and politicalatmosphere and the experience of similar demonstrations in other parts of Ukraine which had
been accompanied by disorderly conduct.
10. According to the SSU,15 no official reply was received from the MoI Office in the
Odesa Region regarding the measures to be taken to avert the risk. Nevertheless, certain
measures to secure public order during the football match were taken in accordance with astandard contingency plan prepared for such sporting events.16
11. On the same day (30 April) a briefing was held by Mr Dmytro Fuchedzhy, the thenDeputy Head of the Odesa Regional MoI Office and Head of the Regional Public Order
Police, in the course of which he reported on the measures taken to secure public order during
the May holidays.17 In particular, he announced that the police in Odesa were on alert; that is,that they were policing around the clock and that the number of officers involved in theprotection of public order had been increased. With respect to the football match to be heldon 2 May, he explained that an additional 700 officers would be engaged that day, making
more than 2,100 police officers in total. Mr Fuchedzhy further underlined that “the police in
Odesa [were] ready to keep the public order protected during the holidays” and that they“[would] do their best to make people feel safe”.
C. The events of 2 May 2014 in Odesa
12. On 2 May 2014 a football match was to take place in Odesa at 5 p.m. between a local
club, Chornomorets, and the Metalist team from Kharkiv. Before the match the fans of both
14

It is alleged by the representatives of the 2 May Group with whom the Panel met that, by sending thisletter, the local SSU office, which had been aware of the arrangement described above, renounced responsibility
for any problem which might arise in the course of its implementation – oral submissions, June 2015.
15
SSU written submissions, July 2015.
16
See paragraph 15 below.
17
Website of the Odesa Regional MoI Office, news of 30 April 2014.

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The Facts: Background facts

clubs, local EuroMaidan activists and city residents (about 2,000 persons in total) planned tohold a rally at 3 p.m. in support of a united Ukraine.18
13. Being aware of the arrival of the football fans, and allegedly fearing that the fanswould be allowed to break up the camp on Kulykove Pole, some AntiMaidan activists,having spread the message through social networks, started to gather at around 1.30 p.m. a
few blocks from the assembly point of the pro-unity activists.19
14. In the meantime, at noon, the then Deputy Prosecutor General, Mr Mykola Banchuk,held a meeting on separatism and other public order challenges in the Odesa region with local
senior prosecutors, law enforcement and military officers. According to the website of the
MoI, Mr Arsen Avakov, Minister of the Interior, said that “this meeting lasted until 4 p.m. …
with the telephones of those present switched off”.20 However, according to the TIC, themeeting was over by 2.30 p.m. and certain officers had been contacted from outside during
the meeting. According to the PGO, during the meeting most of the heads of the law
enforcement bodies were keeping an eye on their telephones to see if anyone was trying tocontact them.21
15. According to the submissions to the Panel of the PGO and the MoI, 827 lawenforcement officers were engaged in public order protection in Odesa that day, in
accordance with the contingency plan for policing the city during the football match.
According to the account given by the 2 May Group, the officers had been deployed asfollows: some 700 officers were deployed at the stadium; a further 100 officers followed the
pro-unity rally; a few dozen were deployed at Kulykove Pole and about 100 officers werestanding by in the vicinity.22 According to the MoI, the officers were equipped with shields,
helmets, bulletproof vests, truncheons, and handcuffs; firearms were also issued. Referring torelevant issue-and-return records, the PGO concluded that 745 firearms were issued that day
to law enforcement officers, but that they used firearms only once, at 5 p.m., “to attempt tostop, by shooting at, a driverless fire engine which had put at risk the lives and health ofcitizens and law-enforcement officers”;23 however, they also maintained that “all firearms
and cartridges were [eventually] returned”.
16. In addition to the standard contingency plan applied in the case of a football match,other contingency plans were available to the Ukrainian authorities designed for specificsituations. Thus, for example, the “Wave” (“Хвиля”) plan was designed to counter massdisorder and the “Thunder” (“Грім”) plan was designed to neutralise armed persons.
Implementation of either plan could be triggered by the head of the MoI Office in a given
region, subject to certain approvals. Each plan was intended to make available additional
personnel and equipment to the authorities and to ensure better coordination.24 It appeared
from the subsequent investigations that neither of these two plans was in fact implemented on
2 May 2014 in Odesa.25

18

According to information from the 2 May Group, on the eve of 2 May 2014 information about the planned
rally was widely distributed in social networks – post of 8 August 2014.
19
See the map of the relevant part of Odesa in Annex VIII.
20
MoI website, news of 4 May 2014, summarised in Annex VI, paragraph 14.
21
PGO oral submissions, June 2015.
22
2 May Group, Chronology, Part 1.
23
See paragraph 18 below.
24
For more details on the plans and their implementation procedure, see paragraph 50 below.
25
See paragraph 81 below.

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The Facts: Background facts

17. At about 3.20 p.m., during the march towards the stadium, the rally was attacked near
Hretska Square by some 300 pro-federalism protesters.26 By 3.50 p.m. law enforcement
officers had formed a cordon separating the two sides but the clashes continued, withprotesters throwing stones and stun grenades over the cordon.27 Later, firearms, airguns and
Molotov cocktails were used, resulting in the first casualties: at about 4.10 p.m. the first
victim received a fatal firearm injury.
18. At about 4.30 p.m. a fire engine, which had been sent in response to an emergency
call was hijacked by unidentified persons and used as a battering ram. The fire engine wasreleased a few hours later, following negotiations between the protesters and Mr Volodymyr
Bodelan and his deputies.28 Mr Bodelan was at that time the head of the SES in the Odesa
Region, under which authority the fire service falls.29
19. According to the PGO, in the course of the clashes some pro-federalism protesters
broke into the Afina Shopping Centre, a building on Hretska Square, 30 and seized it.31 They
also resisted police officers by using firearms and other weapons. 32 Following negotiations
with the police,33 who threatened to storm the Centre,34 47 pro-federalism protesters
surrendered later in the evening and were placed in custody. The TIC stated that Sokil Special
Forces stormed the Centre and detained 48 persons and that there had been a large quantity ofMolotov cocktails, firearms and other weapons in the building.
20. Law enforcement officers were reported to have taken certain measures during theearly phases of the clashes but later it appears that they made little, if any, effort to interveneand stop the violence. In addition to the impression of general passivity, video footage postedon the Internet gave rise to allegations of collusion between some members of the police
force and pro-federalism protesters. Thus, numerous files posted on the Internet show armed
pro-federalism protesters standing, and at least one of them, believed to be Mr Vitalii Budko,
shooting, from behind the police cordon, police officers making no attempt to arrest them.35
Another video36 shows Mr Fuchedzhy, who had been lightly injured in the arm, climbing into
an ambulance in which Mr Budko was sitting, apparently uninjured. A few seconds later aseriously injured police officer, assisted by two other officers, was apparently refused entry to
the ambulance, which then drove off. Another circumstance which raised suspicion was theuse by a number of police officers of red adhesive tape around the protective gear on theirarms, similar tape being used by certain pro-federalism protesters as arm-bands to identify
themselves.37
26

See the map in Annex VIII.
See also the relevant MoI press releases summarised in Annex VI, paragraphs 1 and 3.
28
See the findings of the SES internal inquiry report summarised at paragraph 169 below.
29
For more details on the SES, see paragraphs 166-167 below.
30
See the map in Annex VIII.
31
PGO written submissions, May 2015.
32
Ibid.
33
PGO oral submissions, June 2015. See also the relevant MoI press release summarised in Annex VI,
paragraph 4.
34
2 May Group, Chronology, Part 1.
35
See, for instance, 2 May Group, post of 8 August 2014, with links to the footage and commentary thereon.
Generally, the events of 2 May in Odesa, except for those inside the Trade Union Building, were largely coveredby the media and individuals posting images and video footage on the Internet.
36
Ibid.
37
According to the TIC Report, the officers explained that usually they used adhesive tape bandages toattach their protective equipment and on 2 May 2014 they had used the red tape as the only material available tothem at that time. For more details of the investigation into this aspect, see paragraphs 78-79 below.
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The Facts: Background facts

21. The police were also reported not to have responded to emergency calls. According to
the Ombudsperson’s inquiry report,38 between 2.09 p.m. and 5.22 p.m. there were some
15 calls to the police informing them about various violations of law and public order(including a death resulting from firearm injuries). However, the police did not make theirfirst arrests until after 5 p.m., by which time five persons had already died as a result of
firearm injuries.
22. The clashes on and around Hretska Square lasted until about 7 p.m. Six persons diedas a result of injuries sustained during them and several dozen people were hospitalised.
23. At a certain point the pro-unity protesters prevailed in the clashes and pursued theirretreating opponents towards Kulykove Pole. In the meantime, some of the leaders of the profederalism protesters who remained at Kulykove Pole, aware of the clashes in the city centre
and of the approaching pro-unity protesters, advised their followers to flee, while others
proposed that they should retreat into the Trade Union Building, a five-floor building facing
the square.39 At around 6.50 p.m. pro-federalists broke down the door and brought insidevarious materials, including boxes containing Molotov cocktails and the products needed tomake them. Using wooden pallets which had supported tents in the square, they blocked theentrances to the building from the inside and erected barricades.40
24. When they arrived at the square at around 7.20 p.m., the pro-unity protesters
destroyed and set fire to the tents of the AntiMaidan camp. The remaining pro-federalism
protesters entered the Trade Union Building, from where they exchanged shots and Molotov
cocktails with their opponents outside. One of the pro-unity gunmen, who was captured onvideo footage, was subsequently identified as Mr Mykola Volkov.41 Several attempts by the
pro-unity protesters to storm the building proved to be unsuccessful, although a few of them
managed to enter the building through the back door.42
25. At about 7.45 p.m. a fire broke out in the Trade Union Building. Forensic
examinations subsequently indicated that the fire had started in five places, namely the lobby,
on the staircases to the left and right of the building between the ground and first floors, in aroom on the first floor and on the landing between the second and third floors. Other than thefire in the lobby, the fires could only have been started by the acts of those inside thebuilding. The forensic reports did not find any evidence to suggest that the fire had been preplanned.43 The closed doors and the chimney effect caused by the stairwell resulted in thefire’s rapid spread to the upper floors and a fast and extreme rise in the temperature inside thebuilding.
26. The dispatch centre for the fire brigade was first called at 7.31 p.m.,44 immediately
after the first tents on Kulykove Pole had been set on fire, and was thereafter repeatedly

38

Report on the Special Inquiry Concerning Violations of Human Rights and Freedoms during the Mass
Disorder in Odesa on 2 May 2014, not public; for a summary description of the Ombudsperson’s inquiry andfindings, see paragraph 48 et seq. below. Details of the inquiry can also be found in the Ombudsperson’s Annual
Report, 2015, pp. 134-138.
39
See the map in Annex VIII.
40
See, for instance, 2 May Group, Chronology, Part 2.
41
For details of the proceedings concerning Mr Volkov, see paragraphs 134 and 136 below.
42See, for instance, 2 May Group, Chronology, Part 2.
43
For more details on the findings concerning the fire, see paragraph 118 below and also the findings of the
2 May Group, set out in Annex VII.
44
On the SES internal inquiry findings, see paragraph 170 below.

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The Facts: Background facts

called.45 Although the closest fire station was less than five minutes’ drive from Kulykove
Pole,46 the first fire engines did not arrive until over thirty minutes later: in its internal inquiry
the SES determined the time as 8.09 p.m.47 What purports to be the audio recording of thetelephone calls to the dispatch centre was later posted on the Internet. The dispatcher can beheard telling callers that there was no risk involved in burning tents in an open space, andthen hanging up; at some point she consulted a superior as to whether she should continue torespond in this way and was instructed to do so. When the first calls were made about the fire
inside the Trade Union Building, the dispatcher responded that the information had beentaken into account; however, there was a delay of approximately ten minutes between thefirst call concerning the Trade Union Building and the order to send the first fire engine.
27. According to the TIC Report, there were two reasons for the delay. First, Mr Bodelan(the then head of the SES in Odesa Region), who was at that moment on Kulykove Pole,
called the dispatch centre at 7.32 p.m. and instructed the controllers that fire engines were
only to be deployed upon his express command: Mr Bodelan informed the TIC that he hadtaken personal responsibility for the sending of fire crews to avoid risking their lives, given
the seizure of a fire engine three hours earlier.48 According to the evidence given to the TIC
by representatives of the SES, aggressive behaviour on the part of protesters prevented thefire crews from performing their tasks and operations to extinguish the fire could start only
after negotiations with the protesters had resulted in a safe corridor being provided for the firecrews.49 However, the 2 May Group told the Panel that its inquiry was not able to find any
evidence of access by fire crews having been obstructed.50
28. By 7.54 p.m. the fire was reaching its peak and some of those in the building
desperately tried to escape by jumping out of the windows on the upper floors. A number of
persons were killed in falling. Video footage on the Internet shows others being assaulted bypro-unity protesters outside the building after they had jumped.51 However, there is also
footage showing pro-unity protesters creating makeshift ladders and platforms from the stage
which had been erected for speakers on the square and using them to rescue pro-federalists
trapped in the building, who were then evacuated to safe zones.52
29. According to the SES,53 the fire was extinguished at 8.50 p.m. Three hundred andthirty persons were rescued and evacuated from the building; 31 people were found to havedied inside the building and eight more bodies were found within its curtilage.
30. Law enforcement officers reportedly did not intervene in the events on Kulykove Poleand the Trade Union Building. According to the Ombudsperson’s inquiry report, they started
45

According to information from the 2 May Group, between 7.45 p.m. and 7.58 p.m. eleven emergency calls
were made, including several from an on-duty police officer, but the order to send a fire engine was made at
7.56 p.m. only – Chronology, Part 2. According to the SES, “a call [about the fire in the Trade Union Building
had been] made at 7.54 p.m.” – SES website, news of 3 May 2014.
46
See the map in Annex VIII.
47
See paragraph 170 below. The TIC report and the Office of the United Nations High Commissioner for
Human Rights (“OHCHR”), certain representatives of which were present during the events, refer to a similar
time frame – OHCHR, Report on the Human Rights Situation in Ukraine, 15 June 2014, § 46 and Report on the
Human Rights Situation in Ukraine, 17 August 2014, § 88.
48
A similar account was given in the SES internal inquiry report – see paragraph 170 below. On the seizureof the fire engine, see paragraph 18 above.
49
Similar findings were made in the SES internal inquiry report – see paragraph 170 below.
50
2 May Group oral submissions, June 2015. See also 2 May Group, Chronology, Part 2.
51
See, for instance, 2 May Group, Chronology, Part 2 with relevant footage.
52
Ibid.
53
SES website, news of 3 May 2014 and 5 May 2014.

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The Facts: Background facts

to arrest protesters only after 41 persons had already died. When the fire had been
extinguished the police entered the building and arrested 63 pro-federalists who were stillinside or on the roof.
31. According to official statistics, as a result of the clashes on 2 May, 48 persons died(seven women and 41 men). Six persons died as a result of firearm injuries they had received
during the clashes on and around Hretska Square and 42 died as a result of the fire in theTrade Union Building. Of those 42, 34 died as a direct result of the fire and eight died as aresult of jumping or falling from a height;54 no other violent cause of death was established.55
Likewise, it was not established that any gas was present in the building, other than the gases
produced by the fire.56
32. There have reportedly been problems in the identification of some bodies and one ofthem is still not formally identified.57 Notwithstanding the allegations that there were
foreigners among those who died on 2 May 2014 in Odesa,58 it emerged that all the deceased
were Ukrainian nationals.59
33. According to the official statistics,60 208 persons (including 34 law enforcement
officers, six of whom received firearm injuries) were injured.61 As during the EuroMaidan
events,62 many who were treated in hospital did not give their real names and addresses.63
Moreover, some persons, even those seriously injured during the violence, allegedly did not
go to hospital for fear of reprisals.64
34. As noted above, 47 persons were detained in the Afina Shopping Centre and63 persons in the Trade Union Building; a few other persons were detained elsewhere during
the following days.65 After 63 detainees had been released by a mob of protesters on 4 May
2014 (see below), the other detainees were transferred for security reasons to detention
facilities outside Odesa.

54

For more details, see Annex IV. There has been speculation that the number of persons killed was higher
than the official statistics suggest. However, a non-official investigation casts doubt on the veracity of such
speculations – see the 2 May Group, Preliminary Findings, 10 July 2014, § 10. International organisations andNGOs also refer to the official statistics or give numbers close to the official ones – see e.g. OHCHR, Report on
the Human Rights Situation in Ukraine, 15 June 2014, §§ 41 and 47; Human Rights Watch, Ukraine: Amnesty
International and Human Rights Watch Call for Impartial Inquiry into Events in Odessa on May 2, 8 May 2014.
55
For the results of the forensic medical examinations, see paragraph 119 et seq.
56
Ibid.
57
PGO written submissions, September 2015; for more details, see paragraph 121 below. See, however,Dumskaya, 25 June 2015, stating that the last body was identified by family members in June 2015.
58
See, for instance, TSN (a Ukrainian TV news service), news of 2 May 2014.
59
PGO written submissions, May 2015.
60
MoI written submissions, May 2015.
61
According to information provided by the OHCHR, 247 persons were brought from the scene requiring
medical assistance: 27 persons with gunshot wounds, 31 with stab wounds, 26 with burns and intoxication
caused by combustible products and 163 with injuries caused by blunt objects. Of these, 99 persons were
hospitalised, including 22 policemen, with 35 in a serious condition – Report on the Human Rights Situation in
Ukraine, 15 June 2014, § 49.
62
See the IAP Maidan Report, § 96.
63
See, for instance, the MoI website, news of 2 June 2014, summarised in Annex VI, paragraph 33.
64
See, for instance, OHCHR, Report on the Human Rights Situation in Ukraine, 15 June 2014, § 49.
65
Compare with the numbers referred to in the first press releases by the MoI and PGO summarised in
Annex VI, paragraphs 7-8 and 10-11, respectively.

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The Facts: Background facts

D. Other relevant events
35. During the following days the authorities deployed additional police units and took
other protective measures.66 A number of high-ranking officials (for instance, Mr Vitalii
Yarema, First Vice-Prime Minister; Mr Mykola Banchuk, Deputy Prosecutor General; andMr Serhii Chebotar, Deputy Minister of the Interior) arrived in Odesa to coordinate themeasures to be taken. Several high-ranking local officials (among others, the head of the MoI
regional office) were dismissed.67 Criminal investigations into the events of 2 May wereopened within a few hours.68
36. Although the streets adjacent to Hretska Square, the Square itself, Kulykove Pole andthe Trade Union Building were crime scenes, according to the 2 May Group they were hastily
examined and cleaned, and were open to the public thereafter.69 Photographs on the Internet
indicate that the Trade Union Building, in particular, quickly became a symbolic place formourners who left flowers and candles and painted graffiti on the interior walls.70
37. On the evening of 4 May a group of several hundred pro-federalism protesters
attacked the local police station where those who had been arrested inside the Trade Union
Building were being held. As a result 6371 detainees were released without any formal
decision being taken. An investigation into the events of 4 May was opened and later joined
to that concerning the events of 2 May.72
38. On 16 May Mr Chebotar reported that in the course of the investigation into theevents on 2 May the authorities had uncovered the criminal activities of two gangs, with the
involvement of Odesa police officers.73 In late 2014 and early 2015 the Malynovskyi District
Court of Odesa found guilty two police officers and another person of having attempted tosell Makarov pistol cartridges and bulletproof vests on 30 April 2014.74 Although it is notevident from the publicly available text of the judgments, it is alleged that they were sellingthe material to pro-federalists.75
39. On 16 January 2015 three Members of Parliament introduced a draft law,76 proposing
an amendment to the Application of Amnesty in Ukraine Act, to add a list of 49 persons
66

See, for instance, MoI website, news of 5 May and 7 May 2014, summarised in Annex VI, paragraphs 18
and 22, respectively.
67
See, for instance, MoI website, news of 3 May and 4 May 2014, summarised in Annex VI, paragraphs 6
and 14, respectively.
68
For more details, see paragraphs 63 and 111 below. The investigation into the conduct of the SES staff
was opened several months later – see paragraph 178 below. See also the press releases of the MoI and PGO
summarised in Annex VI, paragraphs 3 and 10.
69
2 May Group oral submissions, June 2015. For more details on the measures taken to secure evidence, seeparagraph 126 et seq.
70
Furthermore, there are some photographs showing the bodies still present at the crime scene.
71
In fact 67 detainees were released as a result of the attack (see MoI website, news of 4 May 2014
summarised in Annex VI, paragraph 13 below) but, according to the PGO written submissions, four of them had
been detained for reasons unrelated to the events of 2 May 2014.
72
For more details, see paragraphs 64-65 below. See also the press releases of the PGO and Prosecutor’s
Office in Odesa Region summarised in Annex VI, paragraphs 15-16.
73
MoI website, news of 16 May 2014, summarised in Annex VI, paragraph 29.
74
See the Unified State Register of Judicial Decisions, case no. 521/11464/14-к, judgment of 16 October
2014; case no. 521/20240/14-к, judgment of 28 November 2014; and case no. 521/11602/14-к, judgment of
2 February 2015 – all names of individuals omitted.
75
See Dumskaya, news of 13 December 2014.
76
Draft Law Concerning the Complete Rehabilitation of Political Prisoners – Verkhovna Rada website, draft
law no. 1781.

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The Facts: Inquiries other than those carried out by the investigative authorities

subject to individual amnesty. The list included, among others, two pro-unity activists,
namely, Mr Serhii Khodiak, suspected of, inter alia, committing murder on 2 May 2014 in
Odesa,77 and Mr Vsevolod Honcharevskyi, suspected of assaulting with a wooden club those
who had been jumping from the burning Trade Union Building and preventing them fromobtaining medical help.78 The draft law is still under examination by the Verkhovna Rada.79
To date, in the course of its progress through parliament, two opinions have been lodged tothe effect that, having regard to several shortcomings, the draft law should be refused or
returned for amendment.80
40. On 18 May 2015 a Member of Parliament proposed to release from criminal
responsibility and punishment some of those who had taken part in the mass disorder on
2 May 2014 in Odesa.81 This proposal would cover those who are suspected, charged orconvicted of crimes committed in Odesa on that date, except for a number of serious violent
crimes including murder, acts of terrorism, attempted murder of a law enforcement officer,
excess of power by a law enforcement officer and negligence in office resulting in graveconsequences. In addition, no amnesty would be given to those suspected or charged withhaving organised mass disorder under Article 294 of the CC. It has been claimed that passing
such an act would “contribute to the relaxation of social tension and demonstrate Ukraine’s
attitude to those who, by their actions, [had] expressed their willingness to protect the
territorial integrity of the homeland and a negative attitude to the Russian aggressors and antiUkrainian-minded persons.”82 The draft law is still under examination by the Verkhovna
Rada.83II.

INQUIRIES OTHER THAN THOSEINVESTIGATIVE AUTHORITIESCARRIED

OUT

BY

THE

41. Because of the unprecedented nature of the events at issue, a number of inquiries werecarried out by public and private bodies, outside the framework of the criminal justicesystem, but in parallel to the pre-trial investigations carried out by the MoI and the PGO. In
the present section the Panel summarises those inquiries and their findings.
A. Parliamentary inquiry
42. On 13 May 2014 the Verkhovna Rada set up the TIC to establish, inter alia, what had
happened in Odesa on 2 May 2014.84 The TIC was composed of ten Members of Parliamentand chaired by Mr Anton Kisse, a Member of Parliament from the Odesa Region. Initially,
the Verkhovna Rada planned to consider the TIC’s report not later than 15 June 2014. On

77

On the proceedings concerning Mr Khodiiak, see paragraphs 134 and 155 et seq.
On the proceedings concerning Mr Honcharevskyi, see paragraphs 140-141 below.
79
See the Verkhovna Rada website, workflow of the draft law no. 1781.
80
Loc. cit., Opinion of the Main Research Department of the Verkhovna Rada of 2 February 2015 andOpinion of the Anti-Corruption Committee of the Verkhovna Rada of 4 March 2015.
81
Loc. cit., draft law no. 2885.
82
Loc. cit., explanatory note appended to draft law no. 2885.
83
Loc. cit., workflow of draft law no. 2885.
84
Loc. cit., Resolution no. 1264-VII. The Commission’s mandate also covered the tragic events in otherparts of Ukraine; for the purposes of the present Report, only the part dealing with the events in Odesa on 2 May
2014 are summarised.
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The Facts: Inquiries other than those carried out by the investigative authorities

20 June 2014, having considered the TIC’s preliminary report, the Verkhovna Rada decided
to extend its mandate, setting 5 September 2014 as the deadline for its final report.85
43. In the course of its inquiry the TIC held a number of meetings with, among others,
representatives of the PGO, MoI, SSU, MoD, National Security and Defence Council, SES,
and the Odesa State Regional Administration, a member of the Odesa Regional Council who
chaired the Council’s temporary commission,86 forensic experts, relatives of those detainedon 2 May, journalists and experts who were pursuing their own inquiry in parallel, the headof the UN Human Rights Monitoring Mission in Ukraine and representatives of the OSCE
Special Monitoring Mission to Ukraine. The TIC noted, however, that despite its repeatedinvitations, Messrs Parubii, Avakov, Chebotar and Nalyvaichenko, the Chief of the SSU,
failed to attend its meetings.
44. On 2 September 2014 the TIC adopted its report and submitted it to the Verkhovna
Rada for debate and further action. It was proposed, among other things, to forward the reportto the investigatory authorities and to request the latter to inform the Verkhovna Rada within
two weeks of the measures taken; in addition, it was planned to hear at a future parliamentary
session the Prosecutor General, the Minister of the Interior and the Head of the SSU on therelevant investigations within their competence.87
45. In addition to various factual details established and set out in its report,88 the TIC
found a number of shortcomings in the preparedness of the police to deal with the anticipatedmass disorder: for example, it was found that the police officers who had been expected to
implement the contingency plan had not actually been informed of this; that the mobility ofthe police squads deployed at the stadium had not been adequate; and that the collection andanalysis of intelligence reports as to possible incitements to violence before and during thematch had not been properly coordinated and organised. During the clashes on and around
Hretska Square, the report continued, the police had failed to take adequate measures to arrest
those taking part in the mass disorder and for the most part had not intervened at all. In its
conclusions the TIC recommended the Verkhovna Rada to forward its report to the PGO,MoI and SSU and to invite those organs to report back on their follow-up.
46. On 27 November 2014, following the parliamentary elections, the new Verkhovna
Rada was formed. Under the Rules of the Verkhovna Rada this terminated the mandate of the
TIC,89 as it had been set up by the former legislature. The draft resolution was, accordingly,
withdrawn.90
47. On 9 December 2014 a draft resolution, proposing to set up a new TIC, wasintroduced in the Verkhovna Rada.91 According to the draft resolution, the new TIC was tofocus on the causes of the mass disorder; the identification of those who had organised, aided
and abetted, and committed crimes in the course of, the mass disorder; the existence of any
prior conspiracy to commit crimes; the infliction of bodily injuries, including those that had
led to death; compliance with the law during the organisation of the demonstrations on 2 May
2014; and compliance with the law by the police during the mass disorder. According to thewebsite of the Verkhovna Rada, the draft resolution is still under examination.92
85

Loc. cit., Resolution no. 1544-VII.
On the Odesa Regional Council’s Commission and its activity, see paragraphs 52-52 below.
87
See the Verkhovna Rada website., draft resolution no. 5041.
88
The TIC’s findings of fact are referred to where relevant throughout the “Statement of Facts”.
89
Section 88 § 6 (3) of the Act no. 1861-VI of 10 February 2010 (with further amendments).
90
See Verkhovna Rada website, workflow of the draft resolution no. 5041.
91
Verkhovna Rada website, draft resolution no. 1299 (with further amendments).
92
Loc. cit., workflow of the draft resolution no. 1299.
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The Facts: Inquiries other than those carried out by the investigative authorities

B. Ombudsperson’s inquiry
48. Under the Ombudsperson Act,93 the Ombudsperson is charged with carrying out aparliamentary control aimed, inter alia, at protecting human rights and freedoms (sections 1
and 3). To carry out this function he or she is entitled, inter alia, to institute an inquiry of hisor her own motion (section 16) and, on the basis of the inquiry’s findings, to request State
organs to take relevant measures (section 15). The latter are obliged to cooperate with the
Ombudsperson (section 22).
49. Shortly after the events of 2 May, the Ombudsperson decided to carry out an inquiry
to determine what had happened on that day, what the authorities had been expected to do
according to the existing legal framework and what they had actually done. To ensure thetransparency of that inquiry, representatives of civil society and of the mass media were
included in the inquiry team. The fact-finding part of the inquiry was carried out between
6 and 23 May 2014 and included the questioning of 64 witnesses, including eye witnesses
and representatives of local authorities, and the examination of confidential official
documents.
50. In her report the Ombudsperson found that, according to the existing legal framework,
the law enforcement authorities had been required to activate contingency plans “Wave” and“Thunder”.94 In addition to an order triggering those plans, the law required the head of thelocal MoI office to adopt an order on the use of force in the course of the implementation of
the plans, subject to its approval by a Regional State Administration, prosecutor’s office andthe MoI itself. However, the Ombudsperson concluded that the “Wave” plan had not actually
been implemented and that there had been an attempt to have the order on the use of force
signed retrospectively. The Ombudsperson referred to a number of facts in support of that
conclusion, in particular that the order on the use of force had not been registered and dated,and had not been approved by the Regional State Administration; moreover, the relevant
logbooks (such as books recording the issue and return of weapons, incoming messages
logbooks and reports of changes of shift) did not contain any indication that the plan had been
implemented. Accordingly, the report concluded, the superiors of the Odesa Regional MoI
Office had failed to take adequate measures, as required by the domestic legislation, to tackle
the situation in Odesa on 2 May 2014.
51. Subsequently the Ombudsperson notified the PGO about her findings and requested
the latter to carry out an objective and impartial investigation into the events in question. In
the ensuing exchange of correspondence, provided to the Panel, the PGO responded thatinvestigations had been instituted into the events of 2 and 4 May.
C. Activity by the Odesa Regional Council
52. On 16 May 2014 the Odesa Regional Council set up a Temporary Control
Commission to oversee the investigations conducted by the investigative authorities.95 The
Commission was composed of ten members of the Council and chaired by Mr Hryhorii
Yepur. It held three sessions96 and was dismissed by the Council on 12 September 2014,93

Loc. cit., Act no. 776/97-BP of 23 December 1997 (with further amendments).
For additional information on the contingency plans, see paragraph 16 above.
95
Odesa Regional Council website, decision no. 1116-VI.
96
Loc. cit., report of Mr Yepur on his activity in 2014 as a member of the Odesa Regional Council.
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The Facts: Inquiries other than those carried out by the investigative authorities

since it was found to be impossible to carry out any scrutiny of the investigations.97 The
materials it had collected up to that point were transferred to the Verkhovna Rada’s TIC.
D. Inquiry by the 2 May Group
53. Soon after the events of 2 May 2014, a group of ten Odesa activists,98 representing a
range of political views and calling themselves “the 2 May Group”, came together to carryout their own inquiry in parallel to the official investigations. The group includes several
journalists and experts in ballistics, chemistry and toxicology, some of whom were also eyewitnesses of the events. It is co-ordinated by Ms Tetiana Herasymova, a local journalist.99
54. According to the statement of principles set out on the Group’s website, their inquiry
is to be carried out in an open, independent and objective manner, using all fact-findingmeans available under Ukrainian law (for instance, media files posted on the Internet, witness
testimony, requests for information to the State authorities), with the aim of establishing in asmuch detail as possible what happened in Odesa on 2 May 2014, so as to inform the public
and avoid politically-motivated speculation. All their findings, before being published, aresubject to approval by all members, although individual members may additionally publish
their personal views on the Group’s website or elsewhere.100 To date, the Group has
published, among other things, one of the most thorough accounts of the events on 2 May
2014 available101 and an expert examination of the fire in the Trade Union Building.102 The
Group also monitors the court hearings in cases concerning the 2 May events.
55. Consistent with the Group’s aims, two journalist members requested the Odesa
Regional Bureau of Forensic Examinations and the Main Investigation Department (“MID”)
of the MoI to provide them with the information contained in the autopsy reports (withpersonal details redacted), relating to the 48 persons who died as a result of the mass disorderand fire. On being refused, in December 2014 they instituted proceedings before the Odesa
District Administrative Court. After several interlocutory hearings to determine whether thecase should be examined under the criminal, civil or administrative procedure,103 the court
proceeded to the merits phase. Before the court, the Bureau, the PGO and the MID of the
MoI, as non-party interveners on the side of the defendant, argued that the requested reports
were part of the criminal casefile and that, under the Code of Criminal Procedure (“CPC”),
access could be granted only to persons with the relevant procedural status; as neither of theclaimants had procedural status in the criminal investigation, their access to the information
should be denied. On 20 May 2015 the Odesa District Administrative Court upheld theclaims and ordered the Bureau to provide the claimants’ access to the information contained97

Ibid., decision no. 1156-VI.
Subsequently its composition and the number of its members have varied.
99
In addition to Ms Tetiana Herasymova, the Panel met with Mr Serhii Dibrov, a journalist at Dumskaya;
Mr Vladyslav Serdiuk, a retired lieutenant-colonel and law-enforcement expert; Mr Vladyslav Balynskyi, an
expert in chemistry; Mr Volodymyr Sarkisian, an expert in toxicology; and Mr Yurii Tkachov, a journalist andeditor-in-chief of Timer. A full list of members can be found on the 2 May Group website, History andPrinciples.
100
Ibid.
101
Loc. cit., Chronology, Part 1 and Part 2.
102
For a summary of its findings, see Annex VII.
103
Unified State Register of Judicial Decisions, case no. 815/6959/14, ruling of 11 December 2014, ruling of
10 March 2015 and ruling of 8 April 2015 (all names of private persons omitted).
98- 20 -

The Facts: Relevant domestic law on pre-trial investigationsin the autopsy reports in question.104 In reaching its decision the court weighed the public
interest in being provided with the information against the competing interest in
confidentiality. As the defendant had failed to prove that the release of the information would
harm the effectiveness of the investigations, or any other matter of public importance, thepublic interest in the release of the information prevailed. The PGO appealed against the
judgment but, according to the information provided by the 2 May Group,105 the Odesa
Administrative Court of Appeal upheld the judgment.
III.

RELEVANT DOMESTIC LAW ON PRE-TRIAL INVESTIGATIONS

56. An overview of the domestic law is set out in Annex V below.
IV.

THE STRUCTURE AND STATUS OF THE INVESTIGATIONS

57. Three separate investigations were opened into the violent events in Odesa on 2 May
2014. The investigations covered (i) the conduct of the police on 2 May 2014 and the releaseof detainees on 4 May 2014 (casefile no. 186); (ii) the mass disorder in the city centre andKulykove Pole, as well as the fire in the Trade Union Building (casefiles nos. 3700, 263, 558,
2190 and others); and (iii) the conduct of SES staff (casefile no. 154). The conduct of thepolice is being investigated by the PGO and the other cases – the mass disorder, the fire at theTrade Union Building and the conduct of SES staff – are being investigated by the MID of
the MoI.
58. The PGO explained to the Panel that the current division of investigations between
the PGO and the MoI was based on the provisions of the CPC, which require the publicprosecution service to investigate crimes committed by law enforcement officers and the MoI
to investigate most of the crimes committed by private individuals.106
59. The PGO and MoI representatives confirmed before the Panel that there was a certain
overlap between the main investigations, in particular as regards the gathering of evidence
and the questioning of witnesses. However, there was a constant exchange of information andmaterials between the two investigating authorities.
60. In the opinion of the Mr Serhii Horbatiuk, the Head of the Special Investigations
Division (“SID”) of the MID of the PGO, it would have been better if all the proceedings had
been consolidated at the outset; however, to join and transfer them to the PGO at the present
stage, more than a year after they had begun, would not benefit the investigations and would
lead to considerable delay, given that the PGO investigators would have to study a large
volume of unfamiliar material.
61. The following description of the structure and current status of the investigations isbased on the oral and written submissions received by the Panel from the investigatory
authorities, namely the PGO and the MoI, unless otherwise specified.

104

Loc. cit., resolution of 20 May 2015 (all names of private persons omitted).
2 May Group website, 16 September 2015.
106
The investigative jurisdiction of the investigating authorities is set out in Article 216 of the CPC. For
more details concerning the domestic law on pre-trial investigations, see Annex V.
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The Facts: The structure and status of the investigations

A. Investigation of the police conduct
62. The case concerning police conduct during the events of 2 May 2014 in Odesa isbeing investigated by the investigators of the PGO.107 The role of the MoI in the case islimited to carrying out internal inquiries concerning the conduct of the police. Operational
support, including searches for missing suspects, is provided by the SSU.
1. Pre-trial investigations
63. On 2 May 2014 the Odesa Regional Prosecution Office instituted criminal
proceedings under Article 367 § 2 of the CC (neglect of duty), concerning the failure of thepolice to fulfil their public order protection duties during the mass disorder on 2 May 2014 in
Odesa (casefile no. 186).
64. On 4 May 2014 the Odesa Regional Prosecution Office instituted criminal
proceedings under Article 365 § 3 of the CC (exceeding authority by a law enforcement
officer) and Article 367 § 2 of the CC (neglect of duty) against the officials of the Odesa CityMoI Department, whose actions had resulted in the unjustified release on the same day of
63 individuals placed in the temporary detention facility of the Odesa City MoI Department,
as well as in the seizure of those premises (casefile no. 189).
65. On 6 June 2014 the two criminal proceedings were merged into casefile no. 186,
which covers the investigations into the events of both 2 and 4 May 2014. On 6 May 2014 the
Deputy Prosecutor General decided to assign the case for investigation to the PGO. The casematerials were transferred to the PGO on 7 May.
66. According to the PGO submissions to the Panel, the following investigative acts werecarried out in the case: 470 witnesses were questioned concerning the events of 2 May 2014,
including staff of the MoI, the SSU, the Prosecution and SES offices in the Odesa Region,
military units, the Odesa City Council and the Odesa State Administration; five expert
examinations were carried out concerning the cause of the fire and damage resulting from it;
30 examinations were carried out relating to documents and video materials recording theevents; court decisions were obtained concerning five instances of access to documents andmaterials and five searches; 90 requests were submitted to different organisations to obtaincopies of relevant materials, including photographs and videos; the personnel files of officialsof the MoI Office in the Odesa Region and documents regulating their duties were requested;
20 instructions were sent to MoI departments and to the SSU to obtain relevant information.
67. Four internal inquiries were conducted by the MoI with regard to the events
investigated in case no. 186. The Panel was denied access to the documents relating to the
MoI internal inquiries, despite the fact that these were of direct relevance to the subject
matter of its review and would have facilitated its tasks. The Panel was thus required to baseits account of the results of the internal inquiries on the submissions received by it from theauthorities.
68. According to these submissions, the first internal inquiry concerned the conduct ofofficials of the MoI Office in the Odesa Region and was completed on 30 May 2014. As aresult of the internal inquiry, several senior officials of the MoI Office in the Odesa Region
who had failed to act, or had taken inadequate action during the 2 May events, weredismissed or resigned from the MoI, including Mr Lutsiuk, the Head of the MoI Office in the107

See paragraphs 101-109 for detailed information concerning staffing.

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The Facts: The structure and status of the investigations

Odesa Region, and Mr Fuchedzhy, the Deputy Head of the MoI Office in the Odesa Regionand Head of the Regional Public Order Police (order no. 500).108
69. The internal inquiry of 3 June 2014 was ordered in connection with the injuries
received by police officers. It established that 34 police officers had been injured.
70. Another internal inquiry was ordered into the events of 4 May 2014, during which
detainees were released from the Temporary Detention Facility of the Odesa City MoI
Department. The inquiry was completed on 4 June 2014 and led to disciplinary action being
taken against four MoI officials.109
71. An additional internal inquiry concerning the conduct of MoI officials on 2 May 2014
was initiated by the MoI, at the request by the PGO, and was completed by the MoI on
17 June 2015.110(a) Events of 2 May(i) Scope of the investigations

72. Breach of duty by the police. The investigation in casefile no. 186 relating to theevents of 2 May covers both intentional and unintentional breach of duty on the part of police
officers. The PGO informed the Panel that they were investigating whether there had been
any deliberate failure to act by police officers, any police conduct that had facilitated thecriminal activities of certain persons and/or any deliberate collusion.
73. The PGO confirmed that there was a large volume of video footage and commentaries
indicating intentionally passive conduct on the part of police officers, which would be a grave
breach of their duty to protect public order. However, the investigation to date had notestablished any direct evidence that any police officer had deliberately failed to act inexchange for payment or other benefit.
74. According to the PGO, investigators were also assessing the actions of mid-levelcommanders and their failure to perform their duties. The PGO confirmed in particular thatthe inaction of police officers when activists discharged firearms in their presence could raise
an issue under the criminal law as they were under a general duty to prevent such crimes andwould not have required any special order to do so.
75. The PGO cited a further example of police inactivity which occurred on 2 May before
the start of the clashes on, when about 300 AntiMaidan protestors, equipped with bats andshields, were gathering near the pro-unity activists. The police were present on the scene but
took no action. A team of police officers allegedly approached an organised group of about
30 AntiMaidan activists who were armed and equipped; instead of cordoning off the group orarresting their leaders, as the situation required, the police escorted them, as the groupexplained that they had only wanted to defend the tent camp on Kulykove Pole from prounity protesters.
76. In July the PGO submitted to the Panel that mid-level commanders had beenquestioned and testified that they had given orders to ensure public order protection. The
details of such orders were being investigated. The PGO also submitted that certain mid-level
108

Among other officials dismissed were Mr Kuzmenko, the Head of the Regional Department for Fighting
Organised Crime; Mr Netrebskyi, the Head of the Odesa City MoI Department. Two other officials, the Deputy
Head of the Odesa City MoI Department, who was also Head of the City Public Order Police; and the Head of
the Regional Public Security Department, received disciplinary warnings.
109
For more details as to the results of the internal inquiry, see paragraph 98 below.
110
For more details as to the results of the internal inquiry, see paragraph 82 below.

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The Facts: The structure and status of the investigations

officers had failed to take relevant measures for the protection of public order and that theywould be charged.
77. At the same time, Mr Ihor Zinkovskyi, the head of the investigative team in this case,
expressed the view that the lack of action on the part of lower rank police officers was related
to the allegations against Mr Lutsiuk, who had failed to ensure that sufficient numbers ofofficers were deployed. According to Mr Zinkovskyi, there were not enough police officers
present in the city centre to be able to prevent clashes between one group of approximately
1,500 participants and another group of approximately 600 participants, let alone sufficientnumbers to carry out arrests. There were a maximum of 100 police officers present and all
they could do was to form a cordon to separate the two crowds. It would have been too
dangerous for any of the officers to leave the cordon to detain an activist. The investigation
had not obtained any evidence of deliberate dereliction of duty on the part of lower-ranking
police officers and, in the absence of such evidence, no charges could be brought.
78. The question whether there had been any collusion between activists and the police
was also the subject of investigation. According to the representatives of the PGO, all theevidence indicating the possibility of collusion, such as footage showing police officers
wearing the same red adhesive tape on their arms as AntiMaidan activists, or showing anactivist shooting unobstructed from behind the backs of police officers and later getting into
an ambulance with the Deputy Head of the MoI Office in the Odesa Region, was being
examined. However, investigators faced difficulty in proving collusion, in that it required
them to find evidence of deliberate intent rather than mere negligence on the part of thepolice.
79. Mr Zinkovskyi confirmed the above information and added that conclusions would be
drawn soon. As to the video recordings showing police officers wearing the same redadhesive tape on their arms as AntiMaidan activists, Mr Zinkovskyi explained that it had
been established that officers had used the red tape to fix protective equipment to their arms.
After the Maidan events such equipment was in an unsatisfactory state. As could be seen in
the video footage and was later confirmed by the police officers, the use of red adhesive tape
was unsystematic, being seen variously on the left arm or the right arm or on both. This
explanation of the use of red adhesive tape by the police officers on 2 May 2014 was
supported by the prosecutors of the PGO as well as by members of the 2 May Group; 111 thesame explanation was obtained by the TIC in the course of its inquiry.
At the date of adoption of the Report, no police officer had been notified of suspicion in
respect of any deliberate breach of duty.
80. Failure to implement the “Wave” plan. In casefile no. 186 the PGO is investigating
the procedure relating to the implementation, or non-implementation, of the “Wave” plan,
which was designed specifically to deal with mass disorder and to prevent risk to life andlimb.112 Two senior commanders of the MoI Office in the Odesa Region, Mr Lutsiuk and his
deputy Mr Fuchedzhy, have been notified of suspicion on the ground that they failed properly
to take into consideration information from the SSU about possible clashes and incitements toviolence and to deploy the available forces appropriately. Instead, the MoI Office in Odesa
Region took measures under a standard contingency plan used for dealing with confrontations
between rival football fans. The investigating authorities believe that the police forces were
not correctly deployed, in that the majority of the police were stationed at or near the stadiumand only a small number accompanied the march and the activists in the city centre.
111
112

Oral submissions of 2 May Group, June 2015.
For more details concerning the “Wave” plan, see paragraph 16 above.

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The Facts: The structure and status of the investigations

81. Initially the PGO took the view that the “Wave” plan had been implemented, but only
partially and with a delay because of the meeting attended by the leaders of law enforcement
authorities which was taking place at the time the clashes began. 113 Subsequently the PGO
informed the Panel that they were also investigating the theory that the documents relating to
the implementation of the “Wave” plan had been forged. Mr Zinkovskyi explained thatinvestigators had been misled, in that they thought that the plan had been implemented.
However, at some point in May 2015 the investigation established that this was not the case.
The PGO had initiated an internal inquiry by the MoI “based on newly discovered
circumstances” to confirm whether the documents had been forged.
82. As a result of this internal inquiry, whose findings were delivered on 17 June 2015, it
was established that, on the night of 2 to 3 May, Mr Lutsiuk, with the intention of covering
up his failure to ensure that the police were able to secure public order protection, instructedthat a record be created purporting to show the implementation of the “Wave” plan at
3.30 p.m. on 2 May. It was the PGO’s belief that the “Wave” plan was never, in fact,
implemented; the documents concerning its implementation were backdated during the nightof 2/3 May on Mr Lutsiuk’s instructions.
83. The Panel observes that information concerning the alleged forgery of the “Wave”
plan was brought to the attention of the PGO in a substantiated manner as early as 10 June
2014, when the Ombudsperson submitted to the PGO her report on the inquiry into the eventsin Odesa on 2 May 2014.114 In June and September 2014 and January 2015 theOmbudsperson addressed the Prosecutor General, drawing attention to her report on Odesa,
and requesting him to take it into consideration during the conduct of pre-trial investigations.
The PGO submitted before the Panel that the Ombudsperson’s report had been included in
the casefile.
(ii) Individuals granted victim status

84. According to the PGO’s July submissions to the Panel, in casefile no. 186 45 persons
have been granted victim status in relation to the deaths that occurred on 2 May. Two persons
declined to accept victim status and in relation to one death it was impossible to establish thewhereabouts of the relatives.
85. It was established that 271 persons sustained injuries as a result of the events of
2 May, including 34 police officers. Eighty-three civilians and 24 police officers have been
granted victim status. No persons have been granted victim status in the part of the caserelating to the events of 4 May 2014.
(iii) Current status of the investigations

86. Following Mr Lutziuk’s dismissal on 3 May 2014 from his position as the head of the
MoI Office in the Odesa Region, Mr Fuchedzhy was appointed Acting Head, which position
he held until 6 May 2014. On 5 May the investigators of the Odesa Regional Prosecution
Office summoned him for questioning as a witness. However, he refused to appear, referring
to his poor state of health and his treatment in hospital. On 6 May 2014 Mr Fuchedzhy fled
Ukraine, crossing the border into Moldova. Thus, by the time the casefile was transferred to
the PGO on 7 May 2014 he had already disappeared. In April 2015 the Deputy Prosecutor
General reported that Mr Fuchedzhy was in Transdniestria.115
113

See paragraph 14 above.
For details of the inquiry conducted by the Ombudsperson see paragraph 48 et seq.
115
PGO website, news of 22 April 2015.
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The Facts: The structure and status of the investigations

87. When asked by the Panel about the circumstances in which Mr Fuchedzhy had
absconded, Mr Zinkovskyi replied that he was not aware whether any action had been taken
to ensure that Mr Fuchedzhy appeared for questioning; whether he had been summonedthrough the police officers of the same department where he had worked; or whether anyone
had helped him to escape. Mr Zinkovskyi believed that the period of five days during which
the evidence was being collected gave Mr Fuchedzhy time to abscond.
88. On 13 May 2014 a notification of suspicion of neglect of duty (Article 367 § 2 of theCC) and exceeding authority (initially under Article 365 § 3 of the CC and later under
Article 365 § 1 of the CC) was issued to Mr Fuchedzhy. He was charged with a failure
properly to organise and coordinate the police forces available to him and deployed on publicorder duties during the mass disorder that took place on Hretska Street, Kulykove Pole and at
the Trade Union Building on 2 May 2014, as a result of which 48 persons died. He was also
charged with ordering the unlawful release on 4 May 2014 of 63 persons arrested on
suspicion of participation in the mass disorder on 2 May 2014.
89. On 15 May 2014 Mr Fuchedzhy was put on a wanted list and on 16 May 2014 thecourt issued a warrant for his arrest. The SSU is charged with searching for him. The request
for Interpol to put him on an international wanted list was refused on the ground that the casewas politically motivated.
90. On 17 October 2014 the case against Mr Fuchedzhy was separated from casefile
no. 186 and became casefile no. 1126. On the same day the case was suspended, because of
the absence of the suspect from the jurisdiction. The investigation could be resumed if certain
measures were needed to be carried out or if Mr Fuchedzhy could be found and detained.
Mr Zinkovskyi explained to the Panel that he intended to turn his attention to the case against
Mr Fuchedzhy as soon as he had completed his work on the case against Mr Lutsiuk.
91. On 30 April 2015, nearly a year after the events of 2 May 2014, the PGO notified
Mr Lutsiuk of suspicion of neglect of duty under Article 367 § 2 of the CC. According to the
PGO submissions, it was established that the mass disorder, as a result of which 48 persons
died, occurred as a consequence of the failure of the police leadership to ensure adequate
protection of public order.
92. According to the representatives of the PGO, one of the causes of the delay in
notifying Mr Lutsiuk of suspicion, was the re-organisation of the MID of the PGO, when forsome time it remained unclear which department was to investigate the case. The Panel notesin this regard that Mr Lutsiuk was notified of suspicion shortly after the return on 8 April
2015 of Mr Zinkovskyi as the head of the investigative team in casefile no. 186, following his
absence from June 2014.116
93. No measure of restraint was applied to Mr Lutsiuk because he was under medical
treatment at the moment when he was notified of suspicion. Subsequently, on 13 May 2015,
the Pecherskyi District Court of Kyiv granted the PGO’s request to place Mr Lutsiuk underhouse arrest. The period of his house arrest was extended on 26 June 2015. Two months later,on 28 August 2015, the court refused to extend the term of Mr Lutsiuk’s house arrest: it
found that the prosecutors had failed to substantiate that there remained a risk of the suspect
absconding or influencing the investigations or to show that it had not been possible tocomplete the pre-trial investigation before the measure of restraint imposed by the previous
decision had expired.117
116
117

See paragraph 102 below.
Unified State Register of Judicial Decisions, case no. 757/31047/15-к, ruling of 28 August 2015.

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The Facts: The structure and status of the investigations

94. Mr Zinkovskyi confirmed before the Panel that “ninety-nine per cent of the case”
against Mr Lutsiuk had been completed and that the next step would be to bring charges
against him and send the case to court. However, before this could be done it would benecessary to calculate the damage caused as a result of the crime. In this context, an expert
assessment of the damage caused to the Trade Union Building had been ordered, but theassessment had been delayed by the fact that many documents relating to the building and its
renovation had been burnt and that the process of reconstructing these documents wascomplicated owing to the building’s status as a cultural heritage site.
95. No persons other than two senior officials of the MoI Office in the Odesa Region
have been notified of suspicion and no indictment has been drawn up and lodged with a courtin casefile no. 186 as regards the events of 2 May 2014.
(b) Events of 4 May

96. It appears that a number of activists remained in the Trade Union Building after thefire had been extinguished and between 2 and 4 May 2014 the police arrested 63 of them.
They were taken to the Odesa city police station. On 4 May 2014 a crowd, including familiesof the detained activists, gathered at the police station and demanded their release. It was
found by the investigation that Mr Fuchedzhy had given the order to release the detainees
without any legal basis or formal decision. The investigation into this incident was opened on
the same day.
97. On 8 May 2014 the PGO issued notifications of suspicion in connection with therelease of the detainees on 4 May 2014, under Articles 365 § 1 (exceeding power by a law
enforcement officer) and 367 § 1 (neglect of duty) of the CC, to three officials: the former
Head of the Odesa City MoI Department, Mr Netrebskyi; the former head of the Temporary
Detention Facility of the Odesa City MoI Department, Mr Pryima; and the inspector on duty
at the Temporary Detention Facility of the Odesa City MoI Department, Mr Kondratov.
A measure of restraint in the form of personal undertakings was applied to each of the three
officials.
98. On 4 June 2014 the MoI completed its internal inquiry into the events of 4 May 2014.
It confirmed that the three police officers who had been notified of suspicion on 8 May, as
well as Mr Fuchedzy, in his capacity as Acting Head of the MoI Office in the Odesa Region,
had committed a breach of duty by allowing the release of the detained activists.
99. On 27 October 2014 the indictment in respect of the release of the detainees on
4 May 2014 was sent to the Prymorskyi District Court of Odesa for trial. Preliminary court
proceedings took place in December 2014. As at 31 August 2015, the case was still pending
trial.
100. As noted above,118 Mr Fuchedzhy is a suspect in the parts of the case concerning theevents of 2 and 4 May 2014, but the case against him is suspended following his absconding
from the jurisdiction.119
2. Staffing
101. The case concerning police conduct on 2 and 4 May 2014 was initially investigatedby the Odesa Regional Prosecution Office. On 7 May 2014 the case was transferred to thesecond investigating unit of the Major Crimes Division of the MID of the PGO. As from118
119

See paragraph 88 above.
See paragraph 90 above.

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The Facts: The structure and status of the investigations

20 December 2014 the casefile was assigned to the newly created Special Investigations
Division (“SID”)120 of the MID of the PGO, until it was transferred back to the second
investigating unit of the Major Crimes Division of the MID of the PGO on 8 April 2015. On
25 May 2015 the casefile, together with the head of the investigative team, was transferred tothe second investigating unit of the SID of the PGO, where it currently remains. It appears
from the PGO’s submissions to the Panel that, for some months while the SID was being set
up within the MID, it was unclear which division was to take charge of the investigation of
the case.
(a) Leadership102. Since 7 May 2014 the investigating team has been headed by Mr Zinkovskyi, deputy
head of the second investigating unit in the Major Crimes Division of the MID of the PGO.
Between June and September 2014 Mr Zinkovskyi was on sick leave. He returned to work in
October 2014. However, it was only on 8 April 2015 that he resumed leadership of theinvestigations in casefile no. 186. In his absence, the investigating group was headed by
Mr Muzyka, a senior investigator in special cases from the MID of the PGO.
103. As the head of the investigative team in the case, Mr Zinkovskyi has beencoordinating the investigation into the events of 2 and 4 May; however he told the Panel that
he was principally concentrating on the investigation of the 2 May events, whereas
Mr Muzyka was working primarily on the events of 4 May. During Mr Zinkovskyi’s absence,
Mr Muzyka completed his investigation into the 4 May events.
(b) Investigating team and procedural supervisors104. According to the submissions of the PGO, a detailed account of which follows, there
are currently two investigators deployed in Odesa working exclusively on the caseconcerning police conduct, together with eight to ten investigators who could be engaged in
the investigations if the need arises. There is also one prosecutor working closely on thiscase.
105. In May 2015 the PGO submitted that the investigating group consisted of ten
investigators from the PGO and the Odesa Regional Prosecution Office. At a June meetingwith the Panel, the Head of the SID of the PGO explained that in Mr Zinkovskyi’s
investigating group there were two investigators from the PGO and two local investigatorsfrom Odesa. These four investigators were working exclusively on the Odesa case. The groupalso included four other investigators who combined work on casefile no. 186 with othertasks.
106. According to Mr Zinkovskyi, at the very beginning of the investigations the teamincluded two investigators from the PGO and six investigators from regional offices,121
working exclusively on the Odesa case. When he returned in April 2015 there were only two
people working on the case, himself and another investigator from the Odesa Prosecution
Office. Mr Zinkovskyi informed the Panel that most of the investigative acts had alreadybeen carried out and there was no need for additional staff.
107. In July 2015 the Panel was informed in the written submissions of the PGO that theinvestigating team in the case consisted of four investigators, including Mr Zinkovskyi.
120

The SID was created in December 2014; its initial function was to deal with the investigations into the
Maidan cases and also into allegations of unlawful seizure of power and embezzlement of State funds by theformer government: see also the IAP Maidan Report, §§ 173-176.
121
Namely, from the Odesa, Mykolayiv and Kherson regional offices.

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The Facts: The structure and status of the investigations

108. At the meeting with the Panel in July 2015 the representatives of the PGO explainedthat the number of investigators who were included in an investigating group and who could
potentially be involved in the investigation of a case might differ from the number ofinvestigators actually working on it. Mr Zinkovskyi and another investigator were working
exclusively on casefile no. 186, together with a supervising prosecutor. There were three
more investigators from the PGO and five local investigators who were part of theinvestigating group and who could be called on if needed. The group of prosecutors
providing procedural guidance in the case consisted of prosecutors from the PGO and four
prosecutors from the Odesa Regional Prosecution Office, who were added to the group at alater stage. The group had been changing owing to personnel movements and to the reorganisation of the division. According to Mr Zinkovskyi, there were about ten prosecutors
involved; they were also competent to take investigative actions.
109. In July 2015 the PGO stated in writing that the prosecutors’ group had last changed
on 28 May 2015 and now included 14 prosecutors from the PGO, the Odesa Regional
Prosecutor’s Office and the Kyiv City Prosecutor’s Office.
B. Investigation of the mass disorder, fire at the Trade Union Building andconduct of the SES staff
110. The MoI is in charge of investigating the mass disorder of 2 May 2014 and the fire in
the Trade Union Building, as well as the conduct of SES staff during the events on Kulykove
Pole. The staffing in relation to both cases is virtually the same and is described in detailbelow.122
1. Case concerning the mass riots and the fire in the Trade Union Building (casefiles
nos. 3700 and others)(a) Scope of the investigations

111. On 2 May 2014 the Prymorskyi District MoI Department in Odesa instituted criminal
proceedings concerning the organisation of, and participation in, the mass disorder andconcerning the fire in the Trade Union Building. Owing to the high-profile nature of the case,the casefile was transferred to the MID of the MoI on 4 May 2014, by the decision of the
Deputy Prosecutor General, Mr Banchuk.123 Procedural guidance and supervision in theproceedings is provided by the PGO.
112. Casefile no. 3700 concerning the mass disorder and the fire in the Trade Union
Building consists of ten separate proceedings and is referred to as casefile no. 3700. It covers
several stages of the events of 2 May 2014, starting from the beginning of the clashes on
Hretska Street and at the Afina Shopping Centre, and including the subsequent movement of
the clashes to the Kulykove Pole, as well as the fire in the Trade Union Building. The
following crimes are being investigated within this casefile: mass disorder (Article 294 §§ 1
and 2 of the CC), disorderly conduct (Article 296 § 2 of the CC), threats or violence towards
a law enforcement official (Article 345 § 3 of the CC), murder (Article 115 § 1 and § 2 (5)and (7) of the CC), seizing state or public buildings or constructions (Article 341 of the CC),
deliberate damage or destruction of property (Article 194 § 2 of the CC), public disturbances122
123

See paragraphs 183-189 below.
PGO website, news of 4 May 2014.

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The Facts: The structure and status of the investigationscommitted in a group (Article 293 of the CC), and the unlawful possession of weapons otherthan firearms (Article 263 § 2 of the CC).
(b) Individuals granted victim status113. Fifty persons were granted victim status in respect of the 48 deceased persons.124 In
respect of each of two of the deceased, two people were granted victim status. Two nonblood relatives claimed to be family members of an unidentified deceased person who had
died as a result of the fire in the Trade Union Building,125 but were not granted victim status.
114. Following the events of 2 May 2014, 208 persons requested medical help at various
medical institutions in Odesa. Seventy persons were recognised as victims in casefile
no. 3700 on the basis of injuries received. The remainder either did not apply for victim status
or requested medical assistance under false names which made their identification difficult.
The investigating authorities do not have information about any instances of missing persons.
115. Thirty-four police officers received injuries as a result of the 2 May events. Twentyfour police officers were recognised as victims; the others did not request victim status.
116. During the July meeting with the Panel, representatives of the 2 May Groupsubmitted that most police officers had been refused victim status and that they were being
questioned as witnesses but feared that at any moment they could be notified of suspicion, if
it were felt that scapegoats were needed.
117. The PGO disputed the allegation about the refusal to grant victim status to police
officers and submitted that, if officers had failed to present themselves as victims, this had
been their own decision.
(c) Pre-trial investigations(i) Forensic examinations

118. The PGO and the MoI submitted that more than 270 forensic examinations had been
carried out in the case. Following the collection of evidence in the city centre and the Trade
Union Building,126 an expert explosives examination and a number of ballistics reports wereordered: fifteen in May-June 2014 and one in April 2015. The authorities, however, hadfailed to identify the guns from which the fatal shots were fired. The conclusions of theexpert examinations as to the cause of the fire in the Trade Union Building and the causes ofthe deaths are discussed in detail below. The Panel’s account is based on the submissions of
the investigatory authorities concerning the relevant forensic examinations or on their publicstatements.
119. Causes of the deaths. The forensic examination of the causes of the deaths of the
48 deceased victims of the 2 May events was conducted by the Odesa Regional Bureau of
Forensic Examinations. According to the information provided by the Odesa Regional
Healthcare Department,127 six victims died as a result of injuries received in the city centre,of whom one was killed by a shot fired from an airgun and others were killed by shots from
firearm weapons (as the Panel understood from the MoI submissions,128 the latter included arifle, shotgun(s) and other unidentified weapons).
124

For more details, see Annex IV.
See paragraph 121 below.
126
For details concerning the collection of evidence, see paragraph 126 et seq.
127
For more details, see Annex IV.
128
MoI written submissions, September 2014.
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The Facts: The structure and status of the investigations

120. Thirty-four additional forensic examinations were commissioned in relation to those
who had died in the Trade Union Building, with the exception of those who died as a result of
jumping from the building. The medical expert examination established that the deaths inside
the Trade Union Building had occurred as a result of carbon monoxide poisoning, burns andhigh temperatures. No traces of torture, beating, firearm or other injuries were established;claims about poisoning by toxic agents other than carbon monoxide were not confirmed
either.129 These findings were also confirmed by the 2 May Group.130
121. It appears that one victim who died at the Trade Union Building remains
unidentified. It was reported that two persons who claimed to be related to the deceased bymarriage and adoption filed a missing person report with the authorities in May 2014. 131 At
first they failed to identify the body. A DNA test was carried out but did not establish any
genetic relationship. An expert toxicologist132 from the 2 May Group claimed that theidentification was not properly conducted since the relatives were provided with photographsof the body, rather than being given direct access to it, as required by the rules, and since theauthorities had delayed in commissioning a reconstruction of the facial features from theskull. The relatives identified the body on a second occasion in June 2015; however theauthorities sought further confirmation of the identity by commissioning a forensic
examination of the skull which appears still to be pending.
122. Cause of the fire in the Trade Union Building. It appears from the authorities’
submissions to the Panel that the report of the forensic examination of the fire in the Trade
Union Building, conducted by the Scientific Research and Forensics Centre of the MoI
Department in Mykolayiv Region, was obtained on 7 July 2014.133 The report concluded thatthe building could have caught fire as a result of one or more persons bringing combustible
materials and a source of fire into the building. The forensic examination identified fiveindependent fire centres: in the lobby of the building; on the left hand and on the right handstaircases between the ground and first floors; in a room on the first floor; and on the landing
between the second and third floors. The fire centres other than in the lobby could only havebeen started as a result of the actions of persons inside the building.
123. According to the press release issued by the PGO in April 2015, the forensic
examination established that the fire in the Trade Union Building started in the lobby. People
died as a result of the rapid spread of the fire and the sharp rise in temperature, due to thechimney effect of the central stairwell, exacerbated by the blocking of interior doors withbarricades. Almost all those who died inside the building were on or near the staircase. It wasestablished in the course of the investigations that incendiary mixtures (Molotov cocktails)
had been used by both parties to the conflict, including in the building itself. There was noevidence of pre-planned arson or of the use of potent toxic agents, including chloroform.134
These findings appear to be confirmed by the findings of the 2 May Group.135

129

PGO website, news of 22 April 2015.
2 May Group, written and oral submissions, June 2015 and oral submissions, July 2015. For details
concerning the 2 May Group findings, see Annex VII.
131
2 May Group, 25 June 2015.
132
Mr Sarkisian is a toxicologist and has previously worked for the Regional Bureau of Forensic andMedical Examinations.
133
There have been allegations that the report of the expert examination consisted of six pages only. The
PGO and MoI submitted that such information was inaccurate; it consisted of 24 pages.
134
PGO website, news of 22 April 2015.
135
See Annex VII for a summary of the findings made by the 2 May Group experts.
130- 31 -

The Facts: The structure and status of the investigations

124. According to the submissions of the PGO and the MoI, in April 2015 an inter-agency
complex fire expert examination was ordered. The additional examination was to determine
how the fire had started and progressed, as well as whether the conduct of the SES staff could
have contributed to the deaths in the Trade Union Building.136 It was commissioned in thecase concerning the conduct of the SES staff, but its results were subsequently to be joined tothe materials of the cases concerning the police conduct and the mass disorder and fire at theTrade Union Building.
125. The representatives of the 2 May Group stated before the Panel that the initial expert
report had been established without any examination of the Trade Union Building. The Groupsupported the idea of an additional expert examination; T their experts had shared with the
MoI investigators their conclusions concerning the causes of the fire in the Trade Union
Building and the causes of the deaths, and their conclusions had been joined to the materialsof the investigation. Representatives of the 2 May Group regretted, however, that it had taken
so long for the authorities to commission this additional expert examination.
(ii) Securing crime scenes and collecting evidence

126. The following places were considered by the investigatory authorities as the scenesof crimes committed on 2 May 2014: Hretska Street, Hretska Square, the Afina Shopping
Centre, Kulykove Pole and the Trade Union Building. The investigative authorities indicatedthat there had been 12 site examinations and additional site examinations had been conductedin the case for the purpose of evidence collection.
127. According to the MoI, once the fire had been extinguished, three groups ofinvestigators were deployed to examine the Trade Union Building. This took place on 3 and
4 May.
128. According to the information from the 2 May Group, all the investigative acts in theTrade Union Building were completed on 3 May. The bodies of those who had died as aresult of jumping from the building were examined on-site during the night of 2 to 3 May andthe bodies of those who had died inside the building were examined on-site between 9 a.m.
and 6 p.m. on 3 May. On the following day, 4 May 2014, the Trade Union Building was
opened to the public.137
129. It was not until 20 May 2014 that the Trade Union Building was placed under legal
control at the request of the investigators, and on 14 July 2014 it was granted the status ofmaterial evidence in the case. The representatives of the MoI confirmed before the Panel that
the Trade Union Building had remained freely accessible to the public immediately after the
events. In the investigators’ opinion, the initial measures used to secure the Trade Union
Building had not complied with procedural requirements since the local police had taken a
lax approach to public access until a fence was erected around the building some ten days
after the fire.
130. The MoI investigators admitted that it had not been appropriate to leave the Trade
Union Building open to public access shortly after the events; failing to restrict access to the
Building might leave the prosecution open to attack at trial from either the accused or thevictims. However, even though there had been open access to the Trade Union Building after

136
137

See paragraph 181 below.
2 May Group, oral submissions, July 2015.

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The Facts: The structure and status of the investigations

the events of 2 May 2014, the investigators did not consider that this had in any way
prevented the collection or analysis of evidence relating to the causes of the fire.138
131. In addition to Kulykove Pole and the Trade Union Building, the other relevant sites
included Hretska Street and Hretska Square, where six persons died as a result of injuries
received during the clashes. However, these persons were pronounced dead in the hospital,and not at the places where they received their injuries, and the MoI investigators informed
the Panel that it had been impossible to establish exactly where each person had died and who
had brought them to hospital. The investigators had examined the area where people had been
injured in the city centre immediately after the clashes ceased on 2 May, but the territory was
not sealed off. According to the PGO, it would have been impossible to seal off such a large
area in the centre of the city. All possible steps were taken to collect relevant evidence,
although the prosecutors admitted that some evidence might unavoidably have been lost.
132. Among the evidence collected during the on-site examinations were: an explosive
object of cylindrical form found on Oleksandrivskyi Avenue; a rifle; 38 objects of cylindricalform; six pistol magazines; six pistols; 43 objects which appeared to have been used as
weapons; cartridges found in the city centre; bullets and fragments extracted from corpses;
weapons such as pistols, bullets, a rifle and knives seized from the suspects; and 14 bullet
casings found during the examination of the Trade Union Building.
133. As to the crime scenes in the city centre, the representatives of the 2 May Group
claimed that the streets where the clashes had taken place had been cleaned by 7 a.m. on
3 May 2014, and that this had most probably led to the loss of evidence such as cartridges orbullet fragments. They also stated that on 12 May they had discovered traces of bullets in awindow of the Trade Union Building and bullet holes on Derybasivska Street and that somejournalists had found a knife on the roof of the Trade Union Building which had not been
discovered by the police investigators. The supervising prosecutors in the case disputed these
allegations and stated that they had received no written submissions in this respect.
(d) Current status of the investigations

134. In connection with the mass disorder on 2 May 2014, the police detained 47 persons
in the Afina Shopping Centre and 63 persons in the Trade Union Building. In addition, sevenother arrests were made: Mr Dolzhenkov, a pro-federalist activist suspected of a role in theorganisation of the mass disorder, and Mr Krasilnikov, were detained on 6 May 2014 at theirhomes; Mr Mefiodov139 was detained on 6 May in hospital; Mr Serebriakov was detained at
the border on 7 May 2014; Mr Khodiak, a pro-unity activist suspected of killing one person
and attempting to kill a law enforcement officer, was detained on 18 May 2014 at his home;
and two pro-unity activists, Mr Volkov and Mr Honcharevskyi, were detained at their homes
on 26 May and 14 August 2014 respectively.140
135. Subsequently 106 persons were released. The 63 persons detained in the Trade Union
Centre were released on 4 May 2014 following the storming of the Odesa City Police
138

According to an expert from the 2 May Group, the opening of the building to the public could not haveaffected the quality of the official investigation into the causes of the fire, since the traces left by the fire wereenduring. He entered the Trade Union Building on 6 May and was still able to collect the evidence necessary to
carry out an unofficial expert examination of the causes and progress of the fire. See Annex VII for a summaryof findings made by the 2 May Group experts.
139
Mr Mefiodov was among those who were in the Trade Union Building when it caught fire and hesuffered carbon monoxide poisoning.
140
PGO and MoI written submissions, July 2015.

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The Facts: The structure and status of the investigations

Station.141 Others were released following the application of other measures of restraint. As at
August 2015, ten suspects remained in detention. According to media reports, on 27 August
2015 three detainees were released to house arrest.142
136. Since the beginning of the investigations 127 persons have been notified of suspicion.
The cases against 85 of them, concerning participation in mass disorder (Article 294 § 2 of
the CC) were terminated on 9 February 2015 on the grounds of insufficient evidence and theexhaustion of all possibilities to obtain such evidence (Article 284 § 1 (3) of the CPC). The
case against another suspect, Mr Hrybovskyi, was terminated on the same grounds on
5 November 2014. One case, in respect of Mr Volkov, a pro-unity protester suspected ofshooting into the Trade Union Building,143 was terminated when he died of natural causes(Articles 284 § 1 (5) of the CPC).
137. In their written submissions in July, the PGO explained that after the termination of
the cases under Article 284 § 1 (3) of the CPC, the persons concerned were no longer
considered suspects. However, if additional evidence were subsequently found, the decision
to close the proceedings could be set aside by a prosecutor at a higher level. Only one of the
85 cases144 closed in February 2015 has been re-opened.
138. Thirteen persons have been put on the wanted list, including Mr Artem
Davydchenko, one of the leaders of the AntiMaidan movement, and Mr Budko, an armed
participant in the mass disorder.145 The investigating authorities have identified eight persons
from the AntiMaidan group and one pro-unity activist (in addition to Mr Volkov, whose case
had been terminated146) who had been using firearms in the city centre or in or around theTrade Union Building on 2 May.
(i) Cases terminated on the basis of insufficient evidence

139. As noted above, the case against Mr Hrybovskyi, suspected of participation in themass disorder which had led to deaths or other grave consequences, was terminated on
5 November 2014 on the basis of the insufficiency of evidence against him. However,representatives of the PGO informed the Panel that the casefile concerning Mr Hrybovskyi
contained ample evidence of his participation in the mass disorder in Odesa on 2 May 2014
and that the case against him had been terminated at the request of the SSU, which had
sought to exchange him and three suspects in cases unrelated to Odesa, for SSU officers held
prisoner in the conflict zone in the East, some of whom were gravely ill. It was suggested thatcertain AntiMaidan activists who were active in the conflict zone had specifically requested
the exchange of Mr Hrybovskyi. Since Ukrainian legislation did not contain any legal basis toterminate a criminal case for the purpose of such an exchange, the investigating authorities
had closed the case under Article 284 § 1 (3) of the CPC. The SSU submitted to the Panelthat they had not initiated any exchange of suspects.147
140. Another case which was terminated on the ground of insufficient evidence was thatagainst Mr Honcharevskyi,148 a pro-unity activist detained on 14 August 2014. On the same141

See paragraph 37 above.
Dumskaya, 27 August 2015.
143
See paragraph 24 above.
144
See paragraphs 140-141 below.
145
See paragraph 20 above.
146
See paragraph 136 above.
147
SSU written submissions, September 2015.
148
Mr Honcharevskyi, together with Mr Khodiiak, is in the list of individuals proposed for inclusion in a
draft amnesty law – see paragraph 39 above.
142- 34 -

The Facts: The structure and status of the investigations

day he was notified of suspicion of organising and actively participating in mass disorderwhich had led to grave consequences. In particular, Mr Honcharevskyi was suspected ofusing a wooden club to inflict injuries on persons who had jumped from the burning Trade
Union Building, and of preventing them from obtaining medical help, as well as of organisingother persons to act in a similar manner which, according to the charges against him, had led
to the death of eight persons.149 He was placed under a measure of restraint in the form of apersonal undertaking. On 9 February 2015 the case against him was terminated under
Article 284 § 1 (3) of the CPC.
141. On 3 July 2015 the Prymorskyi District Court of Odesa, on the appeal of a victim,
quashed the decision to terminate the case against Mr Honcharevskyi and returned it to the
PGO for further pre-trial investigations. The court found that the decision to terminate thecase had been premature, since the investigators had failed to exhaust all the available
possibilities to collect sufficient evidence, such as questioning witnesses or conducting an
identification procedure.150 The pre-trial investigation in the case is pending (casefile
no. 456). No measure of restraint has been applied to the suspect.
(ii) Completed pre-trial investigations and cases sent to court

142. According to the information provided to the Panel by the investigatory authorities,
as at 31 August 2015 the following casefiles had been sent to court or were about to be sent
to court.
143. Casefile no. 380, which initially concerned 24 suspects, all AntiMaidan activists, themajority of whom were detained in the Afina Shopping Centre. Two suspects absconded
when the case materials were opened to the parties at the end of the pre-trial investigation andthe proceedings against these two suspects were separated into another casefile (no. 558) andput on hold. As noted above,151 proceedings against another suspect, Mr Hrybovskyi, were
terminated to enable his exchange for SSU officers held captive in the East.
144. Thus, on 24 November 2014 the prosecution sent to court an indictment relating to
21 persons, accused of organising and participating in the mass disorder, which had resulted
in death and the destruction and seizure of property, a crime under Article 294 § 2 of the CC.
Since the lodging of the indictment, another accused has absconded. One person isadditionally charged with unlawful possession of a weapon other than a firearm under
Article 263 § 2 of the CC.
145. The case was initially sent to the Prymorskyi District Court of Odesa. However, after
a number of recusals by judges, principally because of their participation at the interlocutory
stages, it was transferred in December 2014 to the Malynovskyi District Court of Odesa,
where it is currently being examined.
146. Lawyers representing the accused have complained about shortcomings in theindictment. In particular, they complained before the domestic courts and to the Panel that the
charges against all 21 defendants were identical and had not been individualised. The Panelobserves that the indictment, a copy of which was provided to it, does not specify theparticular activities of which each accused person is charged; the text of the charges inrespect of each of the accused is practically identical.

149

A copy of the notification of suspicion in respect of Mr Honcharevskyi, dated 14 August 2014, wassubmitted to the Panel by a defence lawyer.
150
A copy of the court decision of 3 July 2015 was submitted to the Panel by a defence lawyer.
151
See paragraphs 136 and 139 above.

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The Facts: The structure and status of the investigations

147. On 2 February 2015 the Malynovskyi District Court of Odesa, at the request of the
defence lawyers, decided to return the casefile to the PGO because of shortcomings in theindictment.152 The court agreed with certain claims made by the defence and found thefollowing shortcomings in the indictment: a failure to attach originals rather than copies ofcivil claims to the indictment; a failure to attach written confirmation of the receipt of copies
of civil claims by suspects; and the absence of the translator’s signature on the translated
copy of the indictment. The court also found a number of shortcomings in the registering of
the case materials attached to the indictment, including the absence of notification to thesuspects and their representatives of the close of the pre-trial investigations and of the
granting of access to the materials of the case and the absence of notification to the victims
and civil claimants of the opening of the case materials to the parties.
148. The defence lawyers appealed against the decision, repeating their claims about thelack of concrete and individualised charges in the indictment. On 20 March 2015 the Odesa
Regional Court of Appeal rejected the claims and upheld the decision of the first-instancecourt of 2 February 2015.153
149. On 23 March 2015 prosecutors drew up a new bill of indictment, which was
submitted to the court on 25 March 2015. On 27 April 2015, in response to the defence
lawyers’ claims about further defects in the indictment, the Malynovskyi District Court ofOdesa decided to return it to the PGO for rectification of the shortcomings. 154 The court
stated that the indictment contained information of a social and political character unrelated
to the factual background of the case, and found a number of additional shortcomings, suchas a failure to provide translated copies of the indictment and copies of the materials to theaccused persons, and a failure to record properly all the procedural acts and decisions and toserve relevant notifications on victims and their representatives.
150. On 14 May 2015, on the prosecutor’s appeal, the Odesa Regional Court of Appeal
quashed the decision of the first instance court and sent the case for trial.155 It found no
shortcomings in the bill of indictment or the register of the case materials.
151. It appears that the hearing on the merits of the case did not start until the end of
July 2015 when reading of the indictment commenced. Previous court hearings had been
postponed on numerous occasions because of the absence of one of the parties (mostfrequently one of the defendants or their lawyers) or another participant in the trial (such as
an interpreter), or because of the filing of procedural motions, including requests by the
defence for recusal of judges or prosecutors, as well as decisions by judges to recuse
themselves. It has also been reported that court hearings had been disrupted, either by theaccused themselves, for instance by shouting offensive comments at the judges, or by prounity activists attending the hearings.156
152. As at the end of the August 2015, ten of the suspects had been detained continuously
since their arrest on 2 May 2014. On 27 August 2015, according to local media, the measuresof restraint in respect of three suspects were changed from detention to house arrest.157
153. No decision on the merits has been taken in the case.

152

Unified State Register of Judicial Decisions, case no. 521/54/15-к, ruling of 2 February 2015.
Loc. cit., case no. 521/54/15-к, ruling of 20 March 2015.
154
Loc. cit., case no. 521/4695/15-к, ruling of 27 April 2015.
155
Loc. cit., case no. 521/4695/15-к, ruling of 14 May 2015.
156
2 May Group, oral submissions, July 2015.
157
See footnote 142 above.
153- 36 -

The Facts: The structure and status of the investigations

154. The case concerning Mr Posmichenko, who was arrested in the Afina Shopping
Centre and is accused of active participation in the mass disorder leading to graveconsequences, was sent to court on 30 January 2015.
155. The case against Mr Khodiak, a pro-unity activist, was sent to the Prymorskyi
District Court of Odesa on 22 April 2015. The indictment contains the following charges:
murder (Article 115 § 2 (5) and (7) of the CC), attempted murder (Articles 15 § 2 and115 § 2 (1), (5), (7) of the CC), attempt on the life of a law enforcement officer (Article 348of the CC) and mass disorder (Article 294 § 2 of the CC). According to information provided
by the PGO, it was established that during the mass disorder Mr Khodiak, armed with agrapeshot hunting gun, fired several times at a group of people who had attacked the prounity crowd. He is accused of killing one person and severely injuring a police officer.
156. According to local media reports, after the case was sent to court, on several
occasions the judges of the Prymorskyi District Court of Odesa recused themselves;158 thejudges of the court also requested the higher court to allocate the case to another court.159
Following a further recusal of two judges, at the beginning of August 2015 Mr Khodiak’s
case was transferred to the Malynovskyi District Court of Odesa. It has been alleged by alocal Odesa newspaper that the judges of the Prymorskyi Court were pressured to recuse
themselves by a member of the Radical Party.160
157. After his arrest at home on 18 May 2014, the investigating authorities requested thecourt to place Mr Khodiak in pre-trial detention. He was instead placed under house arrest by
the decision of the Pecherskyi District Court of Kyiv. The prosecutors’ appeal against thedecision was unsuccessful. The measure of restraint in the form of house arrest has now
expired and Mr Khodiak is accordingly subject to no measure of restraint. He has continued
to attend the court hearings in his case.
158. Victims submitted to the Panel that there had been instances of harassment andintimidation, by pro-unity activists and supporters of Mr Khodiak, of victims and witnesses
attending the court hearings in his case. During such incidents the police had allegedly
remained inactive, with the result, it was claimed, that victims had refused to attend further
hearings unless action was taken to ensure their safety. The investigatory authorities denied to
the Panel that they had received any information concerning the refusal of victims andwitnesses to attend the hearings.
159. It appears that there has been no hearing on the merits of the case since it was sent tocourt at the end of April 2015.
160. Three separate cases against three suspects, accused of active participation in themass disorder resulting in grave consequences, accompanied with violence and resistance tostate officials and/or of illegal possession of firearms, were sent to the Prymorskyi District
Court of Odesa, after the indictments in two of the cases had been approved on 25 June 2015
and in the other case on 21 August 2015.
161. The case against Mr Astakhov (casefile no. 263), concerns an AntiMaidan activist
suspected of active participation in the mass disorder and other unrelated offences, including
three murders. The indictment is being drawn up and, according to the investigating
authorities, will be sent to court in the near future.
158

See, for instance, Dumskaya, 2 July and 14 July 2015.
Loc. cit., 26 June 2015.
160
Loc. cit., 13 August 2015. Members of the Radical Party also initiated a draft law with the purpose of
granting amnesty to, among others, Messrs Khodiiak and Honcharevskyi, two pro-unity activists involved in the
2 May events – see paragraph 39 above for further details.
159- 37 -

The Facts: The structure and status of the investigations(iii) Cases pending investigations

162. Casefile no. 2190 concerns ten individuals suspected of participating in the massdisorder who disappeared and who have been put on the wanted list, among them
Mr Budko,161 who was notified of suspicion on 12 May 2014. The MoI investigators
submitted before the Panel that Mr Budko should have been arrested by the Odesa police andthat the blame for his escape lay with the local authorities, who had had charge of the earlystages of the case. By the time the investigation was taken over by the MID of the MoI,
Mr Budko had already absconded.
163. In casefile no. 453, Mr Artem Davydchenko, one of the leaders of the AntiMaidan
movement, is suspected of the organisation of mass disorder. On 17 November 2014 the casewas suspended because the suspect had absconded. According to the investigating authorities
before the Panel, Mr Davydchenko disappeared immediately after the events of 2 May andwas never detained by the authorities in connection with them.162 Notification of suspicion
was issued to him on 30 May 2014 and on 6 June 2014 he was put on a wanted list.
164. As to the fire in the Trade Union Building, no-one has been notified of suspicion of
causing the fire, including the throwing of Molotov cocktails towards or into the building.
Although the faces of some of those who prepared and threw Molotov cocktails are visible onvideo footage, the authorities claim not to have established their identities.
2. Case concerning the conduct of the SES staff
165. The case concerning the conduct of the SES staff is being investigated by the MID of
the MoI. Immediately after the events of 2 May the SES carried out an internal inquiry into
the conduct of its staff.163 The criminal case was not opened until October 2014.164
166. The SES is a central State executive body, whose principal role is to ensure civil
protection and the protection of the population and the national territory in emergency
situations, as well as the prevention of such situations. It is also for the SES to ensure
containment of emergencies and to conduct rescue and firefighting operations. The service
has its own leader. However, from April 2014 the Cabinet of Ministers has been coordinating
and directing the activity of the SES through the Minister of the Interior. 165 The Minister of
the Interior is also responsible for making a proposal to the Prime Minister as to theappointment and dismissal of the Head of the SES. Following the Minister of the Interior’s
proposal, the Prime Minister in turn makes a proposal to the Cabinet of Ministers, whichtakes the decision.166 The Minister of the Interior may also represent the SES in government.
The SES is financially accountable to the MoI and is funded from the State budget throughfunds allocated to the MoI.167
161

See paragraph 20 above.
Written submissions, September 2015. Compare, however, the MoI statement of 8 May 2014 summarisedin Annex VI, paragraph 25.
163
See paragraphs 168-177 below.
164
See paragraph 178 below.
165
Verkhovna Rada website, Resolutions of the Cabinet of Ministers no. 120 of 25 April 2014 and no. 442
of 10 September 2014.
166
During a certain period in March-May 2015 the SES was headed by an Adviser to the Minister of theInterior. Thus, on 25 March 2015 the Cabinet of Ministers appointed Mr Shkiriak, an adviser to the Minister of
the Interior since 2014, as Acting Head of the SES. Since 14 May 2015 the SES has been headed by
Mr Chechotkin, formerly a senior official at the SES.
167
SES written submissions, August 2015.
162- 38 -

The Facts: The structure and status of the investigations

167. The PGO submitted to the Panel that the SES was a separate State agency within the
structure of the MoI, over which the Minister had a certain influence. The MoI similarly
submitted that the activity of the SES was coordinated by the Minister of the Interior but that
it was a separate body.
(a) Internal inquiry by the SES

168. The following account is based on the internal inquiry conducted by the SES, a copyof which was supplied to the Panel by the MoI.
169. The internal inquiry was conducted by SES officials and the conclusion, issued on
3 June 2014, was approved by the then Head of the SES, Mr Bochkovskyi. The inquiry
established that at 4.30 p.m. on 2 May 2014 a fire engine returning to the fire station was
captured by unidentified individuals and damaged when used to batter down barricades.
A successful attempt to secure the release of the fire engine was made by the Head of theMain Department of the SES in the Odesa Region, Mr Bodelan; his First Deputy,
Mr Velykyi; the Deputy in charge of reacting to emergency situations, Mr Hubai; and theHead of the Odesa City SES Department, Mr Shushulkov. Subsequently Mr Hubai orderedthat fire engines should be dispatched only on his order or on the order of Mr Bodelan or
Mr Velykyi. According to Mr Bodelan, he instructed Mr Hubai to issue this order to preventthe capture of another fire engine or any risk to the lives of his staff caused by the disorder.
170. The fire service was first notified of the burning tents on Kulykove Pole at 7.31 p.m.
At 7.32 p.m. Mr Bodelan informed the dispatch centre that he was at Kulykove Pole, whereclashes were continuing, and directed that no fire engine should be sent until he gave theorder. At 7.45 p.m. the dispatch centre received information about the fire in the Trade Union
Building. The first order to send a fire engine to the scene came from Mr Bodelan at
7.55 p.m. The fire-fighting unit arrived at Kulykove Pole at 8.09 p.m. According to thefireman leading the unit, their work was complicated by the obstruction and threats ofaggressive activists. Another unit arrived at 8.16 p.m.
171. According to the internal inquiry, Mr Bodelan, as the senior official, was responsible
for leading and organising the fire-fighting efforts. It concluded that he had failed to appoint
any person responsible for work safety on the spot.
172. At 8.50 p.m. Mr Hubai announced that the fire had been extinguished. The operation
had been hindered by the constant throwing of bottles containing combustible substances into
the building and other interferences by third persons. As a result of the rescue operations,
120 persons were rescued from the fire and a further 210 persons were evacuated from thebuilding. The evacuation was delayed since people were afraid to come out because of thepresence of aggressive activists.
173. In its conclusion, the internal inquiry stated that appropriately equipped fire-fighting
units should have been sent to Kulykove Pole at 7.31 p.m. immediately on receipt of
information about the burning tents there and also at 7.45 p.m. when the first calls werereceived about the fire in the Trade Union Building. The inquiry established that the
documentation relating to operational work and to human resources management had notcomplied with the applicable rules and further identified certain breaches during the conductof the operation. It recommended, among other things, that the Higher Personnel Review
Commission should hold a hearing in respect of Mr Bodelan. Approving the conclusions of
the internal inquiry, the Head of the SES ordered Mr Bodelan to be reprimanded.

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The Facts: The structure and status of the investigations

174. Following the results of the internal inquiry, Mr Bodelan was reprimanded by adecision of 11 June 2014. He challenged the decision in court, and on 28 July 2014 the first
instance court allowed the application and quashed the decision.168 The decision of the first
instance court was subsequently quashed by the appellate court169 and the case is currently
pending before the court of cassation.170
175. On 10 September 2014 Mr Bodelan left the SES when his contract was not renewed.
Mr Vasyl Byrko, the head investigator in the case concerning the conduct of the SES staff,
informed the Panel that Mr Bodelan had left Ukraine at some point towards the end ofJanuary or beginning of February 2015 and that his whereabouts were now unknown.
176. Both the MoI and the PGO submitted to the Panel that the internal inquiry had been
carried out in a formalistic way and was not objective. For this reason, on 21 April 2015, theMID of the MoI requested the SES to conduct another internal inquiry, listing certain specificquestions to be addressed. The questions were aimed at establishing, among other things,
whether all necessary and adequate efforts and resources were engaged in fighting the fire at
the Trade Union Building and whether the actions of all the staff members had complied with
their duties and the requirements of the law. However, the SES had disregarded the request to
conduct another internal inquiry and had confined itself to replying by sending a letter withanswers to the investigator’s questions and enclosing a number of documents.
177. The supervising prosecutor in the case submitted before the Panel that the SES had
been negligent in their treatment of the request for an additional internal inquiry and that
another internal inquiry would be initiated under the PGO’s supervision. Neither the firstinternal inquiry, nor the response given to the request for an additional internal inquiry, fullyreflected the circumstances established in the course of the investigations. In the PGO’sopinion, better co-operation on the part of the SES, and the willingness of the service’s
leadership promptly to establish all the objective circumstances of the events, would havefacilitated the progress of the investigation.
(b) Pre-trial investigation

178. The pre-trial investigation of the conduct of the SES officials was instituted on
16 October 2014, following a complaint lodged by the head of an NGO with the militaryprosecuting authorities. The investigation of the case was initially assigned to the Odesa
Regional MoI Department. However, in December 2014 the PGO transferred the case to the
MID of the MoI because of the lack of effective investigation by the local department.
179. The MoI investigators informed the Panel that the MoI had been competent tocommence an investigation into the actions of the SES on its own initiative but had not done
so. They explained that the SES was a public service and that cases against public officials
were usually investigated by other authorities. Representatives of the PGO submitted to the
Panel that they had not opened criminal proceedings against the SES after the 2 May eventsfor lack of sufficient grounds.
180. The casefile is confined to the investigation of the actions of the SES staff, currently
under Article 367 § 2 (neglect of duty) and Article 135 § 3 (failure to provide assistance topersons in dangerous situations) of the CC; it does not include an investigation into the168

Unified State Register of Judicial Decisions, case no. 815/4043/14, ruling of the Odesa District
Administrative Court of 28 July 2014.
169
Loc. cit., resolution of the Odesa Region Administrative Court of Appeal of 22 October 2014.
170
SES written submissions, August 2015.

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The Facts: The structure and status of the investigations

causes of the fire, which falls within the casefile concerning the mass disorder.171 However,the forensic examination reports on the persons killed as a result of the fire have been
included in the SES casefile, since the acts or omissions of the SES staff might havecontributed to the loss of life. No one has been granted victim status in the casefile relating to
the SES.
181. As noted above,172 on 17 April 2015 an inter-agency expert examination was orderedin this case, the results being requested by the second half of August 2015; however, theexamination had not been completed by the end of August. The representatives of both the
PGO and the MoI claimed that the additional forensic report was necessary to establish any
causal link between the acts and omissions of the SES staff and the deaths at the Trade Union
Building, and also to determine the specific obligations imposed by law on SES officials andemployees. The 2 May Group also supported the commissioning of this additional forensic
report.
182. No person has been notified of suspicion in the case. The pre-trial investigation ispending.
3. Staffing
183. Based on the submissions of the PGO and the MoI, a detailed account of which
follows, the Panel understands that there are three investigators from the MID of the MoI
working exclusively on the casefiles concerning the mass disorder and the fire at the Trade
Union Building and the conduct of the SES staff. Two of these investigators have been
involved in the investigations since 5 May 2014, and the other, since June 2014. They are
assisted by local investigators.
(a) Leadership

184. Since 5 May 2014 and until mid-August 2015 the group was headed by the Deputy
Head of the Division of the Main Investigations Department of the MoI, Mr Rudnytskyi, who
was based in Odesa. However, in mid-August 2015 he was recalled to Kyiv because of theneeds of the service. According to the PGO, Mr Mykola Rudnytskyi continues to be engaged
in the investigation of the Odesa cases. Since his departure from Odesa, the investigatingteam has been led by Mr Ruslan Sushko, an investigator from the MID of the MoI who has
been engaged in the investigation of these cases since June 2014. Mr Byrko, an MID
investigator, heads the investigations into the actions of the SES officials; he is engaged
exclusively on this case and is based in Odesa.
(b) Investigating team and procedural supervisers185. At the outset of the Panel’s review, the PGO and the MoI stated that the investigatinggroup in charge of investigating the cases concerning the mass disorder, the fire at the Trade
Union Building and the conduct of the SES staff comprised eight investigators from the MIDof the MoI and included investigators from the Odesa Regional and City MoI Departments aswell as from four district divisions of the Odesa City MoI Departments.173

171

See paragraph 111 et seq.
See paragraphs 124-125 above.
173
Namely, the Prymorskyi, Suvorovskyi, Kyivskyi and Malynovskyi Departments of the Odesa City MoI
Office.
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The Panel’s assessment: Procedural requirements

186. In July 2015 the MoI and the PGO submitted that initially the investigating group had
consisted of nine MID investigators and that it had subsequently been reduced to three
investigators. These three investigators (Messrs Rudnytskyi, Byrko and Sushko) had beenpart of the group from the beginning, working exclusively on the Odesa cases. This was also
confirmed during the Panel meeting with these investigators in July. The others had been
involved in the investigations at different periods of time: two between May and September
2014, one from June 2014 until March 2015, two between May 2014 and March-April 2015
and another between September 2014 and June 2015. They were assisted by eight local
investigators.
187. The head of the investigating group submitted that each of the three MID
investigators has three local investigators to assist him. Other investigators had been removed
from the investigation and transferred to work in the East or other regions. The MoI
investigators explained before the Panel that there was a lack of investigators because of the
difficult situation in the country and the increased crime rate. In addition, there were no
specialists in Ukraine who had investigated such a type of case, since tragedies similar to thatin Odesa had never previously occurred in Ukraine. The MID investigators put in charge of
the Odesa investigations came from the department specialised in investigating murders.
188. Procedural guidance in the case is carried out by the Main Department forSupervision in Criminal Proceedings of the PGO. In addition, the group of prosecutors also
includes prosecutors from the Vinnytsya and Odesa Regions as well as prosecutors from thepublic prosecution offices of the Prymorskyi, Suvorovskyi, Kyivskyi and Malynovskyi
districts of Odesa. The group of prosecutors, headed by Mr Hrytsiuk carrying out proceduralsupervision in casefile no. 3700 comprises 23 prosecutors. Seven prosecutors from the PGO,
headed by Mr Kozyuba, carry out procedural supervision in casefile no. 154, with two or
three of them engaged full-time and the others called on if needed.
189. The PGO representatives explained at a meeting with the Panel that in practice twoprosecutors are involved in casefile no. 3700 and one prosecutor in casefile no. 154.

THE PANEL’S ASSESSMENTI.

PROCEDURAL REQUIREMENTS

190. Article 2 of the European Convention on Human Rights (“the Convention”) protects
the right to life and Article 3 guarantees protection from torture and inhuman or degrading
treatment or punishment. The Mandate of the Panel, as interpreted by it, requires it to assess
the compliance of the Odesa investigations as a whole with the procedural requirements ofArticles 2 and 3. It is not the Panel’s role to determine whether the investigation in any
particular case satisfied the requirements of these Articles. For this reason, for the purposes ofthe procedural obligation under Article 3, the Panel has made the assumption that some, atleast, of those injured during the mass disorder sustained injuries of sufficient seriousness tomeet the threshold of Article 3, without seeking to identify the individuals whose cases
would, indeed, fall within the scope of that provision. Moreover, in light of the converging- 42 -

The Panel’s assessment: Procedural requirements

principles deriving from Articles 2 and 3, the Panel has examined the compliance of therelevant investigations with both provisions together. These principles are well established.174
191. In interpreting Articles 2 and 3, the European Court is guided by the principle that theobject and purpose of the Convention, as an instrument for the protection of individual
human beings, requires that its provisions be interpreted and applied so as to make its
safeguards practical and effective. Article 3, like Article 2, must be regarded as one of themost fundamental provisions of the Convention and as enshrining the core values of thedemocratic societies making up the Council of Europe.
192. The obligation under Article 1 of the Convention to secure to everyone within theirjurisdiction the rights and freedoms defined in the Convention, taken in conjunction with
Article 2, imposes on States a duty to secure the right to life by putting in place effective
criminal law provisions to deter the commission of offences against the person, backed up by
law enforcement machinery for the prevention, suppression and punishment of breaches ofsuch provisions.
193. The positive obligation of States under Article 3 requires them to take measuresdesigned to ensure that individuals within their jurisdiction are not subjected to torture or
inhuman and degrading treatment or punishment, including such treatment applied by private
individuals.175 According to the well-established case law of the European Court,176 thispositive obligation requires that there should be some form of effective official investigation
when there is reason to believe that an individual has sustained life-threatening injuries or has
been subjected to ill-treatment. Although the scope of the State’s positive obligation might
differ between cases where treatment contrary to Articles 2 and 3 has been inflicted by, orwith the involvement of, State agents and cases where violence is inflicted by private
individuals, the requirements of an official investigation are substantially the same.177
194. The authorities must act on their own motion once the matter has come to theirattention. In the case of death or injuries reaching the threshold of Article 3, they cannot leaveit to the initiative of the victim or next-of-kin either to lodge a formal complaint or to request
the adoption of any particular line of inquiry or investigative procedure. Even in the absenceof an express complaint, an investigation should be undertaken if there are sufficiently clear
indications that acts in violation of Convention rights might have occurred.178
174

They have been summarised in, for example, the judgments in Nachova and Others v. Bulgaria [GC],applications nos. 43577/98 and 43579/98, §§ 110-113, ECHR 2005-VII; Al-Skeini and Others v. the United
Kingdom [GC], application no. 55721/07, §§ 162-167, ECHR 2011; Association “21 December 1989” andOthers v. Romania, applications nos. 33810/07 and 18817/08, §§ 133-135, judgment of 24 May 2011; Giuliani
and Gaggio v. Italy [GC], application no. 23458/02, §§ 298-306, ECHR 2011; El-Masri v. “the former Yugoslav
Republic of Macedonia” [GC], application no. 39630/09, §§ 182-185, ECHR 2012. As regards cases against
Ukraine, see, among many others, Davidov and Others v. Ukraine, applications nos. 17674/02 and 39081/02,
judgment of 1 July 2010; Nechiporuk and Yonkalo v. Ukraine, application no. 42310/04, 21 April 2011;
Aleksakhin v. Ukraine, application no. 31939/06, judgment of 19 July 2012; and Savitskyy v. Ukraine,
application no. 38773/05, 26 July 2012.
175
See, for instance, M.C. v. Bulgaria, application no. 39272/98, § 151, ECHR 2003-XII.
176
Assenov and others v. Bulgaria, application no. 24760/94, § 102, judgment of 28 October 1998; Menson
and Others v. the United Kingdom (dec.), application no. 47916/99, ECHR 2003-V; Members of the Gldani
Congregation of Jehovah’s Witnesses and Others v. Georgia, application no. 71156/01, §§ 96-97, judgment of
3 May 2007; Angelova and Iliev v. Bulgaria, application no. 55523/00, § 94, judgment of 26 July 2007;
Muravskaya v. Ukraine, application no. 249/03, § 41, judgment of 13 November 2008; Denis Vasilyev v. Russia,
application no. 32704/04, §§ 97-100, judgment of 17 December 2009; Milanovic v Serbia, application
no. 44614/07, § 85, judgment of 14 December 2010; Fedorchenko and Lozenko v. Ukraine, application
no. 387/03, § 41, judgment of 20 September 2012; Danilov v. Ukraine, application no. 2585/06, § 69, judgmentof 13 March 2014; Amadayev v. Russia, application no. 18114/06, §§ 68-70, judgment of 3 July 2014.
177
See, for instance, Denis Vasilyev v. Russia, cited above, § 100.
178
See, for instance, Begheluri and Others v. Georgia, application no. 28490/02, § 99, 7 October 2014.

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The Panel’s assessment: Preliminary remarks: challenges

195. The European Court has already held that this obligation to investigate applies evenin difficult security conditions, including in a context of armed conflict. 179 Even where theevents leading to the duty to investigate occur in a context of generalised violence andinvestigators are confronted with obstacles and constraints which compel the use of lesseffective measures of investigation or cause an investigation to be delayed, Articles 2 and 3
require that all reasonable steps should be taken to ensure that an effective and independent
investigation is conducted.180
196. The essential purpose of such an investigation is to secure the effective
implementation of the domestic law safeguarding the right to life and prohibiting torture andinhuman or degrading treatment and punishment. More generally, 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 the rule of law and in preventing
any appearance of impunity for, collusion in, or tolerance of, unlawful acts. Thus, in order tomaintain public confidence in the criminal justice system the authorities must ensure aneffective investigative response to unlawful killings or ill-treatment and to any failure on thepart of State agents to fulfil their duty to protect life and provide protection from illtreatment.
197. Once the investigative obligation is triggered, the investigation must comply with anumber of particular requirements. The investigation must be independent and it must also
be effective. A requirement of promptness and reasonable expedition are implicit in thiscontext. The victims or next-of-kin must be adequately involved in the procedure andthere must be a sufficient element of public scrutiny of an investigation and of its results.
The Panel has addressed below each of these elements in turn.
II.

PRELIMINARY REMARKS: CHALLENGES

198. Before turning to an assessment of whether the authorities have complied with therequirements of Articles 2 and 3 of the Convention, the Panel considers it necessary to set out
some of the challenges which confronted the investigations, since the latter must be assessed“with regard to the practical realities of investigation work”.181
199. As shown above,182 the general situation in Ukraine and in Odesa was, and still is, farfrom being stable. By 2 May 2014 the authorities were already pursuing a range of complex
investigations, including those concerning the violent events in Maidan, the abuse of powerand economic crimes allegedly committed by high-ranking officials of the former regime andterrorist activity in the eastern regions. All these were a drain on the authorities’ limited
resources in terms of both the prevention and investigation of crime.183
200. The events of 2 May 2014 in Odesa were of an unprecedented nature, given thenumber of persons involved in the clashes and the resulting toll of dead and injured. The
authorities admitted before the Panel that they had no specialists experienced in dealing withsuch large-scale disorder and violence and that they had instead assigned to the teaminvestigators used to working on offences such as murder.184 The geographical spread of the179

See, for instance, Al-Skeini and Others v. the United Kingdom, cited above, § 164 (with further
references).
180
Ibid.
181
See, for instance, Giuliani and Gaggio v. Italy, cited above, § 302.
182
See paragraph 1 et seq above.
183
See, for instance, paragraph 187 above where the head of the investigative team was quoted as saying thatinvestigators had been removed from the investigation and sent to work in the East or other regions.
184
Ibid.

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The Panel’s assessment: Preliminary remarks: challenges

disorder presented a further challenge: several busy streets and buildings, including a
shopping centre, became battlefields. In consequence, in order to investigate the crimes
committed there, the authorities were required to seal and search the area as quickly andthoroughly as possible so as not unduly to disrupt life in the city.
201. Although the investigators had at their disposal a large volume of video footage,
many active participants in the mass disorder had their faces hidden by masks, scarves orbalaclavas, making their identification problematic.185 Many participants either did not seek
medical assistance for fear of reprisals or sought it under a false name.186 Among thoseindividuals who were identified as witnesses, there was a reluctance to cooperate with theauthorities and to provide evidence,187 given the significant political divisions and lack oftrust which still affected the society. These factors undeniably put an additional burden on theinvestigative authorities in their attempts to unravel an already complex case.
202. As in its review of the Maidan-related investigations,188 the Panel further observes
that there had been a significant decrease in the number of investigative staff of the PGO overthe preceding few years, in line with various Council of Europe and international
recommendations to reduce its investigative role. As part of this process, the CPC wasamended in 2012 to provide that the investigation of crimes by law enforcement officers andofficials would be carried out by the State Bureau of Investigations. However, that body has
not yet been established. Since one of the three Odesa-related sets of proceedings concerned
crimes allegedly committed by law enforcement officials and officers, the public prosecution
service became the primary investigative body for those crimes, at a time when its
investigating capacity had been significantly reduced.
203. Nevertheless, while allowance must be made for the significant challenges
confronting those responsible for the investigations into the events in Odesa on 2 May 2014
and their impact on the investigations, the Panel reiterates that these challenges cannot excuse
any failings which did not inevitably flow from them.189 The authorities clearly were, and are,under an obligation to take all reasonable steps to ensure that the investigations comply withthe requirements of Articles 2 and 3 of the Convention.
Conclusion
204.
The challenges confronting those responsible for theinvestigations into the events in Odesa on 2 May 2014 have beensignificant and their impact on the investigations cannot be underestimated. However, these challenges cannot excuse any failings which
did not inevitably flow from them. The authorities clearly were, and are,under an obligation to take all reasonable steps to ensure that theinvestigations comply with the requirements of Articles 2 and 3 of
the Convention.

185

See, for instance, the relevant statement summarised in Annex VI, paragraph 42.
See paragraphs 33 and 114 above.
187
See the relevant statement summarised in Annex VI, paragraph 33.
188
See IAP Maidan Report, § 405.
189
For example, Al-Skeini and Others v. the United Kingdom, cited above, § 164; Mocanu and Others v.
Romania [GC], applications nos. 10865/09, 45886/07 and 32431/08, § 319, ECHR 2014 (extracts); and Jaloudv. The Netherlands [GC], application no. 47708/08, § 186, ECHR 2014.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

III.

COMPLIANCE WITH ARTICLES 2 AND 3 OF THE CONVENTION
A. Independence

205. The Convention requires that, in order for an investigation to be effective for the
purposes of Articles 2 and 3, it must be ensured that the persons responsible for, and carrying
out, the investigation are impartial and independent from those implicated in the events, bothin law and in practice.190 This means not only an absence of hierarchical or institutional
connection but also a practical independence. Supervision of the investigative acts by anotherauthority may not constitute a sufficient safeguard when the investigation itself has, for allpractical purposes, been conducted by bodies connected with those under investigation.191
206. In assessing whether the investigations under review were independent, the Panelnotes that, from the outset, there were allegations, supported by video evidence, 192 ofcollusion between certain members of the police force deployed to protect public order on
2 May 2014 and activists involved in the mass disorder. According to the PGO, thepossibility of collusion between law enforcement officers and activists is being examined aspart of the investigation in the case concerning police conduct, which is within thecompetence of the MID of the PGO. However, the investigation into the conduct of theactivists involved in the mass disorder, including, presumably, those who may be suspectedof having conspired with police officers, is being carried out by the MoI. It was submitted to
the Panel that the police officers under investigation and the MID investigators in charge ofthe case belong to different and separate departments of the MoI. The Panel observes,
however, that, given the evidence indicative of police complicity in this case, the Convention
standards and European Court’s case law cited above require that the mass disorder as awhole, including the conduct of both the police and activists, be investigated by an organ
entirely independent from all the actors under investigation. It does not consider that the MIDof the MoI meets this criterion.
207. For the same reasons, the decision to allocate the investigation of the conduct of the
SES staff to the MoI raises a serious issue of lack of institutional and practical independence.
However, since April 2014 the Cabinet of Ministers has coordinated and directed the activityof the SES through the Minister of the Interior, who also participates in the process of theappointment and dismissal of the head of the SES and may represent the SES in the
Government.193 The SES is financially accountable to the MoI and is funded from the Statebudget through funds allocated to the MoI. The Panel observes, therefore, that there is arelationship of hierarchy between the Minister of the Interior and the SES. Furthermore, inthe words of the MoI investigators, because of the status of the SES as a State body, it would

190

See e.g. the Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports of Judgments and Decisions 1998-IV; Ergi
v. Turkey, 28 July 1998, §§ 83-84, Reports of Judgments and Decisions 1998-IV; Öğur v. Turkey [GC],application no. 21594/93, § 91, ECHR 1999-III; Hugh Jordan v. the United Kingdom, application no. 24746/94,§ 106, ECHR 2001-III; Nachova and Others v. Bulgaria, cited above, § 112; Mikheyev v. Russia, application
no. 77617/01, §§ 110 and 115, judgment of 26 January 2006; Boicenco v. Moldova, application no. 41088/05,§ 121, judgment of 11 July 2006; Kolevi v. Bulgaria, application no. 1108/02, § 193, judgment of 5 November
2009; Savitskyy v. Ukraine, cited above, § 100; and Kulik v. Ukraine, application no. 10397/10, §§ 49 and 53,
judgment of 19 March 2015.
191
Hugh Jordan v. the United Kingdom, cited above, § 120; and Ramsahai and Others v. the Netherlands[GC], application no. 52391/99, § 337, ECHR 2007-II.
192
See paragraph 20 above; see also paragraph 38 above.
193
For details concerning the status of the SES, see paragraphs 166-167 above.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

not have occurred to them to institute a criminal investigation against SES officials of theirown motion.194
208. According to the rules set out in the CPC covering the allocation of investigative
jurisdiction, it is the State Bureau of Investigations and, pending its creation, the publicprosecution service, which is competent to investigate crimes committed by judges, law
enforcement officers, public officials holding particularly important positions in the State
service and by public officials of I-III categories as defined by the State Service Act.195 In the
Panel’s view, these rules are aimed at, among other things, strengthening independence
guarantees and should apply equally to the investigation of the actions of the SES and its
senior officials during the events of 2 May 2014.
209. More generally, the Panel emphasises the importance in the present context, where
the trust of the public in the criminal justice system is at stake, of the appearance of both theindependence and the impartiality of the bodies with investigative responsibilities.196 The
Panel observes in this connection that, although the mass disorder occurred in the course of aconflict between two opposing groups of activists, a year after the events all but one of the
23 suspects whose cases have been sent to court in respect of the mass disorder belong to thesame group of activists, namely the pro-federalists. All these suspects were held in pre-trial
detention at different periods and seven of them are still in detention since being arrested at
the Afina Shopping Centre. In contrast, from the opposing group, only three persons havebeen notified of suspicion.197 Apart from a few days following their arrests, none of them wasplaced in pre-trial detention, each being instead put under house arrest or made subject to apersonal undertaking. Moreover, when the time-limit for these measures expired, no further
measure of restraint was applied, even though the charges concerned, among other offences,crimes of murder and attempted murder.198 In this regard the Panel considers that it is ofcentral importance for the purposes of maintaining the confidence of all sectors of the publicin the criminal justice system that the authorities, including the judicial authorities, are seen
to act in an impartial and equal manner in the conduct of the investigations and court
proceedings.
210. The Panel finds that the lack of independence in the investigations of the events of
2 May 2014 yet again highlights the need to complete, without further delay, the process ofreforming the system of pre-trial investigations and to establish an independent bodydesigned to investigate serious human rights violations committed by law enforcement
officers and other public officials. In this context, the Panel welcomes the recent legislative
steps taken towards the creation of the State Bureau of Investigations199 and emphasises theneed to set up such a body in full compliance with the European Court’s case law andCouncil of Europe standards and recommendations.200

194

See paragraph 179 above.
For a more detailed description of the domestic law concerning pre-trial investigations, see Annex V.
196
Bajic v. Croatia, application no. 41108/10, § 102, judgment of 13 November 2012.
197
See paragraphs 136, 140 and 155 above.
198
See paragraphs 134, 140-141 and 157 above.
199
See the Verkhovna Rada website, the Draft Law on the State Bureau of Investigations (no. 2114)
currently pending before the parliament.
200
See the IAP Maidan Report, §§ 376-384. See also the Comments of the Directorate General on Human
Rights and the Rule of Law of the Council of Europe on the Draft Law of Ukraine on the State Bureau of
Investigation, 8 June 2015.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

Conclusion
211.
Given the evidence indicative of police complicity in the massdisorder of 2 May 2014 in Odesa, Articles 2 and 3 require that theinvestigation into the mass disorder as a whole be carried out by anorgan entirely independent from the police. Similarly, the investigation
into the conduct of the fire service cannot be regarded as independent,
given the structural links between the SES and the MoI. These concerns
again highlight the need for an independent and effective mechanism forthe investigation of serious human rights violations committed by law
enforcement officers and other public officials.
212.
In addition, the Panel considers that it is of central
importance for the purposes of maintaining the confidence of all sectorsof the public in the criminal justice system that the authorities, including
the judicial authorities, are seen to act in an impartial and equal mannerin the conduct of the investigations and court proceedings.
B. Effectiveness of the investigations
213. Articles 2 and 3 require that an investigation must be effective, in the sense that it
must be capable of leading to the identification and, if appropriate, punishment of those
responsible.201 This means, inter alia, that the authorities should take all reasonable steps tosecure the evidence concerning the incident. Although this is an obligation of means and not
result, any deficiency in the investigation which undermines its ability to establish thecircumstances of the case or the person responsible will risk falling foul of the required
standard of effectiveness.
214. In particular, the investigation’s conclusions must be based on a thorough, objective
and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry
undermines to a decisive extent the investigation’s ability to establish the circumstances of
the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny
required to satisfy the minimum threshold of the investigation’s effectiveness depend on thecircumstances of the particular case. They must be assessed on the basis of all relevant facts
and with regard to the practical realities of investigation work.202
1. Organisation of the investigative work
215. As previously noted, the investigation of the events in Odesa was divided between
the PGO and the MoI, the former having the responsibility to investigate police conduct andthe latter being responsible for investigating the actions of civilians in connection with themass disorder in the city centre and the fire at the Trade Union Building. When the caseconcerning SES conduct was opened in October 2014, its investigation was first assigned to
the local MoI but was subsequently transferred to the MID of the MoI.
216. The Panel notes that, although separated into different casefiles, all three
investigations relate to the same set of events, with the same consequences and the same
victims. The representatives of both investigating authorities accepted before the Panel thatthe investigations overlapped to a certain extent, in particular in terms of the gathering ofevidence and the interviewing of witnesses; they submitted that there was nonetheless a good201
202

See the General Principles and case law outlined above at paragraph 190 et seq.
See, for instance, Giuliani and Gaggio v. Italy, cited above, § 302.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

level of co-operation and a constant exchange of materials between the two authorities.
The representatives of the PGO explained that the division of work was based on theprovisions of the CPC and noted that, while the PGO would be entitled under the CPC to takeover the investigations from the MoI in the event that they proved ineffective, no grounds forsuch transfer had as yet been established. The Head of the SID of the MID of the PGO
admitted that it would had been better if the investigations had been consolidated from theoutset. However, transferring the cases from the MoI to the PGO at this stage would becounter-productive, given the large amount of material with which the new investigators
would have to familiarise themselves.
217. Quite apart from the issue of lack of independence discussed above, the Panelconsiders that this division of labour had a negative impact on the quality, effectiveness andprogress of the investigations. Given that the actions of the police and activists were taking
place in the same spatial and time frame, with allegations of collusion between the two, and acoincidence of evidence, witnesses and victims, it was not, in the view of the Panel, the bestuse of resources to split the investigation of these closely related cases between different
investigative authorities, rather than entrusting the investigations as a whole to the PGO.
218. The Panel also questions the decision initially to allocate to the local MoI theinvestigation into the conduct of the SES. The investigation was not opened until October
2014, some six months after the events; thereafter there was a period of some two months
when it would appear that no progress in the investigation was made by the Odesa Regional
MoI Department, with the consequence that the case-file was transferred to the MID of the
MoI. The Panel notes, in this respect, that such lack of effectiveness in the initial stages of aninvestigation not only inevitably affects the amount and quality of the evidence that can becollected but may also result in the disappearance of potential suspects.
Conclusion
219.
The Panel finds the division of investigative work between
the PGO and the MoI to be inefficient and detrimental to theeffectiveness of the investigations, given that they concern the same set ofclosely connected events and overlap to a certain extent as regards
evidence, witnesses and victims. The Panel also finds that the quality,
progress and effectiveness of the investigations were affected by thedecision to allocate the investigation of the actions of the SES to the local
MoI, which remained inactive during the crucial early stages.
2. Staffing and resources
220. An account of the personnel assigned to the investigations carried out by the PGO
and the MoI, based on information provided by these bodies to the Panel, is set out above.203
It is regrettable that, despite repeated requests from the Panel, the authorities were unable tosupply it with clear, detailed and consistent information on this point. Based on theinformation provided, however, the Panel makes the following findings about the levels ofstaffing and resources in the PGO and MoI.
(a) PGO

221. While initially, in May 2014, the team assigned to work specifically on Odesa-relatedcases included ten PGO and local investigators, by April 2015 the number of investigators
203

See paragraphs 101-109 and 183-189.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

working exclusively on these cases, according to Mr Zinkovskyi, the head of the investigative
team, amounted to only himself and one other.204 Moreover, Mr Zinkovskyi was on sickleave between June and September 2014. He returned to work in October 2014 but it was not
until 8 April 2015 that he was again put in charge of the investigation concerning police
conduct. While he was replaced during his absence by another investigator, it would appear
that this person concentrated mainly on the investigation into the release of detainees on
4 May 2014,205 and it was only after Mr Zinkovskyi’s return in April 2015 that any apparent
progress was made in the case concerning police misconduct in relation to the events of
2 May.206 Further problems seem to have been caused by the fact that, throughout the year
between May 2014 and May 2015, the investigation was transferred back and forth between
two departments of the MID of the PGO, namely the Major Crimes Division and the SID.207
According to the PGO, there was a period between the end of 2014 and the beginning of 2015
when it remained unclear within which MID division the case was to be investigated.
222. Mr Zinkovskyi submitted to the Panel that, following his return in April 2015, aconsiderable amount of work was done and that there was no need to appoint additional staff.
The Panel considers, however, that the low numbers of staff devoted to the Odesa
investigation had a significant effect on the progress made and has led to certain aspects of
the investigation being put on hold. For example, as the Panel understood Mr Zinkovskyi,
since his return he had concentrated on building the case against Mr Lutsiuk and would not
be able to resume working on the investigation concerning Mr Fuchedzhy until Mr Lutsiuk’s
case had been sent to court.208
223. Viewed as a whole, the Panel commends the fact that Mr Zinkovskyi was again
charged with the investigation, to ensure continuity. However, given the large scale of theevents and the complexity of the issues relating to possible police misconduct, the Panelbelieves the current staffing arrangements to be inadequate. This is also borne out by the fact
that, to date, only two persons have been notified of suspicion in this connection, one ofwhom has managed to escape under unclear circumstances.209(b) MoI

224. The teams within the MoI investigating the mass disorder, the fire at the Trade Union
Building and the conduct of the SES staff have also been cut back. In May 2014 they
included nine investigators from the MID of the MoI and eight local investigators. However,by July 2015 there were only three investigators from the MID of the MoI working
exclusively on the Odesa cases,210 assisted by eight local investigators. In mid-August 2015,
the head of the investigating team, Mr Rudnytskyi, was recalled from Odesa for work-related
reasons. Although he is now based in Kyiv, the PGO explained that he continued to beengaged in the Odesa investigations. It does not appear that any new investigator has been
sent to replace him in Odesa.
225. While the Panel commends the fact that the three remaining investigators have been
involved in the investigation of the Odesa cases virtually from the beginning, the small sizeof the team and the recall of its leader to Kyiv must be detrimental to its investigative
capacity.
204

See paragraphs 105-106 above.
See paragraph 103 above.
206
See paragraphs 91-92 above.
207
See paragraph 101 above.
208
See paragraph 90 above.
209
See paragraphs 86-87 above.
210
See paragraphs 186-187 above.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

226. This is borne out by the evidence of the MoI investigators themselves, who submitted
to the Panel that the staff levels were not sufficient for the investigation of such complex
cases. Although some progress has been made in the investigation of the clashes that took
place in the city centre, on Hretska Square and Hretska Street, it appears that a considerable
amount of work still lies ahead. Moreover, to date only one suspect has been notified of
suspicion in respect of the violent acts committed on Kulykove Pole,211 and no suspects havebeen yet identified and charged in the case concerning the conduct of the SES staff.
227. In view of the above mentioned circumstances, the Panel believes that reducing
the investigating team has had an adverse impact on the progress, quality and effectiveness of
the investigations.
Conclusion
228.
The Panel finds it commendable that both the PGO and the
MoI have sought to ensure continuity as regards the main investigators
in Odesa. However, it finds that the reduction of each authority’s
investigating team has had a detrimental effect on the progress, quality
and effectiveness of investigations and it considers the current staffing
levels to be inadequate.
3. Quality of the investigations
229. It is implicit in the requirement of effectiveness that investigations should be boththorough and diligent.212 Lack of diligence, especially at the outset of an investigation,
compromises its overall effectiveness and this, in turn, undermines public confidence in theauthorities’ adherence to the rule of law.213
230. So far as concerns the investigations into the conduct of the police, the Panelobserves, in the first place, that it took two weeks for the authorities to obtain a warrant for
the arrest of Mr Fuchedzhy, giving him the opportunity to flee the country. The Panel notes
the PGO’s explanations that the pre-trial investigation had originally been led byinvestigators from the Prosecutor’s Office in the Odesa Region and that its own investigators
had only taken over the investigation on 7 May 2014, by which date Mr Fuchedzhy had
already fled the jurisdiction.214 The Panel, however, recalls that the effectiveness of aninvestigation must be assessed as a whole and the fact that the responsibility originally lay
with another investigatory body is no excuse for a lack of diligence. Further, the Panel is not
persuaded by the PGO’s contention that there was insufficient evidence to justify measures
being taken against Mr Fuchedzhy’s so soon after the events of 2 May. There is no dispute
that, on that date, Mr Fuchedzhy was in charge of public order protection in Odesa. Given theserious failure of the police to react to the mass disorder and the grave consequences which
flowed therefrom, both of which facts were already known to the authorities on the same day
or shortly thereafter, his conduct should have been the subject of immediate investigation. In
the Panel’s view, there were sufficient grounds for suspicion to justify the authorities inapplying for some form of preventive measure. The Panel is not aware of any attempt to do
so in the first days after 2 May 2014 and, in the absence of any preventive measure,211

See paragraphs 140-141 above.
See, mutatis mutandis, Öneryıldız v. Turkey [GC], application no. 48939/99, §§ 94 and 113, ECHR
2004-XII.
213
Hugh Jordan v. the United Kingdom, cited above, § 108.
214
PGO written submissions, September 2015.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

Mr Fuchedzhy succeeded in absconding; the investigation concerning him has, as a result,been suspended ever since.215 The fact that the key suspect has disappeared has indisputably
impaired the effectiveness of the investigation.
231. Secondly, it remains unclear why it took almost a year for the authorities to come tothe conclusion that the “Wave” plan had not been implemented on 2 May 2014 and that the
documents relating to its alleged implementation had been forged. 216 It is striking that in herreport of June 2014, which was immediately communicated to the PGO, the Ombudsperson
concluded, on the basis of evidence set out in the report, that the “Wave” plan had not been
implemented and that the documents had been forged.217 Despite the evidence identified by
the Ombudsperson, Mr Lutsiuk was not notified of suspicion in this respect until 30 April
2015, almost one year after the events in question. As noted above, a failure promptly tofollow up an obvious line of inquiry undermines the possibility to establish the fullcircumstances and falls foul of the required standard of effectiveness.
232. The Panel finds similar deficiencies in the effectiveness of the investigations into themass disorder and the fire on 2 May 2014. In the first place, the Panel notes that theauthorities failed to take sufficient measures to secure the evidence in a timely manner, afundamental requirement of an effective investigation.218 In particular, although the Trade
Union Building was searched by the authorities immediately after the fire had been
extinguished; it was opened to the public on 4 May219 and was not placed under legal control
until 20 May 2014, nearly three weeks after the events.220 The Panel considers that this gave
rise to a substantial risk of evidence being removed from, or brought into, the building. While
the MoI investigators did not believe that the decision to grant public access had in fact
impaired the task of gathering evidence, they acknowledged before the Panel that the decision
to do so had not been correct.221
233. Similar concerns exist in relation to the authorities’ handling of other crime scenes in
the city centre. The PGO representatives accepted before the Panel that, owing to thewidespread nature of the crime scenes, some evidence might have been overlooked.222
234. The Panel considers that, seen as a whole, there was no proper coordination of themeasures taken to preserve and gather evidence during the days immediately after the events,
despite the presence in Odesa of high ranking officials.223 This may well have been related to
the fact that, at that early stage, Mr Lutziuk and then Mr Fuchedzy, both subsequently
notified of suspicion in relation to the events of 2 May, were still in charge of the local police
force, which had the responsibility for carrying out the initial steps in the investigation.
235. Secondly, the Panel finds that certain forensic examinations were not diligently
carried out. For example, the first forensic report on the fire was prepared in July 2014
without any on-site inspection of the Trade Union Building.224 Nine months later, an inter215

See paragraph 90 above.
See paragraph 72 et seq. above.
217
See paragraphs 50-51 above.
218
See, among other authorities, Giuliani and Gaggio v. Italy, cited above, § 301; as regards forensic
examinations, see, for example, Gül v. Turkey, application no. 22676/93, § 89, 14 December 2000; as regards
crime scene inspection, see, for instance, Mikheyev v. Russia, cited above, § 112. See also OHCHR, Istanbul
Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Professional Training Series No. 8/Rev.1, § 103 stating: “Any building or
area under investigation must be closed off so as not to lose any possible evidence”.
219
See paragraph 128 above.
220
See paragraph 129 above.
221
See paragraph 130 above.
222
See paragraph 131 above.
223
See paragraph 35 above.
224
See paragraph 124 above.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

agency complex forensic examination was ordered in April 2015 and, at the end of
August 2015, was still underway.225 Although, formally, these examinations were ordered in
two different sets of proceedings and the PGO denied that the latter examination was aimed
at rectifying shortcomings in the former,226 the Panel was left with the clear impression that
this was at least one of its aims – an impression that was confirmed by the evidence of the
MoI investigators.227 By way of further example, the Panel notes the failure of the authorities,
for over a year, to identify one of the bodies found in the Trade Union Building.228
236. The deficiencies in the investigation of the conduct of the SES staff remain the moststriking example of a lack of diligence. This investigation was not commenced until
16 October 2014, and then only following the complaint of a third party. 229 On a question
being put by the Panel, the authorities admitted that there was no justification for the delay,230
although it was subsequently claimed that, initially, there had been no grounds justifying the
opening of an investigation.231 The Panel finds this latter qualification difficult to accept.
The fact that there had been a fire in the Trade Union Building, which had resulted in aconsiderable loss of life, and that, despite numerous emergency calls, the fire brigade had
only arrived on the scene after a substantial and unexplained delay, was known to theauthorities at an early stage and provided ample grounds for the initiation of an investigation
into the conduct of the SES staff. This was all the more the case, having regard to the findingsof the SES internal inquiry, that appropriately equipped fire-fighting units should have been
sent after receipt of information about burning tents on Kulykove Pole at 7.31 p.m. andinformation about the fire in the Trade Union Building at 7.45 p.m., findings which resulted
in the reprimand of Mr Bodelan, the Head of the Main Department of the SES in the Odesa
Region. Moreover, once the investigation had eventually been opened, over five months after
the events, the Odesa Regional MoI, which was initially entrusted with its conduct, showed
no diligence in pursuing it, with the result that some two months later it was transferred to the
MID of the MoI.232 The Panel considers unacceptable the fact that the first real efforts tocarry out an investigation into the conduct of the SES staff were not made until
December 2014, by which time Mr Bodelan had left the service and, since he had not been
notified of suspicion, his whereabouts were, and continue to be, unknown to the authorities.
Further progress in the investigation has not been assisted by the refusal of the SES to
conduct a further internal inquiry, despite the express request of the MoI.233
Conclusion
237.
The Panel finds that, in respect of each of the matters underinvestigation, the relevant authorities failed to show sufficientthoroughness and diligence in initiating and/or pursuing theinvestigations, with the result that their overall effectiveness wascompromised.

225

See paragraph 181 above.
PGO written submissions, September 2015.
227
MoI oral submissions, July 2015.
228
See paragraph 121 above.
229
See paragraph 178 above.
230
PGO oral submissions, July 2015.
231
PGO written submissions, September 2015.
232
See paragraph 178 above.
233
See paragraph 176-177 above.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

4. Prosecution and trial
238. The Panel recalls that, under the procedural requirements of Articles 2 and 3 of
the Convention, the investigation must be effective in the sense that it is capable of leading to
the establishment of the relevant facts and the identification and punishment of those
responsible. This requirement goes beyond the stage of the pre-trial investigation. As theEuropean Court has held and as the Panel observed in its Maidan Report, the conduct ofcriminal proceedings as a whole, including at the pre-trial and trial stage, must satisfy therequirements of the positive obligation to protect lives and prevent ill-treatment. While there
is no absolute obligation for all prosecutions to result in conviction or in a particular sentence,
any deficiency in the investigation which undermines its capacity to establish thecircumstances of the case or the person responsible is liable to fall foul of the required
measure of effectiveness.234(a) Decisions to terminate pre-trial investigations

239. The authorities’ decision to terminate the pre-trial investigations in two cases remains
a matter of serious concern to the Panel.
240. The representatives of the PGO informed the Panel that the pre-trial investigation
against Mr Hrybovskyi was terminated on the formal ground of insufficiency of evidence
even though the case-file contained ample evidence against him, the real reason for thetermination being the exchange of the suspect for SSU officers who were held captive in theEast.235 The Panel accepts that the authorities were faced with an acute dilemma, since thelives of the SSU officers were at risk. Nonetheless, however understandable or laudable themotive behind the decision might have been, the Panel cannot but note its concern, which
was shared by the representatives of the PGO who were heard by it, about the decision toterminate the pre-trial investigation. Such a decision not only undermines the purpose of thecriminal justice system and respect for the rule of law but risks rendering illusory theguarantees of Articles 2 and 3 of the Convention.
241. The Panel further notes that in February 2015 the investigatory authorities alsodecided to terminate, on the grounds of the insufficiency of the evidence against him, the caseagainst Mr Honcharevskyi, a pro-unity activist suspected of assaulting pro-federalist activists
jumping from the burning Trade Union Building.236 The decision on termination of thecriminal proceedings was subsequently quashed by the court and the pre-trial investigations
were resumed. The court found that the decision had been premature in that the investigators
had not taken all possible measures to collect sufficient evidence.237 The Panel finds theoriginal decision to close the case to be particularly disquieting when taken together with theinitiative of certain Members of Parliament who, in January 2015, introduced a draft law
proposing to grant an amnesty to Mr Honcharevskyi and Mr Khodiak, both pro-unity activists
suspected of assault and murder respectively.
(b) Completing the pre-trial investigations and sending the cases to court

242. In November 2014 the prosecution sent to court the first case concerning 21 persons
suspected of organising or participating in the mass disorder. The charges, which were laid ina single indictment running to 196 pages, are not individualised and do not specify the precise
234

Giuliani and Gaggio v. Italy, cited above, §§ 301 and 306; Enukidze and Girgvliani v. Georgia [GC],application no. 25091/07, § 242, judgment of 26 April 2011.
235
See paragraph 139 above.
236
See paragraph 140 above.
237
See paragraph 141 above.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

acts of which each person is accused. The Panel considers that the lack of precision in theindictment may be symptomatic of deficiencies in the investigation. The suspects werearrested as part of a large group of persons at the Afina Shopping Centre and it is notapparent that the investigation established what particular part each person had played in theprior events. The inclusion of such a large number of suspects in a single indictment has
already given rise to adjournments and delay, as noted just below. The Panel is further
concerned that the lack of individualised charges may make the court’s task very difficult andfurther delay the progress of the proceedings.
(c) Trial

243. The cases that have reached court have been marked by delays at the preliminary
court hearing stage. Thus, the case concerning 21 suspects was sent to court inNovember 2014 but it was only at the end of June 2015 that the hearing on the merits
commenced with the reading of the indictment. The commencement of the trial was delayed
by a series of recusals of the judges of the Prymorskyi District Court of Odesa.238 Once theproceedings had begun, the case was adjourned on several occasions owing to the absence of
one or more of the participants or as a result of various motions lodged by the parties orfollowing attempts to disrupt the hearings. The situation was undoubtedly exacerbated by thefact that 21 suspects, most of whom were represented by different counsel, were indicted in asingle case.
244. The Panel further notes that the recusal of judges appears also to have caused delay inthe commencement of the trial against Mr Khodiak.239 The case was sent to court in
April 2015 but it appears that, by August 2015, the hearing on the merits had still notcommenced. It was reported to the Panel that judges of the Prymorskyi District Court ofOdesa had sought to transfer the case to another court on the basis of their involvement at theinterlocutory stages of the proceedings. However, according to the local media, the request
was rejected by the Court of Appeal, which found that there remained a sufficient number ofjudges who could hear the case, as they had not previously been involved.240 Subsequently,
these judges also recused themselves. At the end of August 2015 the case was transferredfrom the Prymorskyi District Court to the Malynovskyi District Court of Odesa.241
Conclusion
The Panel expresses serious concern about the decisions to245.
terminate the proceedings against two suspects on the grounds of lack ofevidence.
246.
The Panel finds that the repeated recusals of judges led todelays in the commencement of the criminal proceedings as a whole. The
Panel further finds that the decision to charge 21 individuals in a single
indictment, without individualising the charges, has contributed to thedelay and risks having an adverse impact on the progress of the court
proceedings.

238

See paragraph 145 above.
See paragraph 156 above.
240
Dumskaya, 26 June, 2 July and 14 July 2015.
241
Loc. cit., 13 August 2015.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

C. Promptness and reasonable expedition
247. A requirement of promptness and reasonable expedition is implicit in the context ofthe effectiveness of investigations, principles which have been applied by the European Courtin cases against Ukraine.242
248. While there may be obstacles or difficulties which prevent the progress of aninvestigation in a particular situation, a prompt response by the authorities in investigating theuse of lethal force or an allegation of ill-treatment may generally be regarded as essential inmaintaining public confidence in their adherence to the rule of law and in preventing any
appearance of collusion in, or tolerance of, unlawful acts.243 The prompt opening of aninvestigation into credible allegations of a crime, followed by its active pursuit, is key to aneffective investigation.244 In cases of deaths in contentious situations, it is crucial that an
investigation be prompt since the passage of time will inevitably erode the amount andquality of the evidence available to form the basis of the investigation.245 Once promptly
commenced, the investigation must be pursued with reasonable expedition.246
249. The Panel has already found that each of the investigations has been marked byserious deficiencies and considers that these deficiencies have significantly protracted theinvestigative response to the events of 2 May. In particular, the investigations in relation to
the conduct of the police and to the mass disorder and fire have been protracted as a result ofsuch deficiencies as the authorities’ failure to secure the presence of a key suspect, the failure
to follow an obvious line of inquiry and the failure to take prompt measures to secure
evidence. The investigation into the conduct of the SES staff was instituted almost half a year
after the events in issue and was not thereafter pursued with expedition. In addition, as noted
above,247 the conduct of the trials of the 21 suspects and Mr Khodiak have already been
subject to certain delays. While, as the Panel has already noted, the authorities wereconfronted with significant challenges in conducting the investigations,248 the Panel finds thatthese do not wholly explain the lack of promptness or expedition that has occurred.
Conclusion
250.
The Panel considers that the investigation into the conduct of
the SES staff was neither promptly commenced nor pursued withreasonable expedition. The investigations into the mass disorder and thefire on 2 May 2014 and into the conduct of the police on 2 and 4 May
2014, while promptly instituted, have been subject to a number of
deficiencies that have significantly protracted the investigative response.

242

See Myronenko v. Ukraine, application no. 15938/02, §§ 36-37, judgment of 18 February 2010; Kachurka
v. Ukraine, application no. 4737/06, §§ 53-57, judgment of 15 September 2011; and Danilov v. Ukraine, cited
above, § 70.
243
Hugh Jordan v. the United Kingdom, cited above, § 108.
244
See Isayeva, Yusupova and Bazayeva v. Russia, applications nos. 57947/00, 57948/00 and 57949/00,§ 218, judgment of 24 February 2005; and Khashiyev and Akayeva v. Russia, applications nos. 57942/00 and
57945/00, § 157, judgment of 24 February 2005.
245
See Trubnikov v. Russia, application no. 49790/99, § 92, judgment of 5 July 2005; and Jasinskis v.
Latvia, application no. 45744/08, § 79, judgment of 21 December 2010.
246
McCaughey and Others v. the United Kingdom, application no. 43098/09, § 130, judgment of
16 July 2013.
247
See paragraphs 243-244 above.
248
See paragraph 199 et seq. above.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

D. Public scrutiny of the investigations
251. The Panel recalls the European Court’s jurisprudence to the effect that, where
allegations of serious human rights violations are involved in the investigation, the right tothe truth regarding the circumstances of the case does not belong solely to the victim of thecrime and his or her family but also to other victims of similar violations and the generalpublic.249 An adequate response by the authorities in investigating allegations of serious
human rights violations may generally be regarded as essential in maintaining publicconfidence 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.250
252. The Panel recalls that in its Maidan Report, it noted the serious concerns expressedby the European Court, various Council of Europe bodies and certain NGOs about theclimate of impunity of law enforcement officers in Ukraine.251 It considers that theseconcerns remain relevant in the present context where there exist allegations of collusion
between the police and pro-federalists and where suspicions of selective justice arise inrelation to the investigations into the events in Odesa on 2 May 2014.252 The Panel considers,
therefore, that ensuring a sufficient degree of public scrutiny of the investigations is a meansof responding to any perception of impunity or lack of impartiality and of securingaccountability for the crimes committed during those events, as well as satisfying the public’s
right to know.
253. As noted by the Panel in its Maidan Report, while legitimate concerns ofconfidentiality and national security may exist, this does not mean that the investigating
authorities enjoy complete discretion as regards the disclosure of information to the public.253
The authorities must ensure, without unacceptably compromising national security or thenecessary confidentiality of the investigations, that a sufficient degree of public scrutiny ismaintained.
254. The required degree of public scrutiny of an investigation varies from case to case:the more important or grave the issues involved, the more intense the public scrutiny
required.254 The events in Odesa on 2 May 2014 resulted in 48 deaths and injuries to several
hundreds of persons. After the tragic events during the Maidan demonstrations, the events in
Odesa have become another painful landmark in the recent history of Ukraine. The violence
and crimes committed that day were, as admitted by the authorities, of an unprecedented
nature: for several hours the city centre became a virtual battlefield. Numerous photographs
and video clips of the violence have been posted on the Internet and the events wereimmediately thrust into the limelight, domestically and internationally. The fact that
the Panel’s Mandate was extended to cover the investigations into those events signifies theimportance of the issues involved. Allegations of fault, whether negligent or deliberate, on
the part of the local police and fire brigade have further fuelled public distrust of theauthorities. Last but not least, the events took place in a period of instability and divisions
within Ukrainian society.
249

Al Nashiri v. Poland, application no. 28761/11, § 495, judgment of 24 July 2014 (with further
references).
250
Ibid.
251
IAP Maidan Report, §§ 491 and 376-384.
252
See paragraphs 20 and 209 above.
253
Al Nashiri v. Poland, cited above, § 494.
254
Hugh Jordan v. the United Kingdom, cited above, § 109.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

Accordingly, the Panel considers that the events in Odesa on 2 May 2014 were of suchimportance that the authorities were required to provide sufficient information about theinvestigations so as to facilitate meaningful public scrutiny of them.
255. The Panel has therefore assessed the level and quality of the information provided tothe public by the investigating and other authorities. For this purpose, the Panel has, as in thecase of its Maidan Report, reviewed the Internet sites, press conferences, interviews andstatements of representatives of the competent investigating authorities concerning theinvestigations under review. These public statements have been summarised in Annex VI to
the Report; while not exhaustive, the summary includes the principal public information
events.
256. The Panel notes at the outset that a considerable amount of information about theevents of 2 May was made available to the public in the inquiry reports of the TIC andthe Ombudsperson. It emphasises, however, that while the TIC inquiry report255 is a public
and official document and undoubtedly serves its purpose of keeping the public informed,256
the findings and information contained in a parliamentary inquiry report are no substitute forpublic statements made by the investigative authorities in the course of a criminal
investigation.257 Similar considerations apply to the information provided in
the Ombudsperson’s inquiry report, her role and the purpose of her inquiry258 being different
from those of the investigative authorities in the criminal investigation.
257. Moreover, both inquiries were started and completed shortly after the events in issue:
the TIC adopted its report on 2 September 2014 and the fact-finding part of
the Ombudsperson’s inquiry was carried out in May 2014 (although the findings were
published in her Annual Report at the beginning of 2015). It was not, therefore, possible for
either inquiry to take into account any subsequent developments. Furthermore, there was nofollow-up to either report.
258. As for the information made available by the investigatory authorities, the Panelacknowledges that the authorities promptly provided the public with basic information andregular updates relating to the events at issue, such as the number of persons killed, injured or
missing; the investigations instituted; the authority in charge of each investigation; thenumber of persons detained, put under house arrest or released; and the administrative
measures taken in reaction to the events, such as the dismissal of high-ranking officers andthe opening of internal inquiries. However, on closer examination, the Panel finds someshortcomings in the level of public scrutiny afforded.
259. Thus, for example, there was initially a failure to inform the public about thestructure of the investigations in a comprehensible form. In the early stages the MoI reported
in its press releases that one investigation had been instituted;259 later it referred to three255

See paragraphs 44-45 above.
See, for instance, European Commission for Democracy Through Law (Venice Commission), Amicus
Curiae Brief in the Case of Rywin v. Poland (Applications Nos. 6091/06, 4047/07, 4070/07) Pending Before theEuropean Court of Human Rights (On Parliamentary Committees of Inquiry), CDL-AD(2014)013,
25 March 2014, § 28 noting that “the ultimate aim of the [parliamentary] committees’ investigations istransparency with a view of ensuring that the public is informed of matters which affect the res publica(the public good)”. See also Section 89 § 3 of the Constitution of Ukraine mentioning public interest in theunderlying matter as a reason for setting up a TIC.
257
See Venice Commission, Amicus Curiae Brief on Parliamentary Committees of Inquiry, § 28 andSection 89 § 4 of the Constitution of Ukraine stating that the findings and proposals of a TIC shall not be
conclusive for the investigation and courts.
258
See paragraph 49 above.
259
See Annex VI, paragraph 1.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

sets,260 and then to ten.261 Without clarifying which events and which suspects were coveredby each investigation, these statements would have been unintelligible to the public.262 By
15 May 2014, however, this problem had been largely remedied by the clear statement that
one investigation was concerned with the examination of the conduct of civilians and one
with the conduct of the police.263 Information about the third investigation concerning the
conduct of the SES staff was added later.264
260. A more serious point of concern relates to the release of inconsistent information.
The Panel accepts that the various theories pursued by an investigation may change as itprogresses. This requires caution on the part of the authorities when releasing information,
especially that of a sensitive nature. By way of example, the Panel refers to the publicannouncements make by the authorities about the alleged use of a poisonous gas orchloroform inside the Trade Union Building, an issue which was of considerable publicconcern and importance given the major loss of life. At a press conference on 15 May 2014
Mr Ivan Katerynchuk, Head of the MoI Office in the Odesa Region, unequivocally denied
that any particular gas had been used to poison those inside the Trade Union Building.265 A
few days later, on 19 May, Mr Vitalii Sakal, Deputy Minister of the Interior and the head of
the MID of the MoI, stated, with reference to the complex forensic examination report, thatsamples of chloroform had been detected at the crime scene, that chloroform might havecaused the death of those in the Trade Union Building and that further forensic expert
examinations had been ordered to establish the quantity of chloroform used.266 On
22 April 2015 Mr Volodymyr Huzyr, the first Deputy Prosecutor General, briefly stated thatthe information as to the use of poisonous gases or chloroform had not been confirmed in thecourse of the investigation.267 The Panel finds it regrettable that definitive statements weremade on the matter when it was still the subject of examination by forensic experts. Similar
observations apply to the manner in which the authorities reported on another matter ofpublic interest, the cause of the fire and the places where it had started inside the Trade Union
Building. While the first statements were phrased in a very cautious way, 268 a chart displayed
during a press conference on 19 May 2014 suggested that the fire had been started from theoutside and that its epicentre had been in the right ground floor wing, seen from the outside of
the main entrance.269 On 22 April 2015 Mr Huzyr stated, with reference to forensic reports,that the fire had in fact broken out in the lobby and stairwell of the main entrance and had
been caused by combustible substances used by both groups of protesters including inside thebuilding.270
261. A further matter of concern is the unevenness in the presentation of the information.
While, as noted above, the authorities provided a considerable amount of information withregard to the investigations, certain aspects were barely referred to. Allegations of collusion
between the police and the pro-federalists were only touched upon in the interview of
Mr Oleh Makhnitskyi.271 Apart from several statements on the proceedings against
260

Loc. cit., paragraph 7.
Loc. cit., paragraph 8.
262
See, mutatis mutandis, IAP Maidan Report, §§ 495-497.
263
See Annex VI, paragraph 28.
264
Loc. cit., paragraph 39.
265
Loc. cit., paragraph 28.
266
Loc. cit., paragraph 30.
267
Loc. cit., paragraph 39.
268
Loc. cit., paragraphs 9 and 21.
269
Loc. cit., paragraph 30.
270
Loc. cit., paragraph 39.
271
Loc. cit., paragraph 21.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

Messrs Lutsiuk and Fuchedzhy (and the other senior police officers standing trial concerning
the release of detainees on 4 May), it was not clear from the available public statements what
other matters relating to the conduct of the police the authorities had been investigating. In
the same vein, in the proceedings concerning the conduct of the SES staff, no information
was provided other than the statement that the investigation had been initiated, that it was still
pending and that no suspect had as yet been identified. These matters were the subject ofintense debate and their coverage, in the context of the public distrust of the authorities andan ongoing information war, was, in the Panel’s view, of particular importance. Follow-up
explanations on the part of the authorities would have made an important contribution to
public awareness and to the public’s trust in the justice system.
262. The regularity of communications to the public is a further problematic aspect.
The Panel accepts that on 2 May 2014 and several days thereafter the events were covered
quite intensively. However, from the end of May 2014 the coverage began to fade and theintervals between statements became longer. In this regard, the Panel notes that, while press
releases were issued in the period between 13 August 2014 and 22 April 2015 referring to
specific developments in the investigation, no general and comprehensive review of theinvestigations and the progress made was provided in the interval between those dates. The
Panel considers this period to be too long. The same applies to the period after 26 May 2015,
during which it appears that no statements were made prior to the Panel’s cut-off date for
information of 31 August 2015.
263. The matters referred to above illustrate, in the Panel’s view, the lack of an effective
communication policy, coordinated between the PGO and the MoI,272 or within the MoI
itself.
264. In their submissions to the Panel the PGO addressed the question of the reaction of
the investigative authorities to requests for information on the investigations, stating that they
had replied to hundreds of such requests for information from the public and that they had
thus complied with their obligations.273 The Panel notes, however, that the fact that requests
were replied to does not as such signify that sufficient public scrutiny was afforded; forexample, a mere reply refusing such a request with reference to confidentiality does not fulfil
the requirement of ensuring public scrutiny. As noted above, while legitimate concerns ofconfidentiality may exist, this does not mean that the investigating authorities enjoy complete
discretion as regards the disclosure of information to the public; instead, a proper balancemust be struck between the public’s right to know and maintaining the effectiveness of theinvestigation. In this regard, the Panel would note that, following a request made by twojournalists, members of the 2 May Group, to obtain access to redacted forensic medical
examination reports on the causes of death of the 48 people who had died as a result of the
clashes and the fire on 2 May, a court found that the authorities, in refusing to disclose thereport, had failed to strike the right balance.274
265. The Panel notes that, in their written submissions, the PGO reported that it was
proposed to create, on the PGO website, a webpage specifically dedicated to theinvestigations of the events in Odesa on 2 and 4 May 2014, similar to the one created for the
Maidan-related investigations.275 The Panel welcomes this development and believes thatsuch a webpage, provided that it is regularly and thoroughly updated, would remedy certainof the deficiencies referred to above and would facilitate the public’s understanding of theevents and of the current state and progress of the investigations.
272

IAP Maidan Report, § 498.
PGO oral submissions, June 2015 and written submissions, September 2015.
274
See paragraph 55 above.
275
PGO written submissions, May 2015.
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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

Conclusion
266.
The Panel considers that the events in Odesa on 2 May 2014
were of such importance that the authorities were required to provide
sufficient information about the investigations to facilitate meaningful
public scrutiny. While the authorities provided a considerable amount of
information, there was no effective communication policy in place, withthe result that some of the information provided was difficult tounderstand, inconsistent, and unevenly presented and was provided withinsufficient regularity.
E. Involvement of victims and next-of-kin
267. The Panel recalls that the victims and next-of-kin of victims must be informed of, andinvolved in, the criminal procedure to the extent necessary to safeguard their legitimate
interests.276 It is essential that as much information as possible should be disclosed withoutcompromising the secrecy of the investigation or other confidentiality concerns. The timely
availability of information on the course of the investigation also enables the parties
concerned to challenge the relevant decisions or acts of the authorities or any lack of activity
on their part.277 The European Court found a breach of this procedural requirement when
victim status was denied, with the result that the persons concerned were prevented fromparticipating in the investigations. It has also found a breach when the authorities failed tokeep victims and next-of-kin informed concerning the progress of the investigations, or toensure their appropriate involvement in, them.278
268. The Panel observes that it received a number of submissions, which were disputed by
the investigatory authorities, to the effect that the rights of certain victims or their next-of-kin
were not guaranteed. In particular, complaints were made of the authorities’ refusals to grantvictim status to police officers,279 of the inability of the next-of-kin to obtain victim statusbecause of the authorities’ continuing failure to identify a body280, and of the alleged
manipulation of the casefiles by the authorities, which resulted in a situation where the nextof-kin of persons killed in the city centre were granted victim status in cases which, in theiropinion, were not in any way related to the deaths of their relatives.281 The Panel reiterates
that it does not have the role of examining individual complaints. It therefore limits its
conclusions in respect of these complaints to recalling the above-noted Convention
requirements.

276

See the General Principles and case law outlined above and, in particular, Anguelova v. Bulgaria,
application no. 38361/97, § 140, ECHR 2002-IV.
277
Karabet and Others v. Ukraine, applications nos. 38906/07 and 52025/07, §§ 289-291, judgment of
17 January 2013. These principles have been stressed by other CoE bodies: see, for example, the Opinion of theCommissioner for Human Rights concerning Independent and Effective Determination of Complaints against
the Police, 12 March 2009, CommDH(2009)4.
278
Trubnikov v. Russia, cited above, § 93; Sergey Shevchenko v. Ukraine, application no. 32478/02, § 74-75,
judgment of 4 April 2006; and Prynda v. Ukraine, application no. 10904/05, § 56, judgment of 31 July 2012.
279
2 May Group oral submissions, July 2015.
280
See paragraph 121 above.
281
Oral submissions of the victims’ representatives and lawyers, July 2015. An example was given that theirclients had been recognised as victims in the case against the activists arrested in the Afina Shopping Centre, inrespect of whom they had no complaints, rather than in the case of an activist suspected of shooting and killingin the city centre.

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The Panel’s assessment: Compliance with Articles 2 and 3 of the Convention

269. The Panel also received complaints that the supporters of a pro-unity suspect had
harassed a relative of a deceased pro-federalist activist wishing to attend the court hearings,
and complaints of the disrespectful treatment of victims and next-of-kin by theinvestigators.282 The Panel would only observe, in this respect, that any such an attitude on
the part of those responsible for ensuring the proper involvement of victims and next-of-kin,
as well as any failure by the authorities to react to and prevent their harassment, may have theeffect of discouraging victims and next-of-kin from taking part in the investigations andthereby prejudice their effectiveness.
270. The Panel notes in conclusion that, in contrast to the pre-trial investigations in
Maidan cases,283 where the PGO held monthly meetings with the next-of-kin of protesters
who died during the Maidan events, the investigatory authorities in the present case do notappear to have taken any co-ordinated measures to ensure that victims and next-of-kin
received regular updates on the progress of the pre-trial investigations. The Panel considers
this regrettable and finds that the information provided to the general public concerning theinvestigations into the events of 2 May284 is not in itself sufficient to protect the rights or thelegitimate interests of the victims and next-of-kin.
Conclusion
271.
The Panel’s role is not to determine whether the investigationof an individual case satisfied the requirements of the Convention and,in this regard, it limits its conclusions to recalling the case-law of theEuropean Court relating to the involvement of victims and next-of-kin inany criminal investigation.
The Panel notes with regret that, in contrast to the Maidan
investigations, the investigatory authorities did not take any coordinated measures directly and regularly to ensure that victims andnext-of-kin were informed about the progress of the investigations. It
finds that the information provided to the general public was not of itself
sufficient to protect the rights and legitimate interests of the victims andnext-of-kin.

282

Ibid.
See IAP Maidan Report, § 506.
284
For the Panel’s assessment of compliance with the requirement of sufficient public scrutiny, seeparagraph 251 et seq.
283

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The Panel’s assessment: The Panel’s evaluation of the current status of the investigations

IV.

THE PANEL’S EVALUATION OF THE CURRENT STATUS OF THE
INVESTIGATIONS

272. Although as noted above, the investigative obligation is one of means and not result,serious deficiencies in an investigation may undermine its ability to establish thecircumstances of the case and to identify those responsible.
273. Against the background of the deficiencies identified by it, the Panel has reviewed
the status of the various investigations as at 31 August 2015, 14 months after the events in
Odesa.
274. The material before the Panel reveals a marked lack of progress in the following
important investigations.
275. In the investigation into the conduct of the police on 2 May 2014 only one person, theformer Head of the MoI Office in the Odesa Region, is likely to stand trial within the near
future. Another key suspect, the former deputy head of the same office, has absconded andthe proceedings concerning him have since been suspended. No one else has been notified of
suspicion in relation to this investigation. The authorities submitted to the Panel that the
conduct of other police officers – the mid- and low-rank police officers, in particular – wasbeing investigated. After 14 months of investigation the authorities are still not able todetermine conclusively what was the role of the police in the violent events in Odesa on
2 May 2014 and whether there was any collusion between police officers and pro-federalist
activists, as some of the available video footage appears to suggest.
276. As for the conduct of the police on 4 May 2014, three officers have been on trial
since the end of 2014 and so far these proceedings have not yielded any decision on the
merits. As noted above, the former Deputy Head of the MoI Office in the Odesa Region, also
a key suspect in relation to this investigation, has absconded and the proceedings concerning
his conduct on 4 May 2014 have since been suspended.
277. In the investigations into the mass disorder and fire on 2 May 2014, of the hundredsof persons allegedly involved in the clashes on both sides, 21 pro-federalists are on trial on
virtually identical charges of participation in the mass disorder, with one of them additionallycharged with its organisation. Although the court proceedings commenced at the end of 2014,
they have not to date yielded any decision on the merits. In addition, five persons haverecently been charged, mainly with participation in mass disorder, and the court proceedings
concerning them are underway. Proceedings concerning another pro-federalist were
terminated on the grounds of the insufficiency of evidence, when the true reason for thetermination was his exchange for SSU officers held prisoner in the conflict zone in the East.
Other key persons, including the alleged organiser of the mass disorder and another seen on
video footage shooting into the crowd, have absconded and the proceedings concerning them
have been suspended.
278. Of the pro-unity activists, three alone have been notified of suspicion:
the proceedings concerning one were discontinued following his death; the proceedings
concerning another person, suspected of assaulting those who had been jumping from theburning Trade Union Building, were terminated because of insufficient evidence and later
resumed by court order; the proceedings concerning the third, suspected of having committed
murder on 2 May 2014, have progressed to trial, which is on-going. The Panel has not been
made aware of any other proceedings, pending or imminent, against any other person.
279. Out of the six instances of death caused by firearm or airguns, the authorities havenot as yet identified the weapons by which the fatal injuries were inflicted. No person has
been notified of suspicion of having caused the fire in the Trade Union Building.
280. The investigation into the conduct of the SES staff, which did not begin until over
five months after the events in question, has made little progress. No person has been notified- 63 -

The Panel’s assessment: The Panel’s evaluation of the current status of the investigationsof suspicion and the authorities appear to be still awaiting the conclusions of the inter-agency
forensic examination.
Conclusion
281.
The Panel considers that substantial progress has not been
made in the investigations into the violent events in Odesa on
2 May 2014.While this outcome may be explained to some extent by thecontextual challenges,285 the Panel considers that the deficiencies
identified in this Report have undermined the authorities’ ability toestablish the circumstances of the Odesa-related crimes and to bring tojustice those responsible.

285

See paragraph 198 et seq. above.

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THE PANEL’S CONCLUSIONSI.

SUMMARY OF THE PANEL’S CONCLUSIONS

282. Based on its review of the investigations into the violent events in Odesa on
2 May 2014, the Panel has reached the following conclusions.
As regards the challenges facing the investigations:283. The challenges confronting those responsible for the investigations into the events in
Odesa on 2 May 2014 have been significant and their impact on the investigations cannot be
under-estimated. However, these challenges cannot excuse any failings which did notinevitably flow from them. The authorities clearly were, and are, under an obligation to takeall reasonable steps to ensure that the investigations comply with the requirements ofArticles 2 and 3 of the Convention.
As regards the independence of the investigations:284. Given the evidence indicative of police complicity in the mass disorder of
2 May 2014 in Odesa, Articles 2 and 3 require that the investigation into the mass disorder as
a whole be carried out by an organ entirely independent from the police. Similarly, theinvestigation into the conduct of the fire service cannot be regarded as independent, given the
structural links between the SES and the MoI. These concerns again highlight the need for an
independent and effective mechanism for the investigation of serious human rights violationscommitted by law enforcement officers and other public officials.
285. In addition, the Panel considers that it is of central importance for the purposes ofmaintaining the confidence of all sectors of the public in the criminal justice system that theauthorities, including the judicial authorities, are seen to act in an impartial and equal mannerin the conduct of the investigations and court proceedings.
As regards the effectiveness of the investigations:286. Organisation of the investigative work: The Panel finds the division of
investigative work between the PGO and the MoI to be inefficient and detrimental to theeffectiveness of the investigations, given that they concern the same set of closely connected
events and overlap to a certain extent as regards evidence, witnesses and victims. The Panelalso finds that the quality, progress and effectiveness of the investigations were affected by
the decision to allocate the investigation of the actions of the SES to the local MoI, which
remained inactive during the crucial early stages.
287. Staffing and resources: The Panel finds it commendable that both the PGO and the
MoI have sought to ensure continuity as regards the main investigators in Odesa. However, it
finds that the reduction of each authority’s investigating team has had a detrimental effect on
the progress, quality and effectiveness of investigations and it considers the current staffing
levels to be inadequate.
288. Quality of the investigations: The Panel finds that, in respect of each of the mattersunder investigation, the relevant authorities failed to show sufficient thoroughness and- 65 -

The Panel’s conclusions: Summary of the Panel’s conclusions

diligence in initiating and/or pursuing the investigations, with the result that their overall
effectiveness was compromised.
289. Prosecution and trial: The Panel expresses serious concern about the decisions toterminate the proceedings against two suspects on the grounds of lack of evidence.
290. The Panel finds that the repeated recusals of judges led to delays in thecommencement of the criminal proceedings as a whole. The Panel further finds that thedecision to charge 21 individuals in a single indictment, without individualising the charges,
has contributed to the delay and risks having an adverse impact on the progress of the court
proceedings.
As regards requirement of promptness and of reasonable expedition:
291. The Panel considers that the investigation into the conduct of the SES staff wasneither promptly commenced nor pursued with reasonable expedition. The investigations into
the mass disorder and the fire on 2 May 2014 and into the conduct of the police on 2 and
4 May 2014, while promptly instituted, have been subject to a number of deficiencies thathave significantly protracted the investigative response.
As regards public scrutiny of the investigations:292. The Panel considers that the events in Odesa on 2 May 2014 were of such importancethat the authorities were required to provide sufficient information about the investigations tofacilitate meaningful public scrutiny. While the authorities provided a considerable amount of
information, there was no effective communication policy in place, with the result that someof the information provided was difficult to understand, inconsistent, and unevenly presented
and was provided with insufficient regularity.
As regards involvement of victims and next-of-kin:
293. The Panel’s role is not to determine whether the investigation of an individual casesatisfied the requirements of the Convention and, in this regard, it limits its conclusions torecalling the case-law of the European Court relating to the involvement of victims and nextof-kin in any criminal investigation.
The Panel notes with regret that, in contrast to the Maidan investigations, the investigatory
authorities did not take any co-ordinated measures directly and regularly to ensure thatvictims and next-of-kin were informed about the progress of the investigations. It finds thatthe information provided to the general public was not of itself sufficient to protect the rights
and legitimate interests of the victims and next-of-kin.
As regards the Panel’s evaluation of the current status of investigations:294. The Panel considers that substantial progress has not been made in the investigations
into the violent events in Odesa on 2 May 2014.While this outcome may be explained tosome extent by the contextual challenges, the Panel considers that the deficiencies identified
in this Report have undermined the authorities’ ability to establish the circumstances of the
Odesa-related crimes and to bring to justice those responsible.

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The Panel’s conclusions: The Panel’s concluding remarks

II.

THE PANEL’S CONCLUDING REMARKS

295. In its Report relating to the Maidan investigations the Panel noted the deep scars leftin Ukrainian society by the violent events in Kyiv and the important part played in any
healing process by the conduct of an effective and independent investigation into those
events. The Panel there found a clear lack of public confidence in Ukraine in any suchinvestigation and a widespread perception of impunity on the part of the law enforcement
agencies and of an unwillingness or inability on the part of the investigatory authorities tobring to justice those responsible for the deaths and injuries.
296. Very similar considerations apply in the case of the tragic events in Odesa on
2 May 2014, the evidence obtained by the Panel revealing a comparable lack of confidence inthe adequacy of the investigations and in the ability of the authorities to bring to justice those
responsible for causing or contributing to the many deaths and injuries on that day. In
particular, despite the lapse of some eighteen months after the events in question, not a single
charge has been brought in respect of the deaths resulting from the fire in the Trade Union
Building. As in its Maidan Report, the Panel has in the current Report drawn attention toserious deficiencies, both structural and operational, in the independence and effectiveness of
the investigations which have been so far carried out and which the Panel has found not tocomply with the requirements of the European Convention or the case-law of the European
Court.
297. The Panel was initially encouraged by the fact that, shortly after the events of 2 May,a series of inquiries was established, the results of which could have proved of considerable
value in those investigations. Two such inquiries, set up by bodies not directly responsible forthe investigations, were of particular significance.
298. The Temporary Investigation Commission established on 14 May by the former
Verkhovna Rada under the Chairmanship of Mr Kisse was an important initiative, designed
as it was to establish the facts of the events that had occurred ten days before. It found aseries of shortcomings both in the readiness of the police to handle the anticipated massdisorder and in the measures taken by the police to deal adequately or at all with thoseparticipating in acts of violence on that day. It is, however, a matter of regret that several key
figures refused to cooperate with the Commission, by repeatedly declining invitations to meetwith it. It is similarly regrettable that, following the expiry of the mandate of the Commission
after the parliamentary elections, its Report, adopted in September 2014, was never examinedby the Verkhovna Rada and that a draft resolution to set up a new Commission, with the role,inter alia, of identifying those who had organised, aided and abetted crimes in the course of
the mass disorder, is still under examination in the Verkhovna Rada, some ten months after
the draft resolution was introduced.
299. The inquiry conducted by the Ombudsperson was similarly a valuable initiative, inthe course of which numerous witnesses were questioned and official documents were
examined and analysed. The Report of her inquiry, which was carried out between 6 and23 May 2014, importantly concluded that the “Wave” plan had never been implemented on
2 May and that there been an attempt to have the order on the use of force signed andapproved retrospectively. Although the Ombudsperson notified the PGO of her findings andrequested the latter to carry out a comprehensive, objective and impartial investigation into
the events, it is unclear what use if any was made of the findings, the PGO limiting its
response to saying that the relevant investigations had been instituted and were underway.
300. The detailed work carried out by the 2 May Group, particularly the expert
examination it conducted of the fire in the Trade Union Building, was, in the view of the- 67 -

The Panel’s conclusions: The Panel’s concluding remarks

Panel, a further invaluable source of information for those responsible for the investigations.
However, as in the case of the Ombudsperson’s inquiry, the Panel finds no evidence that, atleast in the early stages of the investigations, sufficient importance was attached by theinvestigating authorities to the results of the work carried out by the 2 May Group or to theneed for closer cooperation with it.
301. There have, however, been positive developments. In particular, the Panel welcomesa more open approach on the part of the investigatory authorities. For example, while
deficiencies remain in respect of the consistency, evenness and regularity of the information
placed in the public domain, efforts have undoubtedly been made to keep the public informed
about what happened on 2 May and what is being done to bring those responsible to justice.
In addition, the Panel received good cooperation on the part of the authorities in carrying out
its review.
302. As regards the conduct of the investigations themselves, the Panel commends the factthat both the MoI and the PGO have sought to ensure continuity as regards the maininvestigators working in Odesa. In this connection the Panel notes the apparent progress
made in the case concerning police misconduct following the reappointment of
Mr Zinkovskyi as the head of the PGO’s investigative team, which resulted in the bringing offurther charges in the case concerning police misconduct. It notes, too, the establishment by
the MoI in April 2015 of an inter-agency group of experts, with the role of examining how
the fire in the Trade Union Building started and progressed, as well as the conduct of the SES
during the course of the fire and the MoI’s investigators’ assurances that further cases
concerning the participants in the mass disorder are under preparation and will be sent tocourt soon. While these are promising developments, it is nevertheless right to recall thelength of time that has now elapsed since the events that are the subject of the investigations.
Moreover, the Panel remains concerned about the reduction in the staffing levels of theinvestigative teams in the PGO and MoI, which it finds have already had a detrimental effecton the progress, quality and effectiveness of those investigations.
303. The investigations into those events have once again reinforced the need for theestablishment of the State Bureau of Investigations provided for under the Criminal
Procedure Code. The Panel is encouraged by the active steps currently being taken by the
Ukrainian authorities to set up the Bureau but would emphasise the importance that any suchbody should in all respects meet the requirements of independence and effectiveness under
the European Convention.
304. There remain substantial challenges facing the investigation of the events in Odesa,
which resulted in the tragic loss of life and serious injuries on 2 May 2014. As in the case of
the Maidan investigations, it is to be hoped that, guided by the conclusions reached by the
Panel in the current Report, further progress will be made in bringing to justice those
responsible, in restoring public confidence in the legal system and in bringing closure to thisfurther painful chapter in the history of Ukraine.

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ANNEX IMANDATE OF THE INTERNATIONAL ADVISORY PANEL286
1. In light of the existing political crisis in Ukraine, as well as the need to create publicconfidence in the investigations of the violent incidents which have taken place in Ukraine
from 30 November 2013 onwards, Council of Europe Secretary General Jagland has
proposed to create an International Advisory Panel (IAP).
2. The investigations will be conducted by the relevant Ukrainian authorities, inaccordance with the Ukrainian law. The IAP will oversee that the investigations meet all therequirements of the European Convention on Human Rights and the case law of the European
Court of Human Rights. To this end the IAP shall receive regular reports from the Prosecutor
General’s office on the progress of the investigations into mentioned incidents. The IAP shallhave full access to all relevant information and the right to request and receive any additional
information as it deems necessary. The IAP may issue advice and recommendations torelevant instances and bodies. Civil society shall have the right to contact and communicate
freely with the IAP.
3. The Panel will be composed of three members: one to be appointed by the authorities,
one by the opposition, and one from the international community - who will chair the Panel.
All members should be legal professionals rather than politicians, and be widely respected
within the Ukrainian society for their high level of professionalism and integrity.
4. At the end of the IAP's mission, a final report should be prepared by the Chair of the
IAP and presented to the Secretary General of the Council of Europe and the Ukrainian
authorities.
5. In view of ensuring the necessary working conditions of the IAP members, theUkrainian Parliament may provide them with the necessary premises and tools.
6. Financial means for the mission of the IAP international member and his staff will be
provided by the Council of Europe.

286

For information concerning the extension of the Panel’s Mandate so as to cover the events in Odesa, see“Introduction”.

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ANNEX II
PROCEDURE FOLLOWED BY THE PANEL
A. Written procedure
The Panel made several written requests for information to various authorities and NGOs,requesting detailed information about the nature and scope of the investigations:

On 6 February 2015 a letter was sent to the PGO. The reply was received in due
time.



On 10 April 2015 letters were sent to the PGO, the MoI, the SSU, the Parliamentary
Commissioner for Human Rights, the Chairperson of the Verkhovna Rada, theMayor of Odesa, the Head of the Odesa State Administration and the Head of the
Odesa Regional Healthcare Department.
Responses were received from certain authorities, except the SSU and the Mayor of
Odesa.

On 13 May 2015 further letters of reminder were sent to the SSU and the Mayor of
Odesa. Replies were received from both.



On 15 and 27 May 2015 letters of invitation to meet were sent to the 2 May Group.



On 21 and 27 May 2015 letters of invitation to meet were sent to the PGO, the MoI,
the SSU, the Parliamentary Commissioner for Human Rights, the Chair of the TIC,
the UN Human Rights Officer in Odesa and to various NGOs: Amnesty
International, Centre for Civil Liberties, Human Rights Watch, Ukrainian Helsinki
Human Rights Union.



On 18 June 2015 a letter was sent to the MoI.



On 22 June 2015 letters were sent to the PGO, the MoI, the SSU and the 2 May
Group. Responses were received from all the authorities and the NGOs.



On 30 June 2015 invitation letters were sent to certain lawyers of Odesa.

On 23 July 2015 invitation letters were sent to the PGO, the MoI, certain lawyers
practising in Odesa and the 2 May Group.



On 17 August 2015 letters were sent to the PGO, the MoI, the SSU, the Ministry ofJustice, the Council of Judges, the State Court Administration, the State Emergency
Service, the Parliamentary Commissioner for Human Rights, the Chair of the TIC,
the Chairperson of the Verkhovna Rada and the 2 May Group.
Responses were received from the PGO, the MoI, the SSU, the Ministry of Justice,
the State Court Administration, the State Emergency Service, and the 2 May Group.



On 4 September 2015 a letter was sent to the PGO. The reply was received in duetime.

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Annex II

Through its web page, the Panel also invited non-governmental organisations to makesubmissions. The 2 May Group accepted the invitation and made submissions to the Panel.
B. Oral procedure
The Panel held a series of meetings in Kyiv and Odesa with relevant authorities, lawyers
and NGOs from June to July 2015:

On 1-3 June 2015 the Panel held a series of meetings in Kyiv with:-

Two representatives of the Parliamentary Commissioner for Human Rights;-

Seven representatives of the PGO, including the Head of the Special
Investigation Department Mr Serhii Horbatiuk. Two meetings on 2 and 3 Junewere organised.

-

Four representatives of the NGOs: Amnesty International, the Centre for Civil
Liberties and the Ukrainian Helsinki Human Rights Union;-

Eleven representatives of the MoI;-

Two representatives of the SSU;-

The Chair of the TIC, Mr Kisse and his assistant.

On 4 June 2015 the Panel held meetings in Odesa with:-

Four representatives of the 2 May Group;-

Two representatives of the PGO.

On 28 July 2015 the Panel held a meeting in Kyiv with the Head of the Special
Investigation Department Mr Serhii Horbatiuk and four other representatives of
the PGO.

On 29-30 July the Panel held a series of meetings in Odesa with:-

Two representatives of the PGO;-

Three senior investigators of the Main Investigations Department of the MoI;-

Head of the UN office in Odesa;-Six representatives of the 2 May Group;-

Ten victims’ and defence lawyers practising in Odesa.

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ANNEX III
DRAMATIS PERSONAE(in alphabetical order)
Name

Background

Arsen Avakov

Minister of the Interior since 27 February 2014.

Mykola Banchuk

Deputy Prosecutor General at the time of the events.

Volodymyr BodelanHead of the State Emergency Service in the Odesa Region at thetime of the events.

Ihor Borshuliak

Head of the prosecution service in the Odesa region, 5 March to
21 May 2014.

Vitalii Budko

Suspected of having taken part in the mass disorder on
2 May 2014.

Vasyl Byrko

Senior investigator of the MID of the MoI; since 5 May 2014 incharge of the cases concerning the mass disorder, the fire in theTrade Union Building and the conduct of the SES staff; head of
the investigative team in charge of the case concerning the
conduct of the SES staff.

Serhii Chebotar

Deputy Minister of the Interior, March 2014 to May 2015.

Anton Davydchenko

Alleged to be a leader of AntiMaidan in Odesa in March 2014.
On 22 July 2014 convicted for an offence against territorial
integrity and inviolability of Ukraine.
Brother of Artem Davydchenko.

Artem Davydchenko

Suspected of having organised the mass disorder on
2 May 2014.
Brother of Anton Davydchenko.

Serhii Dolzhenkov

Suspected of having organised the mass disorder on
2 May 2014.

Dmytro Fuchedzhy

Deputy Head of the MoI Office in the Odesa Region and Headof the Regional Public Order Police by 3 May 2014.
Acting Head of the MoI Office in the Odesa Region, 3-6 May
2014.
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Annex III

Suspected of having neglected his duties on 2 May 2014 andhaving released the detainees on 4 May 2014.
Tetiana Herasymova

Journalist, co-ordinator of the 2 May Group.

Vsevolod Honcharevskyi

Suspected of, among others, assaulting those who had been
jumping from the burning Trade Union Building.

Serhii Horbatiuk(Senior) investigator at PGO since 2004. Since April 2014 Headof the second investigating unit of the Major Crimes Division of
the MID of the PGO. Head of Special Investigations Division
since December 2014.

Oleksandr Hrybovskyi

Suspected of having taken part in the mass disorder on
2 May 2014.

Volodymyr Huzyr

Deputy Prosecutor General, 14 February to 2 April 2015.
First Deputy Prosecutor General since 2 April 2015.

Ivan Katerynchuk

Head of the MoI Office in the Odesa Region, 4 May 2014 to
16 June 2015.

Serhii Khodiak

Charged with having committed, inter alia, a murder on 2 May
2014 in Odesa.

Anton Kisse

Member of Parliament, Chairman of the Parliament’s
Temporary Investigation Commission charged with carrying out
an inquiry into, inter alia, the events in Odesa on 2 May 2014.

Petro Lutsiuk

Head of the MoI Office in the Odesa Region by 3 May 2014.

Oleh Makhnitskyi

Acting Prosecutor General from February to June 2014.

Vitalii Muzyka

Senior investigator of the second investigative unit in the MIDof the PGO. Head of the investigative team in the proceedings
concerning the conduct of the police from July 2014 to
8 April 2015.

Valentyn Nalyvaichenko

Chief of the SSU, February 2014 to June 2015.

Volodymyr Nemyrovskyi

Head of the Odesa Regional State Administration, 3 March to
6 May 2014.

Andrii Parubii

Secretary of the National Security and Defence Council,
27 February to 7 August 2014.

Mykola Rudnytskyi

Senior investigator of the MID of the MoI; since 5 May 2014 incharge of the cases concerning the mass disorder, the fire in theTrade Union Building and the conduct of the SES staff; from- 73 -

Annex III

5 May 2014 to August 2015 headed the investigative team in thecase concerning the mass disorder and the fire in the Trade
Union Building.
Vitalii Sakal

Deputy Head of MID of the MoI (January-February 2014).
Head of the MoI Main Investigation Department (March 2014 to
May 2015) and Deputy Minister of the Interior since(April 2014 to May 2015).

Ruslan Sushko

Senior investigator of the MID of the MoI; since June 2014 incharge of the cases concerning the mass disorder, the fire in theTrade Union Building and the conduct of the SES staff; sinceAugust 2015 has headed the investigative team in the caseconcerning the mass disorder and the fire in the Trade Union
Building.

Mykola Volkov

Suspected of shooting into the Trade Union Building on
2 May 2014 in Odesa. Following his death in February 2015, theproceedings concerning him were discontinued.

Hryhorii Yepur

Member of the Odesa Regional Council, Chairman of theCouncil’s Temporary Control Commission charged to exercise acontrol over the investigations led by the investigative
authorities into the events in Odesa on 2 May 2014.

Ihor Zinkovskyi

Deputy Head of the second unit of the SID of the MID of the
PGO. Head of the investigative team in the proceedings
concerning the conduct of the police from 7 May to June 2014
and since 8 April 2015.

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ANNEX IV
INFORMATION ON DEATHS RELATING TO THE EVENTS IN ODESA ON
2 MAY 2014287
Cause of death

Clashes on and around Fire in the Trade Union
Hretska square
Building

Fall from a height

-

8288

Firearm injuries

6289

-

Carbon monoxide intoxication-

9

Body burns-

2

Burns of the respiratory tract and body-3

Burns of the respiratory tract and body
combined with intoxication with an unidentified gas (combustion products)

5

Burns of the respiratory tract combinedwith intoxication with an unidentified gas (combustion products)

1

Intoxication withfumes and vapours

-

14

6

42

unidentified

gases,

TOTAL
48

287

Based on the written submissions of the Odesa Healthcare Department of 23 April 2015 to the Panel.
Seven persons died on the scene, one died later in a hospital.
289
Including one person injured from an air gun weapon: four persons died on the scene, two died later in a
hospital.
288- 75 -

ANNEX V(reproduced from the IAP Maidan Report, §§ 140-155)
RELEVANT DOMESTIC LAW ON PRE-TRIAL INVESTIGATIONS290
1. A pre-trial investigation, the initial stage of the criminal procedure, commences as arule with the entry of information into the Unified Register of Pre-Trial Investigations(Unified Register). Under Article 214 § 1 of the CPC a prosecutor or an investigator isrequired to enter the information into the Unified Register within twenty four hours after heor she receives notice of a crime or discovers circumstances which may attest to theoccurrence of a crime.
2. Article 38 of the CPC designates four bodies whose investigative departments areentitled to carry out pre-trial investigations. They are the law enforcement authorities (MoI),
the Security Service of Ukraine (SSU), the authorities supervising compliance with tax law,and the State Bureau of Investigations.291 Pending the establishment of the State Bureau of
Investigations, its function remains with the public prosecution service.
3. According to Article 216 of the CPC, the law enforcement authorities carry out the
pre-trial investigation of offences which entail criminal responsibility, unless theinvestigative jurisdiction is allocated to other investigating bodies. The SSU investigates,inter alia, cases concerning crimes against national security, peace, international order andterritorial integrity. The State Bureau of Investigations will investigate crimes committed by
officials who occupy a particularly important post in the state service292 as well as by judges
and officials of the law enforcement authorities.
4. Pre-trial investigations may be carried out by a single investigator or by aninvestigating group, the latter being created, for example, in complex cases. According to
Article 40 of the CPC, the investigator in charge of a particular pre-trial investigation is to act
independently when taking a procedural decision. He or she may only receive instructions
from bodies authorised to give them. Certain actions may be taken by an investigator onlywith a prosecutor’s approval. An investigator is obliged to comply with a prosecutor’s
instructions given in writing.
5. The public prosecution service, apart from carrying out pre-trial investigations
pending the creation of the State Bureau of Investigations, supervises and provides
procedural guidance in pre-trial investigations conducted by other investigating bodies andconducts the prosecution of the case in court.
6. The powers of a prosecutor, as regards supervision of pre-trial investigations, are set
out in Article 36 of the CPC. A prosecutor is authorised, inter alia, to have full access to casematerials, to instruct investigating authorities and operative units, to quash unlawful andunfounded decisions of an investigator, to approve, refuse to approve or amend an indictment
and to submit the indictment to court.
290

For a detailed description of domestic law and procedure with regard to pre-trial investigations, and for
CoE comments on certain provisions of the CPC adopted in 2012, see IAP Information Note No. 2 and
IAP Information Note No. 3.
291
The State Bureau of Investigations is not yet functioning: the CPC provides for its establishment, at thelatest, by November 2017.
292
The list of such officials is contained in Article 9 of the Law of Ukraine on State Service.

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Annex V

7. According to Article 36 § 5 of the CPC the Prosecutor General, his deputies, regional
prosecutors or prosecutors of the same level are entitled to transfer an investigation to anotherpre-trial investigation authority, in the event of a lack of effective pre-trial investigations.
8. Article 36 of the CPC and Articles 6 and 7 of the Law on the Public Prosecution
Service of 1991 provide for the independence of public prosecutors.
9. According to Article 41 of the CPC, in the course of pre-trial investigations,investigators and prosecutors are assisted by operative units. Operative units carry out
investigative actions upon written instructions of an investigator or prosecutor, which
instructions are obligatory for them. Operative units may not carry out investigative acts on
their own initiative or address a prosecutor or investigator with such a request.
10. Under the above mentioned Article, operative units of the law enforcement
authorities, the SSU, tax and customs authorities, the State Penitentiary Service and the State
Border Guard Service are entitled to carry out investigative actions. The Law on Operativeand Detective Actions of 1992 specifies the departments which carry out investigative actions(Article 5).
11. Having collected sufficient evidence allowing a person to be considered a suspect in acriminal case, a written notification of suspicion is issued to the suspect according to theprocedure set out in Articles 276-279 of the CPC. The notification of suspicion is carried out
in two stages: the drawing up of the written notice of suspicion itself and the serving of thenotice on the suspect. The notice of suspicion should be given to the suspect on the same day
it was drawn. If the suspect has absconded, the notice is served on the suspect after he or she
is found.
12. Under Articles 280-282 of the CPC an investigator or prosecutor may suspend pretrial investigations in certain cases: for instance, if a suspect is hiding from the investigating
authorities and/or the court to avoid criminal responsibility and his location is unknown or incases where there is a need to carry out procedural acts within the framework of international
co-operation activities, such as extradition.
13. Article 217 of the CPC entitles a prosecutor to join several cases into one casefile atthe pre-trial investigations stage (for instance, if materials concern several persons suspectedof committing the same crime) or to separate cases (for instance, if the same person issuspected of committing several crimes).
14. Article 28 of the CPC provides that each procedural step and decision should be
carried out and adopted, respectively, within reasonable time-limits. Under Article 219 of the
CPC, pre-trial investigations concerning a crime should be completed within two months
from the moment when a person is given a notice of suspicion. Depending on the gravity andcomplexity of the crime, that time-limit may be extended to six or twelve months.
15. The pre-trial investigation is completed when criminal proceedings are terminated orwhen one of the following documents is submitted to a court – an indictment, a request for
the application of compulsory measures of a medical or educational character, or a request for
release from criminal responsibility (Chapter 24 of the CPC).
16. Preliminary court proceedings and then the court trial follow, provided no grounds arefound to terminate criminal proceedings or to release the person from criminal responsibility.

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ANNEX VI
PUBLIC STATEMENTS BY THE INVESTIGATIVE AUTHORITIES WITHRESPECT TO THE EVENTS OF 2 MAY 2014 IN ODESA AND THE ENSUINGINVESTIGATIONS293
A. Statements on 2 May 2014
1. At 4.43 p.m. the MoI reported that a confrontation between AntiMaidan activists, on
the one hand, and football fans and EuroMaidan activists, on the other, had been unfolding on
Hretska Street in Odesa; the law enforcement officers on the spot had been doing their best to
stop the violence.294
2. At 4.55 p.m. the MoI stated that the confrontation had moved to Kulykove Pole295 andat 5.01 p.m. (sic) that a fire had broken out in the Trade Union Building.296
3. At 6.43 p.m. the MoI added that the police had managed to separate the two sides
with a cordon and to bring the conflict to an end; however, after a while the clashes had
resumed. It also reported that by that time three persons had died and 15 persons had beentaken to hospital with injuries of various degrees of seriousness as a result of clashes and that,in addition, three police officers had been injured. In the meantime, a criminal investigation
had been instituted under Article 294 § 2 (mass disorder) of the Criminal Code and an
investigative and operational team had been working at the crime scene.297
4. At 8.09 p.m. the MoI reported that the AntiMaidan activists had seized the Afina
Shopping Centre and had barricaded themselves inside; some of them had been already beencaught and taken to the police station. The police had been negotiating with the remaining
activists to surrender and leave the building.298
5. At 9.38 p.m. the MoI announced that 31 persons had died as a result of a fire in theTrade Union Building and that 50 persons (including ten police officers) had requested
medical aid; the final toll was still being clarified. The State Emergency Service (“SES”)
officers had already extinguished the fire.299
B. Statements after 2 May 2014
1. On 3 May 2014
6. In the morning, Mr Avakov announced that he had dismissed the head of the MoI
Office in the Odesa Region, Mr Lutsiuk, and that an internal inquiry had been instituted into
293

The aim of this Annex is to show how the investigative authorities informed the public of their activity. It
contains a summary of statements provided by the PGO and MoI at the Panel’s request and statements found by
the Panel’s researchers. The statements referred to in the Annex are not intended to be exhaustive and thesummaries should not be used as substitutes for the original statements.
294
MoI website, news of 2 May 2014 (at 4.43 p.m.).
295
Loc. cit., news of 2 May 2014 (at 4.55 p.m.).
296
Loc. cit., news of 2 May 2014 (at 5.01 p.m.).
297
Loc. cit., news of 2 May 2014 (at 6.43 p.m.).
298
Loc. cit., news of 2 May 2014 (at 8.09 p.m.).
299
Loc. cit., news of 2 May 2014 (at 9.38 p.m.).

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Annex VI

the behaviour of the Odesa police in general. According to the Minister, 42 persons had diedand 125 persons (including 21 police officers) had been injured and hospitalised as a result of
the clashes and the fire on 2 May.300
7. On the same day the MoI reported that 160 of the most active participants in the
clashes had been detained and that three sets of criminal proceedings had been instituted: twounder Article 294 § 2 (mass disorder) of the CC and one under Article 345 § 3 (threats orviolence against a law enforcement officer) of the CC.301
8. Later that day it was announced that a special commission headed by Mr Chebotar,
Deputy Minister of the Interior, had been set up to investigate the events of 2 May.
Mr Chebotar was quoted as saying that “the police [had taken] all available measures todeescalate the conflict and to reduce the number of casualties”. According to him, the MoI
had instituted ten sets of criminal proceedings in connection with the events in question andhad detained 172 persons. Following certain investigative measures, some of the detainees
had been released on their personal undertakings, whereas 127 persons had been retained incustody as active participants in the mass disorder. He also noted that the extremists had beenthoroughly prepared for the clashes, referring to the firearms (smooth-bore and rifles),traumatic weapons and considerable quantities of flammable materials seized by the police.302
9. According to the preliminary conclusions of the SES in the Odesa Region, following
an on-site inspection, the fire in the Trade Union Building could have been caused by
Molotov cocktails thrown from the upper floors of the building; the fire had spread from theupper floors over a considerable surface area of the building.303
10. The Acting Prosecutor General, Mr Makhnitskyi, reported that 46 persons had died,
six as a result of firearm and other injuries inflicted on Hretska Square and 40 as a result of
the fire in the Trade Union Building, of whom 32 had died from carbon monoxide poisoning
and eight had died as a result of fatal injuries caused by falling from a height; at least
200 persons had sought medical assistance and 44 persons had been hospitalised (25 being ina serious condition) as a result of the clashes the day before. In addition, 14 police officers
had sought medical assistance. It was also stated that “because the Trade Union Building had
been bombarded with bottles containing flammable materials, a fire had started on the first,
second, and third floors”. 210 persons had however been evacuated from the building.
Mr Makhnitskyi was quoted as saying that “the events on 2 May in Odesa have shown what
can result from external agitation and from a lack of foresight on the part of certain officials
who neglected their duty to protect public order”. According to him, a special team from the
PGO headed by Mr Banchuk had arrived in Odesa to oversee the investigations. A criminal
investigation into the deaths had been opened under Articles 294 § 2 and 345 § 3 of the CC;
93 persons had been detained under Article 208 of the CPC on the grounds of their
participation in mass disorder. In addition, it was reported, the Prosecutor’s Office in the
Odesa Region had instituted an investigation under Article 367 § 2 of the CC into the failureof the law enforcement officers to fulfil their duties, leading to grave consequences.304
11. The then head of the Prosecutor’s Office in the Odesa Region, Mr Borshuliak, also
held a briefing.305 In his view, casualties could have been avoided if the police had taken
300

Loc. cit., news of 3 May 2014 (at 9.46 a.m.).
Loc. cit., news of 3 May 2014 (at 11.15 a.m.).
302
Loc. cit., news of 3 May 2014 (at 2.30 p.m.).
303
Loc. cit., news of 3 May 2014 (at 4.48 p.m.).
304
PGO website, news of 3 May 2014.
305
Website of the Prosecutor’s Office in the Odesa Region, 3 May 2014.
301- 79 -

Annex VI

effective and urgent measures. He stated that his Office had already instituted investigations
under Article 367 § 2 of the CC into the failure of law enforcement officers to fulfil theirduties. At the same time, the prosecution service were supervising a number of investigations
led by the MoI. For the purposes of ensuring a proper investigation, the Prosecutor’s Office
had also set up an inter-agency investigative and operational group, which included
representatives of the local offices of the MoI and the SSU. It was further reported that, as aresult of the events of 2 May, nearly150 persons had already been detained.
2. On 4 May 2014
12. On 4 May Mr Banchuk was reported to have decided to transfer the casefile
concerning the mass disorder from the MoI Office in the Odesa Region to the MID of the
MoI, in order to ensure a comprehensive, objective and impartial investigation. Investigatorsof the Prosecutor’s Office in the Odesa Region would continue to investigate, under Article
367 § 2, the failure of law enforcement officers to fulfil their duties.306
13. At 5.30 p.m. the MoI announced that 67 persons detained on grounds of their
participation in the mass disorder on 2 May had been released on the directions of theProsecutor’s Office in the Odesa Region, following the demands of a mob of protesters.307
14. Later the same day, Mr Avakov admitted that the police in Odesa had acted“deplorably, perhaps criminally” and stated that he had dismissed all the police heads
involved. Nonetheless, other “heroes” should also in his view be made known: first, on the
day of the clashes, the prosecutor had summoned all the heads of the local police for ameeting, with their mobile telephones switched off; the meeting had lasted from 12 noon to
4 p.m., even though the rally had started at 3 p.m.; secondly, the police had intended, as amatter of urgency, to transfer to another region over 100 persons detained after the clashes on
2 May so as to prevent further possible clashes, but the prosecutor had forbidden this; thirdly,
after groups of separatists had stormed the police station, the prosecutor had decided torelease the detainees.308
15. Mr Makhnitskyi, expressing his surprise at the allegation which had been widelyreported in the mass media that the release of detainees had taken place on the instruction of
officials of the prosecution service, denied the allegations, noting that neither Mr Banchuk,
the Deputy Prosecutor General, nor Mr Borshuliak, Head of the Prosecutor’s Office in the
Odesa Region, had given or could have given any order to release those detainees since “suchactions [were] qualified as State treason and as direct support of separatism, something that
the PGO [had been] fighting strenuously for a long time”. The Prosecutor’s Office in the
Odesa Region had opened an investigation under Articles 365 (excess of power) and
367 (neglect of duty) of the CC into the actions of the police. The Acting Prosecutor General
underlined that the PGO would open a new case against anyone who obstructed the progressof the investigation.309
16. The Prosecutor’s Office in the Odesa Region also made a statement rejecting theallegation of its involvement in the release of 67 detainees. It was said that the decision torelease the detainees had been taken by the management of the MoI Office in the Odesa
Region itself without any involvement of the Prosecutor’s Office. The Prosecutor’s Office in
306

PGO website, news of 4 May 2014.
MoI website, news of 4 May 2014 (at 5.30 p.m.).
308
Loc. cit., news of 4 May 2014 (at 11.25 p.m.).
309
PGO website, news of 4 May 2014.
307- 80 -

Annex VI

the Odesa Region had accordingly instituted an investigation into the actions of the police
under Articles 365 § 2 and 367 § 1 of the CC.310
17. In the evening the MoI announced that Mr Katerynchuk had been appointed as the
new head of the MoI Office in the Odesa Region.311
3. On 5 and 6 May 2014
18. On 5 May Mr Avakov announced that a special unit of the National Guard had arrived
in Odesa to maintain public order.312 According to him, 42 persons suspected of organisingand participating in the mass disorder in Odesa on 2 May had been transferred to anotherregion.313
19. On 6 May the MoI clarified the official toll as a result of the events on 2 May:
46 persons had died, of whom only 38 had been identified. In addition, five declarations
about missing persons had been lodged with the police; two had been established as relating
to persons who had died.314
20. Later that day Messrs Chebotar and Katerynchuk held a press conference.315
Mr Chebotar stated that the investigations were underway and that 160 persons who hadtaken part in the events on 2 May had been detained. According to him, further arrests would
be announced soon. Mr Chebotar also noted that all three deputy heads of the Odesa Regional
MoI Office had been suspended pending the investigations.
21. On the same day, Mr Makhnitskyi gave an interview which partly covered theinvestigations into the events on 2 and 4 May in Odesa.316 Replying to a question concerning
the conflicting accounts as to whether the prosecution service or the police had been
responsible for the release of the detainees on 4 May, Mr Makhnitskyi said that he had
immediately ordered an internal inquiry into the actions of Mr Banchuk, the Deputy
Prosecutor General, and the officials of the Odesa Regional Prosecution Office. In addition,
criminal investigations into the release of detainees were pending, but it had already been
established that the prosecution service had not been involved in the incident. According to
the testimonies of the police officers, the order had been given by the Head of the Odesa CityMoI Office, with the approval of the Acting Head of the Odesa Region MoI Office. This had
already been established by the investigation.
As to the alleged inactivity of the police during the events on 2 May, Mr Makhnitskyi said
that at that stage one could already speak not only of the inactivity of police officers but of
their complicity:“We have certain established facts. We also have information which suggests greater complicity
on the part of the police but I cannot talk about that now. However, there is video footage showingthat police officers remained passive when the thugs were shooting people.”

310

Website of the Prosecutor’s Office in Odesa Region, news of 4 May 2014.
MoI website, news of 4 May 2014 (at 8.01 p.m.).
312
Loc. cit., news of 5 May 2014 (at 9.00 a.m.)313
Loc. cit., news of 5 May 2014 (at 9.13 a.m.).
314
Loc. cit., news of 6 May 2014 (at 10.42 a.m.).
315
Loc. cit., news of 6 May 2014 (at 7.01 p.m.).
316 th5 TV Channel, Interview, 6 May 2014 (relevant discussion starts at 8.07).
311- 81 -

Annex VI

A journalist claimed that gunmen had been shooting from behind the backs of police
officers. Mr Makhnitskyi confirmed this, and added that:“we saw that the thugs wore red bands and police officers wore the same red bands. This showsthat there was a joint criminal intent; they had prepared the red bands in advance, there was anagreement between police officers and the thugs, I cannot call them by any other word. Also, we
saw that when the city police station where the detainees had been held was attacked, the police
officers blatantly threw away their shields and joined the side of the thugs. There are grounds toconsider this to be a criminal offence. The case is being examined by the PGO since I ordered
Mr Bahanets, who is responsible for the investigation department of the PGO, to take the caseover.”

Replying to a question on what was the preliminary version of events – whether inactivity
on the part of law enforcement officials or a pre-planned conspiracy – Mr Makhnitskyi statedthat there had indeed been police inactivity and, as to the events of 2 May in general, it had
been planned in advance. It had been organised in advance and the roles had been assigned aswell. He said that details would be revealed after the investigations had been completed but
could not be revealed at the moment to avoid the risk of the implicated persons absconding.
As to the causes of the fire in the Trade Union Building, Mr Makhnitskyi stated that thiswas being established in the course of the investigations. He said that, at that moment, it was
too early to talk about the specific causes of the fire. In his opinion, foreign pyrotechnics
experts, possibly from the United States, should be involved so that the forensic examination
would be carried out by independent experts and that there could be no doubts about its
results. However, it could already be said that AntiMaidan protesters, who had taken over the
Trade Union Building, had been throwing Molotov cocktails at the pro-unity activists who
had been trying to get into the building. This could have been the reason why the building
had been set on fire. The theory of arson by pro-unity activists was also being investigated.
All these theories were subject to verification in the course of the investigation by forensic
experts, after which conclusions could be drawn.
4. On 7 May 2014 and later
22. On 7 May Mr Katerynchuk reported that the leaders and active participants of theevents on 2 May were four well-known residents of Odesa and its region. Out of the four, one
had fled to Crimea, two were in Moscow and one had been detained the day before andtransferred to Kyiv, as the investigation was being carried out by the MID of the MoI. He
also stated that several dozen of those who had attacked the police station on 4 May had beendetained. Replying to a question concerning Mr Fuchedzhy, Mr Katerynchuk stated that
Mr Fuchedzhy had offered his resignation and that his offer had been accepted.317
23. The PGO in its turn reported that its MID had been investigating the actions and/or
omissions of the senior police officers in Odesa on 2 and 4 May 2014 under Articles 365 § 3
and 367 § 2 of the CC; the SSU was currently escorting three officers of the Odesa city police
to Kyiv.318
24. Later that day Mr Avakov announced that Mr Fuchedzhy had left the territory of
Ukraine at 5.00 p.m. and had been put on a wanted list. The Minister denied allegations that
Mr Fuchedzhy had been released on his personal undertaking.319
317

MoI website, news of 7 May 2014 (at 5.49 p.m.).
PGO website, news of 7 May 2014.
319
MoI website, news of 7 May 2014 (at 9.06 p.m.).
318- 82 -

Annex VI

25. On 8 May Mr Chebotar reported that the police had detained Messrs Artem
Davydchenko320 and Dolzhenkov, both key suspects, and had transported them to Kyiv.
According to him, a number of extremist organisations had been active in the Odesa region;
they had been supported from abroad and their activity had been aimed at stirring discontent
among pro-Russian residents and destabilising the situation in the region. The Deputy
Minister also gave assurances that other suspects who, on instructions from abroad, had
incited mass disorder in Odesa would soon be detained.321 Later it was announced that thepolice had detained two other key suspects, in addition to Messrs Artem Davydchenko andDolzhenkov, who had allegedly actively participated in the organisation of the mass disorderon 2 May – Messrs Mykola Serebriakov and Serhii Bovbalan, the latter of whom was amember of the Odesa City Council. It was also stated that two witnesses had identified
Mr Dolzhenkov as the person who had organised the mass disorder.322
26. On 13 May Mr Chebotar stated that ten persons had expressed their wish to cooperate with the investigative authorities. According to their testimonies, the events in Odesa
on 2 May had been planned by extremist organisations to destabilise the region. The
investigation into those events was still pending and the authorities were continuing to arrest
the persons involved.323
27. On 14 May the PGO reported that an internal inquiry into the behaviour ofMessrs Banchuk and Borshuliak during the events on 2 May had been completed and that nobreach of the law had been detected.324
28. At a press-conference325 on 15 May Mr Katerynchuk stated that two aspects of theevents in question were being investigated: first, an examination of the conduct of civilians
on which a team from the MID of the MoI was currently working in Odesa with the supportof local officers and, second, an examination of the conduct of the police, on which a teamfrom the MID of the PGO was working in parallel.
Mr Katerynchuk also gave updated information about the death toll: 48 persons had died,of whom six had died as a result of firearm injuries, 32 had been suffocated by gases andfumes in the fire and ten had died having fallen from a height. Of those 48 persons, seven
were women, one was a minor, and three were as yet unidentified. Only two of the 48 hadbeen from other regions of Ukraine, the others being locals. The next-of-kin had been notified
about the deaths and their causes. Mr Katerynchuk further described in detail the locations
within the Trade Union Building where the bodies had been found. He also stated that,
following the crime scene inspection, the authorities had found a revolver loaded with six
cartridges; a charred sports pistol loaded with three cartridges, one cartridge having alreadybeen loaded in the chamber; 11 cartridge cases of various calibres; six wooden sticks; anunchaku; four helmets; three gas masks; three knives; and two axes. In the Trade Union
Building they had also found 24 half-litre glass bottles and a four-litre container with theremains of petroleum products. All those objects were the subject of forensic examinations
which were currently being carried out. The authorities had also extracted, from five bodies,
shot and metal fragments which appeared to be shot. A metal bullet of 5.45 calibre had also
320

The brother of Anton Davydchenko, who had been tried earlier – see “The Facts”, paragraph 4 above. In
response to the Panel’s question, the authorities denied that Mr Artem Davydchenko had ever been detained in
respect of the events of 2 May; see paragraph 163 above.
321
MoI website, news of 8 May 2014 (at 12.49 p.m.).
322
Loc. cit., news of 8 May 2014 (at 4.46 p.m.).
323
Loc. cit., news of 13 May 2014.
324
PGO website, news of 14 May 2014.
325
MoI website, news of 15 May 2014.

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Annex VI

been extracted from one body. The authorities had ordered and were currently awaiting theconclusions of forensic medical examinations aimed at definitively establishing the causes ofthe deaths and whether the victims had had alcohol or carbohaemoglobin in their blood. A
number of other forensic (complex, molecular and genetic and fingerprint) examinations werealso currently pending.
As to the number of arrested persons, Mr Katerynchuk reported that 16 persons were being
held in custody and 33 persons were under house arrest. In addition, the authorities werechecking 12 other persons allegedly involved in the events in question and, if evidence insupport of their guilt were found, the authorities would notify them of suspicion and apply tothe court for preventive measures.
In reply to a question as to the political affiliations of the detained, Mr Katerynchuk statedthat he did not differentiate; the only thing that mattered for him was whether a person kept
the law.
Mr Katerynchuk further denied that any special gas had been used to poison those in theTrade Union Building; nor had any explosives been used. Nevertheless, forensic
examinations aimed at identifying the substances in addition to petrol and diesel in the bottles
that had burned in the building were underway. He also denied, as unfounded, allegations that
there had been hundreds of deceased and missing persons.
As to whether people had been enticed into the Trade Union Building and whether the
events on 2 May had been organised in advance, Mr Katerynchuk stated that the two versions
were being checked by the investigative authorities and that he could not at the moment
comment on them.
29. On 16 May Mr Chebotar reported that, in the course of the investigations into theevents of 2 May, the authorities had tracked down the criminal activities of two gangs, which
had involved Odesa police officers. Members of the gangs had been selling ammunition to
extremists. As a result, the gangsters had been arrested and a hundred firearm cartridges had
been seized from them. The police officers involved had been dismissed.326
30. On 19 May Mr Sakal, Deputy Minister of the Interior and head of the MID of the
MoI, held a press conference.327 According to him, the investigation into the events of 2 May
had been instituted under six provisions of the CC: Articles 294 (mass disorder),115 (murder), 341 (seizure of State and public buildings), 345 (threat or violence against a
law enforcement officer), 296 (hooliganism) and 194 (deliberate destruction of or damage toproperty). A joint investigative and operational team had been set up, consisting of about
200 MoI and SSU officers, including nearly 150 investigators. The investigative authorities
were pursuing four lines of inquiry, the principal one being that the mass disorder andmurders had been organised at the request of extremist groups to destabilise Odesa, its regionand other regions of Ukraine. Other theories were that the mass disorder had been organisedby the local authorities, including the law enforcement authorities, with the aim of damaging
the reputation of the newly established government; that it had resulted from the uncontrolled
actions of football fans and pro-Russian groups with the connivance of the local authorities
and the police; and that it had been caused by agitation by extremists.
Referring to the complex forensic examination report on combustibles and flammables,
Mr Sakal announced that samples of chloroform had been detected at the crime scene. He
assumed that chloroform might have caused the death of those in the Trade Union Building
but the authorities had applied to the Israeli Embassy in Ukraine, seeking the assistance of
326
327

Loc. cit., news of 16 May 2014.
Loc. cit., news of 19 May 2014.

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their experts to establish the quantity of chloroform used at the crime scene. As to the fire
itself, according to the chart produced during the press conference, the building had been set
alight from the outside and its epicentre had been on the ground floor to the right of the main
entrance. The Deputy Minister stated that Molotov cocktails had been thrown by both sides,from the upper floors of the Trade Union Building and into the building from the outside.
Mr Sakal concluded by providing a list of twelve persons who were held in custody
pending the conclusion of the investigations.
31. On 21 May the MoI reported that the investigative authorities had already establishedthat the events in Odesa on 2 May 2014 had been planned and organised beforehand and thatthey had sufficient evidence that certain political parties had been involved in thatorganisation. In particular, the investigative authorities had established that certain membersof the Odesa City Council – namely Mr Bovbalan and Mr Yevhen Khaikin, both of the
Rodyna Party – had been involved in the organisation of the events. They would soon be
notified of suspicion and put on a wanted list. Referring to the statement of the Udar Party
about agitation against its Odesa mayoral candidate, it was clarified that in the course of theinvestigation the authorities had arrested Serhii Dolzhenkov. In addition, the investigative
authorities had questioned his brother, Oleh Dolzhenkov, who was one of the heads of theelectoral campaign office of the Odesa mayoral candidate of the Udar Party. No further steps
had been taken concerning Oleh Dolzhenkov.328
32. In view of the forthcoming elections, the MoI issued a further statement with the aimof preventing the manipulation of public opinion through the use of its statements concerning
the events in Odesa on 2 May 2014.329 In particular, the MoI stated that the investigative
authorities did not have information as to any involvement of Eduard Hurvits, an Odesa
mayoral candidate, or of the Odesa branch of the Udar Party in the preparation of the crimes
committed on 2 May. The Ministry also stated that it had taken into account the statement of
the Udar Party that the Dolzhenkov brothers were not connected to the Party.
33. On 2 June Mr Hryhorii Mamka, Deputy Head of the MID of the MoI, reported on the
progress of the investigations during the course of the month.330 According to him, theinvestigation into the mass disorder in Odesa had been transferred to the MID of the MoI.
The investigative and operational team consisted of the most experienced investigators andoperative officers of the SSU and the MoI. The investigators had already ordered over
80 forensic examinations. Some reports were arriving but most of them, including autopsies,
were still awaited. On receipt of those forensic reports, a complex forensic examination, withthe engagement of foreign experts, would be ordered to establish the causes of death of thosefound in the Trade Union Building. Furthermore, one of the 48 persons who had died had not
yet been identified and a DNA test had been ordered for that purpose.
The Deputy Head noted that currently 40 suspects were under house arrest and another13 were being held in custody. To identify those who had taken part in the mass disorder, theinvestigators had had to study frame by frame a huge quantity of footage recording the events
which had already been collected and was still being received. In addition, the investigators
had already questioned over 340 persons. The Trade Union Building had been given thestatus of material evidence and the Odesa Regional MoI Office had been charged withpreserving it.

328

Loc. cit., news of 21 May 2014 (at 11.19 a.m.).
MoI website, news of 21 May 2014 (at 11.08 p.m.).
330
Loc. cit., news of 2 June 2014.
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Annex VI

Mr Mamka also complained that investigators had been confronted with the problem thatcertain persons had given false personal data when seeking medical assistance. The
investigators were doing their best to identify those persons or their next-of-kin in order toquestion them and to grant them victim status. Some of those persons, even after being
identified, had refused to provide evidence.
34. On 13 August Mr Sakal, Deputy Minister of the Interior and the head of the MID of
the MoI, provided a further update on the investigations. He recalled that, as a result of theevents on 2 May, the police had detained 114 persons, “mostly pro-Russian”, on the groundsof their participation in mass disorder. However, more than 60 had been released a few days
later when the police station had been stormed. As to the remaining detainees, theinvestigators had already examined 54 persons, of whom 48 had been notified of suspicion.
However, “because of the pressure on the local courts”, only 13 of those 54 had been retainedin custody, while the remaining persons had been placed under house arrest. As a result, someof the suspects had fled and had, accordingly, been put on a wanted list. The Deputy Ministerreferred to, among others, Messrs Budko,, Artem Davydchenko, Shabalin, Vinenko, Kukhar,
Shparak, Kulta and Oleksii Fominov, among others.331
35. On 25 September the MoI reported that the pre-trial investigation in the caseconcerning 24 persons suspected of organising and participating in mass disorder, had been
completed. They had been charged under Articles 294 § 2 (mass disorder) and 263 § 1(illegal possession of weapons, ammunition or explosives) of the CC. Those persons and theircounsel were currently studying the casefile; once this was completed, the case would be sent
to court. Another nine persons, including the organisers and participants in the mass disorderand those who had committed murder, had been put on a wanted list and measures aimed at
establishing their whereabouts were being taken. Investigations concerning other persons
suspected of mass disorder on Kulykove Pole and in the Trade Union Building were still
pending.332
36. On 30 September Mr Avakov gave an interview in which he commented on theinvestigations concerning the events on 2 May.333 According to him, the MID of the MoI,
which was responsible for the investigations, had already established those responsible and40-50% of the cases had already been sent to the Odesa courts. He anticipated that the firstjudgments on the merits might be delivered in the autumn.
The interviewer asked, referring to the Ombudsperson’s statement that the events had beencaused by the inadequate reaction of the local police, whether a relevant internal inquiry had
been carried out by the MoI. Mr Avakov expressed the view that the Ombudsperson had
oversimplified the situation. In his view, the events had resulted from a number of factors:
first and foremost, the lack of competence of both the local police and the Prosecutor’s Office(in this regard he referred to the meeting arranged by the Prosecutor’s Office which was
responsible for the delay in the reaction of the police);334 secondly, the “time-servers” in thelocal police force who had not performed their duties in a proper way; and thirdly, the“professional provocateurs and fools” who had fuelled the tensions without anticipating thepossible consequences.
37. On 3 November the PGO reported that it had completed the pre-trial investigation in
the case concerning the three former police officers who had released 63 detainees on 4 May.
331

Loc. cit., news of 13 August 2014.
Loc. cit., news of 25 September 2014.
333
Loc. cit., news of 30 September 2014.
334
For information on the meeting, see “The Facts”, paragraph 14 above.
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They had been charged under Articles 365 § 1 and 367 § 1 of the CC. As soon as the accusedand their counsel had completed their study of the casefile, the cases would be sent to a
court.335
38. On 28 November the PGO announced that it had transmitted to the Prymorskyi
District Court of Odesa an indictment concerning 21 persons suspected of having committed
crimes under Articles 294 § 2 and 263 § 2 (sic) of the CC. In the course of the preliminary
court hearing the prosecutor had successfully applied to the court to extend the detention often of the accused. The investigations concerning other persons were still pending.336
39. On 22 April 2015 Mr Huzyr, the first Deputy Prosecutor General, held a briefing on
the state of the investigations into the events of 2 May 2014 and the results achieved.337 He
reported that, in their investigations, the authorities (the MoI and PGO) had focused on three
aspects of the tragedy. The first concerned the behaviour of the police on the date in question.
As a result of the investigation a notice of suspicion had been served on Mr Fuchedzhy for
his failure to take adequate measures aimed at protecting public order. Mr Fuchedzhy wascurrently on a wanted list as he had fled abroad. In addition, three other police officers had
been indicted and the proceedings were pending before a trial court.
The second aspect concerned those who had organised and actively participated in themass disorder. As a result of the investigation, the PGO had indicted 22 persons, 11 of whomwere detained on remand, and the proceedings were pending before a trial court. Proceedings
against one person, Mr Volkov, had been terminated because of his death; the investigation
concerning another person, Mr Khodiak, was at an advanced stage and would soon betransmitted to a court. Thirteen other suspects were on a wanted list.
The third aspect concerned the fire in the Trade Union Building. According to the forensic
medical examinations, those found in the building had no signs of torture or ill-treatment, orof firearm or other injuries. They had all died as a result of carbon monoxide and othercombustible poisoning, as well as of the very high temperature. This had been caused by the
rapid spread of the fire in the building itself and the increase in temperature caused by closing
the interior doors, as well as by a chimney effect in the stairwell. Most of those who had diedinside the building were in the stairwell or close to it; others who had been found in therooms had died as a result of carbon monoxide poisoning. The use of poisonous gases orchloroform had not been confirmed in the course of the investigation. Nor was there any
confirmation of the theory that the fire had been planned in advance. According to theforensic reports, the fire had broken out in the lobby and stairwell of the main entrance. It had
been caused by the combustible substances used by both sides; the barricades erected near the
staircase had contributed to the fire’s spread.
In addition, the investigators had found that officers of the SES in the Odesa Region had
negligently performed their duties and had belatedly sent fire engines to the building. The
investigation was being pursued by the MID of the MoI.
40. On 28 April 2015 the PGO announced that on 22 April it had transmitted
Mr Khodiak’s case to the Prymorskyi District Court of Odesa. According to the PGO, on
2 May 2014 in Odesa Mr Khodiak had fired several canister shots from his hunting gun in the
direction of a group of people who were attacking the football fans and law enforcement
officers. As a result, one person had died and another, a law enforcement officer, had suffered
grave and moderately severe bodily injuries. Mr Khodiiak was charged under
335

PGO website, news of 3 November 2014.
Loc. cit., news of 28 November 2014.
337
Loc. cit., news of 22 April 2015.
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Articles 115 § 2 (5) and (7) (murder), 15 § 2, 115 § 2 (1), (5) and (7) (murder), 294 § 2 (massdisorder), and 348 (attempted murder of a law enforcement officer) of the CC.338
41. On 2 May 2015 the PGO reported that on 30 April it had served the former head of
the MoI Office in the Odesa Region, Mr Lutsiuk, with a notice of suspicion of the offence ofnegligence in office on 2 May 2014. The PGO also recalled that on 17 October 2014 it had
notified Mr Fuchedzhy, the former deputy head of the MoI Office in the Odesa Region who
was currently on a wanted list, of suspicion of having committed offences in office on
2 May 2014.339
42. On the same day Mr Roman Hovda, the recently appointed Head of the Prosecutor’s
Office in the Odesa Region, gave an interview to a local TV channel which touched upon,among other matters, the investigations into the events of 2 May 2014.340 In reply to thequestion about the main reason for such a high number of victims, Mr Hovda stated that oneof the reasons why these events had been allowed to happen and had resulted in such a highnumber of victims had been the lack of proper organisation and the failure to ensure publicorder protection on the part of the law enforcement bodies. There was evidence that thepolice had received information in advance from different sources of the possibility of such
events happening. They should have taken proper measures to react to such information. It
was apparent from the results of the pre-trial investigations that this had not happened.
Mr Hovda went on to repeat the information already given about the state of theinvestigations and the progress achieved to that point.
As to the work of the local SES and the medical service on 2 May, Mr Hovda noted thatthe actions of those services were the subject of investigation. No person had been notified of
suspicion but, as far as he knew, the record in that case “would soon be set straight”.
Mr Hovda concluded by highlighting the main obstacles that had made it impossible tocomplete the investigations more quickly. According to him, these were the very large
number of people who had taken part in the mass disorder and the time needed to identify
persons wearing balaclavas, masks or scarfs to hide their faces and to identify persons who
had been caught on video footage but who had not been recognised by anyone. This was thereason why the investigations had not progressed quickly. Nevertheless, steps continued to betaken and new information was being added on a daily basis concerning the participants inthe mass disorder, in particular those who had been recorded on video with weapons or taking
other aggressive action. Referring to the secrecy of the investigations, Mr Hovda was unable
to divulge that information but gave an assurance that the authorities possessed more
information than he was currently able to share.
43. On 13 May 2015 the PGO reported that on the same day the Pecherskyi District Courtof Kyiv had allowed its request to place the former head of the MoI Office in the Odesa
Region, Mr Lutsiuk, under house arrest, the strongest preventive measure in respect of thosesuspected of negligence in office.341
44. On 26 May 2015 Mr Yurii Sevruk, head of the PGO Main Department for theSupervision of Criminal Proceedings, held a briefing to report on the work of his Department
on cases concerning, among others, the events of 2 May 2014 in Odesa. According to him, asa result of the investigations, three bills of indictment concerning 23 persons had been sent tocourt, while another 13 persons (organisers and active participants) had been put on a wanted
338

Loc. cit., news of 28 April 2015.
Loc. cit., news of 2 May 2015.
340
Pervyi Gorodskoi (Odesa TV Channel), Interview, 2 May 2015.
341
PGO website, news of 13 May 2015.
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list. On 2 May 2015 the Malynivskyi District Court of Odesa had returned one of the bills of
indictment to the prosecution service, but on 14 May that decision had been quashed upon aprosecutor’s appeal and the next first-instance court session had been scheduled for
29 May 2015. At the same time, investigations into possible negligence on the part of the
SES in the Odesa Region were pending and the results of a forensic examination were
awaited.342
45. The Panel is not aware of any subsequent public statements made by the authorities
prior to its cut-off date of 31 August 2015.

342

Loc. cit., news of 26 May 2015.

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ANNEX VII
SUMMARY OF THE CONCLUSIONS OF THE 2 MAY GROUP AS TO THE FIRE
IN THE TRADE UNION BUILDING AND THE CAUSES OF THE RELATED
DEATHS
1. Experts343 from the 2 May Group, who had conducted examinations of the causes anddevelopment of the fire at the Trade Union Building and the causes of the related deaths,
offered the Panel the following explanations.
2. The fire in the Trade Union Building started when the barricade in front of theentrance to the building caught fire as a result of the exchange of Molotov cocktails between
the opposing groups of activists. The fire subsequently spread through the entrance door into
the lobby of the building. There were also other sources of fire, for example on the staircase
between the third and fourth floors. These sources were secondary as they occurred as a resultof the fire spreading from the lower floors.
3. The first phase of fire, in the lobby, lasted about nine minutes, during which time thetemperature of the surfaces gradually increased. There were numerous flammable objects inthe lobby, including the wooden pallets brought into the building from Kulykove Pole to use
for barricades, old office furniture and an 18 litre oil tank which exploded. The complex
interior design of the Trade Union Building, together with the barricades and closed passages,
including parts of the left and right stairwells and the exit to the roof, compounded by heavy
smoke and poor illumination, led to a situation where people were trapped inside and were
not able to find escape routes. Tragically, many people fled to upper floors rather thanattempting to leave the building through the other exits on the ground floor, possibly because
they were afraid of the pro-unity activists outside.
4. The second phase of the fire developed rapidly, as the central stairwell caught fire,causing the air temperature to increase up to 700 degrees Celsius and very hot air to rise to
the upper floors. Many persons were in the stairwell at that moment. At this moment people
started to jump out of the windows. The greatest number of casualties occurred during thesecond phase. Most of the victims died from carbon monoxide poisoning and burn injuries,
with some others killed as a result of trying to escape the fire by jumping out of the building.
According to the 2 May Group, no-one died in the Trade Union Building other than as adirect result of the fire.
5. The fire started at 7.44 p.m. Before that, at 7.27 p.m., the tents on Kulykove Pole infront of the Trade Union Building had caught fire. The first calls to the fire service weremade at 7.31 p.m. During the first phase, it might have been possible to extinguish the fireand save lives if even only one fire engine had been there. However, the first fire engine
arrived 45 minutes after the first calls. In the opinion of the 2 May Group, the high number ofdeaths was caused by the incompetent acts and omissions of the fire service, including thedelay in arriving at the scene and the failure to take emergency reanimation measures.

343

Mr Balynskyi, a biochemist, conducted an expert examination of the causes and development of the fireat the Trade Union Building, with an on-site visit on 6 May 2014. Mr Sarkisian, a toxicologist, carried out anexpert examination into the causes of deaths in the Trade Union Building.

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ANNEX VIII
MAP SHOWING THE MASS DISORDER IN ODESA ON 2 MAY 2014

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