Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in 1973. He is currently serving a prison sentence in Vinnytsya.

On 12 January 2001 the applicant was arrested on suspicion of several counts of aggravated murder and robbery. In the course of his arrest force was used against the applicant.

Subsequently, the applicant was taken to a police station, where he was allegedly tortured by unspecified police officers with the aim of extracting a confession of his having committed the crimes of which he was suspected. According to the applicant, during such ill-treatment, which continued for several days thereafter, he received an eye injury which eventually resulted in him suffering a complete loss of eyesight.

Later on the same day he was taken to a temporary detention centre (ізолятор тимчасового тримання – “the ITT”) in Kharkiv.

The next day the applicant was taken to the Kharkiv Emergency Hospital, where he was examined by a trauma specialist, a surgeon and a neurosurgeon. The applicant’s skull was x-rayed and samples of his blood and urine were taken. He was diagnosed with bruising to the chest, lumbar area, kidneys, and soft tissues on the face and the back of his head. The doctors prescribed a further examination of the applicant by an urologist and outpatient supervision by a neurologist.

On 15 January 2001 a prosecutor from the Kharkiv Regional Prosecutor’s Office questioned the applicant, in the presence of a lawyer appointed to assist him by the authorities, with a view to taking a decision concerning the applicant’s continued detention. The prosecutor noted a haematoma on the applicant’s face next to his right eye. According to the prosecutor’s report to his superior of the same date, the applicant explained that he had received the injury during his arrest, that he had not been illtreated by the police after his arrest and that he had voluntarily given his confession.

On 16 January 2001 the prosecutor was instructed by his superior to carry out an inquiry in order to take a decision in accordance with Article 97 of the Code of Criminal Procedure (see paragraph 45 below).

On the same date several police officers gave written explanations concerning the applicant’s arrest, in which they stated that the applicant had resisted arrest by “applying unarmed combat techniques and trying to escape”. According to them, “measures of physical restraint and special means [of restraint], namely handcuffs” had been used against the applicant and he had been taken to the police station.

On 19 January 2001 the applicant was taken by the police to see a medical expert. The expert examined the applicant and noted that he displayed bleeding into the eyeball, haematomas and abrasions on the left side of his chest, arms and legs, some of which were three to four days old and others were nine to eleven days old. The expert noted that many of the injuries, including the bleeding into the applicant’s eyeball, had been caused by blunt solid objects. According to the expert’s notes, during the examination the applicant stated that some of his injuries had been caused by him falling down the stairs, that his vision had been deteriorating since he was young, and that he had no complaints about the authorities’ actions. The expert concluded that the injuries were of a minor character and that they had not lead to a deterioration of the applicant’s health.

The applicant remained in police custody until 23 January 2001. On that date he was placed in an investigative detention unit (слідчий ізолятор – “SIZO”) in Kharkiv. Upon his arrival at Kharkiv SIZO, the applicant was examined by a paramedic, who noted several bruises on the left shoulder, chest, arm and knee. The applicant did not receive any treatment for his injuries in Kharkiv SIZO.

According to the applicant, on 26 January 2001 he complained to the same prosecutor from the Kharkiv Regional Prosecutor’s Office that had previously questioned him that he had been tortured by the police after his arrest.

On the same date the prosecutor issued a decision rejecting the applicant’s complaints and informed the applicant of it. The relevant parts of the decision read as follows:

“...On 15 January 2001 A. V. Kaverzin was questioned at the regional prosecutor’s office in the course of consideration of the question of ... his placement in Kharkiv [SIZO] No. 27. During his questioning with the participation of [his] defence lawyer, A. V. Kaverzin explained that he had sustained the injuries in the course of his arrest, that he did not have any complaints against the police, [and] that he had made his first statements freely, without psychological or physical pressure on the part of the police officers.

The [police] officers ... who had taken part in the arrest of A. V. Kaverzin [were questioned and] explained that they had been aware that A. V. Kaverzin had used firearms during his attempted arrest by the police in the Khmelnytsk Region, as a result of which two police officers had died. Because of that [fact] they had been particularly cautious and when A. V. Kaverzin had attempted to resist [arrest] ... there had been measures of physical restraint and special means [of restraint], namely handcuffs, applied to him.

According to the records of the forensic examination ... dated 19 January 2001, [the following injuries on the body and face of A. V. Kaverzin] had been discovered: bleeding into the eyeball; a haematoma on the left side of the chest; numerous abrasions on the lower limbs that had been caused by blunt solid objects; abrasions and scratches on the wrists that had been caused by blunt solid objects, which could have been the handcuffs; numerous indurations of various parts of the skin with small wounds caused by insects ... the injuries could have been caused to A. V. Kaverzin in the circumstances described by [both] the police officers and A. V. Kaverzin himself. Therefore, there are no elements of a crime in the actions of the police officers.

On the basis of the foregoing, pursuant to paragraph 2 of Article 6 of [the Code of Criminal Procedure] of Ukraine [the prosecutor].

Decided:

To refuse the opening of a criminal case against [the police] officers who took part in the arrest of ... A. V. Kaverzin on the ground there were no elements of a crime in their actions...”

According to the applicant, he was not given a copy of that decision and its details were not explained to him.

The decision was not challenged before the courts under the procedure envisaged by Article 236-1 of the Code of Criminal Procedure.

On 25 February 2001 the applicant was transferred to Khmelnytsk SIZO. On that date he was examined by a doctor, who noted that the applicant suffered from loss of eyesight as a result of a head injury in January 2001 and had several bruises on his body.

On 24 April 2001 the applicant was examined by a medical expert, who noted that the applicant had suffered a head injury and was completely blind.

During his detention in Khmelnytsk SIZO the applicant was examined by doctors and received specialist ophthalmological treatment in September and October 2001 and in August, September and November 2002. On several occasions he was taken to public hospitals for medical examination. The doctors concluded that the applicant did not require eye surgery and could receive the necessary medical treatment in the SIZO.

On 23 September 2002, on the order of the trial court, a medical panel established that the applicant had become completely blind and, accordingly, suffered from the highest officially recognised degree of disability. The applicant was diagnosed with corneal cicatrix and leucoma, a cataract of the right eye resulting from a penetrating wound, and uveitis in the left eye. The doctors concluded that the applicant was in need of outside assistance to manage aspects of daily life.

On 12 August 2003 the applicant was placed in Dnipropetrovsk Colony to serve his sentence.

During his detention in Dnipropetrovsk Colony the applicant was examined by doctors, including an ophthalmologist, at least once every year. In 2004 he was prescribed eye surgery at a specialised hospital. According to the Government, the applicant did not avail himself of the possibility to undergo the surgery pursuant to paragraph 5 Article 116 of the Code on the Execution of Sentences (see paragraph 48 below).

Subsequently, the applicant was prescribed anti-relapse treatment in view of his blindness, which mainly included administering medication. On several occasions the applicant refused to be examined by doctors and in January and February 2006 he refused to be transferred to a hospital within Vinnytsya Colony to receive specialised ophthalmological treatment.

In February 2004 the administration of Dnipropetrovsk Colony did not allow the applicant’s mother to supply him with unspecified medication which he allegedly needed. The authorities explained that the applicant would be given the necessary medication if his doctors so decided. In March 2004 the authorities informed the applicant’s mother that her request for the applicant’s transfer to a specialised prison for persons suffering from the highest degree of disability could not be met as no such a prison existed. The applicant did not provide further details in that respect.

The applicant alleged that in spite of his blindness he had been handcuffed when leaving his cell, including during daily walks and family visits, and had been followed by several wardens with a dog.

He also stated that in Dnipropetrovsk Colony he had been unlawfully refused two-hour daily walks to which he had allegedly been entitled in view of his disability; that his cell had lacked ventilation; and that he had not been allowed to make phone calls. He provided no further details in this respect.

According to the applicant, in April 2004 the prison authorities delayed, for about a month, the dispatch of one of his letters.

By a letter of 16 December 2004 addressed to the applicant’s mother, the Head of the Dnipropetrovsk Penitentiary Service informed her that:

During [daily] walks [the applicant] has been handcuffed with his hands behind his back, as are all other life-sentenced prisoners, in accordance with paragraph 25 of the Internal Regulations of the Penitentiary Institutions.

Once the area for [daily] walks is adapted to the requirements of the Internal Regulations ... as amended on 9 November 2004, life-sentenced prisoners will be allowed to stay there without handcuffs.

In accordance with Article 151 of the Code on Execution of Sentences and section 23 of the Internal Regulations of the Penitentiary Institutions, prisoners sentenced for life are entitled to one-hour daily walks.

Prisoners suffering from tuberculosis ... are entitled to two-hour daily walks.

[Mr Kaverzin] does not suffer from tuberculosis, he is being detained under the ordinary regulations, and he is being [taken for] one-hour daily walks.

All [of Mr Kaverzin’s] correspondence is dispatched in accordance with Article 113 of the Code on the Execution of Sentences; it has not been hindered.”

By a letter of 2 March 2005, the Governor of Dnipropetrovsk Colony informed the applicant’s mother that in 2005 one of the dogs accompanying the prison guards had bit the applicant because of his own recklessness. It was also stated that handcuffs were not being applied during daily walks.

The two above-mentioned letters contained a statement that the actions of the penitentiary authorities could be challenged before a prosecutor.

On 3 December 2008 the applicant was moved to Vinnytsya Colony, where he is currently serving his sentence. The applicant has not provided information concerning the medical assistance provided to him in that colony.

In May 2001 the applicant’s mother was informed that the applicant’s complaint of torture had been rejected as unsubstantiated, though no details of the decision were given to her. In November 2003 she requested a copy of the decision, which was sent to her in February 2004.

Subsequently, the applicant’s mother complained to a Member of Parliament of the applicant’s torture by the police and the authorities’ failure to investigate the matter. Upon a request by the Member of Parliament, in 2005 the materials of the previous inquiry were checked by the prosecutor’s superior, who eventually confirmed the accuracy of the decision issued on 26 January 2001. In particular, the supervising prosecutor studied the materials of the 2001 inquiry.

In March 2005 the applicant lodged a compensation claim with the Shevchenkivskyi District Court of Kyiv against the State Department for the Execution of Sentences and the Ministry of Interior, alleging that his disability had been caused by the unlawful actions of the police and the failure of the penitentiary authorities to provide him with adequate medical assistance. The courts at two levels of jurisdiction refused to examine the applicant’s claim for failure to meet the relevant procedural requirements. The applicant challenged the refusal in cassation, the outcome of which is unknown.

The criminal investigation in the applicant’s case was completed in November 2001. Subsequently, the criminal case was referred to the Khmelnytsk Court of Appeal for trial.

In the course of the investigation and trial, the applicant was assisted by a lawyer appointed for him by the authorities. That lawyer took part in the first stages of the proceedings before the first-instance court and was later replaced by another lawyer for unknown reasons. The new lawyer continued defending the applicant until those proceedings were completed.

In the course of the trial the applicant contested the charges against him and alleged that his confession to some of the crimes of which he had been accused had been obtained under physical and psychological pressure from the police.

On 13 November 2002 the court found the applicant guilty of thirteen counts of aggravated murder, infliction of grievous bodily injuries, illegal possession of firearms, banditry, and robbery. In particular, the applicant was held to be responsible for the murder of seven people, including three police officers who had attempted to stop him from committing crimes. He was found to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property.

The court mainly based its judgment on the statements of about thirty witnesses and victims of the crimes, the testimony given by the applicant at the trial, and on the conclusions of several forensic, ballistic and other expert examinations. The findings of the court concerning one of the counts of murder were partly based on the confessions obtained from the applicant during his time in police custody.

In the same judgment the court, relying on the decision of the prosecutor of 26 January 2001, dismissed the applicant’s complaints of torture by the police and found that there was no evidence that his confession had been obtained under duress.

On 17 December 2002 the applicant lodged an appeal in cassation, contesting the first-instance court’s factual findings and legal conclusions. He further argued that, in determining his sentence, the court had not taken into account his poor state of health. The applicant also maintained his allegation of torture by the police.

On 13 May 2003 the Supreme Court partly varied the judgment of 13 November 2002, while confirming the first-instance court’s findings concerning the applicant’s guilt and upholding his sentence. The Supreme Court also rejected the applicant’s allegation of torture on the same grounds as the first-instance court.

The relevant provisions of the Constitution read as follows:

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity...”

“The Prosecution Service of Ukraine constitutes a unified system that is entrusted with:

(1) prosecuting [crimes] in court on behalf of the State;

(2) representing the interests of a citizen or of the State in court in cases determined by law;

(3) supervising compliance with the law by the bodies that conduct detection and search activities, inquiries and pre-trial investigations;

(4) supervising observance of the law in the execution of judicial decisions in criminal cases, and also in the application of other coercive measures aimed at the restraint of citizens’ personal liberty.”

The relevant provisions of the Code of Criminal Procedure, as in force at the material time, provided:

“A court, prosecutor, investigator or body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the circumstances surrounding the crime, identify those guilty of the crime and punish them.”

“Criminal proceedings shall be instituted on the basis of:

(1) applications or communications from enterprises, institutions, organisations, officials, representatives of official bodies, the public and individuals;

(2) communications from representatives of the authorities, the public or individual citizens who have apprehended a suspect in the place where the crime was committed or caught him red-handed;

(3) [the suspect’s] appearance with an acknowledgement of guilt;

(4) information published in the media;

(5) direct detection of signs of a crime by a body of inquiry, investigator, prosecutor or court.

[Criminal] proceedings may be instituted only where there is sufficient information that a crime has been committed.”

“Applications or communications ... about a crime may be made in writing or orally...”

“A prosecutor, investigator, body of inquiry or judge shall accept applications or communications about crimes [which have been] committed or [are] being prepared, including in cases that are outside their jurisdiction.

Upon an application or communication about a crime, the prosecutor, investigator, body of inquiry or judge shall adopt, within three days, one of the following decisions:

(1) to institute criminal proceedings;

(2) to refuse to institute criminal proceedings;

(3) to remit the application or communication for examination in accordance with [the rules of] jurisdiction.

Simultaneously, all possible measures shall be applied to prevent the further commission of the crime or to put an end to it...

Before instituting criminal proceedings, the prosecutor, investigator or body of inquiry shall conduct an inquiry, if it is necessary to verify [information contained in] an application or communication about a crime. [Such inquiry] shall be completed within ten days by means of collecting explanations from individual citizens or officials or by means of obtaining necessary documents.

[Information contained in] an application or communication about a crime may be verified before instituting criminal proceedings through detection and search activities...”

“A decision by an investigator or body of inquiry refusing to institute criminal proceedings may be appealed against to the relevant prosecutor. If that decision was taken by a prosecutor, it may be appealed to a higher prosecutor. An appeal shall be lodged by a person whose interests are concerned or by his/her representative within seven days from the date of receipt of a copy of the decision.

If the prosecutor refuses to annul the decision ... a person whose interests are concerned or his/her representative may lodge an appeal against it with a court under the procedure prescribed by Article 236-1 of this Code.

“An appeal against a decision by a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings shall be lodged with [the relevant] court by a person whose interests are concerned or his/her representative within seven days of notification of the decision by the prosecutor...”

“An appeal against a decision by a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings shall be examined [by the relevant court] in a single-judge bench within ten days of its receipt.

The judge shall obtain the materials on the basis of which the decision ... was taken, examine them, and inform the prosecutor and the appellant of the date on which the hearing on the appeal is scheduled. If necessary, the judge may hear the appellant in person.

Having examined the appeal, the judge ... shall take one of the following decisions, depending on whether the requirements of Article 99 of this Code were observed:

(1) to set aside the decision not to institute criminal proceedings and remit the materials for additional inquiry or open a criminal case;

(2) to reject the appeal.

The judge’s order may not be appealed against...”

Article 18 of the Code provides that male detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security. They are placed in cells for two people. Under Article 140, they are allowed to have a one-hour daily walk.

Article 106 prohibits the use of special instruments of restraint, including handcuffs, to prisoners with (amongst other things) “apparent signs of disability”, provided they do not commit gang violence or violent assault endangering the life or health of others and do not offer armed resistance.

Pursuant to paragraph 5 of Article 116, prisoners may seek, at their own or at their relatives’ expense, medical assistance, including treatment, from civilian medical institutions. In such cases, medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his/her sentence, under the supervision of the colony’s medical staff.

According to Section 6 of the Prosecution Service Act, the prosecution service constitutes an integrated centralised system headed by the General Prosecutor of Ukraine and based on the principle of hierarchical subordination.

The Detection and Search Act provides a legal basis for various measures which may be used by the police, secret service and several other law-enforcement bodies in order to collect and record information about unlawful activities. These measures include questioning individuals upon their consent, secretly collecting data concerning crimes, using undercover agents, personal surveillance and so forth. Law-enforcement authorities entrusted with detection and search functions are required to follow prosecutors’ instructions.

The rules governing the detention of prisoners sentenced to life imprisonment subject them to special restrictions as regards the material conditions of their detention, activities and opportunities for human contact, which include permanent separation from the rest of the prison population, limited visiting entitlements, a prohibition on communication with other prisoners, and being escorted by three wardens with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell (regulations 23-25). On 9 November 2004 regulation 8 has been amended to include the requirement that doors to walking areas in the sectors for prisoners sentenced to life imprisonment should be equipped with special windows allowing putting on and off handcuffs on prisoners.

Pursuant to regulation 94, prisoners sentenced to life imprisonment receive medical aid, as a rule, in their cells in the presence of at least three guards. Such prisoners are to be transferred to a medical institution run by the State Department for the Execution of Sentences, or to a regular medical centre, if they need urgent medical aid.

Annex 9 to the Regulations states that people detained in penitentiary institutions are not allowed to keep in their possession any medicines or medical items.

The instruction is a classified (non-public) document. An extract from it (paragraph 30.9) submitted by the Government provides as follows:

“When prisoners sentenced to life imprisonment are taken out of their cells, the junior warden shall open the first door from the corridor side of the [door] and order the prisoners to come up to the door and turn round, facing toward the opposite wall and holding their hands behind their backs, and then, through the opening, handcuff the prisoners. Having handcuffed all the prisoners and having made sure that they have stepped back [against] the opposite wall, the warden shall [then] open the internal door. After the prisoners have been taken out from their cells, they shall undergo a partial search with the use, if necessary, of technical means of detection and control. The aforementioned category of prisoners are [to be] taken from their cells one after another, escorted by two officers from the administration and a junior warden with a guard dog.

When escorting a prisoner sentenced to life imprisonment, one junior warden shall walk ahead of him, surveying the route. The prisoner shall follow two to three metres behind. The rest of the escorting junior wardens shall follow the prisoner one metre behind. The movement of life-term prisoners is organised under the personal control of the on-duty assistant to the prison governor, or his deputy, who, in all instances, shall follow in the rear.”

In the 2000-2001 report the Ombudsman described the problem of ill-treatment in the course of pre-trial investigations as a systemic one. In particular, she noted that:

“...[P]eople [arrested by the police] are being beaten, humiliated, [and] tortured during the first hours following arrest in order to extract confessions or statements incriminating others. Torture and cruel and degrading treatment of citizens in the premises of the police at pre-trial stages of criminal proceedings are widespread and systemic. [This] gives evidence of brutal violations of human rights and abuse of power.”

According to the Ombudsman, the fact that police officers were required to increase the percentage of solved crimes, while investigators were required to increase the number of cases referred to the courts for trial, contributed to the use of torture. As she put it in the report, “the lack of investigators’ qualification in the situation when courts often accept a suspect’s confession as sufficient proof [of his guilt] [gave motivation] for law-enforcement officers to rapidly [extract confessions]...”

The Ombudsman also noted the lack of adequate action on the part of prosecutors as regards allegations of torture by the police, the prosecutors’ inquiries often being perfunctory and seriously protracted. She further observed that, when such cases reached the courts, the latter were in general hesitant to apply adequate sanctions against police officers responsible for torture and other forms of ill-treatment. According to the Ombudsman, in 2000 out of 55 police officers found guilty of such crimes only 22 were sentenced to imprisonment.

In her subsequent yearly reports concerning the human-rights situation in Ukraine, the Ombudsman made similar observations regarding the problem of ill-treatment by the police. For instance, in the 2010 report she noted that (extracts from paragraph 2.3 of the report):

“...[L]aw-enforcement authorities beat individuals in order to extract confessions, to improve solved crimes’ rates, to extort bribes, or to steal [individuals’ property].

The majority of such incidents take place in the premises [of law-enforcement authorities]. Unfortunately, torture takes place in all regions of Ukraine, which is evidenced by the results of [the Ombudsman’s] work, information from prosecutors, human rights defenders, the Ministry of Interior, and court verdicts. [Such incidents] happen in different places, with different individuals, and in different circumstances. However, it is perhaps commonplace [...] that an individual in [Ukraine] may not feel free [and] protected from the criminal acts of State agents.

Unfortunately, ill-treatment by law-enforcement authorities has taken on very brutal forms and has increasingly resulted in detainees’ deaths. In 2008 police officers tortured four people to death, in 2009 three, and in 2010 eight!”

In the 2011 report the Ombudsman named the problem of illtreatment as one of the top priorities in her work, noting that a third of about 5,000 complaints, which were being lodged with her office against police officers every year, concerned that problem. The Ombudsman considered that, in order to eradicate torture in police custody, it was necessary “to liquidate corruption in that body, to change the evaluation of police officers’ work [currently] based on the number of solved crimes, to put an end to [the practice of] abusing arrests and administrative detention, to provide arrested people with the possibility of obtaining assistance of a lawyer, to keep record and statistics of incidents of application of physical violence, to create an appropriate mechanism of investigation of complaints of torture, and [to establish] the national mechanism of prevention of torture” (section 3.4 of the report).

The report is based upon a detailed analysis of information concerning the human rights’ observance by the Ukrainian police in 2011, which includes official statistics, normative acts, observations by nongovernmental organisations, individual complaints and mass media publications. According to the report, in 2011 alone about 980,200 persons were ill-treated by the police, of which 35 persons died. There were about 1,300 official complaints of ill-treatment by the police lodged with the authorities during that year and only about 5% of them were found substantiated. Prosecutors opened 5 criminal cases against police officers on charges of torture and 15 cases on charges of infliction of bodily injuries and murder by agents of the police.

The report also contains the following extract from an unpublished letter of the Ministry of Interior dated 24 January 2011:

“...Numerous complaints against police officers provide evidence that the aims, methods and practice of law enforcement authorities have not changed. Repression, disrespect of citizens’ rights, freedoms and interests prevail in particular through [resort to] torture, inhuman or degrading treatment, physical and psychological pressure on suspects. Besides, because of the low level of professionalism of a large number of police officers and [their] lack of skills [to employ detention and search techniques] as envisaged by law, they use prohibited methods of [police] inquiry...”

The Government submitted copies of decisions concerning complaints of police ill-treatment made by two private individuals, V. P. and I. P., who had been arrested by the police on 2 April 2009 and released on the same day. The police had allegedly tried to coerce the complainants to confess to certain criminal acts. As established by medical examinations upon their release from police custody, the complainants had been injured either on that date or several days before.

The copies included two prosecutors’ decisions rejecting the complaints, which were subsequently quashed by higher prosecutors and a court. The court found that the prosecutors’ inquiry had not been full and objective and that they should have questioned several more people, including one of the complainants, and should have examined certain medical documents. The third decision issued by the prosecutors contained reference to the medical documents indicated by the court and to statements obtained from one of the people mentioned in the court’s decision. It was concluded that the allegations were unfounded and that the complainants had been injured before their arrest. It is unknown if the latter finding was challenged before the courts.

On 1 December 2004 the CPT published a report on its visit to Ukraine from 24 November to 6 December 2002. The relevant parts of the 2004 report read as follows:

Torture and other forms of ill-treatment

The treatment of persons deprived of their liberty by members of the operational services of [the police] remains a source of grave concern for the CPT, four years after its first visit to Ukraine. Once again, widespread allegations of physical ill-treatment have been received, at the time of apprehension and in particular during questioning.

There is no need here to set out the alleged forms of physical ill-treatment, as they are similar to those described in paragraph 18 of the report on the 2000 visit. As in the past, in many cases, the severity of the ill-treatment alleged was such that it could be considered as amounting to torture.

In the light of the information at its disposal, the CPT can only reach the same conclusion as it had in 1998 and 2000, namely that persons deprived of their liberty by [the police] run a significant risk of being physically ill-treated at the time of their apprehension and/or while in the custody of [the police] (particularly when being questioned), and that on occasion resort may be had to severe ill-treatment/torture.

The 2002 visit showed that progress in implementing the recommendations made by the CPT in its previous report, aimed at introducing a strategy to prevent ill-treatment, has been slow...

It is axiomatic that one of the most effective means of preventing ill-treatment of persons deprived of their liberty lies in the diligent examination by the relevant authorities of all complaints of such treatment brought before them and, where appropriate, the imposition of a suitable penalty. This will have a very strong deterrent effect. Conversely, if the relevant authorities do not take effective action upon complaints referred to them, those minded to ill-treat persons deprived of their liberty will quickly come to believe that they can act with impunity.

In this respect, it must unfortunately be pointed out that, once again, the CPT’s delegation heard allegations to the effect that prosecutors and judges paid little attention to complaints of ill-treatment - even when the person concerned displayed visible injuries.

In this context, the figures transmitted by the Ukrainian Prosecutor General’s Office speak volumes. It seems that over the first 10 months of 2002, the Ukrainian prosecutors did not initiate any criminal proceedings against law enforcement officials under Articles 126 (assault and battery) and 127 (torture) of the Criminal Code.”

The CPT made similar findings regarding allegations of ill-treatment by the police and lack of effective investigation in the reports on its visits to Ukraine from 9 to 21 October 2005 (paragraphs 15-38 of the 2005 report) and from 9 to 21 September 2009 (paragraphs 12-25 of the 2009 report). In the preliminary observations concerning its visit to Ukraine from 29 November to 6 December 2011, published on 12 March 2012, the CPT noted that “the phenomenon of police ill-treatment [remained] widespread and that persons [ran] a significant risk of being subjected to ill-treatment while in the hands of the police (in particular, when they [did] not rapidly confess to the criminal offence(s) of which they [were] suspected)”.

During the 2005 visit the CPT delegation also inspected Temnivka Colony No. 100 for men, including the unit for men sentenced to life imprisonment, and the temporary unit for women sentenced to life imprisonment at Kharkiv Colony No. 54. The CPT made the following findings concerning certain aspects of the conditions of detention of prisoners sentenced to life imprisonment (paragraph 113 of the 2005 report):

“...[W]hereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men.

More generally, the attitude towards this category of prisoners at Colony No. 100 was extremely security-oriented, with staff constantly stressing their ‘dangerousness’. In addition, the delegation noticed a wire cage in the staff office, in which the prisoners said they were systematically locked when interviewed by members of staff...”

The CPT called upon the Ukrainian authorities to abolish “the practice of systematically handcuffing men whenever they are taken out of their cell ... with immediate effect”.

On 26 September 2007 the Commissioner for Human Rights published a report on his visit to Ukraine from 10 to 17 December 2006, in which he inter alia noted that “practically all [his] interlocutors, including heads of parliamentary political groups, representatives of law enforcement and civil society confirmed that torture was widespread in Ukraine” (paragraph 44 of the report of 26 September 2007). During his visit to Ukraine in November 2011, the Commissioner for Human Rights made the following observations in that context (paragraph 93 of the report published on 23 February 2012):

“Ill-treatment by police in custody is a persistent problem in Ukraine, which has been raised in a number of reports of the Council of Europe Committee for the Prevention of Torture. Reports by international non-governmental organisations suggest that the phenomenon is fed by a culture of police impunity. Complainants who make well-founded allegations of serious abuses often receive the standard response that “there is no evidence of a crime”. The vast majority of cases, however, both grave and minor, are not reported to the authorities at all because the victims fear retaliation by the police, or have no faith that any action will be taken.”

The relevant extracts from the Appendix to the Recommendation, adopted at the 952nd meeting of the Committee of Ministers, read as follows:

Instruments of restraint

68.1 The use of chains and irons shall be prohibited.

68.2 Handcuffs, restraint jackets and other body restraints shall not be used except:

a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or

b. by order of the director, if other methods of control fail, in order to protect a prisoner from selfinjury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.

68.3 Instruments of restraint shall not be applied for any longer time than is strictly necessary.

68.4 The manner of use of instruments of restraint shall be specified in national law...”

At a number of its meetings the Committee of Ministers has considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court’s judgments concerning the issues of inhuman and degrading treatment of applicants and/or the absence of an effective remedy whereby complaint might be made and a lack of procedural safeguards in police custody.

For instance, during the 1100th meeting on 1-2 December 2010 eight such judgments were put on the Committee’s agenda, namely Afanasyev v. Ukraine (no. 38722/02, 5 April 2005), Kozinets v. Ukraine (no. 75520/01, 6 December 2007), Kobets v. Ukraine (no. 16437/04, 14 February 2008), Ismailov v. Ukraine (no. 17323/04, 27 November 2008), Spinov v. Ukraine (no. 34331/03, 27 November 2008), Suptel v. Ukraine (no. 39188/04, 19 February 2009), Vergelskyy v. Ukraine (no. 19312/06, 12 March 2009) and Drozd v. Ukraine (no. 12174/03, 30 July 2009).

According to the material of the meeting (see document CM/Del/OJ/DH(2010)1100), the Ministers’ Deputies noted that since the events described in the judgments the Ukrainian authorities had adopted a number of measures to prevent new, similar violations. However, in spite of those measures, “the infliction of deliberate physical ill-treatment of detainees by police officers on duty, remains widespread in Ukraine”. The Deputies further noted that a comprehensive “action plan/action report” was awaited from Ukraine, which should contain details of the measures envisaged or taken to combat abuse in police custody and the evaluation of how these measures addressed the violations found by the Court.

Therefore, the consideration of the matter was postponed pending the submission of the “action plan/action report” by the Ukrainian Government.

At its 1110th meeting on 30 March 2011 the Committee of Ministers adopted the guidelines setting out concrete measures which the member states should adopt to ensure that those responsible for acts amounting to serious human rights violations (including violations of Articles 2, 3, 4 and 5 of the Convention) were held to account for their actions and that victims of human rights violations had the right to an effective remedy.

Concern about the “persistence of widespread use of torture” was expressed by the UN Human Rights Committee in its concluding observations concerning Ukraine published in November 2001.

At its thirty-eighth session (30 April – 18 May 2007) the UN Committee against Torture considered the fifth periodic report concerning Ukraine. The relevant extracts from its conclusions provide as follows:

The Committee is deeply concerned at allegations of torture and ill-treatment of suspects during detention, as well as reported abuses during the period between apprehension and the formal presentation of a detainee to a judge, thus providing insufficient legal safeguards to detainees...

The Committee is concerned by the failure to initiate and conduct prompt, impartial and effective investigations into complaints of torture and ill-treatment, in particular due to the problems posed by the dual nature and responsibilities of the General Prosecutor’s office, (a) for prosecution and (b) for oversight of the proper conduct of investigations. The Committee notes the conflict of interest between these two responsibilities, resulting in a lack of independent oversight of cases where the General Prosecutor’s office fails to initiate an investigation. Furthermore, there is an absence of data on the work of the General Prosecutor’s office, such as statistics on crime investigations, prosecutions and convictions, and the apparent absence of a mechanism for data collection...

The Committee is concerned at the current investigation system in which confessions are used as a principal form of evidence for prosecution, thus creating conditions that may encourage the use of torture and ill-treatment of suspects. The Committee regrets that the State party did not sufficiently clarify the legal provisions ensuring that any statements which have been made under torture shall not be invoked as evidence in any proceedings, as stipulated in the Convention...”

In its 2002 report on human rights violations, the International Helsinki Federation for Human Rights made the following observations in respect of Ukraine:

“...[T]he pattern of torture and ill-treatment by law enforcement officials continued to persist from previous years, with the perpetrators rarely being brought to justice. Police officers reportedly punched, hit and kicked detainees and used various torture techniques on them, including suffocation.

Once initiated, investigations into cases of alleged abuse by police officers were slow and inconclusive. According to the Government, about 185 cases of abuse by law enforcement officials were reported, while about 200 police members were charged with such crimes in 2000. During 2001 the Parliamentary Committee on Human Rights reportedly received more than 300 complaints concerning human rights abuses by law enforcement officials, and 50 of them dealt with physical and psychological violence.

Amnesty International’s 2001 report referred to “widespread and persistent allegations of torture and ill-treatment of detainees by law enforcement”. Subsequent reports contained similar observations.

In a recent publication concerning the issue, Blunt Force: Torture and Police Impunity in Ukraine (12 October 2011), Amnesty International noted that:

According to some estimates, hundreds of thousands of people in Ukraine may be victims of police abuses each year. Violations range from minor infringements of the criminal procedural code, to racial abuse, extortion, torture and other ill-treatment, and deaths in custody.

These abuses are encouraged by a culture of impunity for the police in Ukraine. Complainants who make well-founded allegations of serious human rights abuses all too often receive the standard response “there is no evidence of a crime”. The vast majority of cases, however, both grave and minor, are not reported to the authorities at all because victims fear retaliation by the police, or have no faith that any action will be taken.

It was concluded that “three key problems must be addressed [by the Ukrainian Government] as a priority – the lack of regular detention monitoring, the lack of independent investigations, and a reluctance to prosecute police officers”.


JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND

There are five applicants in the present case. The first applicant, Johtti Sapmelaccat r.y., is an association promoting Sámi culture. The other applicants, Juhan Taneli Magga, Ristenrauna Magga, Nils-Henrik Valkeapää and Anni Näkkäläjärvi, are Finnish nationals of Sámi origin and living in Nunnanen, Vuotisjärvi and Enontekiö, respectively. They are all members of the first applicant association. They are represented before the Court by Mr Heikki J. Hyvärinen, Legal Secretary, Sámi Parliament, and Mrs Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Rovaniemi. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the Finnish Constitution, the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. The definition of culture includes their traditional sources of livelihood, that is to say reindeer herding, fishing and hunting.

In Finland a fishing right can be a so-called “private fishing right”, connected to the ownership of land. The properties in any one village have fishing rights in the common water-areas of that village. There are also “specific private fishing rights”, which some properties have within the water-areas of other villages or within the State-owned water-areas. All these rights, as rights connected to the ownership of land, enjoy the constitutional protection of property.

In addition to private fishing rights, there are public fishing rights which are usually based on membership of a public community, for example a municipality, on the basis of public law. Such a fishing right does not enjoy the constitutional protection of property.

In the municipalities of Enontekiö, Inari and Utsjoki, that is to say in the Sámi Home District, there were no public fishing rights before 1998.

As mentioned above, Sámi landowners have fishing rights in connection with their land ownership and the State owns the fishing rights in the State-owned water-areas. The fishing rights of Sámi people who do not own any land has been based on custom from time immemorial (ylimuistoinen nautinta, urminnes hävd). It entitles them to fish within the State-owned water-areas in the municipalities of Enontekiö, Inari and Utsjoki. The right is based on civil law and enjoys, as such, the constitutional protection of property.

The Fishing Act (kalastuslaki, lagen om fiske; 1212/1997), as amended on 19 December 1997, entered into force on 1 January 1998. According to the Act, public fishing rights were extended to apply also in the municipalities of Enontekiö, Inari and Utsjoki. It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the State-owned water-areas.

Prior to the 1997 amendment, the 1951 Fishing Act (503/1951) had been applied in the above-mentioned municipalities regardless of the fact that the 1982 Fishing Act (286/1982) applied to all other parts of Finland. The 1982 amendment did not affect the position in the municipalities of Enontekiö, Inari and Utsjoki as, according to the Committee for Constitutional Law (perustuslakivaliokunta, grundlagsutskottet) of the Finnish Parliament (eduskunta, riksdagen), questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the Sámi people had to be settled before the law could be amended. Therefore the 1982 Fishing Act did not apply in the above-mentioned municipalities.

As from 1 January 1998, the public fishing right was extended to the area of the above-mentioned municipalities, maintaining “the ancient right of the local people to fish within the State-owned water-areas without consideration”. According to the applicants, the 1951 Fishing Act did not, however, guarantee such a right to the “local people”, including also non-Sámi residents, as it was only granted to them by the 1997 amendment.

The 1997 amendment also includes provisions concerning restrictions on hooks allowed in the area. Those restrictions entered into force at the beginning of 2001.

Section 5, subsections 1 and 2 (969/1995)

“Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.”

Section 12 (969/1995) reads as follows:

“The property of everyone is protected. Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.”

Section 14, subsection 3 (969/1995) reads as follows:

“The Sámi, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture. Provisions on the right of the Sámi to use the Sámi language before the authorities are laid down by an Act. The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an Act.”

The provisions above are equivalent, respectively, to Sections 6 and 15 and Section 17, subsection 3, of the present Constitution of 2000 (perustuslaki, grundlagen; 731/1999).

Section 6 reads as follows:

“A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village, based on custom from time immemorial, shall remain valid. The right to use a fishing site on the basis of custom from time immemorial shall, however, only be valid if the boundaries of the site have been clearly established.

If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters, any claim thereto must be brought to the competent district court within three years from the date on which the decision on the boundaries has become final.”

Section 54 reads as follows:

“Further provisions on the use of the state's fishing rights and on fishing in state-owned waters, as well as on the management of such waters, shall be given by Decree, and in this respect the interests of the local population shall be a primary concern.

The fishing arrangements referred to in subsection 1 above must nevertheless not endanger fish or prawn stock.”

Section 3 reads as follows:

“A local inhabitant, especially where he or she has otherwise no fishing right, has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by the National Park and Forestry Service. Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish.

Where found appropriate by the National Park and Forestry Service, a licence may also be issued for purposes other than those referred to in subsection 1 above.

The fishing licences referred to in subsections 1 and 2 above shall not be so extensive in scope and number that the fish or prawn stock is endangered.”

Section 1 reads as follows:

“The provisions of this Decree shall apply in the municipalities of Enontekiö, Inari and Utsjoki.

For the purposes of this Decree, "the Fishing Act" means the Fishing Act of 28 September 1951 (503/1951), as amended.”

Section 10 reads as follows:

“The state provincial office shall set up an advisory board for each of the three municipalities for a period of one year at a time, to discuss fishery matters relating to the water areas referred to in section 9, subsection 1 above. The advisory boards shall have as their duties, within the limits of their competence, to give opinions, make proposals and take initiatives, as well as to perform other duties assigned to it in this Chapter.

Each year, the National Park and Forestry Service and the Finnish Forest Research Institute shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences. The opinion may only be derogated from by the authorities for special reasons. Each advisory board shall also be requested to provide an annual report on plans concerning the management of fishing sites.”

Section 11 reads as follows:

“An advisory board shall consist of five members and their personal deputies. The National Park and Forestry Service, the Sámi Delegation (saamelaiskäräjät, sametinget), the fishing districts, the municipality and the local associations of professional fishermen shall each appoint one member and his or her personal deputy. Where the professional fishermen have not created any association, or the associations are not able to agree on the member representing them jointly, the municipality shall appoint one of the candidates. The advisory board shall elect one of its members as president and one as vice-president.

The advisory board shall be convened by the president or, in his absence, by the vice-president, and its quorum is constituted by the president or vice-president and at least two other members.

The work of the advisory boards shall otherwise be governed by the provisions on government committees.”

Section 12 reads as follows:

“Permanent residents of the municipality carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state-owned waters referred to in section 9, subsection 1 above, located in their municipality of residence. Such a licence may also be issued, subject to a charge, to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above.

A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish, fish culture, scientific research or other use or management of fishing sites.”

Section 12 (1212/1997) reads as follows:

“The state's fishing sites (valtion yksityiset kalastukset, statens enskilda fisken) shall remain in the possession of the state in those areas where they have customarily been and still are in the state's possession. Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state-owned waters shall be given by decree, and in this respect the interests of professional fishermen and the local population shall be a primary concern. Permanent residents of the municipalities of Enontekiö, Inari and Utsjoki, carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, have nevertheless a right to obtain a fishing licence free of charge for fishing in state-owned waters located in the said municipalities.

The provisions of section 8, subsection 1 above are, however, also applied to state-owned waters.”

Section 13 (286/1982) reads as follows:

“A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village, which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason, will remain in force as of old. Undisturbed possession of a fishing place since time immemorial, however, is valid only if the boundaries of the place may be reliably shown.

If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary, any action concerning the matter shall be instituted in the general court of first instance within three years of the date when the demarcation has gained legal force.

Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this Act, such a decision shall continue to be observed.”

Section 129 (286/1982), subsections 1 and 4, read as follows:

“This Act repeals:

the Fishing Act (503/51) issued on 28 September 1951;

the Decree of 28 December 1951 on the enforcement and the application of the Fishing Act (695/51); and

the Decree of 9 July 1953 on the use of the private fishing grounds of the State and on fishing in fishing waters belonging to the State (322/53), as amended; as well as

the Land Partition Act of 14 December 1951 (604/51) § 112 paragraph 2.

What has been enacted in paragraph 1 subparagraph 1 shall not apply to the area of the municipalities of Inari, Enontekiö and Utsjoki for which areas the Fishing Act (503/51) as amended remains in force.”

Section 34 (1356/1993) reads as follows:

“A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to § 33 paragraph 1 belonging to the State.

When the State is a joint owner of common fishing waters, it may grant the licence referred to above concerning the fishing rights corresponding to its share. The fishing corporation concerned shall be informed by an authority of the granting of the licence. A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence.

When the licences referred to above in this section cannot be granted to all who want them, priority shall be given to persons engaging in fishing professionally or for domestic needs.”

Section 34a (1364/1997) reads as follows:

“A licence entitling permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to carry out fishing referred to in section 12, subsection 1 of the Fishing Act, shall be issued by the authority referred to in section 33, subsection 1 of the Act or, in accordance with instructions issued by it, by its subordinate regional office or other entity recognised by the said authority. The licence may not be given for more than three years at a time. A right based on a licence is not transferable.

Licences referred to in subsection 1 of section 34 above may be issued in the municipalities of Enontekiö, Inari and Utsjoki where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in section 12, subsection 1 of the Fishing Act.”

Section 53 (1/97) reads as follows:

“The obligation to pay the fishery fee laid down in § 88 paragraph 1 of the Fishing Act shall concern all persons between the ages 18-64 who take directly part in the catch. The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch.

Those under 18 or over 65 years of age who under § 88 paragraph 1 of the Fishing Act shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or under § 88 paragraph 2 of the Fishing Act without paying the fee, shall prove their age in a reliable way, when necessary.”

“...the provisions of the 1951 Act and the 1982 Act, concerning fishing rights based on land-ownership, are similar in substance. At the time of enactment of the 1982 Fishing Act, no final court decisions had been given on the water district boundaries in the municipalities of Enontekiö, Inari and Utsjoki. Therefore, the existing specific rights to a fishing site, attached to real estates, were also unclear. For these reasons, the provisions of the 1951 Fishing Act remained in force for the three northernmost municipalities.

Thereafter, the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established. There are no longer any unsolved questions of ownership of water areas in respect of individual real estates, and therefore it is no longer necessary to apply the 1951 Fishing Act in the area in question.

The state-owned fishing sites are of great importance for the local population in the municipalities of Enontekiö, Inari and Utsjoki. In the absence of decisions on the establishment of water district boundaries, there were unsolved questions in respect of the ownership of the water areas. Therefore, the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence. In the proceedings for the establishment of water district boundaries, most of the waters were established as belonging to the state. Thus, the state also held the fishing rights attached to the waters, except for certain specific fishing rights. In order to provide for the possibilities of the local inhabitants to fish, it was provided in the decree implementing the 1951 Fishing Act, which entered into force in 1983, that the local inhabitants of the three northernmost municipalities, who were carrying out professional fishing, fishing for personal purposes or other natural means of livelihood, had the right to obtain a fishing licence free of charge for fishing in the state-owned waters located in their municipalities of residence. The local inhabitants were also provided with a possibility to participate in decision-making concerning fishing and management of fish stock in respect of those waters, by means of setting up advisory boards for each of the three municipalities. These advisory boards had, inter alia, the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences. The National Board of Forestry, the Sámi Parliament, the fishing districts, the municipality and the local associations of professional fishermen appointed members to the Advisory Board. ...

It is proposed that the possibility for the local inhabitants of Enontekiö, Inari and Utsjoki municipalities to fish in the state-owned waters be maintained. Therefore, the present proposal contains provisions which are currently included in a decree, concerning the right of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state-owned waters (Section 12). ...

The application of the 1982 Fishing Act in the municipalities of Enontekiö, Inari and Utsjoki does not remove or change the fishing rights that their inhabitants have in the state-owned waters which have an established legal basis, such as the basis of custom "from time immemorial". Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the Sámi population. In order to secure the fishing rights of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, it is proposed that the Act contain those provisions on the right to fish free of charge in the state-owned waters which are now included in a decree. Thus, the existing provisions would be included in an Act of Parliament instead of a decree, but the proposal does not intend to change the substance of the provisions.

“On different occasions (opinions 7/1978, 5/1981 and 30/1993) the Constitutional Law Committee has found that local inhabitants of the three northernmost municipalities, who have no titles to land, have such fishing rights as enjoy the protection of possessions guaranteed by the Constitution.

In the opinion given in 1978, the Constitutional Law Committee observed that "the bill subject to debate, concerning fishing in the three northernmost municipalities, entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood, of whom most represented the Sámi population, as a licence would thereby be necessary for fishing and it would be subject to a charge." In the Committee's view, the bill had to be considered in accordance with the procedure for the enactment of the Constitution.

The opinion given by the Constitutional Law Committee in 1981 concerned the Government Bill for the enactment of the 1982 Fishing Act. The Committee drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay. Thereafter, the Law and Finance Committee proposed that the fishing legislation - the 1951 Fishing Act - in force at the material time should remain in force for the said municipalities (Report of the Law and Finance Committee 18/1981). Thus, a provision based on that proposal, subsection 4 of section 129, was included in the new Fishing Act.

In 1993, the opinion of the Constitutional Law Committee concerned a Government Bill in which it was proposed, inter alia, that section subsection 4 of section 129 of the 1982 Fishing Act be repealed. On that occasion, the Committee was of the view that the bill entailing repealing of the said provision had to be discussed in accordance with the procedure provided for in section 67 of the Parliament Act. The Committee further noted, referring to the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted in 1989, that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the Constitution. ...

Extending the scope of application of the 1982 Act to concern the three northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section 5 of the Constitution Act of Finland and with the requirements of foreseeability. A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions. Referring to earlier opinions, the Committee finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of Parliament (Opinions of the Constitutional Law Committee 8/1996 and 5/1981). ...

Subsection 1 of section 12 means that the local inhabitants in the three northernmost municipalities maintain their possibility to fish free of charge in the state-owned waters, based on custom. In the Committee's view, this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom "from time immemorial" and on an extensive right of enjoyment, which have been observed in earlier opinions of the Committee, concerning the traditional rights of inhabitants who do not have titles to land. For this reason, the Committee is of the view that the bill is also acceptable in the light of the provisions in section 5 of the Constitution Act. As regards the status of the Sámi people, particularly in view of the provisions in subsection 3 of section 14 of the Constitution Act, the Committee has paid attention to the fact that fishing has been part of the traditional way of life of the Sámi without any restrictions as to their place of residence. Therefore, the Committee finds it important to clarify the last part of the provision in subsection 1 of section 12 so that the fishing right is not only dependent on the place of residence but is valid in the areas of all three northernmost municipalities where the person is resident in one of them. ...

Article 27 of the International Covenant on Civil and Political Rights provides for the rights of minorities. For example in the light of the practice of the Human Rights Committee monitoring the implementation of the Covenant, it may be observed that the exercise of fishing rights of the Sámi is part of their minority culture. The proposed amendment may not be considered to entail prevention of fishing as part of the Sámi culture in the sense of constituting a violation of Article 27 of the Covenant. In this respect, reference may be made to section 12 of the Bill, which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge. ...

The Government Bill does not interfere with questions of ownership. The purpose of the proposed provisions is, inter alia, to establish the right of permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to obtain a fishing licence free of charge for fishing in the state-owned waters, on certain conditions. The Bill is not restricted to the Sámi as a population group but concerns all residents of the said municipalities. Apart from permanent residence, it is further required for the existence of such a right that the residents in question carry out professional fishing, fishing for personal purposes or other traditional means of livelihood. In the Committee's view, these conditions are, however, of such a nature that they have relevance in particular for the Sámi. Therefore, it may be observed that the Bill partly contributes to the protection of the right of the Sámi to use the water areas in question.”