THE INTERNET AS THE PUBLIC SQUARE OF THE TWENTY-FIRST CENTURY

The starting point for any modern privacy analysis is no longer the printing press but the smartphone. The Court has repeatedly observed that the internet has become one of the principal means by which individuals exercise their right to freedom of expression, offering essential tools for participation in public debate and an unprecedented platform for ordinary people, not only journalists or politicians, to reach an audience. C.T., the author of the Facebook post at the heart of this case, was not a journalist, a blogger, or a public figure of any kind. She was, in the Court’s own words, a private individual with no expertise in the digital services field, who used her personal account to describe an encounter with the local police in the language of frustration rather than reportage. That she could do so, and that her post could reach tens of thousands of potential viewers within a Facebook group devoted to local affairs, is itself the story of the last two decades: the disappearance of any meaningful barrier between a private grievance and a public audience.

That disappearance cuts both ways, and the Court is candid about it. On one hand, the internet enhances the public’s access to information and its capacity to hold power to account, including the power exercised by police officers in their daily dealings with citizens. On the other hand, the risk of harm posed by online content is, in the Court’s assessment, genuinely higher than that posed by traditional media, because unlawful speech can spread worldwide in seconds and remain persistently retrievable long after it has ceased to serve any informational purpose. A single Facebook post accompanied by a photograph and a name is no longer a private complaint aired to a handful of neighbours; it is a document that can be shared, screenshotted, and resurfaced indefinitely. Any legal framework built for the age of the local newspaper has to be re-engineered for a medium in which the author, the publisher, and the commentariat are frequently the same undifferentiated crowd of private users.

THREE TIERS OF PROTECTION

It is against this backdrop that the Court’s case-law has settled into a recognisable, if not always precisely drawn, hierarchy of three categories of person, each attracting a different intensity of protection under Article 8 and a correspondingly different scope for permissible criticism under Article 10.

Private individuals sit at the top of the protective scale. A person unknown to the public may claim particular protection of the right to private life, and interference with that right, whether through the publication of a photograph, the disclosure of a name, or an accusation of wrongdoing, requires a correspondingly weighty justification. Nothing in this judgment disturbs that baseline; if anything, it is reaffirmed obliquely, because much of the Court’s reasoning about C.T. herself proceeds on the assumption that, as an ordinary private citizen posting about her own encounter with the authorities, her conduct was to be judged generously rather than held to the standard expected of a professional publisher.

Public figures occupy the opposite end of the spectrum. Politicians and others who have, through their own acts or position, entered the public arena and knowingly exposed themselves to scrutiny must display a correspondingly greater degree of tolerance for criticism, and the margin for restricting speech about them under Article 10 § 2 narrows accordingly. This is settled doctrine, and the Court has applied it consistently for decades in cases concerning elected officials, senior civil servants who have sought the public eye, and others whose position depends on public confidence secured through public engagement.

Between these two poles sits the category that this judgment does most to clarify: public servants acting in an official capacity, including police officers, and particularly officers at the lower end of the institutional hierarchy who have never sought public attention for themselves. The Romanian courts had treated the applicants, both ordinary local police officers, as public figures in the full sense, reasoning that this status alone justified the dismissal of their claim. The Strasbourg Court declined to go that far. It held expressly that ordinary police officers cannot be considered public figures in the same sense as politicians or other persons who have deliberately entered the public arena, so long as they have merely acted in their official capacity without seeking public attention. Nothing in the case file suggested that the two officers had sought publicity, either before or after the Facebook post; they were simply doing their jobs, and doing them in a public street, when a citizen decided to record and broadcast the encounter.

Yet the Court did not, for that reason, restore to the applicants the full protection enjoyed by an ordinary private citizen. It agreed with the domestic courts on a narrower but decisive point: precisely because the applicants were public servants acting in their official capacity, and because their profession depends on public trust and directly implicates the proper functioning of the State, they were subject to wider limits of acceptable criticism than ordinary individuals, even though they were not public figures. A certain degree of immoderation in the response to their conduct, the Court noted, falls within those limits, particularly where the criticism is a reaction to what is perceived, rightly or wrongly, as unjustified or unlawful behaviour by the officers themselves. The use of force by State agents, and allegations of police misconduct more generally, are treated by the Court as matters of significant public interest almost by definition, regardless of the rank of the officer involved or the modesty of the incident that gave rise to the complaint.

This produces a genuinely intermediate category, distinct in both directions. Low-ranking police officers are not stripped of privacy protection the way a senator or a minister effectively is; the Court was careful to note that circumstances can exist in which an officer’s individual interest in protecting his or her private life prevails, for instance where publication of a recognisable image is likely to cause specific adverse consequences in that officer’s private or family life, quite apart from any question of misconduct. But neither do they enjoy the presumption of anonymity and insulation from public comment that an ordinary bystander would. Their uniform, their public function, and the public interest inherent in how coercive state power is exercised on the street combine to lower, without eliminating, the threshold of protection.

THE INTERNET-SPECIFIC BALANCING EXERCISE

Having placed the applicants in this intermediate category, the Court applied its now-standard set of criteria: the contribution of the post to a debate of general interest; the degree of notoriety of the persons affected and their prior conduct; the circumstances in which the photograph was taken; and the content, form and consequences of the publication. But because the dispute arose entirely online and generated a wave of third-party comments, the Court also drew on criteria developed specifically for internet cases, most notably in Sanchez v. France: the status of the original poster, that person’s own responsibility for comments left by others, and the practical possibility of holding those other commentators liable directly.

Here the distinctions among private individuals, public figures and public servants interact with a second, equally important distinction, this time between the original author of online content and the anonymous or pseudonymous crowd that reacts to it. C.T. was not the administrator of the Facebook group, had no established capacity to moderate or delete the comments of others, and had expressly disassociated herself from the more offensive remarks posted beneath her own text. The Court considered that holding a private individual civilly liable for the defamatory excesses of strangers reacting to her post would risk a chilling effect on ordinary citizens’ willingness to raise matters of public concern online, and could push people acting in good faith toward self-censorship. At the same time, the officers themselves had not attempted to pursue the individual authors of the abusive comments directly, even though those authors were, in principle, identifiable and personally liable for their own statements. The lesson for anyone contemplating similar litigation is that the internet does not dissolve individual responsibility for speech; it distributes it, and claimants must generally aim their legal remedies at the actual author of a given statement rather than at the person who merely provided the occasion for the ensuing public reaction.

WHY THIS CASE MATTERS BEYOND ROMANIA

For police officers, prison staff, court officials and other public servants across Council of Europe member States, Toth and Crișan is a useful, if sobering, guide to what Article 8 will and will not do for them when their conduct is filmed, photographed or described by a member of the public and shared on social media. It confirms that they are not without recourse: a legal framework enabling defamation or tort claims must exist, and where a publication genuinely distorts an officer’s conduct or exposes that officer to consequences unrelated to the legitimate public interest in accountable policing, Article 8 remains available. But it also confirms that low institutional rank offers no shield of anonymity once an officer is performing a public function in a public place, and that criticism of police conduct, even conveyed with the exclamation marks and rough edges typical of a heated Facebook post, will ordinarily be treated as speech on a matter of public interest rather than a private attack requiring compensation.

For anyone advising clients, whether officers seeking redress or private citizens who have posted about their encounters with the police, on the interaction between privacy, reputation and online expression, the judgment offers a workable map of the terrain: private individuals at one end, entitled to robust protection; political and public figures at the other, expected to tolerate wide-ranging and sometimes intemperate criticism; and, in the middle, the public servant, uniformed and identifiable, whose privacy interest survives but is calibrated, deliberately and consistently, to the public trust that the position itself demands.

Toth and Crișan v. Romania

1.  The applicants complained of a violation of their right to respect for their private life and reputation because the domestic courts had allegedly failed to strike a fair balance between the competing interests at stake following an allegedly defamatory post uploaded by a private individual on Facebook. They relied on Article 8 of the Convention.

2.  Mr Zoltán-Ovidiu Toth (“the first applicant”) and Mr Alin Crișan (“the second applicant”) were born in 1982 and 1974, respectively, and live in Oradea.

3.  The applicants are police officers working for the Oradea local police force (Poliţia Locală Oradea).

4.  On 8 April 2016 the applicants fined C.T. and her mother for a minor offence in connection with the disposal of household waste and with the conduct that those two private individuals had displayed towards them. As indicated in the judgment of Oradea District Court (“the District Court”) C.T. had challenged the fine and the national courts had established that (i) she had deposited the household waste in an unauthorised location but she had not insulted the applicants and (ii) the applicants had behaved inappropriately towards C.T. In reaching these conclusions, the competent courts had relied on testimonial evidence and a forensic expert report submitted by C.T., which indicated that on the date of the incident she had sustained bodily injuries which had not required a medical treatment. According to evidence in the case-file, the national courts had reduced the fine imposed on C.T.

5.  On the same date (8 April 2016) C.T. used her personal Facebook account to post a text accompanied by the applicants’ photograph to the public Facebook group “Oradea is us”. The post read as follows:

“Today the local police have screwed up once again. I went downstairs holding my child in my arms to take him to the car and after five minutes my mother also innocently came downstairs with the household waste. She was unaware that each owner’s association has its own bins. I explained this to her and I told her to leave the bag with the household waste next to the bin where she was standing, intending to take it to our courtyard myself, obviously, after placing my child in the car. It was logical that I was not going to leave it in the middle of the road!!!!!! In the meantime, the local police showed up [and] they jumped on us as if they were on fire [arși]. I explained to them what the problem was, but, eager to start a scandal, they did not want to]understand!!!! ‘Mister Domnule, wait for five minutes while I put my child in the car, then I’ll come back to put the household waste where it should go!’ No, they wanted me to provide them with my ID immediately, to drop everything and to stand to attention!! They did not even identify themselves until the moment that I said I was calling 112 emergency services. We were terribly scared! They verbally assaulted and pushed us. They did not let my mother drive away in her car … it was terrifying! How can anyone behave like that with two]women and a child? Do they really have so little dignity and respect towards people????!!!!!!!!”

6.  In the photograph, the applicants were depicted standing next to one another dressed in their police uniforms, with the first applicant holding a pen, a notebook and a mobile phone in his hand. Some cars, buildings and an unidentified person could be seen in the background.

7.  C.T.’s post received ninety-two comments and was “liked” by around 160 people. According to the applicants, it was also shared seventy-three times. In their view, that meant that the post was viewed more than 100,000 times, given that each user had more than 200 “friends” and that the online group in question had more than 24,000 members.

8.  Some of the people who commented on the post and engaged in the ensuing discussion about the event reported by C.T. referred to the applicants and to local police officers in general in a disrespectful manner, using expressions such as “scumbags”, “impostors”, “idiots”, “stupid”, “hillbillies”, “di.ks amounting to nothing”, “uneducated”, “crazy” and “worthless simpletons”. One of the people said that he wished that he could meet “specimens” like the applicants “to wipe the arrogance off their faces” and that, if the “scumbags” had been beaten up, they would have called the emergency services. One person stated that the second applicant appeared in several YouTube videos committing abuses. Three other people said that they had been fined by the applicants, that they had witnessed the second applicant acting overzealously and been given a hard time by him even though he had been off duty at the time, or that they had seen him harass a less-abled woman. One person said that she knew the applicants personally and was surprised by the information in C.T.’s post.

9.  In one of her replies to the comments, C.T. disclosed the second applicant’s full name after she was asked about his identity. In another reply to a third-party comment effectively condoning the applicants’ alleged reactions to C.T.’s behaviour, she denied that her intention had been to defame the applicants.

10.  On 19 August 2016 and on an unspecified date, respectively, the relevant authorities discontinued the disciplinary and criminal proceedings brought either by C.T. or by her mother against the applicants in connection with the events of 8 April 2016, apparently for lack of sufficient evidence.

11.  On 14 February 2017 the applicants brought an action in tort against C.T., claiming 50,000 Romanian lei (RON) (11,111 euros (EUR)) in respect of non-pecuniary damage and asking the court to order her to publish an apology in local newspapers and on the page of the Facebook group “Oradea is us”. They complained that C.T.’s post had defamed them and had affected their reputation and image because it had spread information which distorted reality, disseminated their photograph and the second applicant’s full name publicly to a wide audience without their consent and instigated and generated offensive third-party comments and threats.

12.  C.T.’s allegations that they had verbally and physically assaulted her and her mother were untrue. In fact, it had been C.T. who had been aggressive towards them and it had been her mother who had insulted them and had almost injured them as she drove away in her car. Moreover, C.T. had denied that she had been physically assaulted and had refused to lodge a complaint against the applicants when she had been questioned in that connection by other police officers who had been dispatched to the scene after C.T.’s telephone call to the emergency services. Furthermore, because of C.T.’s actions, the applicants’ family and friends had questioned their professional conduct and behaviour towards women, and random individuals had stopped them on the street and questioned them about the alleged abuses committed by them. Their employer had also opened disciplinary proceedings against them.

13.  On 26 June 2017 the District Court dismissed the action in tort. It held that the applicants had standing to bring the proceedings against C.T. because she had posted their photograph and identified the second applicant by his full name. Nevertheless, it found that the conclusions of the national courts described in paragraph 4 above had a res judicata effect.

14.  Moreover, even though the post had generated some trivial third-party comments about the applicants, it had not harmed their image. In fact, when some of the third parties had started using potentially offensive expressions, C.T. had clearly stated that she had intended only to report on the event in dispute and not to offend anyone.

15.  The applicants appealed against the judgment and contested the District Court’s assessment of the case. They argued that their image had been harmed by the post and not by what had happened at the scene of the events of 8 April 2016. Accordingly, the findings of the courts during the proceedings brought by C.T. against the fine imposed on her had been irrelevant to the action in tort which they had brought against her. Moreover, the applicants reiterated the arguments they had raised before the District Court and pointed to the fact that the courts had upheld the fine imposed on C.T. and the fact that the disciplinary and criminal proceedings opened against them in respect of the alleged events reported by C.T. had been closed by the relevant authorities on the grounds that the evidence against the applicants had been contradictory. They lastly argued that C.T. could have foreseen the results of her actions and that, in accordance with the case-law of the High Court of Cassation and Justice, any statement posted on Facebook could have legal consequences.

16.  On 12 January 2018 the Bihor County Court (“the County Court”) dismissed the applicants’ appeal and upheld the District Court’s judgment. It held that the applicants should have been mindful of the context and place in which they were operating when they had fined C.T., and of the type of relationship that had existed between them and her at that time.

17.  Also, the post had not initiated a defamatory campaign against them. It had merely reported C.T.’s perception of the event in which she had been directly involved.

18.  The applicants appealed on points of law against the judgment and largely reiterated the arguments raised before the County Court.

19.  Moreover, they contended that none of the information posted on Facebook had been censored, even though C.T. could have deleted any insults or inappropriate images. She was not a journalist and neither she nor the courts could rely in her defence on the rules applicable to journalistic freedom of expression. She was a private individual and therefore was under an obligation to adjust her public speech accordingly. Her actions had exceeded the limits of her right to freedom of expression and had been a way of exercising revenge on the police.

20.  By a final judgment of 28 February 2019, the Oradea Court of Appeal (“the Court of Appeal”) dismissed the applicants’ appeal on points of law and upheld the County Court’s judgment. Referring to principles deriving from the Court’s case-law on freedom of expression and to the provisions of the Convention and the Civil Code concerning the right to freedom of expression and the right to respect for private life, reputation and image, the Court of Appeal held that the principles developed in the Court’s case-law in respect of journalistic or political speech were also applicable to the present case.

21.  It also held that the post had been a way for C.T. to publicly manifest her right to freedom of expression with the intent to bring her message to the attention of a large number of users of the Facebook group. However, her post had not exceeded the limits of the aforementioned right afforded to her. It had been prompted by, and was an expression of, her momentary dissatisfaction at the applicants’ conduct while they had been exercising their professional duties and it expressed her opinion about the manner in which they had accomplished those duties. It was also supported by a sufficient factual basis.

22.  C.T.’s right to use the social media network in question as a means of communication could not be contested. Similarly, she could not be held responsible for the potential consequences of the comments made by third parties following her post, because every individual was responsible only for his or her own statements – given that civil liability was personal – and the conditions for third-party liability had not been met in her case. Moreover, the information disseminated by her post had been accurate and had been reviewed with res judicata effect.

23.  The Court of Appeal held that the post did not include offensive content and that all the indecent expressions used in the comments had been posted by third parties. C.T. could not have banned third parties from writing defamatory comments on the social media website in question or deleted those comments, and the closure of the proceedings brought by her against the applicants could not engage her civil liability. Furthermore, the limits of acceptable criticism were wider in the applicants’ case than in cases concerning ordinary citizens because the applicants were employees of a public service and the proper functioning of the State itself was at stake. The fact that C.T. had also disseminated the applicants’ photograph and the second applicant’s name could not have affected them in any way, given that they were public persons and the photograph in question did not portray them in an undignified or indecent manner.

24.  The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests; and in both contexts the State enjoys a certain margin of appreciation (Von Hannover v. Germany (no. 2) [GC], nos.40660/08 and 60641/08, §§ 98-99; Țiriac, § 72).

25.  Article 10 of the Convention guarantees “everyone” the freedom to receive and impart information and ideas and no distinction is made according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom. It applies not only to the content of information but also to the means of dissemination, since any restriction imposed on such means necessarily interferes with the right to receive and impart information. Likewise, Article 10 guarantees not only the right to impart information but also the right of the public to receive it (Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, § 56).

26.  Article 10 does not, however, guarantee a wholly unrestricted freedom of expression even in respect of coverage of matters of serious public concern (Monica Macovei v. Romania, no. 53028/14, § 80). Any person who exercises freedom of expression (i) undertakes “duties and responsibilities” the scope of which depends on his or her situation and the technical means used (Gîrleanu v. Romania, no. 50376/09, § 92) and (ii) must not overstep certain limits, particularly with regard to respect for the reputation and the rights of others (Sanchez, § 149). The Court has therefore accepted that, in principle, any natural or legal person may be made the subject of various forms and degrees of individual or shared liability for defamatory or other types of unlawful speech in order to remedy effectively violations of personality rights (Delfi AS v. Estonia [GC], no. 64569/09, § 110; Sanchez, §§ 162-66, 183-85, 190, 192‑93, 201, 204).

27.  Where the complaint raised before the Court is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, due regard should be had, when applying Article 8, to the requirements of Article 10 of the Convention (Țiriac, § 73), bearing in mind that as a matter of principle the rights guaranteed by Article 8 and Article 10 deserve equal respect and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 or Article 10 of the Convention (Von Hannover, § 106, and Axel Springer AG, § 87).

28.  Relevant criteria for balancing the right to respect for private life against the right to freedom of expression include the contribution to a debate of public interest; the degree of notoriety of the person affected; the prior conduct of the person concerned; the circumstances in which a photograph was taken; and the content, form and consequences of the publication (Von Hannover, §§ 109‑113; Hájovský v. Slovakia, no. 7796/16, § 30).

29.  In cases such as the instant case where the information was disseminated on the internet and generated third-party comments, certain other criteria may be relevant for the outcome of the balancing exercise and may therefore need to be taken into account. They include the status of the alleged perpetrator, his or her specific liability for the third parties’ comments, the steps taken by him or her in relation to those comments and the possibility of holding the authors of those comments liable instead (Sanchez, §§ 179, 180, 190, 202).

30.  In this connection the Court is also mindful of the fact that the internet has become one of the principal means by which individuals exercise their right to freedom of expression. It provides essential tools for participation in activities and discussions concerning political issues and issues of general interest (Vladimir Kharitonov v. Russia, no. 10795/14, § 33; Sanchez, § 158). In the light of its accessibility and its capacity to store and communicate vast amounts of information, the internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27). User-generated expressive activity on the internet provides an unprecedented platform for the exercise of freedom of expression (Delfi AS, § 110).

31.  The Court finds relevant, nevertheless, that the risk of harm posed by content and communications on the internet to the exercise and enjoyment of human rights and freedoms is certainly higher than that posed by the press, since unlawful speech, including hate speech and speech inciting violence, can be disseminated as never before, worldwide, in a matter of seconds, and sometimes remain persistently available online (Delfi AS, §§ 110 and 133).

32.  Moreover, although freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photographs or articles in the press to a debate of general interest. Nevertheless, it has made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions (Hájovský, § 31). Where the situation does not come within the sphere of any political or public debate and published photographs and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose of satisfying the curiosity of a particular readership, freedom of expression calls for a narrower interpretation (Hájovský, § 31).

33.  Lastly, the Court reiterates that in exercising its supervisory function, its task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (Axel Springer AG, § 86). Where the balancing exercise between the rights protected by Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (Axel Springer AG, § 88).

34.  The Court notes that the applicants blamed C.T. for publicly disseminating their photograph and the second applicant’s full name to a wide audience on Facebook without their consent, while at the same time making untruthful remarks suggesting that the applicants had verbally and physically assaulted her and her mother, thus attracting offensive third-party comments.

35.  The applicants appear to have accepted that the national authorities had put in place a legal framework capable of providing adequate protection against the alleged violation of their right to respect for their private life and reputation arising from the above-mentioned circumstances. Indeed, they were able to bring an action in tort against C.T. to claim compensation.

36.  The domestic courts examined the circumstances in which C.T.’s statements had been made and whether her liability was engaged. Nevertheless, the applicants disagreed with their decision. The Court must therefore review whether the national courts struck a fair balance between the competing rights at stake in conformity with the criteria laid down in its case‑law.

37.  The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned (Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167).

38.  The national courts found that C.T.’s post intended to bring to the attention of the Facebook group “Oradea is us” her position about a matter which ultimately raised questions about the proper functioning of the State, namely the allegedly abusive and violent manner in which the applicants conducted themselves as local police officers while carrying out their professional obligations. Given that in working as law-enforcement officials the applicants constantly engaged in public activities and were bound by a duty to serve and protect, and that their profession was ultimately one which involved public trust, the public had a right to be informed about any possible abusive conduct on their part.

39.  Indeed, the Court has acknowledged that the use of force by State agents, particularly where it relates to allegations of police brutality or misconduct, was inherently a matter of significant public interest (Dyundin v. Russia, no. 37406/03, § 33; Bild GmbH & Co. KG v. Germany, no. 9602/18, §§ 32-33).

40.  C.T.’s post therefore concerned a matter of public concern, and the Court sees no reason to doubt that it was capable of contributing to a debate of general interest on the moral and professional integrity of local police officers and the proper functioning of certain public services.

41.  The Court reiterates that whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of political or public figures in respect of whom the limits of critical comment are wider, as they are inevitably and knowingly exposed to public scrutiny and must therefore display a greater degree of tolerance (Monica Macovei, § 79).

42.  It cannot be said, however, that public servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions (Stancu and Others v. Romania, no. 22953/16, § 116; Bild GmbH & Co. KG, § 33). Public servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive, abusive or defamatory attacks or unfounded accusations when on duty (Chernysheva v. Russia (dec.), no. 77062/01; Stancu and Others, § 115). Nonetheless, public servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary citizens (Mamère v. France, no. 12697/03, § 27). A certain degree of immoderation may fall within those limits (Chkhartishvili v. Georgia, no. 31349/20, § 56), particularly where it involves a reaction to what is perceived as unjustified or unlawful conduct on the part of public servants (Savva Terentyev v. Russia, no. 10692/09, § 75).

43.  The Government have pointed out, and the applicants have not argued otherwise, that they had not denied in their submissions before the national courts that they were public persons. Moreover, the courts (i) held that the applicants were public persons and (ii) acknowledged that the limits of acceptable criticism were wider in their case, essentially because they were public servants.

44.  As regards the applicants’ status as public persons, the Court notes that it has found in the specific case of ordinary police officers that they could not be considered public figures in the same sense as politicians or any other persons who, through their acts or their position, have entered the public arena, as long as the officers had merely acted in their official capacity, without seeking public attention (Bild GmbH & Co. KG, § 32).

45.  In the applicants’ case, none of the available evidence suggests that they sought to be in the public eye or to receive public attention either before or after C.T. posted her message. It is true that by virtue of their professional activity the applicants seem to have interacted with and been known by some members of the online group “Oradea is us” at the time C.T. posted her message. However, the national courts did not give any weight to this evidence or to the applicants’ prior conduct in the light of their involvement in previous public activities. The evidence and conduct in question did not therefore have any consequences for the courts’ conclusion that the applicants were public persons or for the outcome of the balancing exercise conducted by them with regard to the competing rights at stake (Fuchsmann v. Germany, no. 71233/13, § 49).

46.  Furthermore, there is nothing in the case-file to suggest that in the applicants’ case the above-mentioned public exposure and attention exceeded a level that the activity conducted by an ordinary public servant acting in his or her official capacity in general or a police officer in particular could reasonably be expected to generate. It cannot therefore be said that the applicants could be considered on that basis to be public figures in the sense described in paragraph 44 above or even well‑known figures in their professional field for that matter (Petrie v. Italy, no. 25322/12, § 51; Stroea v. Romania [Committee], no. 76969/11, § 32).

47.  As to the level of criticism acceptable in the applicants’ case, the Court notes that they acknowledged that they were public servants. Even though none of the evidence suggests that they were high-ranking public servants or that they had applied for or occupied positions of particular public concern within the police force (Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 98; Stancu and Others, §§ 127-29), they never denied that they were acting in their official capacity at the time of the events in issue.

48.  Accordingly, the Court agrees with the national courts that the applicants belonged to a group of persons who could not claim protection of their right to respect for their private life in the same way as ordinary individuals and were therefore subject to wider limits of acceptable criticism than such individuals (Stancu and Others, § 129).

49.  The Court notes that it is undisputed by the parties that the applicants were neither asked for nor gave consent for their photograph, or names for that matter, to be disseminated on Facebook by C.T. Nor did C.T. take any steps to conceal the applicants’ faces before posting their photograph.

50.  It reiterates that the publication of a photograph must in general be considered to constitute a more substantial interference with the right to respect for private life than the mere communication of the person’s name (Vučina v. Croatia (dec.), no. 58955/13, § 46). It further observes that, whereas there is no general rule under Article 8 of the Convention requiring that police officers should generally not be recognisable in press publications, there may be circumstances in which the interest of the individual officer in the protection of his or her private life prevails. This would be the case, for example, if publication of the image of a recognisable officer, irrespective of any misconduct, is likely to lead to specific adverse consequences in his or her private or family life (Bild GmbH & Co. KG, § 35).

51.  The national courts found that the fact that C.T. had disseminated the photograph and the name in question could not have affected the applicants, given that they were public persons and that the photograph did not portray them in an undignified or indecent manner.

52.  The Court observes that while it has disagreed with the national courts that the applicants could be considered public persons, it has nevertheless accepted their view that the applicants could not have the same expectation of privacy as an ordinary individual in the specific circumstances of their case.

53.  The Court further observes that it is uncontested that the applicants’ photograph was taken on a public street, while the applicants were fining C.T. which had prompted a call by C.T. to the emergency services and the dispatch of a second police unit to the scene, and had obviously attracted some public attention. The photograph showed the applicants dressed in their police uniforms, while performing their duties as law-enforcement agents.

54.  The national courts did not find – and in any event there is nothing in the case file to suggest otherwise – that the photograph in question or the second applicant’s name had been taken covertly, using illicit means or subterfuge or taking advantage of any type of vulnerable position (contrast Egeland and Hanseid v. Norway, no. 34438/04, § 61). Thus, the Court agrees with the opinion of the County Court that the applicants should have been mindful of the public context underlying their interaction with C.T. and considers that they could not have excluded that they could be photographed, given their status and alleged conduct (Vučina, § 35).

55.  The Court also observes, as did the national courts, that the photograph was not taken in circumstances showing the applicants in an unfavourable light and that it did not present them in a manner which could have undermined their public standing from the reader’s perspective or show a distorted image of them. Judging from the manner in which it was used, the Court considers that the photograph was taken merely to lend support to the content of C.T.’s comments discussing a matter of public concern and illustrating the veracity of some of the information contained therein (compare, mutatis mutandis, Couderc and Hachette Filipacchi Associés, § 135).

56.  Thus, in so far as the manner in which the photograph was obtained does not raise any issue under Article 8, the mere communication of the second applicant’s name next to the photograph, without any negative connotations associated with that name and/or the distortion of the photograph, cannot be considered a particularly substantial interference with the right to respect for private life (Vučina, § 46).

57.  The national courts did not expressly give any weight to the fact that C.T. had posted the applicants’ photograph and the second applicant’s name without concealing their faces or obtaining their consent. Even though the Court has found that such measures may be relevant when balancing competing rights at stake in cases such as the present one, these factors form only part of the overall criteria that may be taken into account for the balancing exercise in question, including the content of the coverage and its consequences for the person concerned (Bild GmbH & Co. KG, § 35).

58.  As to the subject of C.T.’s post, the Court notes, as did the national courts, that it exclusively concerned the applicants’ professional activities and conduct in a public context, without mentioning any details of their private life (Sabou and Pircalab v. Romania, no. 46572/99, § 39).

59.  Moreover, they did not find that the post contained offensive, indecent or degrading content in relation to the applicants. Furthermore, the courts were of the view that the post expressed C.T.’s dissatisfaction at the applicants’ conduct and her opinion about an event in which she had been involved. Whereas they did not attach any weight to the fact that the disciplinary and criminal proceedings opened against the applicants had been closed, they relied on the findings in the proceedings brought by C.T. to challenge the fine to establish that the information disseminated by C.T. was accurate. Indeed, they found that C.T.’s comments and conduct were supported by a sufficient factual basis and that there was no indication that the dissemination of the applicants’ photographs and of the second applicant’s name had had any negative consequences for them.

60.  While the courts agreed with the applicants’ arguments to the effect that some of the third-party comments were indecent and defamatory, they found that C.T. could not be held responsible for the potential consequences of those comments because every individual was responsible only for his or her own statements and the conditions for third-party liability were not met in her case. Furthermore, C.T. could not have banned the third parties from writing such comments; nor could she have removed them.

61.  Having regard to the information in the case file, the Court finds no reason to disagree with the domestic courts’ assessment. It notes that C.T.’s post taken as a whole conveyed nothing more than her critical impressions of the manner in which the applicants had acted in their professional capacity. It also did not contain any personal insults or disparaging remarks or any unsubstantiated allegations, regardless of whether her comments could be viewed as constituting value judgments or statements of fact.

62.  In this context, even though some of her statements alleged unlawful actions by the applicants and she could have foreseen the possibility that the public would react to them (Sanchez, § 193), no evidence was adduced that C.T. did not act in good faith when posting her comments and the applicants’ photograph and disseminating the second applicant’s name or has sought only to gratuitously stir the public’s emotions and portray the applicants in a negative light.

63.  The Court finds relevant in this connection that C.T. and her mother also used both criminal and administrative remedies to bring their grievances against the applicants to the direct attention of the relevant authorities. Moreover, C.T. disclosed the second applicant’s full name only in one of her replies to a third-party comment on the post and only after she was asked expressly about the applicants’ identity. Furthermore, she appears to have sought to distance herself from the offensive third-party comments by expressly stating that she had not intended to defame anyone through her actions.

64.  The fact that the form and manner in which C.T.’s post was written and that some of the expressions contained therein were provocative and could attract the public’s attention cannot in itself raise an issue under the Court’s case-law (Axel Springer AG, §§ 81, 108). As acknowledged above, persons reacting to what is perceived as unjustified or unlawful conduct on the part of public servants are allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements.

65.  Turning to the question of the consequences of C.T.’s post for the applicants, the Court observes that even though, as essentially acknowledged by the national courts, it was disseminated on a publicly accessible online platform without any apparent restrictions, it seems to have drawn very little actual public attention or provoked much of a reaction. Indeed, while the Government have not contested as such the applicants’ allegation that the post had quite likely generated more than 100,000 views, the Court notes that it was actually commented on and “liked” by a very low number of people overall.

66.  The Court also observes in this connection that, at the time of the events under examination, C.T. was a private individual who did not possess any expertise in the digital services field (contrast Sanchez, § 180). Furthermore, she did not disseminate her post during an electoral campaign or in any kind of tense political or social climate and was not a journalist, a politician, a well-known blogger or a popular user of social media, let alone a public or influential figure, a fact which could have attracted further public attention to her comments and therefore enhanced the potential impact of her statements (contrast Sanchez, §§ 176, 180, 187, 201). In addition, the applicants themselves acknowledged that C.T.’s post would have received maximum attention only immediately after it was uploaded and its visibility, impact and consequences could only have decreased significantly over time. They did not ask the national courts to order the removal of the post either while the proceedings were pending or subsequently. Given the circumstances, the Court considers that the potential of C.T.’s post to actually reach a wide segment of the public, either at the time of its publication or at a later date, was limited.

67.  There can be no doubt that the expressions used by some of the third parties in their comments were insulting and defamatory. Nevertheless, the Court observes that nothing in the case-file suggests that C.T. sought to invite or endorse the use of the offending expressions by those third parties. Moreover, the applicants have not brought forth any convincing evidence that C.T. was the administrator of the Facebook group to which she had uploaded her post or that she had the power to control the content of the messages posted by the other members of the group, or that could generally contradict the national courts’ findings and show that C.T. had failed to comply with any duties that could reasonably have been expected of her, as a mere private individual of no notoriety or representativeness, in terms of intervening efficiently on social media platforms (compare and contrast Sanchez, §§ 185, 190, 199 and 201) without running the risk of self-censorship (Sanchez, § 184).

68.  The Court further observes that the offending expressions used by the third parties were little more than “vulgar abuse” of a kind – albeit belonging to a low register of style – which is common in communication on many internet portals and that this consideration reduces the impact that can be attributed to those expressions (Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 77). Moreover, all of the comments in question would, in the context in which they were written, most likely be understood by readers as conjecture which should not be taken seriously (see, mutatis mutandis, Tamiz v. the United Kingdom (dec.), no. 3877/14, § 81).

69.  The Court is also mindful in this connection that the third-party comments, albeit made publicly, were directed at police officers who arguably must have been trained in how to handle such conduct (Chkhartishvili, § 57). There is no evidence in the case file, however, that the applicants even attempted to bring to justice at least some of the authors of those comments. The Court finds relevant in this connection that the acts of which C.T. was accused by the applicants were clearly distinct from those committed by the authors of the unlawful comments and that the applicants have not pointed to any specific difficulties that they might have faced in identifying the authors of those comments (Sanchez, §§ 202-03). Thus, the attribution of liability by the courts to C.T. alone for both the post itself and the content of the third-party comments, even in the context of civil-law proceedings such as the ones envisaged in the present case, could have had a chilling effect on freedom of expression on the internet and could have been particularly detrimental for private individuals who are acting in good faith and trying to raise awareness about matters of general concern (Sanchez, § 205).

70.  At the same time, the Court is unable to discern any concrete negative impact of C.T.’s post on the applicants’ private and professional life given that, as indicated by the applicants, both the disciplinary and criminal investigations opened in respect of them were discontinued. Moreover, it appears that C.T.’s post also prompted positive third-party comments about the manner in which they had performed their duties.

71.  Even assuming that the applicants’ allegations that strangers or family and friends had questioned them about their conduct may be true and that C.T.’s post and the subsequent third-party comments might be expected to have affected them to some extent, the Court has serious doubts that those consequences were sufficiently serious to override the public’s interest in receiving the information disseminated by C.T. (Țiriac, § 98).

72.  In the light of the above, the Court considers that the national courts conducted the required thorough balancing exercise between the competing rights at stake in conformity with the criteria laid down in the Court’s case‑law. Having regard to the margin of appreciation available to the national authorities when weighing up divergent interests, the Court sees no strong reasons to substitute its view for that of the domestic courts. It cannot therefore be said that by dismissing the applicants’ claim, the courts failed to comply with the positive obligations incumbent on the national authorities to protect the applicants’ right to respect for their private life under Article 8 of the Convention. There has accordingly been no violation of that provision.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

The applicants in the case – 47 Serbian citizens – took part in this peaceful gathering. At around 7 p.m., at the moment when the participants were observing a fifteen-minute silence in memory of the victims, the crowd was suddenly struck by a powerful sound wave. According to the applicants’ own accounts, they experienced sudden instinctive fear, panic, shock, accelerated heartbeat, trembling, hearing problems, nausea, vomiting, tachycardia and similar symptoms. Some sustained bodily injuries as a result of the panic-induced crush. Witnesses described how it all began like a human “avalanche”: people ran, fell and screamed without understanding what was happening; the sound resembled the roar of an approaching aircraft or train. Up to four thousand people reported a similar experience, and many of them sought medical assistance in the following days because of persisting symptoms.

The authorities’ response was markedly one of denial. The Minister of Internal Affairs initially stated that the ministry possessed no sonic cannon or similar weapon, but later confirmed that the police owned acoustic systems (in particular the LRAD 100X and LRAD 450XL), acquired in 2021, while maintaining that they had never been used because they are regarded as unlawful weapons under Serbian law. The Serbian Law on the Police does not provide for the use of any kind of sonic or acoustic weapon – that is, there is a legal vacuum in which any use of such a weapon would be ultra vires. Activists submitted to the United Nations office in Belgrade a petition signed by more than half a million people, demanding an international investigation. The authorities, by contrast, turned for assistance to the United States Federal Bureau of Investigation and to the Federal Security Service of the Russian Federation. The published FSB report concluded that acoustic devices had not been used and advanced the theory of a “staged provocation” with movements synchronised via smartphones; independent experts criticised this report as failing to meet the formal requirements for documents of this kind, lacking methodology and an evidentiary basis, and more closely resembling propaganda.

In April 2025, the Council of Europe Commissioner for Human Rights carried out a mission to Serbia, focused on policing during the demonstrations and on the working conditions of civil society and human rights defenders. He stressed the critical importance of preserving the principles of democratic policing for the safety of all citizens and warned the authorities against stigmatising protesters through discourse that falsely portrays the protests as a “colour revolution”. The Commissioner also expressed concern about the unfavourable environment for non-governmental organisations and human rights defenders, aggravated by reports of the use of spyware against human rights defenders and journalists, stigmatisation campaigns and leaks of personal data.

THE NATURE OF SONIC WEAPONS AND THE PARALLEL WITH “HAVANA SYNDROME”

Acoustic (sonic) weapons operate through the propagation of sound – pressure oscillations travelling through an elastic medium (in particular air) – directed at striking a target. Most such devices are based on ultrasound, low frequencies or infrasound emitted at high intensity levels. So-called “long-range acoustic devices” (LRADs, or “sound cannons”) emit, instead of bullets, sound waves of extreme loudness. Ordinary sound weakens with distance, yet the acoustic signal of such a device can be heard loudly at distances of up to a kilometre, because the waves are emitted under high pressure. The impact of such a wave on the eardrum is capable of causing significant physical injury, but no less important is the psychological harm of an “invisible attack”. Despite the labelling of such means as “non-lethal” or “less lethal”, they are open to the same objections as other technologies bearing this label, and their use together with kinetic means in fact increases the risk of death. In international law, acoustic weapons have no authoritative definition and are not regulated, nor are they the subject of dedicated multilateral policy discussions.

This phenomenon is usefully considered in connection with the so-called “Havana syndrome” – a set of unexplained health disorders (headache, nausea, balance disturbances, auditory and cognitive symptoms) attributed to the possible effect of acoustic or directed-energy sources. Common to both phenomena is a mechanism that is invisible, easily denied and difficult to document, yet capable of causing entirely real physiological and psychological harm. It is precisely this combination – the reality of injury in the absence of obvious traces – that makes such means especially dangerous from the standpoint of human rights protection: the harm occurs, but proving it is made difficult, which creates room for denial with impunity.

WHY SUCH POLICING PRACTICES THREATEN HUMAN RIGHTS

The use of a sonic weapon against a peaceful assembly engages several Convention rights at once. First of all, Article 3 is concerned (prohibition of torture and of inhuman or degrading treatment), and in certain circumstances Article 2 as well (the right to life): a means that causes mass panic, bodily injuries and potentially serious health consequences for a large number of people is fully capable of reaching the threshold of severity envisaged by Article 3. The State’s positive obligations under this Article, as formulated in the Court’s case-law, comprise three elements: the obligation to put in place a legislative and regulatory framework of protection; in clearly defined circumstances, the obligation to take operational measures to protect specific individuals from a risk of prohibited treatment; and the obligation to carry out an effective investigation of arguable allegations of such treatment. Alongside this, Article 8 is engaged (respect for private life, which encompasses a person’s physical and psychological integrity), as are Article 11 (freedom of peaceful assembly) and Article 10 (freedom of expression).

The fundamental flaw of a sonic weapon lies in its indiscriminate character. A sound wave cannot be directed solely at those particular individuals who are allegedly behaving aggressively – it strikes the entire crowd without distinction: peaceful protesters, passers-by, journalists, medics, the elderly, children. This makes it practically impossible to comply with the requirement of proportionality, which is an indispensable condition for any lawful use of force by law-enforcement officers. Interference with Convention rights is lawful only where it is prescribed by law, pursues a legitimate aim and is necessary and proportionate in a democratic society. In the present case, even the first condition is not met: since the Serbian Law on the Police does not provide for the use of a sonic weapon, any use of it is not “prescribed by law” and is therefore unlawful under domestic law itself.

A particular threat is posed by the “invisible” and easily deniable character of such an impact. Where the harm is real but difficult to prove, the burden of proof in effect shifts onto the victims, and the State is tempted to deny the very fact that the weapon was used. This generates a structural risk of impunity, which is itself a threat to human rights, as it renders impossible the effective protection and restoration of the violated right. Finally, the use of such means has a pronounced chilling effect: the awareness that participation in the next protest may turn into a sudden attack on one’s health deters people from exercising freedom of peaceful assembly and freedom of expression. The matter therefore concerns not only harm to specific applicants at a specific moment, but also a preventive, future-oriented risk to an indeterminate and very wide circle of persons.

THE EROSION OF TRUST IN THE POLICE

Democratic policing rests on legitimacy and the consent of society. According to the classic principles of policing, the effectiveness of the police depends not on fear but on approval, voluntary cooperation and the trust of the population. The use of a weapon that harms peaceful citizens turns the very protective function of the police inside out, transforming a body intended to safeguard people’s safety into a source of danger to them. Such an inversion destroys the social contract on which policing by consent rests, and has long-term consequences for public safety, for people’s willingness to cooperate with the police, and for the rule of law in general.

Trust is destroyed not only by the very fact of the possible use of a weapon, but also by the pattern of the authorities’ subsequent conduct – denial and concealment. The Minister’s contradictory statements (first a denial of the very existence of sonic cannons, then an admission of their acquisition in 2021 coupled with a denial of their use), and especially the handing over of the “investigation” to a foreign special service – the Federal Security Service of the Russian Federation – strip the process of any signs of independence and impartiality. A report prepared by such a service and assessed by experts as propagandistic and methodologically untenable is not only incapable of establishing the truth but also finally undermines public trust. An investigation that is not independent, impartial, prompt and capable of leading to the identification and punishment of those responsible does not satisfy the procedural limb of Article 3 of the Convention and at the same time destroys the legitimacy of the law-enforcement system.

The erosion of trust is deepened by accompanying practices: the stigmatisation of protesters as participants in a “colour revolution”, discrediting campaigns, reports of the use of spyware against journalists and human rights defenders, and leaks of personal data. All of this narrows civic space and entrenches the perception of the police as an instrument of political pressure rather than as a service to society. The only path to restoring trust in such circumstances is an effective, independent and impartial investigation, full transparency as to the means available and the circumstances of their possible use, and genuine accountability of those responsible. In the absence of this, the State loses not only trust in the police but also the capacity to maintain public order by methods compatible with democracy.

A DETAILED ANALYSIS OF THE APPLICATION OF RULE 39 OF THE RULES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Rule 39 of the Rules of Court governs interim (provisional) measures. Formally, it is contained not in the text of the Convention itself but in the Rules of Court, and it allows the Court, in exceptional circumstances – at the request of a party or of any other person concerned, or of its own motion – to indicate to the parties any interim measure which it considers should be adopted. Although formally this is an “indication”, the binding force of such measures derives from Article 34 of the Convention (the right of individual application): a State’s failure to comply with a Rule 39 measure may constitute a violation of Article 34. This approach was established in the Grand Chamber judgment Mamatkulov and Askarov v. Turkey [GC] and confirmed, in particular, in Paladi v. Moldova [GC], Savriddin Dzhurayev v. Russia and Olaechea Cahuas v. Spain. Interim measures are thus de facto binding for compliance.

The conditions for the application of Rule 39 form a settled test. A measure is taken only on an exceptional basis where there is, first, an imminent risk; secondly, irreparable harm; and thirdly, a Convention right of such a character that the harm caused would not subsequently be amenable to reparation, restoration or adequate compensation. The burden of substantiating an imminent risk of irreparable harm rests on the applicant. Measures may be taken where this is necessary in the interests of the parties or of the proper conduct of the proceedings. The classic field of application of Rule 39 is cases concerning expulsion, extradition or forced return, in which the return of a person would expose them to a real risk of death (Article 2) or of torture or inhuman treatment (Article 3) – along the logic expressed as early as Soering v. the United Kingdom as regards non-return. Outside this field, interim measures are granted extremely rarely.

It is for this very reason that the decision in the present case is a notable and atypical example of the application of Rule 39, distinguished by several features at once. First, the measure has a preventive and future-oriented character: it is intended not to stop a specific imminent act against a named person at a known moment (such as a planned deportation), but to prevent an entire category of future conduct – any use of sonic devices for crowd control – at indeterminate future protests. Secondly, the measure has a general and collective character: it protects an indeterminate and exceptionally wide circle of persons, potentially the entire protesting community, rather than specific applicants who suffer individualised harm. Thirdly, it is open-ended in time – it operates “until further order”. Fourthly, it is addressed to the conduct of the State in the sphere of public-order maintenance and policing, rather than in the classic migration domain.

The Court’s reasoning was concise but telling. In granting the measure, the Court noted that the use of such a weapon for crowd control is unlawful under Serbian law, and also drew attention to the potentially serious health consequences for a large number of persons. It was precisely the combination of unlawfulness under domestic law with a grave and irreversible risk to the health of many people that, in the Court’s view, satisfied the threshold of imminence and irreparability of harm. At the same time, the Court strictly adhered to the principle of not prejudging the outcome: granting the measure does not mean that the Court has taken any position as to whether a sonic weapon was in fact used on 15 March 2025, and it does not affect any subsequent findings as to the admissibility or the merits of the case. Yet the very fact of granting the measure under such strict conditions signals at least the existence of an arguable (prima facie) complaint and of a real, rather than illusory, risk – otherwise the exceptional threshold of Rule 39 could not have been reached.

No less important for understanding the limits of Rule 39 is what the Court refused to grant. The applicants’ two other requests – not to allow the criminal prosecution of persons taking part in the public discussion of the events of 15 March, and to order the conduct of an effective investigation – the Court found to fall outside the Rule 39 procedure. This delineates the doctrinal limits of interim measures: Rule 39 is a shield against imminent irreparable physical harm, not an instrument for the preventive protection of the interests of freedom of expression or of the criminal process, nor a mechanism for compelling the conduct of an investigation. The latter is a matter of the State’s positive obligations, falling within the examination of the merits, rather than a subject for an interim measure. Such a position is consistent with the Court’s settled restrictive approach to Rule 39 and prevents it from being turned into a general means of influencing national policy.

Finally, an interim measure cannot exist in a vacuum: it is tied to existing or imminent proceedings. The Court therefore gave the applicants one month to submit a substantive application under Article 34 of the Convention. The State to which the measure is addressed is obliged to comply with it, and non-compliance risks a finding of a violation of Article 34; compliance is supervised by the Court and the Committee of Ministers. The significance of this case extends far beyond it: it is the first instance in the Court’s practice in which the question of acoustic (sonic) weapons has become the subject of an interim measure, and it will most likely shape European standards on “less lethal” crowd-control technologies and on the positive obligations of States. The case demonstrates the adaptability of Rule 39 beyond the migration paradigm – its suitability for responding to systemic risks in the sphere of public order – even though the Court formulated its measure cautiously and narrowly.

CONCLUSIONS

The case of Đorović and Others v. Serbia crystallises three interrelated propositions. First, the use of an indiscriminate, easily deniable weapon against peaceful assemblies is incompatible with the Convention: it engages Articles 3, 8, 10 and 11 and breaches the State’s positive obligations to protect people’s physical and psychological integrity and to carry out an effective investigation. Secondly, such practices, compounded by denial and by the imitation of an investigation by forces lacking independence, destroy the legitimacy and public trust on which democratic policing rests, transforming the police from a service of protection into a source of threat. Thirdly, Rule 39, traditionally a migration instrument, became in this case a rare preventive shield that protected an entire civic community from irreversible harm.

For Ukraine and other Council of Europe member States, this precedent is at once a warning and a standard. Crowd-control technologies require a clear legislative basis, strict observance of necessity and proportionality, independent oversight and an effective investigation of any allegations of their use. These requirements are entirely in keeping with the standards of the European Committee for the Prevention of Torture (CPT) on the use of force by law-enforcement officers and on the treatment of persons deprived of their liberty or under the control of the police. In the absence of these guarantees, the State risks losing both human rights and its own legitimacy: when the police use a weapon against citizens and then conceal it, what is lost is not only trust in the police but the very foundational condition of public order in a democratic society.

I deliberately make a point at the very outset that ought to be superfluous, but under present conditions is not: this text cannot, in any dimension, be construed as support for the territorial recruitment centres (TCCs) in those of their actions that constitute crimes and gross violations of the law. I write this as an advocate whose client was himself recently unlawfully deprived of liberty by a territorial recruitment centre; as an advocate who conducts administrative cases against the TCCs. My position on the crimes committed by TCC officials therefore needs no explanation – it is unequivocal.

But this post is not about the TCCs. It is about something far more dangerous: about the fact that society has simultaneously and unanimously demonstrated a readiness to justify torture, provided that the torture is applied – in quotation marks – “to scumbags.” About the idea that “proper” torture inflicted on villains is not merely permissible, but just and even desirable. This is precisely my central message.

What, in fact, happened

First, the facts – because it is in their juxtaposition that the essence of the problem lies.

Officers of the State Bureau of Investigation (SBI) exposed, in one of the district territorial recruitment and social support centres of the Odesa region, a large-scale scheme of unlawfully coercing citizens into mobilisation. In order to improve conscription figures, officials of the institution unlawfully held men on the centre’s premises, beat them, intimidated them, and exerted psychological pressure. The investigation also established individual instances of acts of a sexual nature of a violent character committed against the victims. Six TCC employees were assisted by three representatives of a local civic organisation, who tracked down citizens and gathered information about them. Nine members of the group were detained; they were notified of suspicion of torture, unlawful deprivation of liberty, and robbery committed by an organised group. The court chose a preventive measure in the form of detention in custody without the right to post bail.

This is torture. The SBI called it torture. The law calls it torture. And that is correct.

A PARALLEL EVENT

On social media, the public association “Non-Stop Ukraine” published a video, filmed, presumably, in the Odesa SIZO, showing a man – allegedly that same TCC employee – being forced to crawl on the floor, to perform dog commands, and to carry slippers in his teeth to other inmates. The commands were given to him by the so-called “overseer” (smotryashchiy) of the block. The State Criminal-Executive Service confirmed the opening of an internal inquiry, the management of the Odesa SIZO was suspended, and the SBI opened proceedings.

And here is the most important point. This second event was almost unanimously labelled by the media, officials, and society as “abuse” and “humiliation.” Not torture. Merely “abuse.” And it is precisely in this substitution of words that the entire machinery of legitimisation is concealed.

THE TWOFOLD MOVEMENT OF PUBLIC CONSCIOUSNESS

When the SBI exposed the group of TCC employees, society exploded. But it exploded not with indignation against torture as such. It exploded with popular vengeance.

In the mass reaction, two movements occurred simultaneously, which only at first glance appear unrelated.

The first movement is the demonisation of the TCC employees. This is understandable: particular officials who tortured and robbed citizens for the sake of figures deserve the response prescribed by law. But demonisation is not justice. Demonisation transforms a specific human being from a suspect, protected by the presumption of innocence, into an abstract “villain” with respect to whom, supposedly, “anything goes.”

The second movement is the whitewashing of the staff of the Odesa pre-trial detention centre – or, more precisely, of those who organised and permitted the torture of an inmate within the walls of a state institution. The treatment applied to the detained TCC employee was, in effect, recognised by society as lawful and just. “He deserved it.” “Serves him right.” “Justice at last.” Torture carried out by inmates under the tacit supervision of the SIZO administration was turned into an instrument of popular vengeance – and, in that capacity, approved.

This is where the catastrophe occurs. For the very same torture that society rightly condemns when it is inflicted by TCC employees is the one it welcomes when it is inflicted in the SIZO – against the “right” victim.

“ABUSE” OR TORTURE? ON THE SUBSTITUTION OF WORDS

Note the language. What the SBI defendants did is “torture.” What the staff of the Odesa pre-trial detention centre did is merely “abuse” or “humiliation.”

This is neither coincidence nor journalistic carelessness. This is legitimisation in action.

Forcing an adult to crawl on their knees, to perform dog commands, to carry footwear in their teeth to other prisoners – this is not “abuse” in the everyday sense of the word. This is classic degrading treatment, and in terms of its intensity, systematic character, and purpose it is torture within the meaning of Article 3 of the Convention for the Protection of Human Rights and Article 127 of the Criminal Code of Ukraine. For decades the European Court of Human Rights has qualified precisely such acts – humiliation that destroys the personality, that places a person in the position of an animal – as a violation of Article 3 of the Convention.

When we call torture “abuse,” we make the first and most important concession. We soften the word in order to soften the act, in order ultimately to soften the prohibition. The lowering of the threshold of torture begins right here – in the vocabulary.

The most dangerous idea of contemporary Ukraine: “proper” torture

Let me state plainly what hangs in the air and what no one dares to say aloud: the idea has taken hold in society that torture is acceptable if it is applied to a villain.

This is the idea of a conditional, selective, “just” prohibition of torture. The idea that torture is a tool that is bad in the wrong hands, but good in the “right” hands, against the “right” objects.

This is a direct and absolute negation of the very concept of human rights.

For the prohibition of torture is absolute. It knows no exceptions. Article 3 of the Convention is one of the few that is not subject to any derogation, even in conditions of war or a state of emergency. No exceptional circumstances – neither war, nor the threat of war, nor internal political instability, nor any other state of emergency – can serve as a justification for torture. None. Never. Against no one.

And here it is worth recalling two circumstances that are forgotten in the heat of popular vengeance.

First, the person who was tortured in the SIZO had not been convicted. No verdict has been rendered against him. He is a suspect, nothing more. The presumption of innocence is not a formality for advocates’ speeches, but a load-bearing element of the entire edifice of law.

Second – and this is fundamental – even if a verdict is rendered, even if guilt is fully proven, this in no way justifies torture. A convicted murderer, rapist, torturer – all of them retain the right not to be subjected to torture. Not because they “deserve” it, but because the prohibition of torture protects not them – it protects us. It protects the very idea of human dignity, which cannot be taken away for any guilt. A society that agrees to torture “villains” very quickly discovers that the circle of “villains” expands, and that who falls within it is decided not by a court.

“AND IMAGINE WHAT THEY DO TO THE REST”

And the final, coldest thought. The acts permitted against the TCC employee were carried out languidly, openly, without concealment, with absolute cynicism – so much so that they were filmed on video. If such things are done for show, without hiding, to a person whose case is guaranteed to become public – imagine what is happening within the walls of that same Odesa SIZO to those whose names no one will ever learn. To those for whom there is no one to stand up. To those whose humiliation no one will film on a phone and post online.

This is precisely why this case is so important. It is not an exception, but an indicator. It shows not that a cruel “overseer” has appeared in one block, but that an entire system tolerates, uses, and tacitly approves torture – on condition that the victim is the “right” one.

THE INSTITUTIONAL RESPONSE: A MACHINE OF BUREAUCRATIC BRUSH-OFFS

I did not confine myself to observations. I addressed the authorities – the State Bureau of Investigation, the Office of the Prosecutor General, the Odesa regional and district prosecutor’s offices, the Ministry of Justice, the SIZO institution itself, and the relevant interregional directorate – with a consolidated request and a statement concerning possible criminal offences in the conditions of the Odesa SIZO.

What did I receive? Brush-offs. In their purest, laboratory-pure form.

The Office of the Prosecutor General forwarded my statement “by territorial jurisdiction” to the Odesa regional prosecutor’s office – and notified me of this. By another letter the OPG forwarded the appeal “by competence” and kindly explained that I could appeal the actions of the investigator or prosecutor under the procedure of Articles 303–310 of the Criminal Procedure Code. The Khadzhibey district prosecutor’s office of the city of Odesa forwarded my information requests further on and separately noted that it “is not the proper holder of the requested information.”

Not a single body said, “Yes, we are looking into this, here is what has been done.” Each one said, “This is not quite for us” – and redirected it further round the circle. A torture complaint is passed between instances like a hot potato, until it cools down and gets lost.

Here it is, the institutional cover of that same legitimisation. Society approves torture from below – and the state evades reacting from above. Both lead to the same point: impunity. And the impunity of torture is not a side effect. It is, according to the entire case-law of the ECtHR and the European Committee for the Prevention of Torture (CPT), a separate and self-standing violation, because it is precisely impunity that makes torture systemic.

IN LIEU OF A CONCLUSION: ON THE PRESENT, TO WHICH NO ONE PAYS ATTENTION

I do not wish to write at length in this post about the absolute prohibition of torture as a legal doctrine – it is obvious enough to anyone willing to see it. I want all the experts, civic associations, civic initiatives, and organisations that speak about human rights every day to finally reflect on what sounds mundane today and to which no one pays attention.

The lowering of the threshold of torture and the maximal, absolute heightening of tolerance toward torture have already become our present. The Odesa case is merely an example, a litmus test, a flash that for a moment lit up the abyss.

The most terrible thing about torture is not the act of violence itself. The most terrible thing is the moment when society begins to approve of that violence. When “never, against anyone” quietly turns into “permissible, if he deserved it.” Because after that, the question is no longer whether there will be torture. The only question is who will be the next to be deemed to have “deserved” it.

The two-day intensive programme formed part of the DIGNITY project, an initiative co-funded by the European Union and dedicated to bridging perspectives for a rights-based approach to pre-trial detention across member states.

Under the expert guidance of Ms. Marina Daliani, distinguished criminal and human rights lawyer and Vice President of the Hellenic League of Human Rights, the training brought together legal practitioners, human rights defenders, and detention monitoring experts from Greece, Portugal, and Ukraine.

The programme addressed critical contemporary challenges in pre-trial detention practices, including vulnerabilities of detained persons, barriers to effective legal representation, and the application of international human rights standards. Participants engaged in practical exercises encompassing UN complaint mechanisms, European Arrest Warrant simulations, and strategic litigation before the European Court of Human Rights.

Call for Papers

Wartime Crisis Mode: Crime, Justice and Social Control in Armed Conflicts in Europe

Edited by Dr. Dmytro Yagunov, Prof. Dr. Rita Haverkamp and Dr. Tetiana Melnychuk

Eberhard Karls Universität Tübingen

Endowed Professorship of Crime Prevention and Risk Management

Supported by the Philipp Schwartz Initiative of the Alexander von Humboldt Foundation

About the Volume

Contemporary armed conflicts reshape legal systems, erode institutional trust, and fuel unprecedented criminal activity, making the criminological dimensions of warfare even more essential.

Building on the 2025 edition «Wartime Crisis Mode: The Impact of Russia’s Aggression on the System of Social Control in Ukraine (Crime, Institutes, and Trust in Criminal Justice)», this expanded volume brings together scholars and practitioners to analyse how contemporary war reconfigures legal norms, disrupts judiciary and law enforcement, and creates new condition for criminal activity.

This edited volume examines how armed conflicts impact criminal justice systems across multiple dimensions. It analyses the ways warfare destabilises economies, fractures political institutions, and erodes public trust in police, courts, prisons, and other core elements of national criminal justice systems.

While the main focus centers on Russian military action against Ukraine, this edition also welcomes academic submissions that analytically explore the broader ramifications of emerging security threats.

Topical Areas

We invite contributions addressing the following themes and related topics:

1. Theoretical Foundations of Studying Crime and Justice in Armed Conflict

• Defining the discipline: core principles and scope of criminology in armed conflicts.
• Conceptual frameworks: theories and models for analysing wartime criminality.
• Research methodologies: approaches for studying crime and justice in conflict zones.
• Comparative perspectives: criminal justice systems under wartime conditions.

2. Human Rights at War

• Human rights challenges and derogations during armed conflicts.
• Civilian protections and violations under international humanitarian law.
• Accountability mechanisms for human rights violations.
• Wartime related case law of international courts and tribunals.
• Protection of the rights of prisoners of war.

3. Impact of War on Crime

• War’s effects on crime: trends and patterns.
• War crimes and crimes against national security.
• Cross-border crimes and illicit markets (human trafficking, trafficking of arms and drugs).
• Violent crimes and gender-based violence during armed conflicts.
• Property crimes: extortion, bribery, and fraud.
• Mobilisation crimes and draft evasion.
• Environmental crimes in war zones.
• Cybercrime and information warfare.
• Use of artificial intelligence during conflicts.

4. Organised Crime and Gangs

• Organised crime networks during wartime.
• Criminal-conflict nexus: how armed conflicts create new opportunities for organised crime and how organised crime fuels the conflict.
• Street gangs and prison gangs in conflict-affected regions.
• Private military companies in armed conflicts: criminal threat assessment.

5. Torture Practices and War’s Impact on Vulnerable Groups

• Criminological aspects of wartime victimisation.
• Torture as a public policy in the 21st century.
• Gender-based and sexual violence.
• The criminology of genocide.

6. Criminal Justice Systems Under Siege

• Policing and prosecution in wartime: evolution and ethical dilemmas.
• Judicial systems in armed conflict: adaptation, continuity, and legitimacy.
• Prisons and probation under pressure: security, rehabilitation, and humanitarian concerns.

7. Society Under Strain: Cultural and Social Consequences of Conflict

• Fragile foundations: trust, heritage, and vulnerable lives.
• Beyond the battlefield: governance and social cohesion in crisis.
• Echoes across generations: trauma and long-term societal change.
• Preserving identity amid chaos: cultural heritage and human resilience.

8. Imperialism in the 21st Century: Continuities and Transformations

• 21st century imperialism: multiple manifestations.
• The Neo-imperial mindset: Ideology of Russian expansionism.
• Russia’s global ambitions: Historical roots and modern projections.
• The Ukrainian pattern: anatomy of Russian aggression.
• The prison state within: How criminal and prison culture shapes Russian governance.
• Governing through fear: The political architecture of Russia’s carceral system.
• Empire’s endgame: between collapse, evolution, and survival.

Submission Guidelines

We Welcome:

• Original empirical research (quantitative, qualitative, or mixed methods).
• Theoretical and conceptual papers.
• Case studies and comparative analyses.
• Interdisciplinary approaches drawing from criminology, constitutional law, criminal law, sociology, political science, psychology, and related fields.
• Perspectives from both scholars and practitioners.

Abstracts Requirements

• Language: English
• Abstract: 500 words
• Keywords: 5-7 keywords
• Author information: Brief bio (100 words) and institutional affiliation

Manuscripts Requirements

• Language: English
• Length: 7,000-9,000 words (including references)
• Once a manuscript has been accepted following peer review.
• Editors reserve the right to reject abstracts and manuscripts if they do not meet the requirements in terms of subject matter, quality or scientific validity.

Edition

• The authors assume full responsibility for the manuscripts provided.
• The authors assume full responsibility for the accuracy of data and the validity of content.

Citations and References

• Citations in the text and Bibliography references must meet the requirements of the APA-Style.

• References to the literature are made in the text of the paper in brackets and consist of the author’s surname, year of publication with corresponding pages.

• References at the end of the article should be Latinised.

• When making bibliographic references to Cyrillic (including Ukrainian and Russian) articles published in journals and almanacs, we strongly recommend the following structure of references: 1) Name of author/authors (transliterated); 2) original title of the article transliterated by Latin symbols and its English translation in square brackets [ ]; 3) original title of the source transliterated by Latin symbols and its English translation in square brackets [ ]; 4) publisher’s imprint information in English.

• In References, when indicating a city of publication in both English and Cyrillic sources, the name of the city should be given in English, while the name of the publishing house should be transliterated.

Submission Process

• Abstract Submission Deadline: January 20, 2026
• Paper Submission Deadline: May 20, 2026
• Expected Publication Date: July 2026

Please submit your abstract and a short bio (100 words) to yagunov@posteo.de with the subject line “War Criminology – [Your Name]”.

In its 12th General Report published in 2002 (Developments concerning CPT standards in respect of police custody), the CPT directly focuses on the issue of training of police officers (§34, §49).

In its 20th General Report published in 2010 (Electrical discharge weapons), the CPT focuses again on the issues of training of police officers (§65, §78, §79).

In its 28th General Report published in 2019 (Preventing police torture and other forms of ill-treatment – reflections on good practices and emerging approaches), the CPT focuses that professional policing goes hand-in-hand with adequate training on the use of force in compliance with the principles of lawfulness, necessity and proportionality. Training should also provide opportunities to acquire appropriate investigative skills, taking due account of the age, gender, state of health, any disability or any other circumstances which may render certain persons under investigation particularly vulnerable. Moreover, no significant change can be expected without strong police leadership and management, which scrupulously supervise the observance of procedural safeguards and convey firm and unambiguous messages of zero tolerance of police ill-treatment (§71).

The CPT finds it positive that the police services cooperate with universities, and academic courses provided by universities form part of the syllabus for university training programmes for police officers (§76).

Considering that the Project is focused on training of police officers in procedural justice skills and de-escalation techniques, it should also be mentioned that the CPT encourages police practices which avoid common pitfalls associated with relying on preconceived conclusions. The CPT recommends the police services go outside ‘tunnel vision’ or ‘confirmation bias’ (§76). Further, the development of adequate initial and ongoing professional training is key in the effective implementation of any such framework for police interviewing (§80). Therefore, such an approach goes in line with Project which is focused on dialogue between the police and citizens in contrast to any punitive approaches.

Moreover, the CPT makes a special focus that introducing designated custody officers could also strengthen the practical implementation of various procedural and other safeguards. The police officers with the powers of arrest should be trained properly to pose the appropriate questions and to recognise and record indicative signs of a person in need of particular support and care. This is clearly good practice (§85).

Many cases of the European Court of Human Rights focus attention on the need of the European states to improve national systems of training of police officers in the area of prevention of harm and de-escalation techniques (Saso Gorgiev v. the FYRM, §47; Krastanov v. Bulgaria, §53; Mikhalkova and Others v. Ukraine, §36; Guliani and Gaggio v. Italy [GC], § 249; McCann and Оthers v. the UK [GC], §150; Soare and Others v. Romania, §129; Armani Da Silva v. the UK [GC], §247; Andronicou and Constantinou v. Cyprus, §194; Gül v. Turkey, п.§84-86; Ergi v. Turkey, §72; Nachova and Others v. Bulgaria [GC], §§ 95, 102, 106-108; Celniku v. Greece; Saso Gorgiev v. the FYRM, §49; Emars v. Latvia, §87; Gorovenky and Bugara v. Ukraine, §31-39).

In Celniku v. Greece, the ECtHR stated that Article 2 of the Convention related not only to the direct actions of police officers or security forces, but also to the planning of an operation or even the training of the relevant law enforcement personnel, if it can be proven that the law enforcement officers did not receive adequate training or that the level of their training was not commensurate with the complexity of the tasks assigned to them. One of the possible reasons for the killing of the applicants’ relative was the lack of proper practical training of the police officers.

In Saso Gorgiev v. the FYRM (§51), Abdullah Yilmaz v. Turkey (§§56-57), and Enukidze and Girgvliani v. Georgia (§284), the ECtHR focused that States had to set high professional standards for their law enforcement systems and ensure that persons serving in such bodies meet the established requirements. In particular, when equipping police forces with firearms, care should be taken to provide appropriate special training for police officers.

The 21st century is the time of polycrisis, characterised by its temporal and spatial boundaries and cascading effects (Covid-19 pandemics, climate change, the war in Ukraine, mass migration caused by the war in Ukraine and other armed conflicts).

Moreover, European societies are almost universally in crisis mode, which is linked to an accelerating process of transformation and further threats from the Russian Federation which changes the priorities of the police forces and limits them in resources.

It is no secret that European states, accustomed to stable, peaceful coexistence within the framework of beneficial economic cooperation and the free movement of goods and people within the European Union, were unprepared for many of the challenges associated with the war in Ukraine.

Having adapted to the large number of refugees from Ukraine, European states have nevertheless been unable to adapt to the changing nature and rates of crime caused by global and regional crises.

More importantly, however, most European states are unprepared to combat crime in the context of a possible state of war.

Therefore, it can be said that Ukraine’s experience is invaluable not only in countering Russia’s imperial ambitions on the diplomatic and military fronts, but also in ensuring the sustainable and uninterrupted development of the justice system, including the police, criminal courts and prisons.

Therefore, I am pleased to present this monograph to the scientific and expert community, prepared at the Endowed Professorship for Crime Prevention and Risk Management at the Eberhard Karls Universität Tübingen, focused on the problems of the evolution of crime during full-scale war in modern Europe, which focuses both on crime indicators and on the impact of war on elements of the criminal justice system.

Despite the variety of scientific works devoted to the impact of war on crime both in Ukraine and in the countries of the European Union, there has been a lack of a comprehensive approach to the analysis of these issues until now.

In fact, such a comprehensive approach was implemented by the team of experts, who formed a systematic critical view of how modern war affects a modern European country.

I am convinced that this monograph will be of interest and use to European politicians, senior police officers and academics for a forward-looking analysis of the threats that can be expected as a result of the further escalation of Russian imperialist ambitions.

September 2025

Prof. Dr. Rita Haverkamp

Eberhard Karls Universität Tübingen

Article 213 of the Criminal Procedure Code of Ukraine (CPC) obliges the official who carried out the detention to immediately notify the body authorised by law to provide free legal aid.

Pursuant to Article 52 of the CPC, the participation of a defence counsel is mandatory in cases of serious crimes – from the moment a person acquires the status of a suspect.

In other cases, the mandatory participation of a defence counsel is ensured in criminal proceedings:

• regarding individuals suspected or accused of committing a crime under the age of 18;
• regarding individuals subject to ‘compulsory educational measures’;
• regarding persons who, as a result of mental or physical disabilities are unable to fully exercise their rights;
• regarding individuals who do not speak the language of criminal proceedings;
• regarding individuals respecting whom ‘compulsory medical measures’ are envisaged;
• regarding the rehabilitation of a deceased person;
• regarding individuals subject to a special investigation or special court proceedings;
• in case of a plea agreement between the prosecutor and the suspect or accused.

In such situations, the investigator or prosecutor makes a request (decision), and the investigating judge or court passes a ruling. The decision or ruling is immediately sent to the relevant regional centre for free legal aid (FLA), which appoints a defence counsel to provide legal aid.

A defence counsel appointed by the legal aid centre shall arrive at the specified address for a confidential meeting with the detainee within 1 hour, and in exceptional cases, except for the issuance of the order for the provision of legal aid to a person subject to administrative detention, within 6 hours from the moment of issuing the order. If the appointed defence counsel is unable to provide legal aid, he/she shall immediately notify the centre, which shall appoint another defence counsel[2].

However, failure to comply with, improper or untimely execution of a decision or ruling on the appointment of a defence counsel entails liability established by law. This may include disciplinary liability for those responsible, or it may lead to the recognition of an investigative action conducted in the absence of a defence counsel as violating the rights of the suspect or accused, and, as a result, the inadmissibility of the evidence obtained.

With the introduction of martial law, the law ensured access of a lawyer to a client at any time of the day, including during curfew. Lawyers involved in the FLA system can move freely during curfew if they have the relevant documents[3].

In the majority of these cases, legal aid is provided to the suspect/accused at the expense of the state. Generally, the CPC does not provide such support for victims. A victim may be represented by a representative – a person who is entitled to be a defence counsel. In other words, the law requires mandatory representation of the victim’s interests by a professional lawyer in cases where the victim wishes to engage them. The payment for its services is entirely borne by the victim, which negatively affects the protection of victims.

In addition to sectoral legislation, the right to legal aid is also enshrined in the Law “On Free Legal Aid”, which defines the basic concepts, legal service providers and persons entitled to free legal aid[4].

Categories of persons entitled to free legal aid:

1) individuals whose average monthly total income does not exceed twice the subsistence minimum for able-bodied persons;

2) persons under administrative detention or arrest, regardless of their economic situation;

3) persons in respect of whom a preventive measure in the form of detention has been imposed;

4) persons subjected to violence, torture, cruel, inhuman or degrading treatment during detention;

5) individuals who have refugee status or have applied for it;

6) internally displaced persons, etc.;

7) other individuals specified by law.

There have also been developments in expanding the list of subjects entitled to free legal aid recently. Thus, in May 2022, two new categories of subjects entitled to free legal aid were added: 1) persons who do not have identity documents confirming their citizenship of Ukraine; 2) victims of sex сrimes, torture, or ill-treatment during hostilities or armed conflict[5].

Another Law in February 2023 added such subjects as citizens of Ukraine – in cases of loss (destruction) of documents, receipt (issuance) of documents, establishment of facts of legal significance in court if such a need arose as a result of hostilities, terrorist acts, sabotage caused by the armed aggression of the Russia against Ukraine (including to obtain compensation for damaged and destroyed real estate as a result)[6].

Another law passed in 2025 granted convicted prisoners subject to disciplinary sanctions the right to free legal aid. When imposing a disciplinary penalty on a convict, the prison administration is obliged to immediately provide them with the opportunity to notify their close relatives, lawyer, or other legal professionals who are legally entitled to provide legal assistance in person or on behalf of a legal entity. A prisoner is entitled to use the services of a lawyer of their choice in preparation for a disciplinary commission hearing. If a prisoner does not have access to a lawyer, the prison administration must provide them with the opportunity to seek legal assistance from entities providing such assistance. In such a case, the disciplinary commission is obliged to suspend the disciplinary proceedings until a copy of the decision to provide free legal aid is received. The suspension of disciplinary proceedings suspends the period for imposing disciplinary penalties[7].

Regarding the practical aspect of ensuring access to a lawyer, numerous violations of the right to defence were recorded during the National Preventive Mechanism visits in 2022, namely:

1) officials who carry out detention do not notify at all or notify after a long time the free legal aid providers;

2) the right of suspects to a confidential meeting with a lawyer is not ensured;

3) there is no proper record of the facts of informing, in particular, the logs of informing the centres for providing free legal aid to detainees, which should be kept in each police station, etc.

In addition, in a significant number of the visited territorial police units, there are no conditions to ensure the right to a confidential meeting between a detainee and a lawyer. In most of the visited police stations, there are no such rooms or they are not properly equipped. Most often, police officers inform that meetings between detainees and lawyers are held in the offices of investigators or other premises without ensuring confidentiality^[8].

In 2023, a visit by the Ombudsman to the Khmelnytskyi Pre-Trial Prison revealed that some prisoners did not receive legal aid from the Regional Centre for Free Legal Aid. In particular, the prisoners reported that the free aid lawyer assigned to them did not participate in court hearings, even despite the capability and availability of participating via video conference in a specially equipped room, and so, did not coordinate the legal position of the defence in the cases^[9].

At the same time, according to the CPT’s report on the 2023 visit, it was noted that, as a rule, the police are to promptly inform the relevant free legal aid centre. The majority of detainees confirmed that they were allowed to speak to their lawyer in private before the interview. In a few cases, detainees claimed that interrogation had begun before the lawyer arrived; however, none of them reported being forced to sign a confession or any other official statement without the presence of a lawyer and without prior opportunity to speak to a lawyer. In this regard, the CPT noted in the report that persons in police custody should, in general, never be interrogated without the presence of a lawyer. The CPT noted positive developments compared to the situation observed during the 2017 periodic visit^[10].

The state of ensuring the human right to access an independent doctor

One of the main issues in ensuring human rights compliance in the prison system remains inadequate medical care and insufficient staffing and equipment of medical units.

In 2017, the Ministry of Justice of Ukraine created a new public body independent of the prison system — the State Institution “Health Care Centre of the State Criminal Executive Service of Ukraine”, but this did not improve the situation with the provision of medical care to persons serving sentences in prisons^[11]. After the separation of the prison medical service into an independent body, the directors of prisons unreasonably abdicated their responsibility for the lives and health of prisoners. In practice, this attitude led to a situation where the prison does not accept applications, complaints, or requests from convicts, their relatives and lawyers regarding medical care.

In 2019, the Human Rights Centre ZMINA and the Expert Centre for Human Rights conducted a study of the practice of documenting torture, in particular in prisons, which included focus groups with medical staff^[12]. The results of the study indicated that medical staff in the prison system, although formally independent of the prison administration, cannot work if they have negative relations with their superiors.

Prisons do not pay sufficient attention to improving the diagnosis and treatment of generalised somatic and socially dangerous diseases (HIV, tuberculosis and viral hepatitis). There are violations of sanitary regulations, inadequate medical nutrition for people with chronic diseases, and virtually no walks or access to fresh air, especially for people who are unable to move independently. The quality and timeliness of medical care is affected by the availability of qualified medical staff in medical institutions. In most medical units at the institutions, as well as in the multidisciplinary and specialised hospitals of the Health Care Centre of the Prison Service, there is a lack of doctors of various specialisations. The understaffing of medical staff in penitentiary institutions and facilities is a long-term problem that remains acute from year to year. After Russia’s full-scale invasion of Ukraine, the situation worsened as some paramedics and doctors were mobilised.

According to the Special Report of the Ombudsman on the state of implementation of the national preventive mechanism in Ukraine for 2022, the majority of Health Care Centresdo not provide substitution maintenance therapy for people with mental and behavioural disorders due to opioid use under the Procedure for Substitution Maintenance Therapy for People with Mental and Behavioural Disorders Due to Opioid Use. During 2022, most of these prisoners were not referred to healthcare facilities where substitution maintenance therapy was implemented for registration. However, they were referred to healthcare facilities for detoxification, which violates their right to choose treatment methods under Article 38 of the Law of Ukraine “Fundamentals of the Legislation of Ukraine on Healthcare” (Kropyvnytskyi City Medical Unit No. 14 of the Branch of the Health Care Centre of the Prison Service in the Cherkasy and Kirovohrad regions).

During the visits, it was found that most of the institutions and facilities of the Health Care Centre of the Prison Service do not have proper infection control and epidemiological surveillance of tuberculosis.

In particular:

• no partitions with doors or airlocks are installed at the boundaries of clean areas and high-risk areas;
• isolation wards are used for more than one or two people;
• doors to the wards are not equipped with a sealed threshold, or seals around the edges; the wards are not equipped with a separate sanitary unit; there is no separate room in front of the entrance (gateway);
• there is no air circulation through mechanical ventilation. In some medical units, there are no separate isolation rooms for infectious patients, which makes it impossible to place tuberculosis patients and patients with other dangerous infectious diseases separately from each other and other convicts (Kropyvnytskyi City Medical Unit No. 14 of the Branch of the Health Care Centre of the Prison Service in the Cherkasy and Kirovohrad regions”)^[13].

At the same time, according to the CPT’s report on the 2023 visit, the situation with such a legal guarantee as access to a doctor has generally improved since the 2017 visit^[14].

The problem with the provision of medical care in prisons, which is coordinated and funded by the Ministry of Health. Over the years, the CPT has repeatedly recommended that medical care in prisons be transferred to the responsibility of the Ministry of Health of Ukraine. This recommendation remains unfulfilled. After analysing possible models for such a transformation and assessing the advantages and risks of each option, the Ministry of Justice of Ukraine, together with the Ministry of Health of Ukraine, decided to launch a pilot project in one prison aimed at integrating prison medicine into the general health care system, which is scheduled for implementation in 2025. In addition, it should be noted that the trend in European countries is for prison health services to be transferred, largely or completely, to the responsibility of the Ministry of Health. In this context, the CPT in the report on its visit to Ukraine in 2023, as well as in its recommendations to other countries, emphasizes that the active participation of the Ministry of Health in this area (in particular in matters of recruitment of medical personnel, their training, evaluation of clinical practice, certification and inspection) will help to ensure optimal medical care for prisoners and convicted persons, as well as the implementation of the general principle of equivalence of medical care in penitentiary institutions with medical care in society as a whole[15].

One of the main problems with the accountability of the medical system to officials in places of detention is the formal approach to documenting physical injuries. In 2024, the Ombudsman found that instead of careful documentation as required by current legislation, medical workers often limit themselves to formal records. There have been cases where law enforcement agencies have reported such incidents in violation of the established requirements of the law. In addition, physical injuries are still not properly photographed, and the documented information is not given to the victim.

Thus, during a visit to Kropyvnytskyi City Medical Unit No. 14, a branch of the Health Care Centre of the Prison Service in Cherkasy and Kirovohrad regions, the NPM group established that prisoner D. suffered bodily injury while in his cell, namely, “haemorrhage in the left eye, haematoma, soft tissue contusion, contusion of the left temple, haematoma of the scalp on the left side.” At the same time, medical workers did not take photos of the bodily injuries and, in violation of established requirements, only notified the prosecutor by telephone. In addition, the outpatient’s medical record does not contain any information about the medical care provided to the prisoner. In another case, it was found that medical workers only photograph minor bodily injuries in prisoners, while other injuries are not given proper attention. The photographs themselves are stored on the personal computers of medical staff and are not added to the patient’s medical records, as required by the current procedure. Despite the recommendations of the CPT, when documenting the presence of bodily injuries in convicted and imprisoned individuals, even when there is suspicion of ill-treatment, medical staff do not record their observations regarding the correspondence between any statements made by the victim and objective medical conclusions.

At the same time, the majority of people who have been subjected to ill-treatment report that they sustained bodily injuries through their negligence or refuse to name the cause of their injuries altogether, fearing negative consequences.

A review of medical records at one of the medical units revealed that in 2024, medical staff recorded 190 cases of bodily injury among convicts and detainees. According to the records in the logbook of bodily injuries found in individuals held in the institution, almost all prisoners reported that they had suffered bodily injuries due to their negligence or refused to explain the circumstances of the injury. In turn, medical staff often describe only the injury and whether medical assistance was provided, apart from the victim’s words. The lack of independent and objective documentation of injuries significantly complicates both the prevention of violence and the conduct of effective investigations. It also undermines trust in the prison system and creates an atmosphere of impunity for those who commit violence against individuals in prison.

Difficult access to doctors in pre-trial prisons remains a serious problem for prisoners. Those in need of medical care are forced to wait a long time before receiving a doctor’s consultation and necessary treatment. This significantly worsens their condition and can lead to complications, especially in cases where delays in providing medical care can have critical consequences.

For example, during a visit to the Zaporizhzhia City Medical Unit of the Health Care Centre of the Prison Service in Zaporizhzhia Oblast, the NPM group received numerous complaints from prisoners regarding obstruction of access to a doctor. In particular, prisoners held in cells are required to first obtain permission from the paramedic to visit the medical unit, explaining the reason for the appointment to other prisoners. In addition, in order to see a doctor, prisoners are required to submit a written request, which medical staff keep for about a day and then destroy. Some prisoners have to wait more than a week before receiving medical consultation.

Convicts who are being transferred to or returning from a prison hospital require special attention. Due to the significant distance between such facilities and the difficulties in organizing the escort of these patients, the process can take about a month. Given this factor, such individuals require careful medical observation and prompt response to possible changes in their health. At the same time, NPM teams received reports that while in transit facilities, convicts were not provided the opportunity to see a doctor from the medical unit, and visits by other medical personnel (paramedics) took place no more than once a week.

The right to providing information to relatives and family members

According to Article 213 of the CPC, the authorised official who carried out the detention is obliged to provide the detainee with the opportunity to immediately inform close relatives, family members or other persons of their choice about their detention and the location of their whereabouts. Despite the existence of the legal provision, there are currently isolated cases of its violation. In particular, in April 2024, during a visit by the National Preventive Mechanism to the temporary detention centre of the 31st Border Guard Detachment (Chernivtsi), among other violations, the failure to notify close relatives of a person’s detention was recorded, which is a violation of the right to respect for private and family life^[16].

At the same time, according to the CPT’s report on its visit in 2023, it was noted that the notification of detainees’ relatives or other third parties of their choice of detention was carried out properly and promptly in the vast majority of cases. Welcoming this, the Committee recommended that the Ukrainian authorities continue their efforts to ensure that all detainees can effectively exercise the right to be informed of their detention from the very beginning of their detention. Furthermore, measures should be taken to ensure that detainees receive systematic feedback on whether it has been possible to notify a close relative or other third party of their detention; this still does not appear to be the case in practice (Para. 21 of the Report)^[17].

The inadmissibility of ill-treatment during interrogations

Torture or other cruel, inhuman or degrading treatment in criminal proceedings has almost always been used to obtain incriminating testimony from a person. The rule on the inadmissibility as evidence in criminal proceedings of testimony obtained as a result of torture, cruel, inhuman or degrading treatment or threats of such treatment is set out in CPC[18], which came into force in 2012. In this legal act, the Ukrainian law established a mandatory prohibition on the use of such testimony and also removed from the list of sources of evidence such a source as a suspect’s or accused’s confession of guilt.

In addition to the exclusion of confessions from the list of sources of evidence, the CPC enshrines the principle of “direct examination of testimony, items and documents”, according to which:

– the court examines the evidence directly;

– the court receives the testimony of participants in criminal proceedings orally;

– information contained in testimony, items and documents that were not directly examined by the court cannot be recognised as evidence, except in cases provided for by the CPC. The court may admit as evidence the testimony of persons who do not give it directly in court only in cases provided for by the CPC of Ukraine[19].

The implementation of this principle in criminal proceedings means the impossibility of using the testimony of a suspect or accused (including those to which they plead guilty) and other participants without their direct examination by the court during the court hearing.

The quoted provisions of Parts 1 and 2 of Article 23 of the CPC contain rules on exceptions to the rule of direct examination of testimony.

These exceptions are

1) The possibility of obtaining testimony from a person at the stage of pre-trial investigation and their further use in court as evidence. This exception is related to the need to obtain testimony during the pre-trial investigation if there is a danger to the life and health of the person, their serious illness, or other circumstances that may make it impossible to interrogate them in court or affect the completeness or reliability of their testimony. To obtain testimony, the investigating judge at the pre-trial investigation stage may interrogate a person in court, including simultaneous interrogation of two or more persons already interrogated. In this case, the interrogation is carried out in court at the location of the court or the stay of the sick person in the presence of the parties to the criminal proceedings in compliance with the rules of interrogation during the trial (Article 225 of the CPC). Although this case is an exception to the principle of direct examination of testimony, it does not pose a risk of torture or other cruel, inhuman or degrading treatment, as the investigating judge conducts the interrogation in compliance with all the rules of the court session.

2) The possibility of using as evidence in criminal proceedings the testimony obtained at the stage of pre-trial investigation under martial law and recorded by video recording equipment. Law dated 14.04.2022 amended the CPC in connection with the introduction of martial law and established the following:

– Testimony obtained during the interrogation of a witness or a victim, including simultaneous interrogation of two or more persons already interrogated, in criminal proceedings conducted under martial law may be used as evidence in court only if the progress and results of such interrogation were recorded using available technical means of video recording;

– Testimony obtained during the interrogation of a suspect, including the simultaneous interrogation of two or more already interrogated persons, in criminal proceedings conducted under martial law may be used as evidence in court only if a defence counsel participated in such interrogation and the course and results of the interrogation were recorded using available technical means of video recording (art 11 of Article 615 of the CPC)^[20].

The aforementioned provisions indicate that martial law established a new exception to the principle of direct examination of testimony. Starting on 24 February 2022, martial law was introduced throughout Ukraine, which is extended by the relevant laws every 90 days, and at the time of preparation of this report, it was extended until 9 May 2025 and may be extended further^[21].

The Law establishes safeguards in the procedure of such interrogation: video recording and the participation of a defence lawyer, which should be positively noted as an attempt to prevent the use of testimony obtained as a result of torture. At the same time, video recording of the interrogation process alone does not guarantee that inadmissible types of treatment will not be applied to the interrogation. As for the defence counsel, during martial law, a provision was introduced to allow for remote participation of the defence counsel. Thus, Part 12 of Article 615 of the CPC stipulates that the inquirer, investigator, and prosecutor shall ensure the participation of the defence counsel in a separate procedural action, including in case of impossibility of the defence counsel’s appearance with the use of technical means (video, audio communication) to ensure the defence counsel’s remote participation. The possibility of remote participation of the defence counsel jeopardises the observance of human rights and the effectiveness of the defence. At the same time, the CPC does not contain a requirement to consider the opinions of the defence counsel and their client regarding the possibility of ‘remote defence’. These norms are of concern given such conventional requirements as practicality and efficiency (effectiveness) of professional legal aid, in particular in terms of confidentiality of communication with a lawyer. Moreover, human rights defenders have expressed concerns about the possibility of using audio communication as a form of involvement of a lawyer in criminal proceedings, since audio communication is not able to fully meet the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms^[22].

Another risk factor for the remote participation of a defence counsel is the lack of regulation of the method of ensuring the confidentiality of communication between the defence counsel and the client. Communication before a procedural action is aimed at forming a line of defence, choosing a common position, providing defence counsel with advice on how to behave during further procedural action, allowing the suspect to report violations of their rights, etc. Therefore, the incorporation of the above safeguards into the procedure for obtaining testimony at the stage of pre-trial investigation under martial law is not an effective counteraction to potential instances of torture, cruel, inhuman or degrading treatment[23].

Thus, the introduction of martial law has added new risks of violations of fundamental human rights and created a danger to Ukraine’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

3) Possibility not to hear the testimony of a suspect or accused in court if an agreement is concluded between the parties (on reconciliation — between the victim and the suspect or accused; on plea bargaining — between the prosecutor and the suspect or accused). If the parties reach an agreement, the court does not conduct a full trial, but only examines the content of the agreement and during the trial ascertains from the accused whether they fully understand that they have the right to a trial during which the prosecutor is obliged to prove each circumstance of the criminal offence of which they are accused, and they have the following rights to remain silent, and the fact of silence will not have any evidentiary value for the court; to have a defence counsel, including the right to receive legal aid free of charge in the manner and cases provided for by law, or to defend themselves; to question prosecution witnesses during the trial, to file a motion to summon witnesses and to present evidence in their favour, etc. (Part 4 of Article 474 of the CPC). The court is also obliged to make sure in court that the parties’ agreement is voluntary, i.e. not the result of violence, coercion, threats or the result of promises or any other circumstances other than those provided for in the agreement (Part 6 of Article 474 of the CPC). It is worth noting that in case of initiating a plea bargain between the prosecutor and the suspect or accused, the participation of a lawyer is mandatory (Paragraph 9 of Part 1 of Article 52 of the CPC). The suspect or accused may engage a lawyer independently or the state will provide one as part of free legal aid. The CPC was supplemented with this provision in 2015 by Law No. 198-VIII^[24]. That is, for almost three years since the CPC of Ukraine came into force in 2012, a suspect or accused person participated in such proceedings without a defence counsel, but now this rule is mandatory.

Thus, the CPC of 2012 enshrined a clear rule on the inadmissibility of evidence obtained as a result of torture and the possibility of using in court only those testimonies that were heard orally by the court. At the same time, the above provisions indicate the existence of three exceptions to the principle of direct examination of the testimony, which may potentially become a precondition for violations of human rights and fundamental freedoms, in particular the right to human dignity. The most complicated and the one that poses a real threat to the rule of law and human rights under martial law is the exception to the possibility of using a suspect’s testimony as evidence in criminal proceedings if it was recorded on video and a lawyer was involved to take such testimony (in person or remotely). This provision, enshrined in Part 12 of Article 615 of the CPC, has a negative impact on the observance of human rights and may lead to the use of inadmissible methods of obtaining testimony from a person under martial law. Additionally, the safeguards enshrined in the CPC against the use of torture during the investigation are insufficient to overcome this phenomenon.

The right to obtain compensation for damage caused by the state agents

According to Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, each State Party shall ensure in its legal system a redress for victims of torture and an enforceable right to fair and adequate compensation, including measures for the fullest possible rehabilitation. In the event of the death of a victim as a result of torture, the right to compensation shall be granted to the victim’s dependants.

Article 27 of the Constitution of Ukraine enshrines the inalienable right of everyone to life. Article 28 defines the right of everyone to respect their dignity.

In its decision on the petition of the Ukrainian Parliament Commissioner for Human Rights, the Constitutional Court of Ukraine determined^[25], that the analysis of Articles 27 and 28 of the Basic Law of Ukraine in systemic connection with its Article 3, as well as the legal positions of the Constitutional Court of Ukraine, gives grounds to assert that Articles 27 and 28 of the Constitution of Ukraine institutionalise not only the negative obligation of the state to refrain from acts that would violate human rights to life and respect for human dignity, but also the positive obligation of the state, which consists, in particular, in ensuring an adequate system of national protection of constitutional human rights by developing appropriate legal and regulatory frameworks; implementing an effective system of protection of human life, health and dignity; creating conditions for the exercise of fundamental rights and freedoms by a person; guaranteeing the procedure for compensation for damage caused as a result of violations of constitutional human rights; ensuring the inevitability of liability for violations of constitutional human rights.

The Constitutional Court of Ukraine considers that the positive obligation of the state to implement an appropriate system of protection of human life, health and dignity involves ensuring effective investigation of deprivation of life and ill-treatment, including concerning persons in places of detention under full state control.

The effectiveness of such an investigation is measured by its completeness, comprehensiveness, efficiency, independence, etc. The independence of the investigation of violations of the human rights to life and respect for human dignity in places of detention means, in particular, that from the perspective of an impartial observer, there should be no doubt about the institutional (hierarchical) independence of the state body (its officials) authorised to conduct an official investigation of such violations. In this respect, the independence of the investigation cannot be achieved if the competent state body (its officials) is institutionally dependent on the body (its officials) to which the system of places of deprivation of liberty is subordinated and which is responsible for its functioning.

Thus, based on Paragraphs 1 and 2 of Article 27, Paragraphs 1 and 2 of Article 28 of the Constitution of Ukraine in systemic connection with its Article 3, the state should implement legislation that would ensure effective investigation of applications, reports of violations of the constitutional rights to life and respect for human dignity in places of deprivation of liberty by the competent state body (its officials), which is not institutionally or hierarchically dependent on the state body (its officials) to which the system of places of deprivation of liberty is subordinated.

The issue of the effectiveness of investigations into human rights violations by state agents is discussed in a separate section of this report. National legislation should be considered concerning compensation for damage caused by violations of constitutional human rights.

In the Ukrainian law, the state’s obligation to compensate for damage caused by representatives of its bodies as a result of torture and other ill-treatment is enshrined in the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational and Investigative Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court”^[26]. This law dates back to 1994 and has more than 15 amendments to the supplementary text. This law does not specify the amount of compensation. However, it stipulates that the amount of compensation, depending on which body conducted the investigative (detective) actions or considered the case, is determined within one month from the date of the citizen’s application by the relevant bodies conducting operational and detective activities, pre-trial investigation, prosecutor’s office and court, and a ruling (decision) is issued. If the criminal proceedings are closed by a court when the criminal case is considered on appeal or cassation, these actions are carried out by the court that considered the case in the first instance. At the same time, in case of disagreement with the ruling (decision) on compensation for damage, a citizen may appeal the ruling to a court according to the provisions of civil procedure law, and the court’s decision to a higher court on appeal (Article 12).

The quoted provisions indicate that the bodies that determine the amount of compensation are the very bodies that caused the damage to the citizen, which creates a situation of absolute legal insecurity. Enshrining the possibility of appealing a decision or ruling on determining the amount of damage to a court is a positive norm, but it is significantto involve a lawyer or attorney to file such a complaint, which is not always possible for such a person.

In 2021, the Cabinet of Ministers of Ukraine submitted to the legislature a draft law on amendments to certain legislative acts on measures aimed at restoring the rights of convicted persons and persons in custody due to inadequate conditions of detention (No. 4093-IX of 21.11.2024)^[27]. The purpose of this act is to ensure that Ukrainian legislation complies with the Convention for the Protection of Human Rights, to create appropriate material and living conditions for detainees, and to introduce effective preventive and compensatory remedies in the national legislation in case of inadequate conditions of detention.

It was only at the end of 2024 that this draft law was adopted as a law (and came into force on January 1, 2025), which, among other things, stipulates that proper conditions of detention are those that meet the requirements of the Constitution of Ukraine, international treaties ratified by the Parliament, and other legislative acts, namely: 1) prevention of torture or inhuman or degrading treatment or punishment; 2) providing proper medical care; 3) providing adequate nutrition; 4) providing adequate living conditions (living space, free access to toilets, sufficient natural light, standard temperature conditions, ventilation of premises); 5) adherence to state medical and sanitary regulations^[28].

To implement the provisions of this law, commissions for reviewing complaints about inadequate conditions of detention in prisons are established. The Commission shall establish the fact and/or duration of detention in inadequate conditions in a prison. At the same time, the law stipulates that the measures of compensation for improper conditions of detention include: 1) reduction of the period from which parole may be applied, commutation of a court-ordered sentence to a lighter one, or removal of a criminal record according to the procedure provided for in the Criminal Code; 2) exemption from reimbursement of the cost of detention for the entire period of the established fact of detention in improper.

However, the text of the legislative acts regulating the activities of the Commissions is unclear, in particular, the question remains open as to what is the mechanism and algorithm for reducing the term from which conditional early release or the process of replacing the sentence imposed by the court with a more lenient one, or the removal of a criminal record, can be applied. At the same time, the mechanism for reducing the term for which conditional early release may be applied, replacing the sentence imposed by the court with a more lenient one, or expunging a criminal record, should come into effect after amendments are made to the Criminal Code, which has not been done. Therefore, in essence, the commissions have significantly limited opportunities to respond to cases of inappropriate conditions, and their activities remain more of a formality than a real mechanism for responding to cases of inappropriate detention.

These means of redress are not sufficient and appropriate given the content of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. After all, the damage caused by torture can hardly be compensated for through conditional release or the expungement of a criminal record, etc. This issue, unfortunately, remains unanswered and requires legislative resolution. The urgency of its resolution is also supported by the recommendations of the CPT and the Committee of Ministers of the Council of Europe on the need to take comprehensive measures to address the problem of conditions of detention and the absence of an effective remedy in national legislation. After all, the total number of ECtHR judgments relating to the problems of inadequate conditions of detention is about 1/7 of the total number of all cases under the control of the Committee of Ministers of the Council of Europe regarding Ukraine.

A special mention should be made of the right of victims of torture to compensation for moral damages.

As mentioned earlier, the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office and the Court” contains provisions on compensation for moral damages to a person who suffered it as a result of unlawful actions of pre-trial investigation bodies. This Law defines moral damages as the suffering caused to a citizen as a result of physical or mental impact, which led to deterioration or deprivation of opportunities to exercise their habits and desires, deterioration of relations with other people, and other negative moral consequences (Part 6 of Article 4). The sum of moral damages is determined considering the circumstances of the case within the limits established by civil law (Part 2 of Article 13)^[29].

A look at civil legislation (Chapter 82 “Compensation for Damage”) reveals a complex system for assessing the severity of moral suffering and a complicated procedure for victims of torture to apply to the relevant authorities for compensation for moral damages, which has not changed over the years and has been further complicated by the adoption of law enforcement acts, such as the resolution of the Plenum of the Supreme Court of Ukraine (e.g. “On Court Practice in Cases of Compensation for Moral (Non-Pecuniary) Damage”, 1995)^[30].

In Ukrainian law enforcement practice, there is a rule according to which a preliminary court decision recognizing such actions as unlawful is not required to compensate for moral damages for unlawful actions, as this legal fact is inherently part of the subject matter to be proven in a claim for damage compensation^[31].

In another decision, the Supreme Court established that the obligation to compensate for moral damages arises under the following conditions:

– the existence of moral damages;

– the unlawfulness of the behaviour of the person who caused the moral damages;

– the existence of a causal link between the unlawful behaviour of the person who caused moral damages and its result – moral damages;

– the fault of the person who caused moral damages.

If a specific person who caused moral damages is identified, the burden of proof is shared: a) The plaintiff must prove the existence of moral damages and causation; b) The defendant proves the absence of unlawfulness and guilt^[32].

In practice, courts determine the amount of compensation for moral damages in different ways, and there are no clear criteria for determining it.

For example, the Supreme Court, in its ruling of 10.06.2024 in case No. 642/4335/21, resolved the issue of the amount of compensation for moral damages for such actions as unlawful prosecution, unlawful detention and detention for nine months, torture and other unlawful actions. In this case, the court of first instance (Leninskyi District Court of Kharkiv) determined the compensation for moral damages in the amount of 2,4 million UAH. After review by the Kharkiv Court of Appeal, the amount of compensation for moral damages was set at 0,66 million UAH. The review of the case by the Supreme Court resulted in the cancellation of the decision of the Court of Appeal and upholding the decision of the court of first instance, which set the amount of compensation for moral damages at UAH 2,4 million UAH^[33].

In another case inter alia the plaintiff determined the amount of compensation for moral damages for torture, namely: being placed in so-called ‘pressure cells’, ‘black cells with general criminals’, cells with individuals in proceedings over which he had supervised the investigation, and cells where persons with active tuberculosis were serving their sentences, amounting to 0,5 million UAH. The total amount of moral damages claimed by the plaintiff was 10 million UAH. The Zhytomyr District Court of the Zhytomyr Region partially satisfied the claim and determined the amount of moral damages in the amount of 1,45 million UAH. The Zhytomyr Court of Appeal increased the amount of non-pecuniary damage from UAH 1,45 million UAH to 4 million UAH. The Supreme Court upheld the position of the court of appeal in determining the amount of compensation for moral damages in the amount of UAH 4 million UAH ^[34].

The examples given above demonstrate a subjective approach to determining the sum of moral damages, and unpredictability of the actual amount of compensation received by the person filing the relevant complaints, which negatively affects the observance of human rights and Ukraine’s implementation of international legal acts.

In conclusion, the provisions of the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court” and the Regulation on the Application of the mention above Law are outdated and require fundamental changes in the area of compensation for moral damages to citizens who have been victims of torture. The law enforcement practice of higher courts indicates the absence of a single mechanism for determining the sum of moral damages; different approaches to determining the sum of moral damages by courts of different instances, which together question the implementation of the principles of the rule of law, legality, legal certainty and others[35].

A special mention should be made of the right of victims of torture to compensation in the healthcare sector. According to Article 3 of the Law of Ukraine “Fundamentals of the Legislation of Ukraine on Health Care”, a rehabilitation service is a service provided to a patient by a rehabilitation facility, rehabilitation institution, healthcare, social protection or other legal entity that is entitled to provide rehabilitation care under the law and is paid for by its customer. The customer of the rehabilitation service may be the state, local government, legal entity or natural person, including the patient^[36].

According to Article 1 of the Law of Ukraine “On Rehabilitation in Healthcare”, rehabilitation care in healthcare is the activity of healthcare rehabilitation specialists, which involves the implementation of a set of measures aimed at optimising the functioning of persons who are or may be subject to limitations in their daily functioning in their environment. The same article defines psychological assistance in rehabilitation as an activity aimed at restoring and maintaining the functioning of a person in the physical, emotional, intellectual, social and spiritual spheres using methods of psychological and psychotherapeutic assistance in the forms of psychotherapy, psychological counselling or first aid. Psychological assistance in rehabilitation is provided by psychologists and/or psychotherapists as part of a multidisciplinary rehabilitation team^[37].

Despite the existing legal framework for psychological rehabilitation of victims of torture, there are no state rehabilitation programmes for victims of torture in Ukraine. There is currently no state-targeted rehabilitation programme for victims of torture, and such assistance is provided only by civil society organisations and volunteers. Non-governmental organisations took on the task of improving the condition of torture victims, reducing the symptoms of post-traumatic stress disorder, and working with the victims’ families, but their efforts, expertise, and resources are sorely lacking. This means that they can only support a very limited number of the total number of the torture victims that need assistance. As a result, most victims are denied their right to rehabilitation and with that essential support in rebuilding their lives and becoming active members of their community[38].

[1] Subsection 11 of Section 16-1 of Chapter XV “Transitional Provisions” of the Constitution of Ukraine (as amended by Law of Ukraine No. 1401-VIII of 02.06.2016 “On Amendments to the Constitution of Ukraine (regarding Justice)”).

[2] On approval of the Procedure for informing free legal aid centres about cases of detention, administrative arrest or application of a preventive measure in the form of detention: Resolution of the Cabinet of Ministers of Ukraine of 28.12.2011 No. 1363.

[3] Cabinet of Ministers of Ukraine (2023). On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine on the Functioning of the Free Legal Aid System: Resolution of the Cabinet of Ministers of Ukraine of 24.06.2023 No. 630.

[4] Article 14 of the Law of Ukraine “On Free Legal Aid” of 02.06.2011 No. 3460-VI.

[5] The Law of Ukraine “On Amendments to Part 1 of Article 14 of the Law of Ukraine “On Free Legal Aid” to Expand the List of Persons entitled to Free Secondary Legal Aid’ No. 2238-IX of 03.05.2022.

[6] Law of Ukraine “On Compensation for Damage and Destruction of Certain Categories of Real Estate as a Result of Hostilities, Terrorist Acts, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine and the State Register of Property Damaged and Destroyed as a Result of Hostilities, Terrorist Acts, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine” of 23.02.2023 No. 2923-IX.

[7] Law of Ukraine “ On amendments to certain legislative acts of Ukraine regarding the right to free legal aid”.

^[8] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[9] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[10] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Para 22.

^[11] Order of the Cabinet of Ministers of Ukraine “On the Establishment of the State Institution “Health Care Centre of the State Criminal Executive Service of Ukraine” of 13.09.2017 No. 684-р.

^[12] Zmina NGO et al (2020). The practice of recording torture in places of detention: Report on the results of the research. Source: https://zmina.ua/wp-content/uploads/sites/2/2020/02/fixingtorture-web.pdf

^[13] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[14] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Source: https://rm.coe.int/1680af632a

[15] Zmina NGO et al (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P. 80.

^[16] The Ukrainian Parliament Commissioner for Human Rights (2024). A visit to the temporary detention centre of the 31st Border Guard Detachment (Chernivtsi). The Ukrainian Parliament Commissioner for Human Rights. April 1, 2024. Source: www.ombudsman.gov.ua/news_details/vidviduvannya-punktu-timchasovogo-trimannya-31-go-prikordonnogo-zagonu-im-general-horunzhogo-oleksandra-pilkevicha-m-chernivci

^[17] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Source: https://rm.coe.int/1680af632a

[18] Paragraph 2 of Part 2 of Article 87 CPC

[19] Parts 1, 2 of Article 23 of the CPC

^[20] The Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine on Improving the Procedure for Conducting Criminal Proceedings under Martial Law” of 14.04.2022 No. 2201-IX.

^[21] Law of Ukraine “On Approval of the Decree of the President of Ukraine “On Extension of the Martial Law in Ukraine” No. 12404 of 14.01.2025.

^[22] Hloviuk I., Drozdov O., Teteriatnyk H., Fomina T., Rohalska V., Zavtur V. (2022). Special regime of pre-trial investigation and court proceedings under martial law. Scientific and practical commentary on Section IX-1 of the Criminal Procedure Code of Ukraine. Edition 3. Electronic edition. Source: www.researchgate.net/publication/366684199_Glovuk_I_Drozdov_O_Teteratnik_G_Fomina_T_Rogalska_V_Zavtur_V_Osoblivij_rezim_dosudovogo_rozsliduvanna_sudovogo_rozgladu_v_umovah_voennogo_stanu_naukovo-prakticnij_komentar_Rozdilu_IX-1_Kriminalnogo_pr

[23] Zmina NGO et al (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P.80.

^[24] The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Activities of the National Anti-Corruption Bureau of Ukraine and the National Agency for the Prevention of Corruption” of 12.02.2015 No. 198-VIII.

^[25] Decision of the Constitutional Court of Ukraine in the case based on the constitutional submission of the Ukrainian Parliament Commissioner for Human Rights on the compliance of Part 6 of Article 216 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality) of 24 April 2018; case No. 1-22/2018 (762/17).

^[26] The Law of Ukraine ‘On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court’ of 01.12.1994 No. 266/94-VR.

^[27] Draft Law on Amendments to Certain Legislative Acts on Measures Aimed at Restoring the Rights of Convicted Persons and Persons in Custody Due to Improper Conditions of Detention No. 4093-IX of 21.11.2024.

^[28] The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Measures Aimed at Restoring the Rights of Convicted Persons and Persons in Custody Due to Improper Conditions of Detention” of 21.11.2024 No. 4093-IX.

^[29] The Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court” of 01.12.1994 No. 266/94-VR.

^[30] On court practice in cases of compensation for moral (non-pecuniary) damage: Resolution of the Plenum of the Supreme Court of Ukraine No. 4 of 31.03.1995.

^[31] Resolution of the Supreme Court of 19.06.2024 in case No. 369/14404/17. Source: https://reyestr.court.gov.ua/Review/120006233

^[32] Resolution of the Supreme Court of 25.05.2022 in case No. 487/6970/20. Source: https://reyestr.court.gov.ua/Review/104539336

^[33] Resolution of the Supreme Court of 10.06.2024 in case No. 642/4335/21. Source: https://reyestr.court.gov.ua/Review/120370612

^[34] Resolution of the Supreme Court of 07.02.2024 in case No. 278/2621/21.

[35] Zmina NGO et al. (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P.80.

^[36] The Law of Ukraine “Fundamentals of the Legislation of Ukraine on Healthcare” of 19.11.1992 No. 2801-XII.

^[37] The Law of Ukraine “On Rehabilitation in the Field of Healthcare” of 03.12.2020 No. 1053-IX.

[38] Zmina NGO et al.  (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P. 80.