The Prosecutor General has clearly decided that the best way of dealing with criticism is through the printed word.   We can – and frequently do – suggest other more constructive methods, but will take the opportunity here to both present and respond to Oleksandr Medvedko’s views presented in the official government newspaper "Holos Ukrainy" on 17 September with the title: "The Role of the Ukrainian prosecutor’s office in preventing and investigating cases of torture of prisoners – truth and fiction". 

Mr Medvedko feels compelled to respond to the numerous claims by "certain members of human rights institutions" that the prosecutor’s office is failing to carry out its task of supervising observance of the law in the enforcement of court rulings in criminal cases, as well as in applying measures of a coercive nature linked to restriction of individuals’ personal freedom.   He contends that some claims are "constantly supplemented by a vivid and emotional, however generally unproven description of pictures of mass torture, supposedly widely used against prisoners by the administration of SIZO [pre-trial detention centres] and penal institutions of the State Department for the Execution of Sentences" [the Department].  He mentions in particular a press conference in June of this year given by the Human Rights Ombudsperson however the same criticism has been levelled by many human rights organizations, and not Ukrainian ones alone. It is worth noting that the Prosecutor General was one of the "laureates" of the Ukrainian Helsinki Human Rights Union’s "Thistle of the Year", an annual anti-award for those guilty of most flagrant human rights abuses.  The Prosecutor General was deemed deserving of this most dubious honour because of his Office’s systematic failure to ensure efficient and swift investigation into possible infringements of prisoners’ rights and cases of torture and ill-treatment by law enforcement agencies.

Mr Medvedko states that he could not ignore such accusations and had a thorough and impartial investigation carried out.  He therefore feels that "the time has come for the public to hear the truth about the real state of affairs. This is important not only so that the people of Ukraine are able to assess the work of prosecutors on the basis of truthful and objective information. This is first of all needed so that Ukraine can finally begin to free itself from the thoroughly unfounded image of the country encouraged by the efforts of certain irresponsible people, who disregard the rights of prisoners and do not fulfil international legal commitments regarding treatment of them".

The second part of Mr Medvedko’s criticism is not quite comprehensible and it would be helpful if he could explain his meaning.  With regard to the first part, we would respectfully suggest that he underestimates the ability of representatives of international structures, such as the Committee against Torture [CAT] to draw their own conclusions based on observation, careful study and considerable experience.  We will confine ourselves to just one quote from the Conclusions and Recommendations of the Committee against Torture in May 2007:

"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, (1) for prosecution and (2) for oversight of the proper conduct of investigations. The Committee notes the conflict of interest between those two responsibilities resulting in a lack of independent oversight of cases where the General Prosecutor’s office fails to initiate 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 comment about data collection is worth focusing on since Mr Medvedko’s attempt to present the public with the truth goes on to present a huge amount of data regarding mortality rates among remand and convicted prisoners.  This is certainly information CAT has asked to see, together with the "the result of any investigation or prosecutions into them".   The latter is, unfortunately, extremely short on detail:

"Into cases of death and suicide checks were carried out in accordance with Article 97 of the Criminal Procedure Code by Internal Affairs bodies in timely and adequate fashion. On the basis of these checks, it was decided not to initiate criminal investigations due to the lack of the event or elements of a crime."  Five criminal investigations were initiated in 2007 over deaths or suicides in SIZO or penal institutions, of which three are under examination by the court.  It is not explained what has happened to the other two.

Mr Medvedko reports that in this year not one death or suicide of any detainee, remand or convicted prisoner has resulted in a criminal investigation being initiated.

There is, however, considerable statistical detail about mortality rates in comparison with the population as a whole. The statistics make much of the anti-social behaviour of many of those who end up behind bars and their heightened risk of certain illnesses.  It does not, however, mention when stating that the mortality rate is a few times lower than for the population as a whole that so it should be since the vast majority of prisoners are able-bodied young people.

"No cases where suicides occurred as the result of torture or other cruel, inhuman or degrading treatment by employees of the penal service or police bodies were established".  It is not clear how the absence of such treatment was established.  The Prosecutor General does mention that 32 prosecutor’s office documents have been issued this year in response to failures to predict and prevent suicides among prisoners, and that 98 penal officers have faced disciplinary proceedings.

At this point Mr Medvedko adds the subtitle: "The Real state of affairs" and concludes that while they mustn’t rest on their laurels, all is basically well as far as mortality rates are concerned, and that the Prosecutor General will not "allow anybody to gain mileage on this painful subject and totally unwarrantedly shame their own country in the eyes of the world community."

Mr Medvedko then goes on to say "a few words" about the use of torture against prisoners. In 2007 prosecutor’s offices received 1,023 complaints from remand or convicted prisoners alleging torture or other coercive behaviour with the features of ill-treatment.   In the first six months of this year there were 573.  He says that a study of these complaints showed that most (almost 80%) concerned the use of unlawful methods of detective inquiry and criminal investigation, and not the use of torture by penal staff. 

Each such case was, he says, checked. 10 criminal proceedings were initiated last year (out of the 1,023) over the use of unlawful methods of detective inquiry and criminal investigation, with eight being sent to court. This year there have been 12 such cases, with five sent to court. 

Descriptions are provided of such of these cases. Not one of those mentioned is under Article 127 of the Criminal Code (Torture), but only Article 365 (exceeding official powers). 

52 allegations of torture and ill-treatment received by the Human Rights Ombudsperson’s Secretariat were submitted to the prosecutor’s office. Not one was found to have any justification. 

A few more details and time for another triumphant subtitle: Absence of numerous cases of the use of torture. A thorough analysis of statistics and of the material of checks apparently convinces the Prosecutor General that there are no grounds for assuming numerous cases of torture by SIZO and penal staff. While cases of abuse by police or penal staff do occur they are isolated incidents, and all such cases receive timely and fundamental assessment from the prosecutor’s office.  In fact, it’s all upbeat to the last word. 

The only problem is credibility.  While the Ministry of Internal Affairs does at least acknowledge serious problems and works with NGOs on methods of preventing ill-treatment of detainees, the Prosecutor General seems to be following in the footsteps of the State Department for the Execution of Sentences which in June this year issued an "official response" to criticism from human rights organizations  (cf. http://www.khpg.org.ua/en/index.php?id=1216690539 ). 

When the style and content of these works are so similar, it is difficult to not duplicate our reaction.  Both the Prosecutor General and the Department suggest that all is well, or on its way to being so, and that the only real problem comes from "irresponsible" human rights organizations. 

They fail to mention that international bodies come themselves to Ukraine and also study information provided by government bodies as well as NGOs.  Both the Department and the Prosecutor General prefer to ignore certain subjects altogether, such as the use of spetsnaz [special anti-terrorist] units in penal institutions, which there are still reports of despite their effectively being made illegal in December 2007.  CAT specifically recommended that all such reports, as at the Izyaslav Penal Colony in January 2007 be investigated.

It is clearly difficult to prove that an investigation has not been carried out, and presumably they would like us to believe that if 10 cases out of 1,023 were only found to be valid, then the other prisoners were just lying.  On the other hand, it is worth considering the context:  a prisoner, whether remand or convicted, is held in custody by the people he is complaining about. There are no mechanisms at the present time to move a prisoner who has made such allegations.  I wonder how many of us would feel confident of receiving a jovial and tolerant smile from penal officers who had faced checks over our allegations of ill-treatment.

It is also worth remembering that the information which comes from official channels, including the prosecutor’s office differs widely from that reaching NGOs via unofficial means.   Now members of NGOs may be fair game for some prisoners or their families wishing to "cause trouble", however members of such organizations do not suffer from constitutional naivety and are well trained in questioning people. And just as importantly, the prisoners they then see are exposing themselves to the same risk when human rights organizations report their allegations which would seem a bit excessive for the "pleasure" of criticizing penal staff. 

The European Committee for the Prevention of Torture [CPT], CAT and other structures are also well-experienced in distinguishing fact and fiction. In a number of cases before the European Court of Human Rights, including the cases of Sergei Shevchenko v. Ukraine from 4 April 2006, Kucheruk v. Ukraine from 6 September 2007 and Yakovenko v. Ukraine from 2 October 2007.  In each case the Court in Strasbourg found that the lack of effective investigation by the Prosecutor’s Office can led to Ukraine’s violations of its commitments under the European Convention on Human Rights.  One wonders if these cases were also subjected to the "thorough and impartial analysis" which Mr Medvedko speaks of.  It is to be hoped that the Prosecutor General does not believe these respected institutions to have an interest in spoiling Ukraine’s reputation.  It is very much to be regretted that he should wish to suggest this of Ukrainian human rights organizations.  We can only repeat that there are much better ways of dealing with bad press.

Halya Coynash

http://www.khpg.org.ua/en/index.php?id=1222255074