Strasbourg Observers

Zherdev v. Ukraine: Article 3 of the ECHR and Children’s Rights at the Stage of Police Interrogation

June 29, 2017

By Prof. Dr. Ton Liefaard, Professor of Children’s Rights / UNICEF Chair in Children’s Rights, Leiden Law School, Leiden University, The Netherlands[1]

The Zherdev v. Ukraine judgement of 27 April 2017 by the European Court of Human Rights (hereinafter: the Court) further augments the Court’s line of recognising the vulnerable position of children in police interrogation and custody. What is the impact of this recognition on the threshold to find a violation under Article 3 ECHR, and to what extent does the judgement reflect international legal standards relating to children in conflict with the law, and global concerns regarding police violence towards children?

This commentary begins with a brief overview of the relevant facts of the case. It then addresses the Court’s judgement, focusing on the allegations in relation to Article 3 and to a certain extent Article 6 ECHR. It explores the Court’s threshold to assess ill-treatment in the context of children in police custody, and highlights relevant international standards in that regard. This commentary concludes with a final note on the important role of lawyers in preventing and addressing ill-treatment, and the complex issue of children’s waiver of legal counsel.

 The Facts

In 2005, at the age of sixteen, Artyom Leonidovich Zherdev (Zherdev) was taken to police custody as a suspect of theft and murder of a night security guard at a shop. In custody, Zherdev’s clothes had been seized for evidence gathering, and he alleged to have been detained in his underwear, for a period of several hours at the police station. Zherdev noted that this experience made him feel cold and vulnerable (§19). He had also been placed in police detention with two adult detainees; both of whom were registered as drug addicts, and one of them also suffered from an infectious disease (§20). Zherdev was provided with a lawyer; yet this lawyer was not appointed by Zherdev or his parents (§10-12). During his custody (and subsequent trial), Zherdev confessed to the crime. He later withdrew this confession, alleging it was the consequence of ill-treatment he suffered at policy custody. After prolonged proceedings, which included numerous appeals and re-trials, he was convicted of aggravated murder and robbery. His conviction was upheld by the Ukraine Supreme Court in 2010 (§34-51). An English summary of the facts can be found here.

Before the Court, Zherdev made numerous complaints about the fairness of the investigation and proceedings against him. In particular, he complaint that he was subjected to ill-treatment (i.e. being kept handcuffed and stripped of his clothes, and being detained with adults; art. 3 ECHR), that he suffered prolonged detention (art. 5(3) ECHR), and that his right to a fair trial and legal assistance was violated (art. 6(1), 6(3)(C) ECHR).

Judgements and Comments

Children in police station and the threshold of Article 3

In its judgement, the Court found violations of both the substantive and procedural limb of Article 3 ECHR. The provision prohibits, in absolute terms, torture or inhuman or degrading treatment or punishment, and it is considered one of the most fundamental values of the Convention (Bouyid v. Belgium, §81; El-Masri v. FYR Macedonia, §195; Labita v. Italy, §119). Ill-treatment must attain, according to the Court’s case law, a minimum level of severity to amount to a violation. Such an assessment must take into account various factors, including the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and health of the victim. Further factors can include the purpose of the ill-treatment, the intention or motivation behind it, and its context (see Bouyid v. Belgium, §86). For children this implies that there is a lower threshold for ill-treatment under Article 3 ECHR. In the 2015 decision of Bouyid v. Belgium, the Grand Chamber recognized that individuals, especially children, in police custody are in a situation of vulnerability and held that a slap in the face by a police officer can amount to ill-treatment. The Court held that ill-treatment refers to actions that humiliate an individual, diminish his or her dignity and/or arouse feelings of fear or anguish (Bouyid v. Belgium, §86-90, 107-109). The judgement in Zherdev v. Ukraine follows the line of Bouyid, emphasising that children’s minority and vulnerability in this particular context requires increased protection and vigilance by police officials (§83, 86). Thus, despite Zherdev was held unclothed and handcuffed for only a short window of time, and that he was not harmed or publically exposed, the Court find that it amounted to ill-treatment under Article 3. In that regard, it held that stripping is a ‘strong measure which often implies a certain level of distress’ and noted that the Ukraine had offered no explanations for this procedure (§89-91).

The Court also found that Zherdev’s detention together with adults amounted to ill-treatment: it was in breach of domestic law, it diminished his dignity and it contributed to his feelings of fear and anguish (§92-93). This part of the judgement is in line with international and European legal standards that explicitly require separation between children and adults in detention. Article 37 (c) of the UN Convention on the Rights of the Child, a core provision of international human rights law recognizing the potentially negative impact of deprivation of liberty on children and the need for adequate protection, requires that ‘every child deprived of liberty shall be separated from adults (…)’. This standpoint finds support in other instruments including rule 13.4 of the UN Standard Minimum Rules for the Administration of Juvenile Justice, §59.1 Council of Europe Recommendations on European Rules for Juvenile Offenders Subject to Sanctions or Measures and CPT Standards (2011), §V(25), as well as in the Court’s case law (see Guvec v. Turkey).

Furthermore, the Court found that the Ukraine breached its obligations under the procedural limb of Article 3, by failing to conduct an effective investigation of Zherdev’s abovementioned complaints regarding the ill-treatment. It found that the authorities only conducted pre-investigative enquiries and that these did not include a timely and meaningful examination of the claims, nor did the enquiries result in any criminal, administrative or disciplinary proceedings (§54-63, 97-99).

Thus, it can be concluded that the Zherdev judgement reflects a lower threshold for violation of Article 3 as far as children are concerned and that it subjects police officials to higher scrutiny and standards in relation to their treatment of individuals under investigation and custody, particularly children. This judgement, continuing the line of the Court’s Grand Chamber in Bouyid v. Belgium, alludes to the global concern about police violence and ill-treatment of children at police stations. At the international and European level, there is a growing recognition of the widespread and intense violence children face in State institutions, including police custody (see UN Joint Report 2012 on Violence against Children within the Juvenile Justice System, §5, 29, 38-40; Liefaard et al (2014)). This concern is also reflected in the general comments of the UN Committee on the Rights of the Child, which recognize that children in conflict with the law are at increased risk of violence by police officials, and that they run the risk of being subjected to torture inhuman or degrading treatment to extract confessions or be ‘punished’ for suspected unlawful behaviors (see CRC GC 13, §3(i), 26; CRC GC 10, §13; CRC GC 8). Finally, the case law of the Inter-American Court of Human Rights also reveals that children in the criminal justice system are subjected to police brutality, which does not only relate to violation of their right to be protected against ill-treatment, but also to violation of their right to life (see e.g. the landmark Villagran-Morales et al. v. Guatemala case).

The important role of lawyers in preventing and addressing ill-treatment

The Zherdev case also shows the significance of the presence and role of lawyers for children subjected to police interrogations and custody. Assistance by a lawyer has been recognized by the Court as having particular importance for children and as a fundamental element in guaranteeing their right to a fair trial (art. 6 ECHR), which encompasses, among others, the right not to incriminate oneself (nemo tenetur) and the right to effective participation (regarding the latter see T & V. v. UK). For this reason, the Court held that children have a right to access a lawyer from the outset of the criminal proceedings, and that violation of this right can carry implications for any statement or evidence gathered in a police interrogation without the presence of a lawyer (see Salduz v. Turkey; Panovits v. Cyprus). Additionally, the presence of a lawyer from the outset of proceedings, and particularly during police interrogations, can be viewed as a measure to prevent and address ill-treatment of children. Lawyers can supervise the conduct of investigations, and the constant contact with the child at this stage can enable them to notice any signs of possible abuse or injuries.

In the Zherdev case several issues were raised under Article 6 ECHR in relation to the right to a fair trial and access to a lawyer. Most of these allegations were dismissed, any may require a separate case commentary. In particular, it is rather remarkable that the Court did not find the absence of the lawyer from the identification parade to be a violation of Zherdev’s right to a fair trial. It can be argued that an identity parade is a special investigative measure requiring additional safeguards and supervision, and that, for this reason, the assistance of a lawyer in identity parades of children is included as mandatory in the 2016 EU Directive on Procedural Safeguards for Children who are Suspects or Accused Persons in Criminal Proceedings (§6(C)(1). Due to the absence of a lawyer at such a crucial stage of the investigation, and given that Zherdev was identified by a witness during the parade, the issue may have deserved additional focus in the Court’s assessment.

However, the main point that is made in this commentary relates to the issue of waiver of legal assistance by children. The Court held that ‘neither the letter nor the spirit’ of  Article 6 prevents children from waiving their right to a lawyer, given that the waiver is unequivocal, voluntary and that the procedure includes some safeguards (§140, EU Directive Access to a Lawyer, §9). This follows the Court’s decision in Panovits v. Cyprus, in which it found that children are also able to waive the right to a lawyer. It is interesting to review this in line with the 2013 Proposal for the EU Directive, which required ‘mandatory access’ to a lawyer for child suspects, not allowing children to waive this right. However, this was ultimately changed in the final version of the Directive, in which mandated assistance by a lawyer was limited to decisions regarding the deprivation of liberty of a child. While recognizing the evolving capacities of children (e.g. article 5 CRC), the issue of waiver of legal assistance at the stage of police interrogation raises serious concerns; concerns that do not seem to be recognized in the Court’s case law. Extensive research shows that children, in light of their age, maturity, verbal, cognitive and emotional skills experience difficulties in fully understanding their rights and participate effectively in justice proceedings (Liefaard & Van den Brink, 2014). Allowing, particularly younger children, to waive legal assistance can be extremely harmful to children’s interests and rights, and can result in extra pressures from police officials on children and/or their parents. Especially in light of the importance of a lawyer at the outset of proceedings, a more protective approach is required.


Altogether the Court has issued another relevant judgement recognizing the importance of offering adequate protection to children in conflict with the law in police custody and under police interrogation. Research indicates that children run the risk of being subjected to ill-treatment, unlawful pressure or other forms of violence, which jeopardize their short- and long-term interests. This is not only problematic in light of the protection of human rights and fundamental freedoms of the children, which includes their right to reintegration (see e.g. art. 40 (1) CRC), it also is potentially against the interests of society and the preservation of public safety. As the UN Committee on the Rights of the Child observes, the preservation of public safety – as a legitimate aim of the justice system – ‘is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in the CRC [and related standards of international and European human rights law]’ (CRC GC 10, para. 14). The Committee rightfully wonders: ‘If the key actors in juvenile justice, such as police officers, prosecutors, judges and probation officers, do not fully respect and protect these guarantees, how can they expect that with such poor examples the child will respect the human rights and fundamental freedom of others?’ (CRC GC 10, para. 13). This case shows again that this still is a legitimate question.

[1] With thanks to Ms. Daniella Zlotnik, LL.M. for her assistance.

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