Report by the Kharkiv Human Rights Protection Group about Ukraine’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
10.05.2007
Full report on MS Word format: doc-file (477.696 kb)
April 2007
Summary
The present report about Ukraine’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 2001 to 2006 is prepared by the Kharkiv Human Rights Protection Group on the basis of its own information and information obtained from its partner organizations.
For the past few years there have been positive changes and tendencies in Ukraine. Still, we are concerned with such problems as the problem of impunity in cases where torture was used, the conflicting function of prosecutor’s office that hampers effective investigations of torture cases, the routine practice of violating the right to liberty and detainees’ rights, the practice of massive use of violence in correctional facilities. The lack of an integrated system for preventing torture and ill-treatment undermines the absolute prohibition of torture. In addition, a number of features pertained to the national legal system indirectly contribute to the practice of using torture and ill-treatment. These shortcomings of the legal system allow or/and encourage torture.
The report analyses these and related problems following the structure of the Convention.
Article 2. Although Article 29 of the Constitution establishes that a court warrant is obligatory for any deprivation of liberty, it should be acknowledged that legislation and practice have shown scant respect for this constitutional demand. Ukraine’s legal system is also prone to systemic violation of the requirement to promptly bring a detainee to a judge. A related problem, which increases the risk of detainees to be subject to torture and ill-treatment, is a possibility to extend the detention under control of the police until 10 days.
Article 3. In recent years, courts have been paying greater attention to issues related to the risk of ill-treatment in cases, when persons are returned to third countries. In particular, this increased understanding is evident in the very progressive decisions related to granting refugee status. At the same time there are recent examples of forcible transfers of asylum-seekers to countries where they can face persecution.
The current procedure of extradition proceedings contradicts the requirements of Article 3 of the Convention. Ukrainian legislation does not provide for examination of any circumstances, which the state should take into account according to Article 3 of the Convention. Moreover, the decision on extradition is taken by the Prosecutor General in secret, and the Prosecutor General has no legal obligation to inform relevant person about his decision.
Article 4. In the last few years criminal responsibility for actions, which have elements of torture in the meaning of Article 1 of the Convention, has been substantially developed. Although Ukraine had clearly taken this step in order to fulfil its obligations under the Convention, the formulations of several provisions of the Criminal Code do not fully comply with the tasks set out by the Convention. Convictions of State law enforcement officers for using torture remain rare. Furthermore, punishments meted out by the court in the case of conviction do not correspond to the gravity of the crime.
Article 5. The Criminal Code extends the force of its norms to the entire territory of the country, as well as to citizens of Ukraine and persons without citizenship, who permanently reside in Ukraine and have committed a crime outside Ukraine. It must be noted that concerning these persons the Criminal Code does not limit its force with a condition that these actions be considered a crime on the territory of the country, where they have been committed. Thus, strictly speaking, responsibility for having committed torture can emerge even if in the country, where it has been committed, it is not a crime.
Article 10. In our view, the recommendations of the Committee to widely distribute in Ukraine in all relevant languages the conclusions of the Committee, to inform the general public through the press and other media about major provisions of the Convention against Torture and to introduce studying rules and norms of the Convention by personnel of inquiring and investigating agencies and personnel of correctional system have not been implemented by the state. In part, this gap is filled by non-governmental human rights organizations, which have been printing and distributing much literature on the prevention of torture and holding specialized educational and training seminars for judges, lawyers and law-enforcement personnel.
Article 11. Ukraine’s signing the OPCAT envisaged, among other things, the implementation of a national preventive mechanism aimed at preventing torture and ill-treatment. This move suggests that the political will is there as far as changes to the attitude regarding the issue of torture are concerned, and the desire to change the situation for the better. Despite this and other positive steps on the part of the state, torture is still widespread in Ukraine. In addition, for the past years, we have been receiving more information about ill-treatment of persons, who serve their sentences at correctional colonies. Of special concern is a practice of the planned use of special units designated to suppress prison riots and other violent acts for intimidating inmates.
The Government explains the bad conditions of remand in custody with the “limited financial and economic possibilities of the state”. However, the problem of overcrowding of investigatory wards is only in part related to the funding of the system of facilities for remand in custody. To a much greater extend it depends on the ideology and the system of criminal justice concerning the holding accused persons in custody. In practice, presumptions in favour of remand in custody are applied in many cases; the bail system remains underdeveloped; detainees have very limited procedural rights during detention hearings and have no right to periodic reviews of their detentions; limits for an overall period of detention are not proscribed in law.
Articles 12 and 13. Ukrainian laws provide that the obligation of prosecutors’ offices to conduct investigation of claims and other information about facts of torture and cruel treatment. However, a systemic problem for the Ukrainian legal system is the lack of effective investigation following claims about torture and cruel treatment. Such a situation creates an impression that law enforcement officers can torture with impunity, and significantly contributes to the fact that torture and ill-treatment are perceived by many such officers not as a crime, but as a routine element of their fight against crime.
The lack of independent, impartial and effective investigations and prosecutions of law enforcement officers in connection with allegations of torture and ill-treatment is partly rooted in the dual role of the Public Prosecutor in Ukraine, which is responsible for investigation and prosecution of ordinary criminal cases and for making a decision whether the case will be opened against police officers. The lack of independence of the investigating body means that cases against law enforcement officers are inadequately investigated, delayed or stalled, or are not opened at all.
Under Ukrainian law, victims have extremely limited possibility for obtaining an independent expert opinion. It is often impossible to obtain documents from medical institutions, where the victim was examined or treated. Also, there are complications in gaining access to the material on the case.
Of special concern are people who are deprived of liberty. Prosecutor’s office, as a rule, fails to act and does not care about security of inmates, who complained against torture.
Article 14. The Civil Code provides for a possibility for the victim to obtain redress in case of the use of torture. However, in order to apply this provision, a final court decision is necessary, where the actions of such an official be considered unlawful.
Article 15. Ukraine’s Constitution and the Criminal Procedure Code prohibit the use of confessions obtained «by breaching legislation on criminal procedure». However, in the practice of a criminal investigation, the use of confessions, which are unlikely to have been given without duress, is quite widespread. Law does not provide regulations for a procedure for the examination and exclusion of confessions allegedly extorted by torture.
Article 16. The criminal law apparently presents a weak protection from the use of force by state agents executing “a lawful order or an instruction” and during apprehension of suspects.
Even though in the armed forces bullying and hazing (dedovshchina) have been decreasing recently, they still present a very serious problem.
According to recent studies by human rights NGOs, conditions for TB-ill people in Ukrainian penitentiaries can be regarded as cruel and inhuman.
1. Article 2 of the Convention. Legal system for preventing torture. 5
1.1.1. Police arrest and detention, rights of detainees. 5
1.1.2. Bringing the person detained before a judge. 9
1.1.3. Extension by a court of detention in police custody. 11
1.1.4. Arrest on suspicion of having committed an administrative offence. 12
1.1.5. Prolonged administrative detention. 13
5. Article 10 of the Convention. Adequate training of personnel 24
6.1. Information of how widespread torture is. 24
6.2. Overcrowding of investigatory wards. 29
6.2.1. The retention of presumptions in favour of remand in custody. 30
6.2.2. Underdeveloped bail system.. 31
6.2.3. Absence of the right to periodic review of detention. 32
6.2.4. Limited procedural rights of the detainees. 33
6.2.5. Terms of pre-trial detention. 35
7.1. Independence of investigation. 35
7.2. Initiating an investigation. 36
7.3. Slowness of investigation. 39
7.4. Access of victims to evidence. 39
7.5. Access to medical documents. 41
7.6. Participation of victims in investigation of torture. 42
7.7. Access to material on the case. 43
7.8. Providing security to the persons, who submitted a complaint 44
8. Article 14 of the Convention. Right to redress for the victims of torture. 46
9. Article 15 of the Convention. Exclusion from evidence of statement made under torture. 46
10. Article 16 of the Convention. Ill-treatment other than that defined as torture. 48
10.1. The use of force during apprehension. 48
10.2. Violence in Army Forces. 49
10.3. Conditions of holding in custody. 49
The present report about Ukraine’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 2001 to 2006 is prepared by the Kharkiv Human Rights Protection Group on the basis of its own information and information obtained from its partner organizations.
This report is being presented to the UN Committee against Torture (the Committee) in the framework of its consideration of The Fifth Periodical Report by the Government of Ukraine about its compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention). The report aims to thoroughly address issues of protecting rights stipulated in the Convention and to draw attention of the Committee’s experts to most pressing problems in the area of their implementation, which, in our opinion, have not been reflected or have been incorrectly reflected in the report presented by the Government of Ukraine.
We admit that for the past few years there have been positive changes and tendencies in Ukraine. Nevertheless, our task, as we see it, is presenting our position concerning torture and other forms of ill-treatment in our country’s most problematic areas in order to help the Committee’s experts to form the most comprehensive opinion about the problems in this area. We are concerned, in particular, with the problem of impunity in cases where torture was used; the conflicting function of prosecutor’s office that hampers effective investigations of torture cases; the routine practice of violating the right to liberty and detainees’ rights; the practice of massive use of violence in correctional facilities.
In the course of preparing the report, the following materials were used: the monitoring of torture cases undertaken in 2003-2006 in all regions of Ukraine by a network of human rights organizations in the context of the Campaigning against Torture and Cruel Treatment in Ukraine; results of the activities carried out by the Fund for the Professional Support to Victims of Torture and Cruel Treatment created in the course of the Campaign; analyses and observations presented by other Ukrainian NGOs. Requests for further information please send to the Kharkiv Human Rights Protection Group at [email protected] or [email protected] or [email protected].
1. Article 2 of the Convention. Legal system for preventing torture
1.1. Article 2 § 1 of the Convention. Legislative, administrative, judicial or other measures for preventing torture
1.1.1. Police arrest and detention, rights of detainees
1. In § 57(f) of the Conclusions and Recommendations following the consideration of the Fourth Periodic Report by the Government of Ukraine, the Committee expressed its concern about the “information obtained by the Committee that relatives and lawyers are informed about a detention only after the arrested person has been transferred from a police station to an investigatory ward, what usually takes up to two weeks. The Committee is also concerned with the lack of clear legal provisions stating from which moment the detainee can use his right of access to a lawyer, to medical examination and to inform his/her family members about his detention”.
2. In §§ 71 to 80 of its Fifth Periodic Report, the Government expressed a number of objections against this conclusion by the Committee.
3. We believe that the Committee’s conclusion about the length of the period during which the detainee gets access to a lawyer is right and remains relevant to date. The problems with detainees’ access to lawyers, notifying the relatives about their detention and providing other rights of the detainees are imbedded in the very structure of the legislation. Our organization receives reports about such violations in the number allowing us to conclude that these violations are routinely practiced by law-enforcement agencies.
4. Although Article 29 of the Constitution establishes that a court warrant is obligatory for any deprivation of liberty, it should be acknowledged that legislation and practice have shown scant respect for this constitutional demand. Despite the clear provisions of Article 29 of the Constitution, which outline the authority of law enforcement officers to detain without court warrant as an exception to the rule, in practice, the situation is rather the opposite and such detentions remain the rule, while detention on the basis of a court order – the exception.
5. The reason for this is that the legislators have failed to incorporate into current laws the principle of protecting the right to liberty, imbedded in Article 29 of the Constitution and in Article 5 of the European Convention. As a result of this, the long-entrenched practice of law enforcement officers, who consider that unrestricted powers to arrest and detain are an integral part of their activity, remains intact.
6. In legislation the rules on detention without a court warrant is formed by several laws. The law «On the Police», in Article 11 stipulates:
The police, in order to fulfil the duties which have been vested in them, are given the right:
…
5) to detain and hold in specially designated premises:
…
people suspected of having committed a crime, people accused of a crime who are attempting to abscond from the (detective) inquiry unit, the criminal (pre-trial) investigation department or the court, people convicted who are attempting to avoid punishment – for periods and according to procedure established by the law ….
7. The provision in itself contains no rules as such and in its substance refers to ‘procedure established by the law». This flaw in the law «On the Police» affects administrative practice, as the provision which an officer of the police is expected to adhere to is, even after considerable perusal, difficult to define.
8. In the area of a criminal investigation, the most detailed – effectively the only – legal provision formulating detention without court order is Article 106 of the Ukrainian Criminal Procedure Code (CPC). Parts 1 and 2 of this Article contain a comprehensive list of situations in which a state representative is given authority to detain a suspect.
9. A body of inquiry unit shall be entitled to detain a person suspected of having committed a crime for which deprivation of liberty can be imposed as punishment subject to the existence of one of the following grounds:
1) if the person was caught committing the crime or immediately after committing one;
2) if eyewitnesses, including the victims of the crime, directly identify the given person as having committed the crime;
3) if there are clear traces of the crime on the suspect or on the clothing which he or she is wearing or which is kept at his home.
If there are other data which constitute grounds to suspect the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established.
10. In a strict interpretation of these provisions, the situations stipulated in part 1 of section 106 can be considered as situations of «urgent necessity to prevent a crime or stop it».
However, these provisions are vaguely formulated and allow a myriad of arbitrary interpretations. For example, the criterion «the person was discovered committing the crime» fails to give a clear answer to the question: who should discover a person committing the crime? Hence, a police officer or investigator can rely on this provision, when some other person discovered a suspect at the scene of the crime. Similar comments could be given as to the formulation of other grounds for detention, specified in part 1 of Article 106 of CPC.
11. In detention reports, the points of this provision are often simply quoted. In fact, these restrictions in such formulation and with the interpretation which they have taken on in practice, have lost any restraining power, and detentions are carried out on the basis of any information held by a detective inquiry unit or criminal investigation department, regardless of whether or not the person taking the decision as to detention is in the situation of an «urgent necessity to prevent a crime or stop it».
Thus, the restrictions on detention without a court order, as set out in part 3 of Article 29 of the Constitution, have effectively been ignored by criminal procedure legislation and the practice of detaining without an order has remained unchanged.
12. Thus, this provision has, to a large extent, lost any meaning as a norm regulating the lawfulness of the actual arrest, and has shifted its application to the extension of police detention, since the legislation lacks a clearly defined moment, from which the detention of a person is to be counted.
13. In accordance with established practice, «criminal-procedural detention» begins at the moment of compiling a detention protocol. However the definition of this moment is entirely at the discretion of the official leading the investigation. Therefore, in practice, the term of detention is not counted from the moment when the person was in fact deprived of his or her liberty, but from the moment when the official who was responsible for the detention completed all necessary formalities.
14. There is a provision in legislation which makes it clear that the initial moment of detention is in fact the moment of actual apprehension. This is section 44 of PCP, which reads: «a defending lawyer shall be allowed to participate in the case… from the moment when the detention protocol is given to the suspect… but no later than twenty four hours from the moment of detention». Thus, the law does not link the beginning of detention with the moment when the protocol for such detention is compiled.
15. However, the police pay little attention to this provision and law enforcement bodies retain a practice, whereby between the actual moment of detention of a suspect and the preparation of the protocol for detention a certain amount of time elapses, ranging from several hours to – on occasion – several days. This has even had an impact on the organisational work of regional departments of the police which have rooms for ‘people brought in’, which are intended to hold in custody people brought in to the regional department, but «not yet detained».
16. This was noted by the European Committee for the Prevention of Torture in Article 15 of their Report on their visit to Ukraine in 1998: «During the first 24 hours, the bodies of the inquiry (diznanie) i.e. officers of the criminal Militia, must undertake urgent operational and investigatory duties concerning the case, carry out an initial questioning of the apprehended person and establish a protocol of detention …»[1]
17. This situation is of great importance in assessing how well guarantees of the rights of detainees are implemented, guarantees which theoretically are provided by the legislation, because even formally these guarantees come into force only after several hours, and sometimes several days after a person has come under the control of a law enforcement agency.
18. In § 78 of its Report, the Government points out that “section 43 of the Code of Criminal Procedure defines the right of a suspect to have a lawyer and to meet with him/her before the first interrogation. Because the person is considered suspect, when he/she has been detained under suspicion of having committed a crime or when he/she has been subjected to preventive measures before being formally charged, the right is provided for having a lawyer participating in the case immediately after the detention”.
19. However, until a formal decision concerning detention has been taken, a suspect is not considered detained. His/her status while being effectively held in custody by a law enforcement body remains unclear until an official (a detective or investigator) has compiled a protocol for detention. In accordance with prevailing doctrine and practice, it is precisely at this point that agents of the State are obliged to inform the detainee of his/her rights, notify relatives of the detention, provide access to a lawyer, etc. The unclear status of a suspect between the moment of deprivation of liberty and moment when a protocol of detention is compiled, prevent him or her from exercising those rights guaranteed by Article 29 of Ukraine’s Constitution and Articles 5 and 6 of the European Convention on Human Rights.
20. A number of examples from the practice of the Fund for the Professional Support to Victims of Torture and Inhuman Treatment confirm that detention in police custody without the compiling a protocol of detention is practiced:
Ivan Nechiporuk (from Khmelnitsky) was detained by law enforcement officers on 20 May 2004 near his home and was held in a district police station without a formal record of detention until May 21, when a protocol of detention on suspicion of having committed an administrative offence was compiled.
Yevgeny Bocharov (from Kharkiv) was detained by officers of a crime detection unit in the morning of 11 April 2002. Only in the evening, in the district police station was a protocol of detention on suspicion of committing an administrative offence prepared. During the whole day, B. was held by officers of the investigative operations unit.
Viktor Kopcha (from Krivy Rig) was detained at 6 in the morning of 25 November, 2003 by officers of the department for fighting organised crime. He was held in detention on department premises. Only in the evening of 27 November was a protocol of his detention on suspicion of having committed a crime compiled.
Mikhailo Koval (from Chernihiv) was detained around 6 p.m. on 14 August 2001 and taken to one of the regional police stations. He was released late that evening. No protocol of detention was prepared.
Oleksiy Zakharkin (from Kalush, Ivano-Frankivsk region) was detained at around 4 p.m. on 17 May 2003 and taken to a regional police station. It was not until 10 in the evening that a protocol of administrative detention was issued.
21. Courts also often encounter the situation where, during a court hearing, it becomes clear that the individual was detained considerably earlier than is recorded on the protocol of detention.
22. One reason for the use of such ‘shadow’ detention is that there are virtually no independent criteria in legislation for defining legal detention. In an order of the Ministry of Internal Affairs, we read:
Within 10 days from the day when a breach of the law is established, to carry out an internal investigation into each instance:
…
where individuals were released from temporary cells because suspicions were not confirmed or if the period of detention has expired;
…
[in the case] of an acquittal or suspension of a criminal investigation concerning individuals, who were detained in custody.[2]
Thus, this order identifies as a breach of the law any detention, which does not later lead to charge in having committed a crime. This can lead to two equally fatal consequences as far as law enforcement activity is concerned:
23. On the one hand a police officer may unjustifiably refrain from detaining a suspect if there seems the smallest chance that the suspicion which initially warranted the detention could prove later to be unfounded; on the other hand – with this being more likely – a police officer will resort to any means, including those which are illegal, to ensure that the detention does lead to charge in having committed a crime.
It is hardly surprising that, faced with such a choice, police officers resort to «informal» detention, in order to avoid being held liable for a detention which later proved to be unwarranted.
24. If we consider the regulatory meaning of Article 106 of the Criminal Procedure Code, which it has taken on in practice, it transpires that legislation contains virtually no norm which sets out conditions for lawful detention without a court order.
25. One can thus draw the conclusion that Ukrainian legislation lacks a provision which, on the one hand, clearly defines the conditions for lawful «actual» detention, while on the other hand, regulates the legal relations which arise during the period between «actual» detention and the formal presentation of a protocol of detention.
26. In § 16 of its Report, the Government points out that “on 22 May 2003, the Parliament of Ukraine passed the Draft Code of Criminal Procedure in the first reading. At present, this Draft is under preparation for the second reading». However, the regulations proposed in the Draft Code do not resolve the problems present in current legislation.
27. For example, the Draft broadens the grounds for detention without a court warrant, using, odd as this may seem, the formulation from Article 29 of the Constitution. He Draft allows for detention without court warrant in cases of «urgent necessity to prevent a crime or stop it». Although this repeats the provision of the Constitution, the authors of the Draft have, however, entirely distorted the meaning of this constitutional restriction. Whereas in the Constitution this is a norm limiting the possibility of detention without court order, the authors of the Draft have presented it as yet another («supplementary», «together with other cases») instance where the State is permitted to deprive a person of their liberty without prior consent of the court. According to the logic of the Constitution, any provision of the law which allows for detention without a court order should be first checked from the point of view of whether it is constitutional, that is, whether the said law does not give the State greater powers than allowed for by Article 29 of the Constitution.
28. Similar comments could be made concerning another provision that allows detention without court order «in order to bring a person to a crime detection unit, a pre-trial investigation unit or to the court on the basis of well-founded suspicion that the person has committed a crime or actions which can be dangerous to the public». This provision of the Draft is somewhat reminiscent of the formulation of Paragraph 1(с) of Article 5 of the European Convention on Human Rights. However, Article 5 § 1(с) of the European Convention, in the first place, stipulates that the person be brought before a «competent legal authority», while the provision of the Draft demands that a person be brought not to a «judicial body», but only to some kind of «place for carrying out» detective inquiry work, pre-trial investigation or the court. These are fundamentally different demands.
1.1.2. Bringing the person detained before a judge
29. One is the most important guarantees against ill-treatment toward the detained persons and violation of their other rights is a quick bringing to a judge. Ukraine’s legal system is also subject to systemic violation of this requirement.
30. The Criminal Procedure Code (CPC) provides for the mandatory bringing before a judge of a person who could be detained for more than 72 hours. In accordance with Article 106 of CPC:
Within 72 hours of detention, the detective inquiry unit shall:
1) release the person detained if the suspicion that the person committed a crime is not confirmed, if the period established by law for detention has expired, or if the detention was carried out with infringements to parts 1 and 2 of this article:
2) release the person detained and choose another preventive measure in regard to this person, but not involving detention in custody;
3) bring the person detained before a judge with a request to grant an order to remand the individual in custody.
31. Given that under Article 29 of the Constitution, a detained person must be released if there is no court order within 72 hours, it is clear that the person must be brought before a court leaving reasonable time for the court hearing and deliberation within this maximum period. In this respect, the formulation of section 106 of CPC could lead to a violation of this constitutional requirement, because this section considers the moment of bringing somebody before a judge as being the end of this period and not the moment of providing the detainee with a motivated court decision.
32. In addition, due to the fact, that the period of detention is calculated from the moment of compiling a protocol of detention (see above), a suspect can, in fact, be held in police detention without a court order for a period which exceeds that allowed for in the Constitution by several hours or even days.
For example, Victor Kopcha (from Kryvy Rig) was detained at 6 a.m. on the morning of 25 November 2003 and brought before a judge only on 30 November 2003, since the protocol of detention had been compiled only on 27 November.
33. Law enforcement officers consider 72 hours to be the period during which they have entirely unlimited authority to hold a person in custody. Judges, before whom a detained person is brought, do not demand that the law enforcement officers provide proof that the person could not have been brought before them within a shorter period. The Kharkiv Human Rights Protection Group does not know of a single occasion when a detainee was brought to a judge on the day of or on the day after his or her detention.
34. In order to extend the period of detention, the Police combine a case of detention on suspicion of being guilty of an administrative offence (see section 2.5.) with detention on suspicion of having committed a crime. In such cases, the suspect is held for up to 3 days in accordance with Article 264 of the Code of Administrative Offences, and when this period has expired, in accordance with Article 115 of the CPC. As illustration of this, we can cite the following examples from our practice:
Ivan Nechiporuk (from Khmelnitsky) was detained by police officers on 20 May 2004, and brought before the judge only on 26 May 2004. From the moment of detention to 21 May, he was held in detention without any protocol. From 21 to 23 May – on the basis of a protocol referring to an administrative offence. Detention on suspicion of having committed a crime was formalized only on 23 May 2004.
Oleksy Zakharkin (from Kalush, Ivano-Frankivsk Region) was held in detention without being brought before a judge for six and a half days. On 17 May 2003, he was detained under procedure for administrative offences and taken to a district police unit. Then on May 20, a protocol of detention on suspicion of committing a crime was compiled. In total, he was in the custody of the police without court control up to the morning of May 24.
Aleksandr Rafalskiy (Kiev) was detained on 13 June 2001, was held in various police stations in the Kiev Region and was brought to a judge only on 26 June 2001.
35. This practice is only possible due to the insufficient incorporation into special legislation of the demands of Article 29 of the Constitution, which provides for deprivation of liberty on the basis of a court warrant, or – in exceptional cases – with a court order received within 72 hours from the moment of detention, regardless of legal grounds used to justify this deprivation of liberty. Administrative practice concerning detention should be based on the requirements of Article 5 § 1(c) and 3 of the European Convention on Human Rights which do not differentiate between suspicion of having committed an administrative offence and suspicion of having committed a crime.
36. Often in order to extend detention in custody, the police use a method, whereby law enforcement officers if a court has turned down their request for a detention order and has released a detainee, in the court building itself or on the way out, detain the suspect on a suspicion «held in reserve».
37. Such a method is possible only due to the excessively broad interpretation, which the terms in Article 106 of CPC have taken on in the practice of law enforcement officers and judicial practice (see §§ 8-10 above).
38. The provisions of Part 4 of Article 165-2 of CPC give grounds for serious concern:
If the application is for a warrant to take into custody a person at liberty, the judge is authorized to sanction the detention of the suspect or accused and have him or her brought before the court. Detention in this case cannot last longer than seventy two hours, or when a person is located outside the court’s jurisdiction, – no longer than forty eight hours from the moment of bringing the detainee to this place.
39. Since no limitations are imposed on the period for bringing the person to the necessary «populated area», the time spent in police detention without court control could theoretically last any amount of time.
On 14 October 2003 in Simferopol, Mr Nechayev was detained on the basis of a court order, issued by the Pechersky regional court in Kyiv in accordance with Part 4 of Article 165-2 of CPC. He was detained in the building of the Central District Court of Simferopol where he had gone to take part in a detention hearing on the application of the Prosecutor’s office of the Crimea. After his detention, Mr Nechayev was brought before a judge of the Pechersky regional court in Kyiv only on 7 November 2003, that is, 24 days from the moment of detention. Before his appearance before the judge, he was held in a temporary detention facility in Simferopol.
1.1.3. Extension by a court of detention in police custody
40. Another problem, which increases the risk of the use of torture and ill-treatment toward detainees, is a possibility to extend the detention under control of the police.
41. Part 8 of Article 165-2 of the CPC gives a judge the authority to postpone detention hearings for up to 10 days, and – at the request of the person detained – up to 15 days, if the judge considers that «to decide on the choice of preventive measures, it is necessary to additionally study information about the detainee or clear up other circumstances which may have significance in taking a decision on this question»
42. A number of researchers and practicing lawyers have suggested that «this legal provision presents … a guarantee from groundless detention»[3]. However, this idea can scarcely be justified theoretically, since such an approach makes it possible for a law enforcement agency to detain a person without sufficient grounds. A stronger guarantee from groundless detention would be a clearly established obligation of the court to release a detainee, if the prosecution have failed to present sufficient reasons for his/her continued detention.
43. Furthermore, in practice, having detention extended can increase the risk for a detainee, because in such a case he/she remains in police detention and is not transferred to a pre-trial detention centre. By law, a court decision to extend police detention is not a basis for placing a detainee in a pre-trial detention centre, because according to section 3 of the Law on Pre-trial Detention «the basis for pre-trial detention is a motivated court decision to remand a person in custody, made in accordance with both the Criminal Code and the Code of Criminal Procedure of Ukraine».
44. Quite often the prosecution asks to extend the period of temporary detention specifically to avoid a detainee being transferred to a pre-trial detention centre, because this could complicate «the success of the investigation» and «effective work with the suspect».
45. As a rule, a detention hearing resulting in a decision to extend the detention period is conducted in a very superficial manner.
Viktor Kopcha, who was detained in Kryvy Rig, described his detention hearing as follows:
«I was brought to court, where it was to be decided, whether I would be remanded in custody or released. The judge asked me only one question, ‘What can you say in your defence?’ I said that I was innocent, that I had an alibi, that I had not been allowed to see my lawyer. The judge ordered that I be taken out and announced, ‘Give him seven more days.’ She did not respond to my request to hold an interrogation».
46. According to the conclusions of research, «the absolute majority of case files, which contain court decisions on choosing remand in custody as preventive measure after the expiry of a 10-day period of detention, do not contain any new documents obtained during the extended period, nor are there any references to them in the court decisions». [4]
47. According to an analytical summary of court practice undertaken by the Zaporizhye Regional Appeal Court: «One can identify a shortcoming in the work of courts in the fact that courts, while making decisions on extending detention, fail to record in their decisions, which particular circumstances need to be clarified and which specific actions are to be made in connection with an additional clarification of these circumstances, and sometimes they use the right to extend detention not in order to determine whether it is expedient to keep the person in custody, but rather to ‘help’ investigators to gather necessary evidence in the case, this being inadmissible».[5]
48. The conclusions of this study confirm yet again, that extension of detention is used not to ensure a more considered judge’s decision as to whether to release a person pending trial or to remand them in custody, but rather to prolong the time he or she is held in detention by law enforcement officers.
Such a state of affairs leads to additional risk of the use of torture and ill-treatment not only because, during the extended period of detention, a suspect (accused) could again be subjected to torture, but also because prolonged detention precludes timely reporting about ill-treatment and complicates subsequent investigation into the relevant complaints.
Unfortunately, the draft of the new Criminal Procedure Code of Ukraine retains a similar provision in part 3 of Article 148.
1.1.4. Arrest on suspicion of having committed an administrative offence
49. One common method employed by law-enforcement agencies is the use for the purposes of criminal investigation of an administrative detention and following administrative arrest on the basis of the conviction by court for “malignant disobedience to lawful demands of police officers”.
50. There is still much uncertainty as to the basic principles of detention in connection with investigation into administrative offences. According to Part 3 of Article 29 of the Constitution, detention without a court warrant is permissible only in connection with a criminal process. This is clearly deduced from the following provision:
«In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure».
51. Ukraine’s legislation makes a clear distinction between the concepts «crime» and «administrative offence». Legal doctrine also clearly differentiates between two types of offence: a «crime» which always means a «criminal offence» and an infringement of the law in the narrow sense of the word, that is, an «administrative offence».
52. Thus, Part 3 Article 29 of the Constitution does not permit detention without a court order in cases involving «offences», as opposed to «crimes», even when there is an «urgent necessity» to prevent or stop them. The fact that such is not in contravention of Article 5 of the European Convention on Human Rights is irrelevant in this case. Firstly, according to Article 8 of the Constitution, constitutional provisions hold ultimate legal authority on the territory of Ukraine. Secondly, Article 5 of the European Convention considers admissible only detention, which is conducted «in accordance with a procedure prescribed by [national] law».
53. However, Ukraine’s Code on Administrative Offences (CAO), as before, contains provisions, which allow detention without a court warrant. This authority is based on the following provisions of the CAO: Article 259 «Bringing in an offender»; Article 266 «Procedural measures in cases of administrative offences»; Article 262 «Agencies (officials) authorized to conduct administrative detention»; Article 263 «Periods of administrative detention».
54. Special attention should be paid to Article 259, which determines the procedure for so called «bringing in» a person suspected of having committed an administrative offence. It provides virtually unlimited authority to detain and bring a suspect to a unit of a law enforcement agency. Although the period of detention is limited to one hour, the period for bringing in the person is not limited by law and is regulated only by a general instruction: «An offender should be brought in within the shortest possible period».
55. Moreover, if we look at the legislation system in Ukraine on the whole, such «bringing in» is not considered to be a deprivation of liberty at all. For example, unlike «detention» in the narrow sense of the word, there is no criminal liability for unlawful «bringing in». Nor can unlawful «bringing in» be grounds for redress according to the Law of Ukraine «On the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts».[6]
56. As to administrative detention in the narrow sense, here too there is a certain degree of uncertainty in legislative regulation.
57. Point 5 of Article 11 of the Law «On the Police» allows police officers the right to detain «individuals who have committed administrative offences, for a period of up to three hours, in order to prepare a protocol or to consider the essence of the case … if these issues cannot be resolved on the spot, …». Thus, according to this provision, an officer of the police has authority to detain a person suspected of committing any kind of administrative offence. However, Article 262 of CAO, which addresses this issue, limits the authority of the police to detention in cases involving a certain range of offences, these being listed in full in the said Article.
58. The clash between the aforementioned provisions of the Law «On the Police» and Ukraine’s Code of Administrative Offences does not make it possible to clarify the scope of police authority to detain those suspected of an administrative offence. This lack of clarity is exacerbated by the lack of correspondence of certain definitions of offences in Article 282 of CAO to those of the material articles of the same code.
59. The situation with providing detainees’ rights is exacerbated by the absence of a system of free legal aid in Ukraine. The system, which was created during the Soviet times, based on the compulsory participation of a lawyer in cases, where the defendant was unable to pay for lawyer’s service, has not been functioning anymore. The amount, which the state offers lawyers for their participation in cases of indigent defendants, is about $3 a day. This payment does not correspond to the today’s realities; in addition, obtaining this payment is overburdened with formalities. Because of the above, lawyers, who participate in cases of indigent defendants, prefer to spare their efforts on obtaining this payment at all.
60. In 2005, the Ministry of Justice created a Coordinating Board on the Reform of Free Legal Aid, which prepared a Concept on forming a system for free legal aid, built upon modern principles how to organize such an aid. On 9 June 2006, this Concept was approved by the decree of the President of Ukraine. To implement this Concept, two pilot Offices for Free Legal Aid have been created – in Kharkiv and Belaya Tserkov.
Initially it was planned to prepare the draft law “On free legal aid” by spring of 2007. However, the work on this draft law has been stalled; and, according to plans of the Cabinet of Ministers of Ukraine, this draft is to be developed by the end of 2008. We are concerned with lingering the reform process in this area.
1.1.5. Prolonged administrative detention
61. Although the rules stipulate that administrative detention should not last more than 3 hours, law enforcement officers retain considerable authority to extend such detention for a longer period.
62. The Law of Ukraine «On the Police» in point 5 of Article 11 foresees, that «in cases where this is necessary in order to identify a person or establish the circumstances of an offence» the police have the right to detain a person and hold him or her in custody «up to three days, with notification of this in writing to the prosecutor within 24 hours from the moment of detention».
63. Article 263 of CAO gives the police even more authority. The article states that «people who have infringed regulations concerning the use of narcotics and psychotropic substances» can be detained «for a period of up to 10 days with the sanction of the Prosecutor, if the offender does not have documents which identify him or her».
This provision of CAO manifestly violates Article 29 of the Constitution, which requires that the lawfulness of a person’s detention be examined by court within 72 hours.
Viktor G. (from Kirovohrad Region) was detained by police officers on 10 July 2003 on suspicion of petty hooliganism (Article 173 of CAO). He was brought before the court to review the case on its merits only on 14 July 2003. From the decision of the judge, it is clear that the detention had only been formally registered on 11 July, that is, the day after the actual detention.
64. The absence of clear conditions for lawful detention, the greater restrictions, as compared with criminal law, on the rights of a person detained for an administrative offence lead to administrative detention being widely used for the purpose of criminal prosecution. The Committee for the Prevention of Torture in its report after its 2002 visit (§ 16) noted that law enforcement agencies use provisions of CAO and the Law «On the Police» to have the opportunity to interrogate a detained person without the safeguards and time limits, prescribed by the Criminal Procedure Code.
On 4 December 2004, Igor Miroshnichenko was detained by two police officers in the building of the Kharkiv Regional Police Department, because he declined their request to go with them to a district police station. Although Mr. Miroshnichenko was a witness in a criminal case, in connection to which the police officers wanted to question him and the police officers did not have either court decision on Mr. Miroshnichenko’s detention or grounds for his detention without a court decision, they considered his refusal “malignant disobedience to lawful demands of police officers” and forcefully brought him to a district police station. During his detention, he was questioned in connection with a murder; his intimate samples and finger prints were taken. On 7 December 2004, the district court convicted him of having committed “malignant disobedience to a lawful demand of a police officer” and punished him with a fine. Later, this court decision was revoked by a higher court. No criminal charge was brought against Mr. Miroshnichenko.
65. It is quite clear that the widespread use of this ploy by law enforcement officers is the result of the introduction of court control in the criminal process. However, due to an unsystematic approach to legal regulation, amendments were not made to legislation that would make it impossible for law enforcement officers to elude court control.
66. Another common method of an extended detention under control of the police is detaining a person as a vagrant. The detention and holding in custody of vagrants is governed by Article 11 of the Law «On the Police». For such detention, the law, as before, requires no warrant: it is sufficient if a law enforcement agency informs a prosecutor. This allows law enforcement agencies to widely use such detention without sufficient grounds or even use it dishonestly.
On 3 September businessman Kurazov was apprehended in Kryvy Rig by officers of the Department for Fighting Organized Crime (UBOZ) in connection with the terror attack in Beslan (Russian Federation). After Mr Kurazov had spent a few hours on the premises of UBOZ, at the decision of the head of the district police station in Kryvy Rig, which was sanctioned by the prosecutor’s office, he was placed in a centre for the reception and allocation of vagrants for a period of 30 days. The police officers knew that he had a family and permanent residence. Nonetheless, he spent 20 days in the detention centre and was released only on 22 September after his lawyer intervened and submitted a complaint to court.
Aleksandr Rafalskiy was suspected in having committed a series of murders and was detained in Kiev on 13 June 2001 in the course of a planned operation. The same day he was interrogated in connection to the alleged murders at the Department of Combating Organized Crime. On 14 June 2001, he was placed into a detention facility for vagrants. The grounds for his detention were that his identity was not established, even though, then in the news media circulated information about the detention of a person suspected in having committed grave crimes, what implied Rafalskiy. He was held as a vagrant until 25 June 2001. During this time, the police, by torture, tried to obtain his confession of having committed the murders.
1.2. Article 2 § 2 of the Convention. Prohibition to depart from the obligations under the Convention
67. According to Article 64 of the Constitution of Ukraine, it is not allowed to recede from the right guaranteed by Article 28 of the Constitution. Ukraine’s legislation does not contain any provisions, which directly permit or justify the use of torture in exceptional circumstances, implied by Article 2 § 2 of the Convention.
68. However, as we are trying to show in this report, the lack of an integrated system for preventing torture and ill-treatment undermines the sense of the constitutional guarantees. In addition, a number of features pertained to the national legal system indirectly contribute to the practice of using torture and ill-treatment. These shortcomings of the legal system allow or/and encourage torture in an “ordinary” situation, what makes it unnecessary to provide for special conditions for “emergency” situations.
1.3. Article 2 § 3 of the Convention. Nullity of the reference to an order from a superior officer or authority
69. Section 41 of the Criminal Code provides for exempting from responsibility in case of following a lawful order or instruction. Provisions of Section 41 § 2 define what a lawful order or instruction is:
if they are made by a relevant person within his authority and, by content, do not contradict the current legislation and do not connect to the violation of constitutional rights and freedoms of person and citizen.
70. Section 41 § 4 contains an important provision, which meets in full the requirement of Article 2 § 3 of the Convention, because it directly stipulates that
a person, who followed an overtly criminal order or instruction, for actions carried out with the aim to follow such an order or instruction, is subject to criminal responsibility on general grounds.
71. There could be almost no difficulties in defining the “overtly criminal” order, if we speak about the intentional use of torture. However, it could be somewhat difficult to define responsibility when conditions prone to inflicting hard physical or moral suffering are being created, for example, when a person is held incommunicado or in inhuman conditions, what in certain circumstances can be qualified as torture.
72. This difficulty is exacerbated also by a formulation of section 41 § 3 of the Criminal Code, as it exempts from responsibility only in case of a refusal to follow an “overtly criminal order”. In addition, the person, who refused to follow an overtly criminal order, is protected only from criminal responsibility. Hence the refusal to follow an order, even if its criminality beyond doubt, does not guarantee the exemption from, for example, disciplinary responsibility.
73. However, of special concern is section 43 of the Criminal Code, which contains provisions dealing with exempting from responsibility in case of accomplishing a special mission. Such a special mission can be considered as a sort of an “order from a superior officer or a public authority” in the context of Article 2 § 3 of the Convention.
Section 43. Accomplishing a special mission to prevent or uncover the criminal activity of an organized group or organization.
1. It is not a crime to forcedly inflict damage to legally protected interests by a person, who, under law, accomplished a special mission, taking part in an organized group or a criminal organization with the aim to prevent or uncover their criminal activity.
2. The person, mentioned in part one of this section, is subject to criminal responsibility only for having committed, within an organized group, a very grave crime, if committed intentionally and inflicting severe bodily injury on the victim or entailing other grave consequences.
3. The person, who committed a crime, stipulated in part two of this article, cannot be condemned to life imprisonment, and his/her punishment in the form of deprivation of liberty cannot be longer than half the maximum term provided for this crime by law.
74. Some formulations of section 43 of the Criminal Code can entail a violation of Article 2 § 3 and/or Article 4 § 2 of the Convention.
First, limiting the responsibility only with cases related to those “inflicting severe bodily injury on the victim or entailing other grave consequences” can in certain cases exempt from punishment state agents, who committed actions fallen under the definition of torture in Article 1 of the Convention.
Second, the section also provides for obligatory mitigating the punishment of a person, who in the course of accomplishing the “special mission” has committed actions stipulated, for example, in section 127 § 1 of the Criminal Code. Such a provision also limits the use of section 127 § 3 and § 4 of the Criminal Code and can violate requirements of Article 4 § 2 of the Convention.
2. Article 3 of the Convention. Prohibition of the forced return to countries where the person could be subject to torture
75. In recent years, courts have been paying greater attention to issues related to the risk of ill-treatment in cases, when persons are returned to third countries. In particular, this increased understanding is evident in the very progressive decisions related to granting refugee status.
For example, on 26 September 2006, the Voznesensk Town-District Court in the Nikolayev Region reversed state agency’s decision refusing to grant refugee status to Khan Yusaf Ali, a citizen of Pakistan. Mr. Khan asked to grant him with refugee status, because he was justifiably fearful of degrading treatment on the part of his caste as he did not follow his father’s order to marry his cousin, but instead married a citizen of Ukraine. The court reversed the decision refusing to grant him with this status, because the agency failed to present evidence refuting the applicant’s reasons.
76. At the same time, during the night of 14-15 February 2006, 11 asylum-seekers from Uzbekistan, who had been seeking international protection in Ukraine, were forcibly transferred to Uzbekistan by the Ukrainian authorities. As it became known later the Uzbekistani authorities had issued extradition request for 11 asylum-seekers in Ukraine on the grounds that they had allegedly participated in the Andizhan events in Uzbekistan on 13 May 2005. These people were detained as persons without permanent place of residence. It must be noted that in this case the people were factually extradited to Uzbekistan under cover of an administrative expulsion procedure.
Between February 1 and 6, nine of the eleven people asked the Crimea Section of the State Department on Nationalities and Migration Issues to grant them with refugee status, as well as the Kiev Office of the UNHCR. The two remaining persons submitted their applications, being held in custody. Relatives and close associates of the detainees immediately appealed to the UNHCR, which that day, February 7, sent a note to the State Department on Nationalities and Migration Issues stating extradition of the detainees to Uzbekistan would mean Ukraine’s violation of its international obligations. In response, a State Committee’s representative informed that their expulsion was impossible until the procedure was completed.
On 13 February 2006, all detainees received a resolution by the Crimean migration authorities refusing to grant them with refugee status. On 14 February 2006, they were secretly brought to the Kievskiy District Court in Simferopol, which decided to expulse 11 Uzbeks from the territory of Ukraine. The authorities claim that the detainees presented to the court their written consent to be returned to Uzbekistan. In the night between February 14 and 15 they were brought by plane from Simferopol to Tashkent, where they were taken into custody by law-enforcement authorities of Uzbekistan.
On February 21, a head of the Ministry of Interior’s press service, Vasiliy Filipchuk, claimed that the Uzbeks violated regulations governing their residence in Ukraine. Refugee status was not granted to them, because their applications were unfounded, while they themselves gave up in writing their right to appeal this decision in court. He also claimed that the Convention relating to the Status of Refugees does not apply to these persons, because it only applies to those, who have refugee status. The latter argument was almost word for word repeated by Anatoliy Matvienko, Head of the Secretariat of the President.
77. In its letter of 3 May 2006, the Ministry of Justice also confirmed that the Uzbek citizens had been extradited unlawfully. In particular, it pointed out that the court’s decision that refused them in granting refugee status was superficial, because the court ignored the well-known facts related to the events in Andizhan during 12 and 13 May of 2005. The Ministry also mentioned the nullity of the asylum-seekers’ refusal to appeal the court’s decision that refused them in granting refugee status, the lack of legal aid, the lack of access to the detainees of representatives of the UNHCR or human rights organizations.
78. On 13 October 2006, another refugee, Gamassa Jaki Destin Bris (b. 1966), citizen of Congo (Brazzaville), was deported from Ukraine. He was held for the purpose of deportation from July 2006 at a detention facility of the Kharkiv Regional Department of the Ministry of Interior. At the State Migration Service in Kharkiv, he obtained an asylum-seeker certificate, which was in force to 24 October 2006. Although it gave him lawful grounds to reside in Ukraine, he was not released. Despite his legal status of asylum-seeker, he was forcefully returned to his country of origin.
79. According to § 28 of the Government’s Report, “the General prosecutor’s Office of Ukraine, within its competence, considers issues related to extradition in full compliance with norms of acting for Ukraine international agreements that are part of its national legislation”.
80. It must be noted that the procedure of extradition hearing contradicts the requirements of Article 3 of the Convention. According to Article 25 of the Constitution of Ukraine, a citizen of Ukraine cannot be expelled from Ukraine or extradited to other state. Thus, the problems, which could emerge, relate to the extradition of foreign citizens or persons without citizenship.
81. Extradition from Ukraine is regulated by general provisions of the Criminal Code and Code of Criminal Procedure:
Section 10 of the Criminal Code. Extradition of person accused in having committed a crime and a person convicted of having committed a crime
1. Citizens of Ukraine and persons without citizenship, permanently residing in Ukraine, who committed crimes outside Ukraine, cannot be extradited to a foreign state for their bringing to criminal responsibility and prosecution.
<…>
3. Foreigners and persons without citizenship, not permanently residing in Ukraine, who committed crimes outside Ukraine and are on its territory, can be extradited to a foreign state for their bringing to criminal responsibility and prosecution or transferred for serving their sentences, if such extradition or transfer is provided for in Ukraine’s international agreements.
Section 31 of the Code of Criminal Procedure. A procedure of communication between courts, prosecutors’ offices, investigators and inquiring agencies with relevant establishments of foreign states
A procedure of communication between courts, prosecutors’ offices, investigators and inquiring agencies with relevant establishments of foreign states, as well as a procedure of executing reciprocal commissions, is defined by Ukraine’s legislation and Ukraine’s international agreements.
82. The Code of Criminal Procedure has no special provisions, which deal with issues related to extradition. Therefore, the procedures are partially regulated by international agreements providing for extradition and remain partially unregulated.
83. Ukraine ratified the 1957 European Convention on Extradition and Optional Protocols to it of 1975 and 1978, 1993 Convention on Legal Aid and Legal Relations on Civil, Family and Criminal Cases (Minsk Convention), 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, as well as a number of bilateral agreements.
The Minsk Convention provides for:
Article 56. Obligation to extradite
1. The Parties are obliged, under the conditions stipulated in the Convention to extradite on demand to each other persons, who are present on their territories, for bringing them to criminal responsibility or for executing their sentences.
2. Extradition for bringing to criminal responsibility is carried out for such actions, which, under law of the requesting and requested Parties, are punishable and a statutory punishment for having committed them is deprivation of liberty for a term no shorter than one year or a heavier punishment.
3. Extradition for executing a sentence is carried out for such actions, which, under law of the requesting and requested Parties, are punishable and a person, whose extradition is requested, for having committed them was sentenced to deprivation of liberty for a term no shorter than six months or to a heavier punishment.
Article 57. Refusal to extradite
1. Extradition is not carried out, if:
а) a person, whose extradition is requested, is a citizen of the requested Party;
b) on the moment of receiving a demand, criminal prosecution, under law of the requesting Party, cannot be initiated or a sentence cannot be executed because of a statutory ban or on other lawful grounds;
c) concerning a person, whose extradition is requested, on the territory of the requested Party, a sentence or a resolution cancelling the prosecution of the case, which came into force, was made for the same crime;
d) a crime, under law of the requesting or requested Party, is prosecuted privately (following application by the victim).
2. Extradition can be refused, if the crime, in connection to which the extradition is demanded, was committed on the territory of the requested Party.
3. In case the extradition was refused, the requesting Party should be informed about the grounds for the refusal.
84. Ukraine’s legislation does not provide for examination of any circumstances, which the state should take into account according to Article 3 of the Convention against Torture.
85. Decisions regarding extradition are within the exclusive jurisdiction of the Prosecutor General of Ukraine who resolves such issues without any procedure. Such a decision is taken secret. The law does not even stipulate the duty to inform the individual whose extradition is demanded by another state of the decision taken and the grounds for the decision.
86. The individual does not have the right to appeal the decision on his or her extradition to the court. Furthermore in Ukraine there is no court procedure for resolving issues involving extradition which would make it possible to protect the right of the individuals facing extradition enshrined in Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention against Torture.
87. On 8 October 2004, Plenum of the Supreme Court of Ukraine approved resolution no. 16 “On some issues related to the legislation regulating the procedure and terms of detention (arrest) of persons during extradition hearing”. This resolution (§§ 2 and 3) provides for the following:
13. … The court must examine the availability of the request and relevant documents listed in the agreement [as to the extradition], on the basis of which the issue of extradition is being resolved, as well as the absence of circumstances, which prevent extradition or transfer (Articles 2, 3, 6, 10, and 11 of the European Convention and Additional Protocols to it of 1975 and 1978, Article 57 of the Convention on Legal Aid and Legal Relations in Civil, Family, and Criminal Cases of 1993 р., etc.). In particular, extradition is not carried out: for political and military offences; due lapse of time for prosecution or punishment; when on the territory of the requested party court made a sentence or ordered to close the case concerning the same charge in connection to which the extradition is demanded; when an issue is raised on extradition of citizens of Ukraine or persons without citizenship who permanently reside in Ukraine; persons who hold a status of refugee in Ukraine; if the party, which sends the request fails to give Ukraine sufficient guarantees stating that the sentence in the form of death penalty be not carried out in the case, when the offence, for which the extradition is demanded, is punished with death penalty according to the legislation of the party, which sends the request; the crime, in connection to which the extradition is demanded, according to the legislation of the requesting party or that of Ukraine, is prosecuted following private criminal complaint; the crime, in connection to which the extradition is demanded, is punished with deprivation of liberty for the maximal term shorter than one year or less severe punishment, etc.
88. Although the resolution of the Plenum of the Supreme Court of Ukraine somewhat expands the subject of court consideration during the procedure comparing to the text of Section 2362 of UCrCP, the competences of the judge are still limited by examination of the exclusively formal aspects of the extradition decision and do not deal with the assessment of the actual risk for a detainee to be subjected to death penalty or ill treatment on the territory of the state, which has sent the request.
89. Attempts in certain cases to appeal decisions on extradition of the Prosecutor General have proved futile.
In December of 2004, a decision to extradite Amir Kabulov to the Republic of Kazakhstan was appealed to the Pecherskiy District Court on the basis of Chapter 31-A of the current Code of Civil Procedure. On 28 January 2005, the court found that the decision of the General Prosecutor’s Office on extradition was unlawful and obliged the General Prosecutor’s Office to refuse in extraditing the applicant.
However, on 27 May 2005, this decision was revoked by the Kiev Appeal Court and the case was returned to a new consideration.
By its decision of 1 July 2005, the Pechorskiy District Court in Kiev refused to consider the complaint. In its decision, the court referred to that the decisions of the General Prosecutor’s Office had to be appealed only following the procedure provided by section 106 of the Code of Criminal Procedure, not following the procedure provided by Chapter 31-A of the Code of Civil Procedure. This decision was appealed to the Kiev Appeal Court. In its judgments, the Appeal Court stated, referring to the Resolution of the Plenary Session of the Verkhovna Rada of Ukraine from 8 October 2004 that «the issue of extraditing offenders lies within the exclusive jurisdiction of the Prosecutor General of Ukraine. In accordance with current international, as well as Ukrainian domestic legislation on extradition, the courts have the right (and are obliged) to consider only submissions from the Prosecutor General of Ukraine and the prosecutor’s offices so authorized by the former on issuing a detention order (temporary arrest, repeat arrest, remand in custody) of the offenders in order to ensure their extradition».
The decisions on extradition of the Prosecutor General were thus, through court case law, excluded from judicial control. Usually in taking such decisions, the Prosecutor General does not consider those factors which, based on the demands of Article 3 of the European Convention on Human Rights could constitute grounds for turning down a request for extradition.
90. Therefore, the decisions of the Ukrainian courts have proved in practice that the applicant has no possibility to turn down the decision of the General Prosecutor’s of Ukraine on his extradition, even if in case of such extradition Articles 2 and 3 of the Convention could be violated. The only procedure following which such a decision could have been made – namely, appealing under Chapter 31-A of UCivCP– as a result of the decisions made by the national courts has turned out to be inaccessible for the applicant.
91. It must be noted also that instructions given by the highest court authorities guide the court practice toward a very formalistic approach in clarifying the issue of extradition. In particular, there is no instruction to examine grounds of the charge and possible political reasons of persecution on the part of the requesting state. In the context of extradition to countries, where the practice of torture and ill-treatment is widespread in the course of investigation of criminal cases, the availability or lack of reasonable grounds for the charge, can testify to a greater or lesser likelihood of the use of torture.
92. On 1 September 2005, Ukraine’s Code of Administrative Prosecution came into force. Its section 17 provides that
1. Competence of administrative courts cover:
1) disputes between natural or legal persons and a subject of authority as to the appeal of its decisions (legal statutory acts or legal individual acts), actions or inaction; <…>
However, so far we have no information, whether these procedures have been used to appeal decisions on extradition.
93. In fact, the only possibility to suspend extradition and bring in arguments based on Article 3 of the UN Convention against Torture and Article 3 of the European Convention on Human Rights, is an application to the European Court of Human Rights. Our organization several times requested the European Court to apply interim measures, and it must be noted that the Ukrainian authorities do obey these interim measures.
94. However, taking into account that there is no clear procedure to appeal decisions on extradition on the national level, as well as that proving the circumstances evidencing the risk of torture requires serious professional training, for a person, whose extradition is requested, aid of a qualified lawyer is essential. However, these persons, as a rule, are taken into custody and their communication with the outside world is interrupted. As, by definition, these persons are foreigners, their opportunities for receiving qualified aid are very limited. Law does not provide for obligatory presenting a lawyer in such cases.
95. It is possible to pose extradition as administrative deportation regulated by Ukraine’s Law “On legal status of foreigners and persons without citizenship” and a number of by-laws. This possibility was used, when the ten Uzbek citizens were rendered to the Uzbek authorities.
3. Article 4 of the Convention. Criminal responsibility and appropriate penalties for the use of torture
96. Criminal responsibility for actions, which have elements of torture in the meaning of Article 1 of the UN Convention against Torture, has been substantially developed in the last few years.
97. Until the new Criminal Code came into force on 1 September 2001, there was no recognition in legal terms of the crime of «torture». Actions, which fell under the definition of Article 1 of the UN Convention against Torture, in relevant cases, could be classified as criminally «exceeding one’s power or authority» or «compelling somebody to testify». Even in the most serious cases of torture, the elements of torture were absorbed into a charge of aggravated «exceeding of power or authority», according to section 365 (part 2) (section 165 of the «former» CCU), specifically by such elements as «coercion, use of weapons, or actions, which are painful or degrading for the victim».
98. In the new Criminal Code, criminal liability for torture is provided in section 127, which defines the crime as follows:
«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to commit actions against their will».
99. Although Ukraine had clearly taken this step in order to fulfil its obligations under the UN Convention against Torture, the formulation of this section did not fully comply with the tasks set out by the Convention.
100. The subject of the crime under Article 127 of CCU was any person. Therefore, by taking into account the rule lex specialis, this provision was not applied in the case of officials, in particular of law enforcement officers who had used torture or other forms of ill-treatment. Therefore, this section failed to become a special tool intended to prevent the use of torture by agents of the State.
101. The term of punishment, – from 3 to 5 years deprivation of liberty, – provided by that section did not comply with international obligations either. Only if the crime was committed repeatedly or through the prior conspiracy of several people, was the possible punishment 5 to 10 years deprivation of liberty.
102. In § 22 of its Report, the Government of Ukraine admits that section 127 in the version, which was in force until 16 February 2005, was not applied to law-enforcement officers. Therefore, the very fact that it was included in the Criminal Code of Ukraine cannot be considered in the context of Ukraine’s meeting obligations stipulated by Article 4 of the Convention.
103. In light of Article 4 § 1 of the Convention, section 127 can be considered in the version of the law of 12 January 2005, which came into force on 16 February 2005. The components of the crime, set out in part 1 of this section were changed in the following way:
«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to do something against their will, such as to obtain from him/her or another person information, testimony or a confession, to punish him/her for actions, which he/she has committed or is suspected of having committed, or to intimidate him/her or other persons…»
104. In addition, this section was supplemented by part 3, which defines a «law-enforcement officer» as a special subject, and by part 4, which categorizes causing death as a result of the use of torture as an aggravated circumstance.
Part 3 provides punishment from 10 to 15 years of imprisonment, part 4 – from 12 to 15 years imprisonment or a life sentence.
105. Although the law of 12 January 2005, in this part, was clearly intended to implement requirements of Article 4 of the Convention into the Ukrainian legislation, this task was not fully accomplished.
106. First, provisions of section 127 §§ 3 and 4 cover only a “law-enforcement officer”. This formulation clearly excludes other state agents from the effect of these provisions. Thus, other state agents, for example, military personnel, can be brought to criminal responsibility only under section 127 §§ 1 or 2 of the Criminal Code, which provide for punishment that does not correspond to Article 4 § 2 of the Convention.
107. Second, in the proposed version, the mark of «torture» is a «violent act». This narrows the scope of that section compared to the definition of Article 1, which defines as torture «any act by which severe pain or suffering… is intentionally inflicted». Even though the narrowing of the definition of torture by the introduction of the element of «violent actions» may seem unimportant from the point of view of inflicting pain, it is very important with regard to suffering, which can be caused not only by violent action, but also by the creation of certain circumstances. These circumstances in some cases could be created by actions, which, in themselves, are not violent. For example, the formulation of section 127 § 3 of the Criminal Code fails to cover purposeful inaction, when an official was aware or should have been aware of that such inaction would have caused pain or suffering.
108. Third, the definition in Article 1 of the UN Convention against Torture is aimed only at representatives of the State. However, the Criminal Code contains a definition of torture in part 1 of section 127, which covers a general subject, or perpetrator, of the crime. This creates a certain lack of logic which can be seen in the example of an indicator such as «obtaining a confession». Only a representative of the State needs a «confession» in the technical meaning, in which it is used by the Convention. If we applied the purpose of «obtaining a confession» to a general subject, this would widen the meaning of «confession» far beyond the boundaries of its usual meaning. The same to some extent holds true for the purpose «to punish for actions».
109. Four, among elements of crime “torture”, there are no relevant actions related to “person’s racial, national, religious, social, language, gender, age or other belonging”, as well as related to his/her activity or position concerning a certain issue. Clearly, such a motive for the crime is not encompassed by the purposes «to obtain information» or «to punish», provided in section 127 § 1. Therefore, persons, who resorted to actions stipulated in Article 1 of the Convention on the motive of discrimination of any kind, cannot be brought to justice under section 127 §§ 3 or 4 of the Criminal Code.
110. Fifth, it remains also unclear, which exactly provision of section 127 will be applied for persons, who are not state agents, but who act “with the knowledge or tacit consent” of state agents. According to section 29 of the Criminal Code
1. The doer (co-doer) is subject to criminal responsibility under a section of the Special Chapter of this Code that disrobes the crime committed by him/her.
2. The organizer, instigator and accomplice are subject to criminal responsibility under a corresponding part of section 27 and the section (part of the section) of the Special Chapter of this Code that disrobes the crime committed by the doer.
However, because the text of section 127 §§ 3 and 4 excludes their application to persons other than “law-enforcement officers”, it is possible that the officers of a law-enforcement agency, who were accomplices in the “torture”, which is being committed by a person, who is not a “law-enforcement officer”, will be brought to justice under section 127 § 2, not under section 127 § 3 of the Criminal Code. Also, this provision makes it impossible to convict, under section 127 §§ 3 or 4 of the Criminal Code, a person, who is not a “law-enforcement officer” but participated with the latter in the use of torture, because in case of his conviction the nullum crimen sine lege be violated.
111. Despite these shortcomings, the amendments to section 127 of UCC constitute a significant step forward in implementing provisions of the UN Convention against Torture. The fact that torture applied by law enforcement officers is placed in a separate part of section 127, leads one to hope that in the future, we will be able to obtain statistical data as to the implementation of this provision.
112. The practice of using criminal punishment against law enforcement officers, as before, was based on provisions, which established criminal liability for exceeding power and the authority vested in them (section 365 of CCU). However, the above-mentioned section contains a classification of crime, which could cover a wide range of offences. The dilution of the term «torture» into a wider term «exceeding power» makes it possible to conceal the actual extent to which torture has spread and impedes effective control over implementation of the obligations under the Article 4 of the UN Convention against Torture concerning the severity of punishment and use of amnesty. It also interferes with the effective use of provisions under the criminal law to accomplices of individuals, who use torture.
113. A number of actions, which are qualified by the UN Convention against Torture as torture or ill-treatment can fall under section 373 of UCC «compulsion to testify». Paragraph 2 mentions «use of coercion or humiliation of the person» as elements of this and provides 3 to 8 years deprivation of liberty as punishment.
114. Convictions of State law enforcement officers for using torture remain rare. Furthermore, punishments meted out by the court in the case of conviction do not correspond to the gravity of the crime. Convicted officers often receive conditional sentences. Nevertheless, there have been some quite severe sentences:
For example, two former police officers in the Kherson Region were sentenced to 7 years, and a third to 5.5 years, deprivation of liberty, along with confiscation of their personal property and prohibition from holding any positions in law enforcement bodies. They had been found guilty of using torture to a suspect in order to obtain his confession. As the author of the report on the case points out, «during the entire period of Ukraine’s independence, this is the first case in the Kherson Region, when police officers have been sentenced to realistic terms of deprivation of liberty specifically for the use of torture».[7]
In another case, the Chernihiv Regional Court sentenced Police Captain Valeriy Stashko to 14 years deprivation of liberty. His accomplice, Senior Sergeant Mykola Reshotko, was sentenced to 5 years deprivation of liberty with a 3-year probation period. The Supreme Court of Ukraine upheld the sentence. In his address to the court, Prosecutor Anatoliy Lavrinenko said, «Stashko inflicted open cerebral injury on Ivashov, fracture of the sublingual bone, closed neck injury, which resulted in the death of the victim». [8]
On 3 July 2006, the Kievskiy District Court in Kharkiv convicted police officer A.V. Khodarkovskiy of having committed a crime stipulated in section 101 of the Criminal Code (version of 1960) “Intentional grave bodily injury” and section 365 § 3 of the Criminal Code (version of 2001) “Exceeding power or authority causing grave consequences”. On 14 April 1998, Khodorkovskiy inflicted on Sergey Aleksakhin a number of bodily injuries, including brain concussion, fracture of discs between 2nd and 1st thoracic vertebra, simple fracture of axis arch. The court prescribed punishment in the form of 5-year deprivation of liberty (what is lower than a minimal term prescribed by law for a series of these crimes) and released him on parole.
115. Not only are convictions of law enforcement officers still rather rare, but so are even the bringing of charges against officers whose involvement in torture has been claimed by victims.
As far as one can deduce from press reports, it is only in isolated cases that charges have been laid.
For example, a charge was brought against Mykola Gurin, head of a criminal investigation unit at the Solomyansky District Police Station in Kyiv, who, in the early hours of 25 June 2003, was accused of torturing his former colleague suspected of murdering his wife. Earlier, under this case, the court had sanctioned the arrest of four top officers of the Solomyansky department – A. Gavrilenko, V. Otsalyuk, S. Deripapa, and Y. Martynyuk. All of them have been accusing of exceeding their authorities, and the investigation into the case is being carried out by the General Prosecutor’s Office.[9]
In another case, an investigation department of the Kyiv City Prosecutor’s Office submitted to court a criminal case, where three officers were accused of beating a detainee in order to calm him down. They have been charged with exceeding their power and official authority, leading to serious consequences. [10]
One more example: «three police officers have been charged with exceeding their power and official authority by torturing a suspect. The case has been submitted to a Kyiv court».[11]
116. According to information from the Fund for professional assistance to victims of torture, in 2004 charges were brought against the Head of the Criminal Investigation Department of the Vovchinetskiy district police department in Ivano-Frankivsk and an operations officer of the same unit for exceeding power, illegal imprisonment and a number of crimes committed against Oleksy Zakharkin.
117. It is not possible to carry out a detailed analysis of court practice with regard to convictions for using torture since the actions which include features of ‘torture’ as defined in the Convention against Torture are not singled out in court statistics.
118. According to section 127 § 3, a person can be punished with 10- to 15-year deprivation of liberty; according to 127 § 4, with 12- to 15-year deprivation of liberty, what can be considered adequate punishment for the crime “torture”.
119. Section 365 of the Criminal Code, which is often applied for the actions fallen under definition of Article 1 of the Convention, provides for punishment from 2-year correctional labour to 10-year incarceration.
However, as it was shown on the example of Khodorkovskiy, judges, under section 69 of the Criminal Code, have a possibility to prescribe punishment lower than the minimal term set out by law.
4. Article 5 of the Convention. Establishment of necessary jurisdiction as to the criminal prosecution for torture
120. Section 6 of the Criminal Code extends the force of norms of the Criminal Code to the entire territory of the country. Section 7 of the Criminal Code extends the force of the criminal law to citizens of Ukraine and persons without citizenship, who permanently reside in Ukraine, who have committed a crime outside Ukraine. It must be noted that concerning these persons this section does not limit the force of the criminal law with a condition that these actions be considered a crime on the territory of the country, where they have been committed. Thus, if one interprets provisions of section 7 of the Criminal Code strictly, under section 127, responsibility for having committed actions stipulated in it, can emerge even if in the country, where they have been committed, they are not considered torture.
121. Responsibility for the use of torture toward citizens of Ukraine, if it took place outside the territory of Ukraine, can emerge according to section 8 of the Criminal Code, which provides that
Foreigners or persons without citizenship, who reside permanently in Ukraine, who have committed crimes outside it, in Ukraine are subject to responsibility under this Code in cases provided for by international agreements or, if they have committed very grave crimes against rights and freedoms of citizens of Ukraine or interests of Ukraine, provided for by this Code.
122. If a person is not extradited on some reasons at the request of a foreign state, criminal prosecution against this person can be carried out at the request of that country on the territory of Ukraine. This provision is equally applied to criminal prosecution for a crime, stipulated in section 127 of the Criminal Code.
5. Article 10 of the Convention. Adequate training of personnel
123. In our view, the recommendations of the Committee to widely distribute in Ukraine in all relevant languages the conclusions of the Committee (see § 58(q) of the Conclusions and Recommendations), to inform the general public through the press and other media about major provisions of the Convention against Torture and to introduce studying rules and norms of the Convention by personnel of inquiring and investigating agencies and personnel of correctional system (§ 21 of the Conclusions and Recommendations of the Committee against Torture. Ukraine (САТ/C/XVIII/CRP.1/Add4)) have not been implemented.
124. The document САТ/C/XXVII/Concl.2 was published by the state authorities only once in the Ukrainian language – by the Ombudsperson of the Ukrainian Parliament in cooperation with UNDP, in small run. A separate course on human rights is still lacking in law schools and educational establishments of the Ministry of Interior and Security Service, and there is no systematic study of the Convention against Torture whatsoever. Human rights are mentioned in courses on international law, constitutional law and theory of state and law, what in no way can substitute a separate course.
125. In part, this gap is filled by non-governmental human rights organizations, which have been printing and distributing much literature on the prevention of torture, including the text of the Convention and commentaries to it, and holding specialized educational and training seminars for judges, lawyers and law-enforcement personnel.
6. Article 11 of the Convention. Adequate rules for treating detainees and arrangements for their holding in custody
6.1. Information of how widespread torture is
126. In September 2005 the optional Protocol to the UN Convention on Torture was signed with this envisaging, among other things, the implementation of a national preventive mechanism aimed at preventing torture and ill-treatment. This move suggests that the political will is there as far as changes to the attitude regarding the issue of torture are concerned, and the desire to change the situation for the better.
127. In response to the publication of the sociological study (see § 136 below), a letter from the Department on work with personnel of the MIA of Ukraine was placed on the website Ukraina kriminalnaya. It asserts, in particular:
«In order to prevent violations by police officers of discipline and legality, the MIA of Ukraine has begun introducing the standards for the activities of law enforcement agencies of developed countries in Europe, particularly with regard to efficient protection of the legitimate rights and freedoms of each citizen. Definitive here is the principle: «The police are with the people, the police are for the people!»
<…>
The top management of the MIA will continue to use all necessary measures to prevent violations of legality in law enforcement agencies, and to eradicate instances of unlawful violence».
128. This letter has been one of the signs of change in the position taken on the problem of torture observed in recent times. State bodies which over many years refused to acknowledge that such a problem existed, or tried to give the impression that incidents involving torture and ill-treatment were isolated excesses of certain police officers, have finally recognized the systemic nature of this problem.
129. Such an indicator of positive change in the attitude of the MIA to the protection of human rights, and in particular to the problem of torture within the police force was provided by the creation at the end of 2005 of a Public Council under the auspices of the Ministry of Internal Affairs and of public councils under regional departments of the Ministry on the observance of human rights. However it is still too early to be able to speak of these councils having a decisive impact on the policy and practice of militia agencies.
130. Another step towards introducing public control over the work of the police was the creation of special groups for monitoring places of detention under MIA authority. The activities of these mobile groups began in 2004 in three regions – the Kharkiv, Poltava and Sumy regions and were expanded throughout Ukraine in 2005. Such groups include representatives of human rights organizations. The groups are given the right to visit district police stations, temporary holding facilities (ITT); and to talk with people being held there. Despite certain restrictions in the activities of these groups, they proved effective, and the visits provided a lot of information about the real practices of the police.
131. Despite these positive steps on the part of the state, torture is still widespread in Ukraine.
132. As the Government admits in § 38 of its Report, the existing practices of reporting statistics in Ukraine does not include data, on the basis of which it is possible to figure out how widespread torture is. Thus, to figure out how widespread torture for the purpose to investigate crimes is, as well as for other purposes, we can only on the basis of indirect data.
133. According to a letter from the Ministry of Interior of 28 August 2006, in 2005, the Ministry received 4,026 appeals from citizens complaining against unlawful actions on the part of police officers; during first six months of 2006 – 1,546. In 2005, for unlawful actions towards detained persons disciplinary punishments were imposed upon 46 officers; during first six months of 2006 -15.
134. Meanwhile, great many written and oral applications to NGOs contain complaints about the use of torture by law-enforcement officers.
135. During its Campaigning against Torture and Cruel Treatment in Ukraine (2 July 2003 – 1 July 2006) KhPG and its regional partners collected 1,490 reports about facts of torture and ill-treatment, including: 692 reports by KhPG (of which 352 applications/visits to its public reception office and 340 reports gathered in the media); 798 reports by the regional partners. From 2 July 2006 to 1 April 2007, KhPG’s reception office received 46 reports about torture and ill-treatment.
136. Within the framework of the KHRG’s ‘Campaign against torture and cruel treatment in Ukraine’ the Kharkiv Institute for Sociological Research has conducted sociological research on the use of torture by police. The results of the research were published in edition Unlawful violence in law enforcement agencies.[12]
137. In the edition there is a table on the estimated quantity of people subject various forms of unlawful violence[13]:
| Type of violence | Portion of respondents | Estimated number of victims in Ukraine |
| Unlawful physical violence that was used during arrest and bringing to a police station within the past year | ||
| Cruel treatment, tormenting | 1,29% | 486 191 |
| Beatings, inflating bodily injuries | 1,29% | 486 191 |
| Crippling, inflicting grave bodily injuries | 0,15% | 56 099 |
| Unlawful physical violence that was used during arrest and bringing to a police station earlier | ||
| Cruel treatment, tormenting | 2,34% | 878 884 |
| Beatings, inflating bodily injuries | 3,08% | 1 159 378 |
| Crippling, inflicting grave bodily injuries | 0,20% | 74 799 |
| Unlawful physical violence that was used during investigation within the past year | ||
| Beatings, inflating bodily injuries | 0,94% | 355 293 |
| Torture, tormenting with the use of special devices or techniques | 0,25% | 93 498 |
| Beating or humiliating by fellow inmates under order of police officers | 0,15% | 56 099 |
| Unlawful physical violence that was used during investigation earlier | ||
| Beatings, inflating bodily injuries | 1,89% | 710 587 |
| Torture, tormenting with the use of special devices or techniques | 0,85% | 317 894 |
| Beating or humiliating by fellow inmates under order of police officers | 0,15% | 56 099 |
| Unlawful psychic violence that was used during detention or investigation within the past year | ||
|
Blackmail | 0,70% | 261 795 |
| Intimidation, threats, also toward the close associates | 1,29% | 486 191 |
| Degrading treatment | 1,39% | 523 590 |
| Intentional creation of inhuman living conditions at detention centres and investigatory wards | 0,25% | 93 498 |
| Unlawful psychic violence that was used during detention or investigation earlier | ||
|
Blackmail | 1,79% | 673 187 |
| Intimidation, threats, also toward the close associates | 2,54% | 953 682 |
| Degrading treatment | 2,98% | 1 121 979 |
| Intentional creation of inhuman living conditions at detention centres and investigatory wards | 0,75% | 280 495 |
138. So, according to the sociologists’ estimates in absolute numbers throughout the year which preceded the study, 355,293 individuals had suffered beatings and bodily injuries during criminal investigation, while in the same circumstances 93,498 people had been subjected to torture with the use of special equipment, and 56,099 individuals had been beaten up by cellmates at the instigation of police officers.[14]
139. The likelihood of becoming a victim of unlawful coercion by police officers, according to the research, is fairly high: for those held in pre-trial detention centres there was a 65% likelihood, in temporary detention facilities – 57%, for individuals brought to a police station as a suspect – 36%, for those detained on the street and frisked – 31%, while for a witness, summoned to appear at a police station – the likelihood was 8%. Even, if a person had never encountered such a situation, there was still a 1% probability that he or she would become the victim of unlawful coercion by police officers. The most common forms of physical coercion during detention are ill-treatment, torture, and beatings, while in the course of criminal investigations the most common are beatings, inflicting of bodily injuries, to a lesser extent, torture and torture using special means or techniques. The most common forms of psychological coercion are degrading treatment; intimidation; threats, including towards close relatives; blackmail.[15]
140. In addition, for the past years, we have been receiving more information about ill-treatment of persons, who serve their sentences at correctional colonies. The complaints most often relate to the very bad living conditions, humiliating actions on the part of colonies personnel, use of slave labour of inmates.
141. Of special concern is a practice of the planned use of special units designated to suppress prison riots and other violent acts for intimidating inmates.
Such units were created by the Department of Corrections on 8 September 2003 under its Order No. 163 “On creation of special units within the correctional system, confirmation of their staff and their Statute,” which later was replaced with Department’s Order No. 167 of 10 October 2005 “On confirmation of the Statute of special units”. However, these orders just legalized the practice of using special units for intimidating inmates and “maintaining order” in colonies, which has been existed for some time. Moreover, the order of 8 September 2003 is not published.
142. After we learned about the deployment of special units on the eve of May Day Holiday, on 4 May 2006, several human rights NGOs demanded from the President, Prime Minister, General Prosecutor, Minister of Interior, state Department of Corrections and Ombudsperson to create a commission, with the participation of NGOs, which would examine the lawfulness of creating additional units within the Department of Corrections in April of 2006, as well as actions carried out by these units. However, in its written response to this appeal, the State Department of Corrections assured the human rights activists that “in the course of conducting the search actions, special devices and measures of physical influence were not used toward the convicted persons and persons taken into custody and no complaints from the convicted persons were received”. The Secretariat of the President informed that it did not consider that it was necessary to create the special commission. No responses were received from the General Prosecutor’s Office.
143. Later, during 2006, there were several reports about deployments of special units in colonies. The most recent case took place at the Izyaslav Colony No. 31, where on 22 January 2007 such a special unit, masked and armed, was deployed. The unit was deployed following a hunger strike announced by the colony inmates on 14 January 2007 in protest of bad living conditions, arbitrary application of disciplinary punishments, bad diet and degrading treatment on the part of the colony personnel. One of the inmates’ demands was a removal of colony chief. As a result of actions carried out by the deployed special unit, a great number of inmates were beaten up, many sustained bodily injuries: rib fractures, broken teeth, etc. Because, during that and the following day, information about the actions carried out by the special unit reached the media, as well as because the information was sent to the General Prosecutor’s Office and international organizations, the same day, the colony administration took away about 40 persons, who were transported to other colonies and investigatory wards. Reportedly, some of these inmates were transferred to the Khmelnitskiy SIZO, where they were forced to run between the lines of masked men, who committed blows with rubber batons on various parts of their bodies.
The haste of this transfer gives us grounds to believe that the administration, fearful of investigation, took away those inmates who had most serious bodily injuries.
144. This is not the only case of the use of such methods of “establishing order” in colonies. Our organization has information that such units have been used since 2000.
Our organization also has obtained plans for conducting a special unit’s training of 30 May 2001 and 29 January 2002. One may notice that the integral part of the exercises’ plan of 29 January 2002 is a section “In-briefing about the situation,” where the attention of the exercises’ participants was driven to the following:
“Recently we have been observing a strong tendency toward substantial worsening of the criminogenic, social & demographic profile of convicts, what significantly complicates the work of the personnel in providing the established regime of serving sentences and require adequate measures toward providing law and order.”
The same section is in the Plan of 30 May 2001, which says:
“‘Leaders’ and participants of organized criminal formations, infamous for their brutality, aggressiveness, and active opposition to administration, are being concentrated at colonies and SIZOs.”
145. We consider that for the purposes of the exercises information about the actual situation is absolutely irrelevant. For conducting exercises the “simulated” situation, where the participants of exercises must act, is of much greater importance. However, the order described the actual situation, which, by the way, gave no information about forms of “group disobedience and mass disturbances,” which were only of importance to the exercises’ participants. The information dealt mostly with “social & demographic profile” of convicts and other personal characteristics, which absolutely of no importance to those who participate in suppressing mass disturbances.
146. Another important part of the description is the “complexity” in “the work of the personnel in providing the established regime of serving sentences” because of personal characteristics of inmates. This may lead to a conclusion that means to provide law and order the colony’s personnel had mastered were insufficient for reaching this goal, so more cruel measures, more “adequate” to the situation were needed and which the plan prescribed to the “exercises.” Thus, a conclusion can be made that the “exercises” were not considered by their organizers as an instructional activity for training combat actions in a “simulated” situation of mass disturbances. Their goal was to prevent actual disturbances on the part of actual inmates, who were given personal characteristics. The only method how this goal can be reached is intimidation.
147. This conclusion supports another consideration, too. If the “exercises’” goal was practicing tactical methods by special units to suppress mass disturbances, then the main concern on the part of their organizers had had to be keeping confidentiality of both the tactical methods and the degree of units’ preparedness to the use of these methods. For this, it was necessary to secure that minimal number of persons be able to watch the actions of special units during the exercises. The worst choice in terms of keeping confidentiality was conducting the exercises at the colony, where, by its very nature, it was very difficult to hide from strangers any actions by special units.
148. In support of that the practice of the use of special units at the State Department of Corrections is deeply rooted, there is a letter from the Head of the Department of 20 December 2006, where he admits that during nine months of 2006, a special unit nine times conducted tactical training and 43 times was brought for conducting searches of inmates and premises, inspections of living and industrial quarters at correctional facilities and investigatory wards.
149. The Head of the Department points out that the antiterrorist special unit was used only for conducting searches. However, his letter does not mention that, during those operations, the unit’s personnel wore masks. That fact is mentioned in all reports telling about mass beatings of inmates by special units. These reports are in line with the consideration that, as a rule, the identities of members of special antiterrorist units are concealed to provide security for them and their families.
150. The use of these units for intimidating inmates is indirectly confirmed by the letter from the General Prosecutor’s Office of Ukraine of 13 March 2007 received by our organization. In response to our inquiry about the events at Izyaslav Colony No. 31 in January of 2007, the General Prosecutor’s Office informed that “the necessity of deploying the [special units was] caused by worsening of the situation, instigations of other inmates by negatively minded persons to decline dining, to commit acts of insubordination, the impudent behaviour, the resistance to members of the administration…” The letter fails to point out how the units had solved the problems in connection with which they had been deployed. However, the very motives of their deployment suggest that the aim of these units was the intimidation of inmates.
151. In our opinion, the use of special antiterrorist units, equipped with special tools, for conducting searches is absolutely meaningless, because the suppression of an armed threat on the part of terrorists or suppressing a prison riot requires training absolutely different from that for conducting a search. Therefore, it is hard to believe that the personnel trained in the effective use of violence are used for a wrong purpose – to conduct a search.
152. In our opinion, situation in the State Department of Corrections deteriorates due to inadequate public control for its activities. According to a letter from the State Department of Corrections of 20 September 2006, in 2006 and during first six months of 2006, the Department received 295 and 178 applications, respectively, from citizens complaining against unlawful actions on the part of the Department’s personnel, however information they contained have not been confirmed. There were no registered cases of disciplinary punishments of the Department’s personnel.
153. According to General Prosecutor’s Office of Ukraine letter of 1 December 2006 to the Parliamentary Committee on legislative support for law-enforcement activities, in 2004-2006 prosecutor’s offices issued 9954 orders. As a result 7756 officers of Department’s personnel were charged with disciplinary offences, and 61 members were charged with crime.
154. However, as Donetskiy Memorial noticed in its 2005 report on the Observance of Detainees Rights in Ukraine, almost all complaints of detainees were rejected by the prosecutor’s offices as unsubstantiated. It leads to the conclusion that breaches of law founded by the prosecutor’s offices and referred in above letter have a little relevance to the rights of detainees.
155. The situation with treatment of inmates held at facilities of the Department of Corrections makes the task of creating national preventive mechanisms, provided by the OPCAT, even more pressing.
6.2. Overcrowding of investigatory wards
156. In § 91 of its Report, the Government explains the bad conditions of remand in custody with the “limited financial and economic possibilities of the state”.
157. However, the problem of overcrowding of investigatory wards is only in part related to the funding of the system of facilities for remand in custody. To a much greater extend it depends on the ideology and the system of criminal justice concerning the holding accused persons in custody.
158. In Ukraine, the system of remand in custody is built in such a way that much more people are held in custody than it is really necessary for the purposes of justice.
159. The system for judicial review of the grounds for remand in custody to a great extent copies the earlier system of prosecutor control.
160. Depending on the duration of remand in custody, the legislators attempt to safeguard the right to liberty by raising the rank at which the decision is made. This is to the detriment, however, of the procedural rights of a detainee. For instance, the participation of an arrested person in a detention hearing concerning the extension of remand in custody for a period over 2, 4, and 9 months is left to the discretion of the judge. The resolution of the Supreme Court of Ukraine reads:
The issue of the defendant’s participation in the hearing must be resolved in each individual case by a judge who shall consider all submitted appeals. The accused is brought to court, for example, when specific circumstances can be clarified only through his/her questioning (health, grounds for his/her claims about wrong or unreasonable delay in the investigation of the case, his/her willingness and ability to provide financial guarantees to be released on bail, etc.).[16]
161. It is difficult to imagine how one could establish whether a defendant’s claims are of substance, if he/she is not given the opportunity to substantiate them. Thus, the legislators, as before, underestimate the safeguards of the principle of competition as providing guarantees from arbitrariness, and prefer hierarchical method of control.
6.2.1. The retention of presumptions in favour of remand in custody
162. Before the amendments to legislation on criminal procedure were introduced in 2001, a decision on remand in custody or release depended mainly on the gravity of the crime in question. Depending on the gravity, crimes fell into three categories: The first category – crimes, which fell under part 2 of section 155 of the former CPC, where the very charge of having committed one of the crimes listed there, provided sufficient ground for detention. The second category included crimes, which might entail imprisonment for up to one year, when pre-trial detention was admissible only in exceptional cases. The third category fell somewhere between the other two categories, so here a decision was at the discretion of the decision-maker (at that time, the prosecutor).
163. In 2001, the legislator took an important step forward by excluding paragraph two from section 155 of CPC, thereby admitting that a decision regarding pre-trial detention cannot be based purely on the consideration of the gravity of the criminal charge. This brought legislation into line with the case law of the European Court, according to which «pre-trial detention may be justified in a given case only where there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty».[17]
164. Another important step, which could have significantly influenced practice of pre-trial detention, was a significant change in the «margin» of judges’ discretion. In 2001, the legislator provided for the mandatory release from custody by a judge of a person charged of a crime, if the possible punishment for it did not exceed three years of imprisonment (Article 155 § 1 of CPC). This change in the legislation was based on the concept that sometimes the right to liberty could outweigh public interests in the right course of legal procedure, and «the state, on the basis of reasonable policy, could sacrifice a certain number of evasions in cases [concerning less serious crimes], but protect liberty of its citizens as an unconditional right, independent of a judge’s discretion».[18] This provision, however, was substantially weakened by the possibility of deviating from the rule «in exceptional cases» (Article 155 § 1 of CPC).
However, this approach was not supported in court practice. The fairly high «margin» of judge’s discretion, provided by the legislator, prompted the court practice to look for definitions, which would adapt this novelty to the prevailing perception of the balance between the right to liberty and public interests.
165. This is why the Plenum of the Supreme Court of Ukraine in its resolution wrote: «pre-trial detention… is used… when a person is suspected or accused of having committed a crime, which is punishable in law by deprivation of liberty (Article 155 § 1).[19] The conditions, under which pre-trial detention can be used are defined by the Plenum as follows: «detention… is chosen only if there are grounds to believe that other (less severe) preventive measures… could fail to secure fulfilment by a suspect or accused of their procedural obligations…». If one analyses this definition, one can come to the conclusion that in order to detain a person, it is sufficient for a judge to have a mere doubt in the possibility of using other measures.
166. Thereby the Plenum establishes a presumption in favour of pre-trial detention, since the purpose of any presumption is to artificially resolve a situation of irresolvable doubt. Although, theoretically, it is a refutable presumption, in practice it could be refuted only in exceptional cases. Since the onus is placed on the accused to disprove a judge’s absolutely speculative doubts, in practice, he/she will be forced to prove such circumstances, which under any conditions whatsoever would exclude «breach of his/her procedural obligations». On the basis of such an approach, a defendant could be released pending trial in highly exceptional cases, where it seems even impossible to conceive of such «a breach».
167. In practice, such an approach makes the courts less inclined to release defendants from custody. Moreover, it places the judge, «the traditional guardian of personal liberties» in a somewhat strange position, where he or she may decide in favour of pre-trial detention even in a situation, where the prosecutor is seeking the release of the defendant.
For example, in 2002, the courts satisfied only 93.1% of applications from investigating authorities to terminate remand in custody. In 2003, this number was 92.6%.
This means, therefore, that in 6.9% of cases in 2002 (7.4% in 2003), regardless of the fact that the law enforcement agencies considered that it was safe to release a defendant, the courts still chose in favour of pre-trial detention.
6.2.2. Underdeveloped bail system
168. Ukraine’s Criminal Procedure Code provides for several alternatives to detention: a written undertaking not to abscond; a personal surety; the surety of a public organisation or labour collective; bail; remand in custody; supervision by the command of a military unit.
169. One of the effective measures, which could reduce the recourse to pre-trial detention, is bail. However, according to court statistics, in 2002, 105 people were released on bail[20], in 2003 – 110 people[21]. In 2005, a restrictive measure in the form of bail was used only 275 times. The Supreme Court concluded that courts inadequately use this measure because of citizens’ poor financial condition».[22]
170. However, the problem of inadequate use of bail depends not only on the financial condition of suspects. A number of other factors have much greater impact.
171. A substantial shortcoming of the bail regulation is that the amount of the bail depends on the possible amount of the material claim by a victim, because part 2 of Article 154-1 reads: «In all cases, the amount of the bail cannot be lower than the amount of a civil suit, substantiated with sufficient evidence». This norm is supported by provisions of part 7 of Article 154-1 of CPC, which reads «the bail deposited by a suspect or accused can be designated by a court for execution of the sentence as a part of material penalty».
172. In addition, the legislation lacks clear provisions about the practical aspects of bail. The law fails to answer the question, what to do with a defendant (suspect) after the decision to release him or her on bail has been taken, but the bail has yet to be deposited. Also, the law does not regulate the procedure for the defendant’s (suspect’s) release after he/she has deposited the bail. In view of practical conditions for the use of this preventive measure, the absence of clear regulations leads to a situation where judges award bail extremely reluctantly as a means for securing the due course of legal proceeding, and this, in turn, unjustifiably increases the number of people facing prosecution (suspects), who remain in custody pending trial, even though in some cases, bail could well have achieved the same objective.
173. The Plenum of the Supreme Court in its resolution[23] has tried to resolve some procedural issues; but these are only the first steps toward establishing clear and transparent rules.
174. However, a few provisions of the resolution by the Plenum of the Supreme Court «On the use of bail by courts» could serve as a basis for detaining a person accused, even if the deposited bail guaranteed attendance of the accused during legal proceeding, but breached formal requirements of the law. In point 1 of the Resolution, the Plenum says: «If at the pre-trial stage of the investigation, bail was imposed on an accused, a court, during a preliminary hearing of the case, must verify, if that decision meets the requirements of Article 154-1 of CPC. In cases where serious violations of the law took place, the court must eliminate them (for example, by balancing amount of the bail with requirements of Article 154-1 of CPC) or replace one preventive measure with another…».
175. Such an instruction comes from the legislative requirements as to the minimum amount of bail. However, this might lead to detaining the accused (suspect), even if the amount of bail, lower than the legislative minimum, proved to be sufficient for securing the due course of legal proceeding.
176. The Plenum has also created an overly rigid standard for proving that the bail is sufficient to meet the objectives of legal proceeding. According to the Plenum’s instruction, a court may choose this preventive measure instead of detention «only when there are all grounds to believe that it could secure the defendant’s correct behaviour and fulfilment of his/her procedural obligations, as well as execution of the sentence». [24]
177. Absence of clear procedures for the use of bail makes the acceptance of bail in non-monetary form especially complicated. Because of the generally low standard of living in Ukraine, the overwhelming majority of people accused (suspects) do not have spare cash, sufficient to meet the minimum amount of bail, established by the law. The possibility of offering bail in the form of real estate or other property could become a good solution for many of them.
178. Nevertheless, courts are reluctant to accept bail in non-monetary form. This is influenced also by the Plenum of the Supreme Court’s instruction in Resolution No. 6 of 26 March 1999 (point 5): «The property should have such characteristics, such quality, and such legal status, so that execution of a court decision to deprive a accused, suspect, or surety of his/her property rights on it would not be fraught with any difficulties».
Although, undoubtedly, courts should verify the enforceability of extracting bail, the instruction to prevent «any difficulties» could lead to unreasonable reluctance on the part of judges to bail.
6.2.3. Absence of the right to periodic review of detention
179. Ukrainian legislation does not provide for such an important guarantee for detainees as the right to periodic review of the grounds for their detention, although such guarantee is set out in Article 29 of the Constitution.
180. The right «to take proceedings» set out in Article 5 § 4 of the European Convention has been developed in detail in the case law of the European Court. The Court also developed a concept of «periodic» review of the lawfulness of deprivation of liberty:
«…to protect the individual against arbitrariness… implies not only that the competent courts must decide «speedily», but also that their decisions must follow at reasonable intervals».[25]
181. In Ukraine, the legislators fail to ensure the right, provided by Article 29 of the Constitution, «of each detainee» «at any time to appeal his/her detention in court». This limitation by the legislators of a detained person’s right of review of the lawfulness of his/her deprivation of liberty contradicts Ukraine’s Constitution and its international obligations.
182. The explanation for such an approach can be found in an unjustifiable narrowing by commentators of the meaning of the word «detention» in the text of article 29 of the Constitution. According to the doctrine of criminal process, «detention» has always meant detention by a law enforcement body before the taking of a decision about remand in custody. This narrow meaning was automatically used for the interpretation of the text of Article 29 of the Constitution.
183. However, in Article 29 of the Constitution, it is hard to find any indication that its guarantees, including that in part 5, are limited by some particular form of «detention», leaving other forms without guarantees. Moreover, if we turn to so-called «criminal-procedural detention», then as it is of short duration, the right of appeal will virtually always turn into a counter claim to the application of the prosecutor. It is difficult to assume that the Constitution is guaranteeing such a purely technical point of procedure as the possibility of making a counter claim. Even this disproportion between the legal status of the guarantee and its subject matter shows that Part 5 of Article 29 of the Constitution means something very different. It is therefore unjustified to equate the meaning of the word «detention» in Article 29 § 5 of the Constitution, which encompasses any forms of deprivation of liberty, with the highly specific meaning, which «detention» has gained in the doctrine of a criminal process.
184. It is clear that our legislation, which, by its design, provides for a single detention review, does not correspond to the concept, imbedded in the text of Article 29 § 5 of the Constitution and Article 5 § 4 of the European Convention. As a result, people who are detained in connection with criminal prosecution are deprived of one of the most important guarantees of the right to liberty – the possibility to appeal to the court at reasonable intervals to have the lawfulness of their detention reviewed.
185. This situation is slightly mitigated by the fact that section 165-3 of CPC provides for an ex officio review of the justifiability of pre-trial detention. However this article foresees intervals between reviews of five, or even nine, months. Such periods of pre-trial detention without review of their justifiability would be hard to reconcile with the meaning of «short intervals», which the European Court demands. Certainly court practice can rectify this situation if the courts use their authority in a well-considered manner, and extend periods of remand in custody not to the limits permitted, but based on the specific circumstances of a case. However, taking into consideration the heavy caseload of the courts, an opposite trend seems more likely, a trend towards the maximum use of their power to extend remand in custody in order to reduce the workload of the courts.
6.2.4. Limited procedural rights of the detainees
186. Legislation, as before, does not allow for the fundamental rights of the accused (the suspect) during court hearings held in order to decide whether to remand the person in custody or to release him or her pending trial.
187. In order to effectively protect one’s right to freedom during detention hearing, the detainee has the right to judicial procedure. A court considering an appeal against detention must ensure guarantees of judicial procedure. According to the European Court case-law, the review must be adversarial and ‘equality of arms’ between the parties, the prosecutor and the detained person must be ensured»[26] «in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned». [27]
188. Our legislation on criminal procedure has failed to develop those elements which are crucial in transforming detention hearings into judicial procedure.
189. The requirement for personal participation of the detainee provides in the first place for bringing him/her to court. The requirement for presence and participation of a detainee at the hearing has several purposes: the prevention of cruel treatment towards the suspect during his/her detention; providing the possibility to follow the course of the hearing and to take adequate steps to argue one’s position and to refute the arguments of one’s adversary; providing a possibility for a judge to see the detainee directly, and not purely from the case file presented by the prosecution.
190. In our legislation, participation of a suspect or defendant in an initial detention hearing is obligatory (Article 165-2 of CPC). However, his/her participation in a hearing on the extension of remand in custody is left to the judge’s discretion (Article 165-3 of CPC). This inconsistency of the legislators could lead to violation of the obligations under the Convention.
191. It should be taken into consideration that a decision to extend detention for over 4 months must be taken by a judge of the appeal court, and for over 9 months by a judge of the Supreme Court of Ukraine. Under these conditions, it is difficult from a logistical point of view to ensure the defendant’s (suspect’s) participation in court hearings.
192. Neither Article 165-2, nor Article 165-3 of CPC provide for the right of the accused and/or of his/her lawyer to be made aware in sufficient time about the reasons for a detention request and, consequently, they do not describe procedure for such notification.
193. Although the right to know the arguments and evidence of one’s adversary is one of the most important elements of the «equality of arms», in national practice, this right clashes, like in many other instances, with the issue of the secrecy of the criminal investigation.
194. The needs of the criminal investigation, which, undoubtedly, could justify keeping some evidence secret in national judicial practice have become wildly distorted. The defending counsel often finds the most fundamental requests for information about the prosecution’s case turned down.
195. Legislation fails to give an exact answer to the question as to whether a detainee and his/her lawyer are entitled to study the materials, which a prosecutor presents to court along with a request to detain the accused (suspect). The lawyer’s right of access to these materials could be deduced from an interpretation of Article 165-2 of CPC in conjunction with Article 48 of CPC, which in part 1 reads:
«From the moment he/she is permitted to participate in the case, a lawyer is entitled:
…
3) to study the materials, which justify the suspect’s detention, pre-trial custody, and charge…»[28]
196. However, according to the interpretation of Resolution No. 4 of 25 April 2003 «On pre-trial detention and its extension», neither the accused, nor a suspect, nor his or her lawyer have this right. The Plenum concludes:
According to Article 165-2 of CPC, the material of the criminal investigation is given to a judge for consideration by a detective inquiry unit, criminal investigator or prosecutor. These materials are not registered in court, and the judge should study them in such a way as to prevent disclosure of pre-trial investigation data. In this case, the law does not allow for the studying of the case file by a suspect, defendant, their lawyers or legal representatives in court.[29]
197. Courts apply this resolution of the Plenum of the Supreme Court, so the defence, mainly, has no access to the materials, which substantiate an application for remand in custody or its extension.
198. The principle of «equality of arms» means that parties in the process know which arguments each of them is going to bring to court, and have a reasonable opportunity to prepare their objections and evidence in order to refute their adversary’s arguments. If the circumstances of the case remain unknown to the parties, then the very idea of parties withers.
199. The right to legal representation in the course of a detention hearing is considered by legislation to be an integral part of the general right to defence against a charge. Legislation lacks any special provisions regarding the obligations of a judge or officials from a law enforcement agency to provide legal assistance during a detention hearing.
200. Also, the notification of the accused or his/her lawyer about the date and time of a detention hearing is not provided for. In the absence of these basic guarantees, the lawyer’s participation is made dependant on sheer chance: «if he/she appeared». Since neither court, nor prosecutor, nor investigator are obliged to inform the lawyer about a hearing, or even to give him/her this information at his/her request, the lawyer’s participation in the hearing becomes dependant on the prosecutor or judge’s inclination to give the lawyer any information.
6.2.5. Terms of pre-trial detention
201. Legislation, as before, establishes a maximum term for detention only for pre-trial investigation, but not for trial. That is why the duration of trials directly affects the duration of detention.
202. In its analysis, the Supreme Court of Ukraine admits that «red tape is still widespread in court hearing… of cases. Of special concern are the cases, when it is allowed in relation to defendants, who are remanded in custody».
7. Articles 12 and 13 of the Convention. Obligation to conduct effective investigation of torture and the right to complaint
203. In §§ 22 and 23 of its Report, the State refers to the obligation of prosecutors’ offices, provided by Ukrainian laws, to conduct investigation of claims and other information about facts of torture and cruel treatment.
204. Even though we agree that such an obligation and relevant possibilities have been, in fact, created by the legislation, we have to point out that the lack of effective investigation following claims about torture and cruel treatment is a systemic problem for the Ukrainian legal system. It creates the impression that law enforcement officers can torture with impunity, and significantly contributes to the fact that torture and ill-treatment are perceived by many such officers not as a crime, but as a routine element of their fight against crime.
205. Human rights organizations, which have joined forces within the framework of «Campaigning against Torture and Cruel Treatment in Ukraine», monitored claims of torture over a period more than three years (from July 2003 to July 2006). During this time, the partners tried to initiate investigations in over 60 cases. Although one can succeed in having a criminal investigation launched, it takes considerable effort and results in late investigations.
206. We fully agree with the opinion expressed by the Amnesty International “that perpetrators of torture or ill-treatment enjoy effective impunity in Ukraine. When investigations are carried out they do not meet international standards of promptness, thoroughness, independence and impartiality, due largely to the dual role of the prosecution. Flawed investigations result in few prosecutions of law enforcement officers; and in the few cases where an official is convicted, often minimal sentences are imposed. The Prosecutor plays a central role, not only in the prosecution of cases, but also in the investigation of torture allegations, but by its very nature the institution is not independent or impartial”.[30]
7.1. Independence of investigation
207. We consider that the lack of independent, impartial and effective investigations and prosecutions of law enforcement officers in connection with allegations of torture and ill-treatment is partly rooted in the role of the Public Prosecutor in Ukraine. As well as being the body that is responsible for investigation and prosecution of ordinary criminal cases, it is the prosecutors who decide whether a case will be opened against police officers. The lack of independence of the investigating body means that cases against law enforcement officers are inadequately investigated, delayed or stalled, or are not opened at all.
208. According to section 112 of CPC, the investigation of cases concerning a crime in which law enforcement officers are implicated is in the exclusive jurisdiction of the offices of the prosecutor.
209. In some cases this section of CPC makes it possible to infringe standards of impartiality. For example, according to point 3 of Article 112, possible ill-treatment on the part of «servicemen of the Ukrainian Armed Forces» at the first stage will be investigated by a commander of the military unit. According to point 5 of the same Article, a complaint about ill-treatment by an officer of «a penal institution, pre-trial detention centre, corrective labour and treatment centre, and corrective labour settlement» will be considered by a head of the respective facility. Only if those officials launch a criminal investigation, does the prosecutor’s office take over.
For example, Volodymyr Kucheruk was held in Kharkiv pre-trial detention centre (PTDC) No. 27 from 16 April 2002 to 17 July 2002. Although a forensic medical examination established that he was suffering from a worsening of his psychiatric disorder, he was held there for over one and a half months. On 8 July 2002, the PTDC personnel violently suppressed his inadequate behaviour, and, at the decision of the PTDC head, he was put in a disciplinary cell, where he was held handcuffed for a week. Kucheruk’s mother submitted a complaint to the Kharkiv Regional Prosecutor’s Office however the examination was carried out by the head of PTDC No. 27, who refused to initiate a criminal investigation. After this refusal was appealed, the same official conducted an additional inquiry – with the same result. Only after a second appeal, did the judge overturn the resolution by the Head of the PTDC to refuse to launch a criminal investigation and sent the case-file to the regional Prosecutor’s office for an investigation to be organized. However, because the Prosecutor’s office started its inquiry only in the fall of 2004, a major part of its conclusions was based upon materials of the inquiry made by the Head of the PTDC.
210. The problem of investigating agency’s dependency arises in such a common situation as when a prosecutor’s office orders a police unit to conduct investigating actions concerning the claim about the use of torture. Also, it is quite often, when a prosecutor’s office makes its conclusions only on the basis of the results obtained during an official examination, which was carried out by the relevant police units. Such investigation cannot be considered independent, because conclusions made by a prosecutor’s office in this case are based not on its own investigating actions, but formed in the course of investigation conducted by a dependent agency.
211. In § 69 of its Report, the Government also confirms that “in case information [about torture] comes, inquiring units, pre-trial investigating units take appropriate measures for conducting operative, objective and through investigations of the claims about the commitment of such actions in order to prosecute and punish the perpetrators”.
7.2. Initiating an investigation
212. In Ukraine, the only way to initiate a criminal investigation against law enforcement officers, who have used torture, is to file a complaint to a prosecutor’s office, the latter having exclusive jurisdiction to investigate this crime (see section 112 of Ukraine’s Criminal Procedure Code).
213. Although, according to section 97 of the CPC, «a prosecutor, investigator, detective inquiry unit, or judge are obliged to accept claims and reports about crimes committed or being prepared, including cases, which do not fall within their jurisdiction», offices of the prosecutor have a lot of discretion on deciding whether to initiate an investigation. Although this wide discretion is not directly recognized by legislation or doctrine, it exists as a result of the unlimited margin in assessment, whether enough grounds are in place to begin a criminal investigation. Offices of the prosecutor very cleverly use provisions of section 94 of CPC, which reads that «an investigation can be opened only in those occasions, when there is enough data suggesting the elements of a crime».
214. Moreover, in practice, such power of discretion is also determined by the insufficiently strong guarantees for complaints to the court, which would make it possible to immediately reverse unwarranted decisions by an office of the prosecutor.
215. The check which is carried out by the prosecutor on receiving a complaint about torture is usually extremely superficial. Most often it is limited to questioning the law enforcement officers mentioned in the complaint. This questions ends with a written «explanation», in which the law enforcement officer in formulaic expressions denies the very possibility of the use of torture.
216. In most cases, these «explanations» are used to refuse to initiate a criminal investigation on the grounds that there is «insufficient data indicating the elements of a crime». Due to the fact that in the majority of cases no measures are taken by prosecutor’s offices to obtain «sufficient data», the numerous refusals to open criminal investigations demonstrate the general belief of the prosecutor’s office personnel that it is the victim, who is obliged to present sufficient data.
217. For the consideration of a complaint, the legislators have allocated three days, and if the claim needs examination, ten days; then a resolution must be made, whether to launch or to refuse to launch a criminal investigation. As a rule, these time limits are not kept, and a victim can be waiting for official notification about the decision reached for a month or longer.
For example, Ivan Nechiporuk’s lawyer and relatives submitted a complaint to the office of the prosecutor alleging that Nechiporuk had been subjected to torture on 26 May 2004. A decision concerning the complaint was made only on 18 June 2004, 23 days after the complaints were submitted.
Andriy Yatsuta submitted a complaint about torture to the prosecutor’s office on 26 May 2004, however a decision concerning the claim was made only on 27 September 2004.
On 30 January 2003, Sergey Kirpichenko submitted a complaint against torture to a prosecutor; only on 18 March 2003, the prosecutor made a decision not to open a criminal case concerning his complaint.
218. Prosecutor’s offices are also slow in providing copies of their resolutions to suspend a criminal investigation (or to refuse to open a criminal investigation). On virtually every occasion, the office of the Prosecutor fails to send a copy of the respective resolution, or limits itself to sending a letter, informing that the investigation has been suspended, or that the request to open a criminal investigation has been turned down.
For example, a resolution by the Head of SIZO no. 27 to refuse to initiate a criminal investigation concerning a complaint by K. Kucheruk was issued on 21 August 2002, but she received a copy of the resolution only after 25 February 2003; a similar resolution by the Kharkiv Regional Prosecutor’s Office was issued on 1 November 2004, however Kucheruk’s representative received a copy of the resolution at the beginning of January 2005, after making a written request. Before that, neither K. Kucheruk, nor her representative had been informed about the progress of the examination.
In the case of Ivan Nechiporuk, the decision to refuse to launch a criminal investigation concerning Nechiporuk’s complaint was issued on 18 June 2004.
219. If one takes into consideration the high frequency and uniformity, with which prosecutor’s offices procrastinate over providing notification of the results of their investigation, copies of resolutions and documents explaining the grounds for their decisions, it can be concluded that the use of these and other methods are deliberate ploys aimed at sabotaging the investigation into claims of torture.
220. It must be noted that courts consider complaints against the use of torture more impartially, however their consideration is, as a rule, quite slow. It can take several weeks or even months from the moment when a complaint against a resolution of a prosecutor’s office was submitted to the moment when a court considers the case. In addition, courts are not competent to “open a criminal case”, what in the Ukrainian legal system is a prerequisite for any effective investigation. Therefore, courts only can revoke a resolution of prosecutor’s office that refuses to open a criminal case or cancels a criminal case. As a result, the case wanders for months or sometimes years between a prosecutor’s office, which refuses to initiate investigation or cancels it, and a court, which revokes the decision of prosecutor’s office. During all this time, the case is not investigated, evidence is being lost, and many torture victims give up to support their complaints, once they become certain in the futility of their efforts.
221. Section 236-1 of CPC sets out the procedure for appealing a refusal to launch a criminal investigation in the courts. The judge should consider any appeal against such resolutions within 10 days from the moment it is filed in court. However, in practice, consideration of appeals can drag on for months.
For example, Gennady and Valery Vladimirov (from the city of Bakhchisarai) lodged an appeal against the refusal to launch a criminal investigation on 17 May 2004. The appeal was considered by the court only on 30 June 2004, i.e. more than a month after the appeal had been lodged.)
Yevhen Bocharov (from Kharkiv) appealed the refusal to initiate a criminal investigation on 14 July 2004. The complaint was considered by court only on 8 April 2005.
On 13 April 2004, K. Kucheruk lodged an appeal against a decision of the Head of the Kharkiv Pre-Trial Detention Centre, No. 27. The appeal was only considered on 1 October 2004.
222. The very delay in launching an investigation in most cases deprives the investigation of any effectiveness, and, as a rule, leads to its lack of success.
223. It is well established standard of international human rights law that investigation in possible ill-treatment must be initiated even if there is no formal complaint by a victim or members of his/her family, where there are circumstances, which give grounds for suspecting the use of torture. [31] The European Committee for the Prevention of Torture has also recommended that in cases where people suspected of a crime, on their arrival in court, complain about ill-treatment from law enforcement officers, the judge is obliged to record the complaint, order an immediate medical examination and take all necessary measures in order to conduct a due investigation concerning the complaint. This approach must be followed regardless of whether or not that person has visible bodily injuries. [32]
224. As practice demonstrates, judges, prosecutors, and investigators, to whom law enforcement bodies bring detainees, pay little attention to formal complaints by the detainees about the use of torture to them, let alone taking initiative in clarifying the circumstances behind their having received visible bodily injuries. In some cases, the results of medical examination, obtained after a detainee was brought to court and took part in court hearing show that the detainee already had visible bodily injuries at the point of his or her first court appearance.
According to Viktor Kopcha, who on 25 November 2003 was detained on suspicion in murder, «On 30 November 2003, I was brought to court, where it was to be decided, whether I would be placed in custody or released. The judge asked me only one question, ‘What can you say in your defence?’ I said that I was innocent, that I had an alibi, that I had not been allowed to see my lawyer. The judge ordered that I be taken out and announced, ‘Give him seven more days.’ She did not respond to my request to conduct an interrogation».
225. In addition, for those victims, who remain in the custody of a law enforcement agency, it is even more difficult to complain about the use of torture or ill-treatment, because of their vulnerable position. Section 97 of CPC reads that «if there are relevant grounds which suggest that there is a real threat to the life and health of a person, who has stated that a crime has been committed, one must take necessary measures to provide security of the applicant, as well as members of his/her family, if by means of threats or other illegal actions against them, somebody is attempting to influence the applicant». Although practically in all cases, when allegations about torture come from a person, who is held in the custody of a law enforcement agency, one could assume some related risks, the Kharkiv Human Rights Group are not aware of any case, when this power has ever been used by prosecutors or judges. Moreover, established practice, in which the «examination» of a claim starts with questioning the law enforcement officers, possibly involved in the use of torture and ill-treatment, heightens still further the risk to the victim.
226. Detainees also do not often make formal complaints to the judge about ill-treatment meted out to them because they are, as a rule, usually brought to the court by exactly those people who possibly the day before subjected them to bad treatment. These officers threaten the detainees with more torture if they make any kind of complaint. In view of the fact that legislation allows a judge to extend detention in police custody, detainees are well aware of the possibility that they will remain under the control of the same people whom they complained about after the court hearing is over.
227. If we take into account that a judge has no authority to launch a criminal investigation, no legal obligation[33] to order a medical forensic examination, as well as the absence of real ways of protecting a detainee from the revenge of those against whom he or she complains – for example, by transferring him or her to other place of detention, – detainees consider expressing their complaints as a futile effort, which can only put them under threat of being subjected to even worse forms of ill-treatment.
228. One of the factors that has contributed to such a situation is the substantial reduction in the court’s competence after amendments to CPC were introduced in the summer of 2001. According to those amendments, the right to launch a criminal investigation was removed from the court’s jurisdiction.
This narrowing of a judge’s jurisdiction was confirmed by a decision made by the Plenum of Ukraine’s Supreme Court of 27 December 2002 (on reversing judgments by the Kyiv City Appeal Court of 15 October 2002, and that of 13 November 2002 on launching criminal investigations against President of Ukraine Leonid Kuchma). [34]
229. This excessively inflexible approach by both the legislators and the Supreme Court to the problem in practice leads not to the impartiality of the court, but to indifference and excessive self-restrictions on the part of courts. In any case, as far as investigations into allegations of torture are concerned, such an approach shows itself to be especially flawed.
230. Such features of the legal system do not encourage courts and prosecutor’s offices to take decisive measures, where there are indications of ill-treatment, but, on the contrary, in many cases, hamper not only any effective response to complaints, but also the very submission of such complaints by victims, especially those who are already held in custody.
7.3. Slowness of investigation
231. Investigations into claims of torture by law enforcement officers are conducted extremely slowly. Investigations can drag on for years.
For example, an investigation into a claim by Viktor Yatsenko (Kharkiv) began in April of 1997 and is still in process.
Oleksiy Afanasyev (Kharkiv) lodged his claim in of April 2000. The investigation is still continuing.
An investigation into a claim by Yevhen Bocharov (Kharkiv) began in April of 2002, but was terminated and resumed several times.
Investigation concerning Volodymyr Kucheruk’s complaint is yet to begin. In December of 2004, a complaint about another refusal to open a criminal case was submitted.
Investigation concerning Vladimir Fedorov’s (Poltava) complaint, submitted in March of 2003, is yet to begin. For the past years courts several times revoked resolutions of the prosecutor’s office refusing to open a criminal case.
Investigation and prosecution concerning Sergey Aleksakhin’s complaint against his beating by police officers on 14 April 1998 lasted for over eight years. The verdict concerning this case was made only on 3 July 2006.
7.4. Access of victims to evidence
232. It is especially vital when investigating claims of torture to obtain timely and high-quality medical evidence. Doctors’ records, reports of medical examinations and conclusions of medical forensic experts can serve as evidence.
However, within the legal system, the possibility of obtaining an independent expert opinion is extremely limited.
233. In the first half of the 1990s, trends in legislation led us to hope that an alternative (non-governmental) expert examination would gradually develop, thereby laying the groundwork for the creation of wider access to independent expert opinion of people involved in legal proceedings.
234. At the end of 1992, the Basis for Ukrainian legislation on healthcare was adopted.[35] Article 6 of the Basis stipulated the citizen’s right «to have an independent medical examination conducted» in cases where he or she disagrees with the conclusion of the State medical examination, the imposition on him/her of measures of forcible treatment and in other instances». Article 73 specifically addressed this alternative medical examination: «In cases where a citizen disagrees with the conclusion of the state medical examination and in other instances prescribed by the law, at the demand of the citizen, an alternative medical (medical social, medical military, medical forensic, forensic psychiatric) examination or post mortem examination shall be conducted… Citizens shall themselves select an examination institution or experts…».
235. At the beginning of 1994, the Law of Ukraine «On forensic examination»[36], as well as the Law of Ukraine «On the introduction of amendments to Basis for Ukrainian legislation on healthcare»[37] were adopted. A citizen, disagreeing with the conclusions of experts who were assigned by an investigating authority or court, was limited to the option of requesting an investigating authority or court to order an additional or other examination, the latter bodies not being obliged to agree to assist.
236. By the Law of 23 December 1993[38], the Criminal Procedure Code of Ukraine was amended in such a way as to stipulate that a lawyer should be given «the right to collect information about facts, which could be used as evidence in a case, in particular… to obtain written conclusions by professionals on any issues requiring special expertise». However, the status of those conclusions, which were to be obtained at a lawyer’s request as evidence acceptable in court, was and remains unclear. In any case, these conclusions cannot replace the conclusions by experts, appointed by an investigating authority or court, and, at best, can lead to the ordering of another examination.
237. Nonetheless, from 1992 to 2000 in Ukraine there were a large number of non-State medical, forensic and other experts, and many non-State expert bureaus were set up.
238. On 1 June 2000, Section 4 of the Law of Ukraine «On entrepreneurship[39] was amended, as a result of which, part 2 of this section read: «activity connected with conducting forensic, medical forensic, forensic psychiatric examinations… can be carried out only by State enterprises and organizations».
239. Then finally, in 2004, the Law of Ukraine «On forensic examination» was amended so that several examinations, the conclusions of which are decisive in a criminal investigation, could be carried out only by «specialized state institutions».
240. According to the current text of Article 7 of the Law of Ukraine «On forensic examination», «forensic and expert activity connected with conducting forensic, medical forensic and forensic psychiatric examinations are carried out exclusively by State specialized institutions».
241. The same Article contains a list of agencies, under which these specialized institutions can operate. In particular, the «State specialized institutions» include:
– research institutions of forensic examination under the Ukrainian Ministry of Justice;
– research institutions of forensic examination, medical forensic and forensic psychiatric institutions under the Ukrainian Ministry of Healthcare;
– expert services of Ukraine’s Ministry of Internal Affairs, the Ministry of Defence, the Security Service, and the State Border Service.
242. Such an approach by the legislators aimed at maintaining control over the conducting of forensic examinations is hardly justifiable from the point of view of effective legal proceedings. According to an analysis carried out by the Supreme Court of Ukraine, «a great number of cases are not being considered for a long time because the examinations ordered by courts take months or even years». Such a situation shows that the number of experts and expert institutions is not sufficient.
243. However this approach is even more dangerous from another point of view. This turn in the legislation leads to a monopoly of «specialized State institutions» in the field of conducting expert examinations. This means not only that people involved in legal proceedings lose any possibility of seeking an independent expert opinion, but also seriously undermines the guarantees of independence of experts, who work in such «specialized institutions».
Firstly, the legislation does not set out any procedure for creating, reorganizing or closing such «specialized state institutions», nor for the criteria which govern such institutions.
Secondly, the legislation does not provide experts with safeguards adequate to protect them from unlawful pressure by their management. Guarantees of hiring and firing experts are the same as the general guarantees for hired employees, provided by Ukraine’s labour legislation. Professionally sound experts, whose work could contradict «instructions» from their management, have insufficient guarantees that they will not be dismissed. In view of the monopoly of «specialized institutions», for a forensic expert, his or her dismissal from one such institution would virtually destroy any possibility of practicing as a forensic expert. Thus, the guarantees provided by the labour legislation are not sufficient to secure his or her independence.
Therefore, the management at such specialized institutions has enormous scope for influencing the work of an expert and, in this way, for undermining the impartiality of examinations conducted or conclusions drawn.
244. It must be noted that in order to obtain expert status, it is necessary to receive professional attestation. However, such attestation is only available for employees of specialized institutions. Hence, employment in such an institution becomes a prerequisite for having the general possibility to obtain expert status and to conduct expert examinations. The monopoly of «specialized institutions» allows their management to establish «special» staff recruitment at the stage of taking on specialists. As there is no independent agency responsible for staff recruitment and attestation of experts, considerations of loyalty of a given specialist could outweigh considerations about his or her professional skill during recruitment by management.
245. Moreover, a part of the «specialized institutions», as before, are within the system of the Ministry of Internal Affairs, the offices of which take the side of the prosecution in most criminal cases. This fact alone, from the point of view of impartiality, could raise doubts in experts’ objectivity among participants in the legal proceedings.
246. In view of the nature of legal proceedings in Ukraine, and the lack of competition between expert examinations, the abovementioned flaws in the system of «specialized» expert institutions could lead and are leading to a fall in the quality of expert conclusions, loss of skills and scientific impartiality among experts, to manipulation of expert knowledge in order to fulfil objectives very far-removed from the task of objectively establishing the circumstances of a case.
247. Together with the vulnerable position of the victim of torture and ill-treatment, such a situation with expert examinations has a highly detrimental effect on the possibility of preventing torture and ill-treatment and of punishing its perpetrators.
7.5. Access to medical documents
248. At the present time it has become common for victims, having turned to a medical forensic expert institution and undergone medical forensic examination, to not be able to receive the relevant certificate. Very often, as well, it is impossible to obtain documents from medical institutions, where a victim was examined or treated. Medical institutions refuse to give such information referring to some instruction by prosecutor’s offices, but it is impossible to find out more about the subject matter of this instruction.
For example, Andriy Yatsuta, detained on 24 May 2004 by police officers, on 27 May turned to the Kharkiv Bureau of Medical Forensic Examination where he underwent examination. He was then treated in two medical institutions in Kharkiv. In July 2004, Yatsuta turned to the Bureau of MFE, asking them to provide him with a copy of the medical forensic certificate, as well as to both medical institutions, asking them to give him his medical documents. His lawyer also submitted the same requests. Yatsuta’s requests for the documents were turned down. In his response, the Deputy Head of the Kharkiv Bureau of Medical Forensic Examinations wrote the following:
«We cannot give you a copy of the medical forensic examination certificate because all examinations (or research certificates) are material of preliminary inquiry and, in compliance with the Order of the Ministry of Healthcare from 17 May 1995 (point 2.21.1), a medical forensic expert is not entitled to make public data of a medical nature, which he/she has become aware of in the course of fulfilling his/her official and professional duties. A copy of the medical forensic examination certificate can be obtained only by court and investigating authorities on a request in writing».
249. This practice entirely contravenes legislation. Moreover, on a similar issue, a decision by the Constitutional Court of Ukraine was made in the case of Ustimenko,[40] according to which «the constitutional human and civil rights to information, its free access … in the amount needed for every person to exercise his/her rights, freedoms and lawful interests are fixed and guaranteed by the current legislation»; «medical information, i.e. information about a person’s health, his/her medical history… is information with restricted access. A doctor is obliged, at the patient’s request … to give (him/her) such information in full and accessible form».
250. The response by the deputy head also vividly illustrates how distorted the perceptions of different professional groups involved in criminal proceeding are over what constitutes investigation confidentiality. It is worthy of note that the Deputy Head of the Bureau refers to investigation confidentiality, even though in that case there was no criminal investigation to which the medical documents pertained, and the victim wanted them for the specific purpose of initiating such an investigation.
7.6. Participation of victims in investigation of torture
251. Effective participation of victims of torture is seriously complicated by the fact that before the criminal investigation is formally initiated, they have no definite procedural status as far as the investigation is concerned given that the checks which are conducted before a decision whether to launch a criminal investigation take place «outside procedure». So, he or she cannot in any way influence the direction of investigation; at this stage, the rights of a victim of torture, in particular, the right to a lawyer are not available.
252. If we take into account the practice of delaying an inquiry, as well as the fact that prosecutor’s offices have wide discretionary powers as regards the decision to launch a criminal investigation, this flaw in many instances proves to be fatal for the effectiveness of an investigation.
253. In addition to the decision to launch a criminal investigation, the law requires a separate action on the part of the investigating authority to recognize the plaintiff as victim. This provision is stressed in one resolution by the Plenum of the Supreme Court:
«In accordance with Part 2 of Article 49 of CPC, a person who has suffered moral, physical, or material damage from a crime acquires the right to participate in the process, as prescribed by the law, only after he/she is recognized as victim. The recognition of a person as victim in a case or refusal to recognize them as such must be procedurally recorded by a resolution issued by a detective inquiry unit, investigator, prosecutor, judge or a court decision».[41]
254. The prevailing doctrine gives the criminal investigation units additional possibilities for manipulation in order to prevent a victim, his/her relatives or a lawyer from participating in the investigation. Participation of a lawyer in this case is of decisive importance, because in many cases at the time of investigation, a victim is held in custody, thereby he/she is physically restricted in his/her possibility to take part in the investigation.
255. Delay in recognizing a person as victim is a common phenomenon. This is confirmed by the fact that the Plenum of the Supreme Court has specifically noted in its resolution:
«In accordance with Part 2 of Article 232 of CPC, courts are obliged to respond to disclosed facts of unwarranted delays in recognizing a person as victim (when the harm resulted from a crime is evident), caused a detective inquiry unit or criminal investigation, separate decisions (resolutions)».[42]
256. Another important issue concerning effective representation of a victim is worth mentioning. If a victim from torture is held in custody, then his/her legal representation is complicated by several formal hurdles.
257. According to CPC and the Law on Preliminary Detention (section 12), only the defending counsel, in the meaning that is attributed to this term in Article 44 of CPC, has the right of access to a detainee. A legal representative of the person, who has submitted a complaint about the use of torture to him/her, is not covered by this regulation. Consequently, if the victim from torture continues to be held in custody, he/she has no possibility of meeting with his/her legal representative, unless this legal representative and the defending counsel in the criminal investigation, where the victim is defendant, are one and the same person. In addition, the same provisions of the Law on Preliminary Detention stipulate that permission from «the person or body conducting the case» must be obtained in advance. Since, in the legal system, a «criminal investigation» begins at the moment when a formal decision to launch such an investigation is taken, a meeting of the victim, who is held in custody, with his/her legal representative is virtually impossible.
258. Close relatives can be representatives of victims (Article 52 of CPC). Procedurally, it is possible to ‘replace’ a person, who died in the course of investigation, with a close relative. In this connection, there could be complications with recognizing the person as victim, if the causal link between events in question and death is the subject of investigation. Relatives of a victim of torture, who died, possibly as a result of the torture, could end up in a vicious cycle: they would be unable to obtain the status of victim until it is established that the victim’s death was the result of the actions which are the subject of the complaint; at the same time they would be unable to effectively participate in the investigation, which is intended to establish this fact.
259. The list of close relatives determined by the law is restricted (Article 32 of CPC). This list includes parents, a spouse, siblings, grandparents, and grandchildren.
7.7. Access to material on the case
260. One of the most adverse consequences of the lack of legal representation at the stage before a criminal investigation is formally initiated is the complications this creates is gaining access to the material on the case. Here too there are a range of formal impediments.
For example, on 8 January 2003, on the premises of the Leninsky District Police Station in Vinnytsa, Anatoly Komakha received severe bodily injuries to the head, which, according to the conclusion of a medical expert, constituted severe bodily injuries in terms of their danger to life. Komakha approached the Vinnytsa Regional Prosecutor’s Office with an application to have a criminal investigation initiated into this matter. In order to protect his rights and interests during the investigation, he turned to a lawyer and made an agreement about receiving legal assistance.
Concerning this case, the Vinnytsa Regional Prosecutor’s Office issued several resolutions to refuse to open a criminal case. When, after another refusal to open a criminal case, Komakha’s representative asked the Prosecutor’s office for access to the material which had formed the grounds for such a decision, she was denied it. An investigator of the Prosecutor’s office explained this by saying that legislation did not allow for interested parties and their lawyers familiarizing themselves with the material of the inquiry.
261. The investigator’s argument is not unfounded, since CPC does, indeed, lack a clear norm, which would provide for such a right. This right is enshrined in Article 59 of the Constitution of Ukraine and in the Ruling from 16 November 2000 by the Constitutional Court of Ukraine. This Ruling states that «by fixing the right of any individual to legal assistance, the constitutional norm ‘Everyone is free to choose the defender of his or her rights’ (Part 1 of Article 59 of the Constitution of Ukraine)», in its meaning is general and applies not only to a suspect, accused person or defendant, but also to other individuals, who are guaranteed the right to freely choose defending counsel in order to defend their rights and lawful interests… The general meaning of the provisions in Article 59 (1) of the Constitution of Ukraine is confirmed by provisions in Article 63 of the Constitution, which separately affirms the right of a suspect, accused person or defendant to defence» (Part 5).[43]
262. However, it would be highly desirable to directly provide clear provisions in CPC in order to secure effective participation of a legal representative of the victim of torture or ill-treatment, especially, when such a victim continues to be held in custody. This is also required by the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990) which reads: «It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time». (Principle 21)[44].
263. The European Court of Human Rights, by its judgment in case Afanasiev vs. Ukraine, admitted that the police treated Mr. Afanasiev so badly that he partially lost his hearing. Even though the Court established the fact of ill-treatment, investigation concerning this case has not been finished to date. Reportedly, some officers, who were involved in the ill-treatment of Mr. Afansiev have been still working in the police, in particular, Mr. Gluschenko. Another subject of this case, Mr. Sadkovoy, has been working in the tax police.
7.8. Providing security to the persons, who submitted a complaint
264. In addition, prosecutor’s office makes no effort for providing security to those who complain against the use of torture. Of special concern are people who are deprived of liberty. Prosecutor’s office, as a rule, fails to act and does not care about security of inmates, who complained against torture. However, there are examples of even more treacherous behaviour on the part of prosecutor’s office.
265. In one case, after mass beating of prisoners by special unit the General Prosecutor’s office had received the complaints of Mr Davydov transferred by illegal way from the colony. These complaints contained a consistent presentation of the events taken place on 30 May 2001, and – later – on 29 January 2002 at the Zamkovaya Colony no. 58.
266. The consistent and coherent presentation of the events, along with the way the information had been passed should have convinced the authorities not only in the likelihood of that the events did take place, but also in that the colony’s administration and, possibly, officials of the local prosecutor’s office were trying to prevent disseminating information about these events.
267. The General Prosecutor’s Office of Ukraine should have provided at least minimal guarantees of the applicants’ security, in particular, the confidentiality of the obtained information. According to Principle 33 (3) UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment “confidentiality concerning the request or complaint shall be maintained if so requested by the complainant.”
However, the General Prosecutor’s Office of Ukraine sent the letter to the local prosecutor’s office, and the latter, in its letter of 26 June 2001 (see Appendix) recommended the administration to apply a disciplinary penalty to complainant for his illegal sending the complaint to the General prosecutor’s Office.
268. Instead of investigating the causes, why the inmate had had to illegally send complaints to the General Prosecutor’s Office – even though the law provides a possibility of a confidential complaint to a prosecutor – the prosecutor’s office suggested to punish complainant for reporting the information, which could have testified to crimes and other violations of the law. Thus, the Ukrainian authorities from the outset behave in a way that made any effective investigation impossible. Knowing from the information that officials of the local prosecutor’s office might be involved in or, at least, conniving at the actions against which the applicants complained, the General Prosecutor’s Office was sending the complaint to the local prosecutor’s office.
269. The consequences of the actions by the General Prosecutor’s Office of Ukraine and the local prosecutor’s office were disastrous for any investigation. For the purposes of investigation, the General Prosecutor’s Office should have assumed that the events described in the complaints had taken place, and even though the local prosecutor’s office was not involved in them, it failed to undertake any measures to respond to the events it should have been aware about, because it had its representative on the spot. The very absence of any response from the local prosecutor’s office to the events constituted an official crime. Therefore, if, for the purposes of investigation, to assume that the applicants tell the truth, in any case, the local prosecutor’s office and colony’s administration have a mutual interest: to conceal any evidence of the events in question.
270. However, for those who enjoys freedom prosecutor’s office, due to its dual role in the criminal procedure, is a factor of danger rather than a guarantee of security.
The case of Mr. Nechiporuk is one of the rare occurrences, when the court while considering the charge against him, took into account the way, in which his confession had been obtained, refused to accept it as evidence and passed an acquittal.
On 20 May 2004, Ivan Nechiporuk was detained by police officers and for a month was held under various pretexts in police custody; police officers subjected him to torture in order to get him confessed to a crime. In addition, in order to exert pressure on Mr. Nechiporuk, they arrested his pregnant wife and threatened him that she would be subject to torture, if he did not confess to the crime. Later, on the basis of his confession, he was charged with the crime stipulated in section 121 of the Criminal Code, “Inflicting grave bodily injuries causing death of the victim”. On 21 May 2004, Mr. Nechiporuk announced to the authorities that he had been subject to the use of torture. However, by its resolution of 18 June 2004, a prosecutor’s office refused to open a criminal case concerning his complaint.
On 5 May 2005, a court of first instance passed an acquittal and released Mr. Nechiporuk. However, that acquittal was revoked by the Khmelnitskiy Appeal Court and consideration of the case was transferred to a court in the Ternopol Region. For year and a half, Mr. Nechiporuk went to the court of the neighbouring region to participate in the trial. After the court once again sent the criminal case to additional investigation, the prosecutor’s office charged him with the crime stipulated in section 115 of the Criminal Court, “Premeditated murder”, and demanded to take Mr. Nechiporuk into custody.
An analysis of the case has shown that there have emerged no new circumstances in the case, which would have justified the change in the qualification of the charge. In addition, Mr. Nechiporuk’s behaviour during the entire period of about year and a half proved that he had no intentions to avoid justice. Thus, he believes that his taking into custody and the heavier charge are connected to his persistent attempts to bring the police officers, who tortured him, to justice, as well as to his active attempts to prove his innocence.
Mr. Nechiporuk managed to have revoked the resolution of the prosecutor’s office of 18 June 2004 refusing to open a criminal case only in February of 2007.
271. All the above concerning the investigation of torture demonstrates also how the obligations under Article 13 of the Convention are being met.
8. Article 14 of the Convention. Right to redress for the victims of torture
272. In light of meeting this obligation, section 1174 of the Civil Code can be considered. This section provides for
the damage inflicted to a natural or a legal person by unlawful decisions, actions or inaction on the part of an official or a functionary of a state agency… in the course of his/her official duty, is redressed by the state… regardless of the guilt of this person.
This provision broadens for the victim a possibility to obtain redress in case of the use of torture, because in this case he is not limited with a pecuniary condition of the actual perpetrator. However, in order to apply this provision, a final court decision is necessary, where the actions of such an official be considered unlawful. In torture cases, a verdict can be such a decision.
273. A law of 1 December 2005 introduced amendments to section 1176 of the Civil Code of Ukraine and several provisions of the 1994 Law of Ukraine “On a procedure of redress for damages inflicted to a citizen by unlawful actions of units of inquiry, pre-trial investigation, prosecutor’s office and court”.
Prior to these amendments, the condition for obtaining this redress in case of inflicting damages to a plaintiff, was his/her acquittal or the cancellation of a criminal case against him/her under rehabilitating circumstances.
274. The Code of Administrative Prosecution, which came into force on 1 September 2005, has significantly broadened possibilities for victims of unlawful actions committed by officials of state and local authorities. In particular, section 71 § 2 of the Code provides for
In administrative cases concerning the unlawfulness of decisions, actions or inaction on the part of a subject of authority, the burden of proof concerning the justifiability of its decision, action or inaction lies on the defendant, if it objects to the administrative claim.
275. This makes significantly easer for the victim to prove the unlawful actions and then to seek for redress. However, the court practice under this Code is only in an embryonic stage, thus to judge about any tendencies, as well as the effectiveness of procedures, created by the Code, is still impossible.
9. Article 15 of the Convention. Exclusion from evidence of statement made under torture
276. Ukraine’s Constitution and the Criminal Procedure Code prohibit the use of confessions obtained «by breaching legislation on criminal procedure». This provision has been repeated many times in resolutions of the Plenary Assembly of the Supreme Court of Ukraine (PSCU). However, in the practice of a criminal investigation, the use of confessions, which are unlikely to have been given without duress, is quite widespread.
277. This can be partly explained by the fact that, aside from the above-mentioned general provision concerning the inadmissibility of evidence obtained in breach of the law, there are no special rules or criteria as to the determination of that admissibility, in particular, whether the confession was made voluntarily. The rather weak development of the law on evidence has its historical explanation.
278. For a very long time, assessment of evidence was based upon the virtually unlimited personal conviction of a judge, which was, in turn, based on a «socialist sense of justice». In the doctrine of criminal procedure, the development of a theory of evidence was restrained by the spectre of a restoration of the «system of formal evidence». As a result, the term «due procedure» gradually lost any practical meaning. This lack of respect for procedural issues can be noticed, if one analyzes the practice of the highest judicial authorities and compares the number of resolutions from PSCU or published decisions from the highest judicial authorities devoted to issues of due criminal procedure with issues of material criminal law. The latter are astonishingly more numerous, although in recent years more and more attention is being given to the question of due criminal procedure.
279. As a result, in criminal procedure there are to this day no reasonably well-developed criteria for determining whether a confession was made voluntarily, nor is there any procedure for the exclusion of questionable confessions from case evidence. The practice of using confessions not made voluntarily in criminal proceedings remains widespread. This is indirectly demonstrated by the use of violence in the police force, since with significant change in the approach of the courts, the number of such instances would be considerably reduced.
280. Courts hold to rather primitive tests to determine whether the confession was voluntary, usually failing to take into account the specific circumstances, under which defendants are forced, including through the use of torture, to confess.
281. Courts, in particular, assume erroneously that the use of torture or other kinds of coercion used to force a confession must be established by a court decision in order to declare a given confession inadmissible. Court practice shows that a well-grounded doubt as to whether a confession was made voluntarily is not sufficient to have it excluded from the evidence.
282. In cases, when a court considers that there are serious grounds for believing that «unlawful investigative methods» were applied to the defendant, the court instructs a prosecutor’s office to examine the relevant claims made by the defendant. As a rule, this examination is carried out by the same unit of the prosecutor’s office, which supported the case in court. In most cases, such examination results in a refusal to initiate a criminal investigation. Once courts receive the decision made by the prosecutor’s office refusing to initiate a criminal investigation or, when applicable, a decision to suspend a criminal investigation, they do not, in general, investigate the defendant’s claims of torture any further, and explain the claims away as being an attempt to avoid answering for their actions.
283. Such an approach by the courts to investigating and assessing defendants’ claims about the use of torture takes into account neither Ukraine’s international obligations, nor the existing system in Ukraine for examining claims that torture has been applied. Under the international obligations, in particular, according to Article 15 of the Convention, rules as to whether confessions are to be excluded from admissible evidence should be governed by the shifting of the burden of proof that a confession was given freely on to the prosecution. The mere fact that, according to international standards, any claim that torture was used must be officially investigated suggests that a person who has been subjected to torture, will not be able to prove their claim on their own, still less to prove them «beyond reasonable doubt». Yet the standards for evidence actually used by courts, do not take this fact into account.
284. This means that at present the onus of proving «beyond reasonable doubt» that a confession was made under duress is on the defendant. Such a shifting of the burden of proof that a confession was not voluntarily given results in the fact that a great number of confessions made under duress are not excluded from admissible evidence, and this, in turn, encourages further use of torture and other means of applying unlawful duress on defendants.
285. Furthermore, the problem with regard to determining the admissibility of a confession is exacerbated by the fact that this approach makes no distinction between proving that torture did actually take place, and proving the personal guilt of those responsible. Thus, the defendant, who tries to prove that his or her confession was obtained by using torture, can do this only after criminal prosecution of the specific perpetrators has been completed.
286. Particular court rulings which excluded confessions from the evidence have been quashed by higher courts. For example, in May 2005 the Khmelnytsky City Court acquitted Nechiporuk. who was being charged with having committed a serious crime. One of the main grounds for the acquittal was that the court did not accept as evident the confession of the accused made during the pre-trial investigation. The verdict was appealed in the Khmelnytsky Regional Appeal Court. Before the beginning of the appeal hearing, a program was shown on the television channel «Inter» aimed at arousing emotions over the acquittal. It would be difficult to determine how much this program influenced the appeal court however the acquittal was quashed, with the case being sent for a new court review, which is presently continuing in the city court in Ternopil. A ruling which could make a significant contribution to developing the approach of the courts to confessions not made voluntarily did thus not come into effect. One awaits the resolution of this case in which the question of whether the confession was made without duress is a central legal point.
287. This decision of the Khmelnytsky City Court is a rare exception. As a rule, courts do not react to complaints against the use of torture, especially if these complaints expressed at trial. Courts act on the conviction that defendants complain against torture in order to “avoid responsibility”.
288. In one monitoring study, 594 out of 732 inmates claimed that they were subject to violence on the part of law-enforcement officers. Two hundred fifty four persons said that they claimed in court about the use of torture toward them. However, according to the respondents, only in 20 cases court took these claims into account. [45]
289. The results of this study demonstrate the attitude of judges toward claims about the use of torture in general. Because it is difficult to establish from the report, what the respondent meant, when they said that “court took these claims into account”, it is difficult to judge, whether those claims, obtained through violence, had been excluded from the evidence.
290. On the other hand, courts uphold 46-47% of the complaints lodged against the actions of the investigation agencies (in 2003 5,991 such complaints were considered by the courts, in 2004 – 7,494 and in 2005 – 10,020, with the numbers in 2003 – 2,805, in 2004 – 3,495 and in 2005 – 4,616). Courts in 2003 issued 2,473 separate judgments regarding violations of the law in carrying out detective inquiry or pre-trial criminal investigations, with 3,495 such judgments issued in 2004, and 1,512 in the first six months of 2005. However it is not possible to establish how many judgments were issued as a result of review of cases of torture or ill-treatment.
10. Article 16 of the Convention. Ill-treatment other than that defined as torture
10.1. The use of force during apprehension
291. The text of section 41 § 1 of the Criminal Code provides that an “action or inaction of a person, who caused damage to lawfully protected interests is considered justified, if it has been caused with the aim to execute a lawful order or an instruction”. Such a formulation can make it problematic to bring to justice state agents, who “with the aim to execute a lawful order or an instruction” resorted to excessive force, for example, with the aim to carry out a lawful arrest, they used force or firearms, the use of which was not justified by the circumstances. Even though sections 15 and 15-1 of the Law “On police” contains a requirement of proportionality, the exact sense of section 41 § 1 of the Criminal Code is that the police officers, who have violated the requirement of proportionality, cannot be brought to criminal responsibility, if they acted with a lawful aim.
292. Also, the criminal law apparently presents a weak protection from the use of force during apprehension. According to section 38 of CC, when during apprehension an excessive force is used, the responsibility arises only in case of death of or inflicting grave bodily injuries to the person being apprehended (sections 118 and 124 of CC). The responsibility of officials here can arise under section 365 § 2 of CC (exceeding power or authority), which provides for punishment of 3- to 8-year deprivation of liberty, if exceeding power or authority “was accompanied with violence, the use of arms or painful and degrading actions”.
293. In one recent case on beating of two teenagers in the Kharkiv Region, a prosecutor’s office resorted to argumentation based on section 38 of CC and refused to open a criminal case despite the medical proofs of bodily injuries and a number of witness testimonies confirming the fact of beating. The resolution of the prosecutor’s office was revoked by a district court; this decision is upheld by an appeal court. However, the stubbornness of the prosecutor’s office, which reiterated its arguments, is an additional proof of its unwillingness to bring police officers to justice.
294. The Committee in § 58(n) of the its Conclusions and Recommendations recommended the following: “Adopt a more effective system to end the practice of bullying and hazing (dedovshchina) in the armed forces, through training and education, and prosecute and punish offenders”.
295. According to our observations, between 2002 and 2005, the number of dedovschina cases decreased in comparison to the period between 1998 and 2001. We believe that this is due to the principled position taken by the Ministry of Defense, which carefully investigates all complaints, actively and willingly cooperates with human rights organizations, which members can visit military units, meet with soldiers and officers, conduct polls, etc.
296. At the same time, the number of dedovschina cases is still high. For example, according to the General Prosecutor’s Office, during the first three months of 2003, in all military units of Ukraine, 73 persons were injured as a result of so called “violations of statutory relations [among servicemen]” and 50 persons as a result of assaults and battery.[46] However, in recent years, there were very few cases of murders or suicides because of non-statutory relations.
297. The adoption, on 4 April 2006, of a new version of the Law “On Universal Military Obligation and Military Service” has significantly changed the breeding ground that gave rise to non-statutory relations: a term of service has been shortened to 12 months in the AF and to 18 months in the Navy. As a result, the division between soldiers of first and second year of service has become a thing of the past. The dedovschina in a slighter form could be observed, though, when soldiers who have served 6 months treat badly those who have just joint the military. The number of criminal cases following facts of non-statutory relations has sharply decreased. Nevertheless, it is very difficult to root out this phenomenon. Below is a description of one typical case.
298. According to a verdict by the Military Local Court of the Sevastopol Garrison, sailor Prohurenko of Military Unit No. A0428, with the aim to demonstrate his would-be superiority over servicemen, who were called up later than himself, kicked servicemen Yudin and Dubina. In particular, he inflicted grave bodily injuries on Dubina, as a result of which Dubina’s spleen was removed. The court punished Prokhurenko in the form of a 2-year service in a disciplinary battalion; however, it refused to satisfy a claim for pecuniary damages in the amount of UAH 5,000, but partially satisfied a claim for non-pecuniary damages to the victim in the amount of UAH 20,000. The military unit commanders did not participate in the trial in any capacity, though.
10.3. Conditions of holding in custody
299. In § 12 of its Report, the Government claims that “in order to provide timely prevention of spreading infectious diseases, all convicted persons and inmates pass an obligatory medical check-up. Personnel of residential services, medical personnel and duty personnel carry out permanent control for the timely and quality preparing of food for convicted persons, full loading of a cauldron with products stipulated by relevant standards, observing the rules of sanitation and hygiene”. Para 15 says that the “work on bringing the conditions of holding inmates and convicted persons in compliance with international requirements, as well as observing the major provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” continues and is permanently monitored by the Department of Corrections”.
300. The Dnepropetrovsk Section of the International Society on Human Rights visited ten correctional establishments, where it conducted a research of living conditions of persons diagnosed with tuberculosis. [47] They interviewed the heads of some of these institutions; surveyed 1500 prisoners suffering from tuberculosis; 500 people with tuberculosis who had already been released from penal institutions, as well as 112 employees of hospitals within penal institutions where tuberculosis patients are treated. The monitoring group visited patients’ wards, hospital units, manipulation rooms, laboratories, canteens, shower rooms, toilets, places where parcels or prisoners’ personal belongings are stored, chapels and churches on the territory of penal institutions, the offices of doctors, nurses and employees of the regime service, as well as of the heads of the institutions, guards’ rooms, etc.
301. They came to a conclusion that the conditions, in which these ill people live, can be regarded as cruel and inhuman.
302. The overwhelming majority of tuberculosis patients are held in premises where there are between 54 and 100 beds over a space of 60 m². The bed-bunks are two-storey, which shuts out the light, since the top bunk is at the level of the windows which are already small and have grating over them. It’s damp in the place, and in winter it’s cold, while in summer very hot.
303. For 100 patients, there are 5 washbasins, only 4 «contraptions» without a cistern, partitioned off only on the sides, with no other walls or doors from the front.
304. The shower rooms were in a separate block and were dark areas of around 25 m², in which 4 shower contraptions had been fixed to the walls, also without any partitions, or any places for putting clothes. During their visits none of the shower rooms had hot water, the taps needed fixing, and the floors and walls were dirty. Most of the ill prisoners replied that they were only able to have a shower once a week, however half of them said that the taps needed to be fixed, a third commented that the rooms were dirty, and that there were problems with hot water, and only 3% dared to say that in the shower rooms repairs dragged on for half a year.
305. The researchers found that the food was not fit for consumption, prepared from low-quality products, and provided in small portions.
306. The patients’ canteen is a big hall of 300 m², dark and without lighting, with the electric lights not turned on during dinner (to economize) and light gets into this dark place only through the doors when patients come in or through the doors of the place where the food is given out.
307. The diagnosis of tuberculosis in penal institutions would appear to be at a reasonably decent level going by the information from the survey and our interviews, as well as from our own observations. In the penal institutions there are X-ray facilities and reasonably well-equipped diagnostic laboratories. Most of those suffering from tuberculosis are examined using x-rays and by a doctor. However only approximately 50% of those ill have been laboratory testing.
308. The treatment is insufficient, as is confirmed both by the patients surveyed, by the medical staff and even by the heads of penal institutions. There are not even enough specific drugs against tuberculosis, and no effective anti-tuberculosis medication of the new generation, nor are there drugs for strengthening the immune system of patients, vitamins, general health-strengthening medicines, etc. Approximately 30% of the prisoners with tuberculosis stated that they were brought medication by their relatives. Up to 10% said that they received medication irregularly, or not at all, although they did need it.
309. Care for the patients, especially those seriously ill, is unsatisfactory, given not by members of the staff, but by sick prisoners themselves from those who have less serious instances of the disease and whom the administration designates as «hospital orderlies». In return for this work they are placed in wards not with 100 bed-bunks, but for 6-8 people.
310. The overwhelming majority of prisoners with tuberculosis have been in the hospital from 3 months to a year. A third said that their state of health during that period had improved, while more than a third considered that their condition had either not changed or had got worse.
311. The survey among 500 tuberculosis patients who had been released, but who had at one time been treated for tuberculosis in penal institutions allowed to receive the following findings:
All 100% of those surveyed answered that they had first contracted tuberculosis in penal institutions. 64% had been released due to the illness. Of the 500 people, 422 (84.4%) had been officially given disability status.
92% said that the wards were damp, in winter cold and in summer very hot. 96% commented that in the unit (outside the ward itself) it was cramped, dark and damp, with access to water difficult, while up to 10% said that it was dirty both in the wards and in the overall unit.
89% mentioned that the shower rooms don’t function for months on end, or there are repairs, or no hot water, while more than 85% say that you can yet to the toilets when you need to, but they don’t flush and they’re dirty.
89% spent time in the fresh air everyday, while 11% did not due to the seriousness of their state of health. 97% of the 500 men asked said that the food was bad, with 76% commenting that parcels did not always reach them, and if they did, they were spoiled, ripped and «only half full». Parcels handed in were received by only 32% of those asked.
The overall assessment of the everyday conditions was as follows: 91% – bad, 9% – satisfactory.
312. When asked about the treatment, diagnosis and care of the patients in penal institutions, of the 500 surveyed 87% said that aside from x-rays, they had had no other examinations, nor had there been specialists from other hospitals or tuberculosis treatment units. 96% stated that the treatment had been carried out with two forms of medication – turbazid and streptomitsin, meaning without any new generation drugs. 84% answered that care for seriously ill patients was given by orderlies, but not from among the medical personnel, but from those also suffering from tuberculosis, but with a milder form of the disease. 93% described the care as bad, while 7% said that it was satisfactory. Only 4% confirmed that relatives were allowed to visit seriously ill patients, with 10% answering that they didn’t know, and 86% saying that such visits were not permitted.
313. The group also carried out a survey of 112 members of penal institution medical personnel.
The medical equipment, in the opinion of the medical personnel, was in a bad state and out of date, while the provision of medicine for patients was either inadequate (32%), or of an inadequate range (28%). Nor did those surveyed conceal the fact that in more than half the cases relatives helped provide the patients with medicines, that often (according to 62%) there were not enough specialists for consultations. They claimed that where there was a conflict of interests between regime and medical readings, the issue was decided in each case on an individual basis (61%). 54% rated their level of knowledge about prisoners’ rights as average, while 18% said that it was low.
314. As to the morbidity with tuberculosis: In one juvenile educational colony each year over the last few years 4 -5 young people have contracted tuberculosis – with 350 convicted prisoners this means that the illness readings amount to 1400 per 100 thousand, whereas in society as a whole this figure comes to 80 per 100 thousand, that is, 18 times less. This can be considered a double epidemic, since by international standards if the rate of those who have contracted tuberculosis reaches 40 per 100 thousand of the population this is considered an epidemic in the country.
To create a holistic national system for preventing torture:
– to adopt at legislative level a concept paper for creating a system of prevention and protection from torture and ill-treatment, as well as an action plan, based on the said concept paper, with clearly defined directions and stages of activity;
– to spare no efforts in meeting the obligations under Part IV ОРСАТ in order to create national preventive mechanisms;
– to create effective mechanisms of public control over investigations into allegations of torture and ill-treatment, which take place in law enforcement agencies and other closed institutions;
In order to create such a system:
– to develop practice of operational public boards at the Ministry of Interior and its regional departments;
– to develop practice of visiting places of detention that are under control of the MI by independent inspection teams similar to “mobile groups”, in particular, to entitle members of such teams to meet with detainees in private;
– to provide for conducting independent inspections to other places of deprivation of liberty, such as establishments of the State Department of Corrections, psychiatric clinics and other establishments with restricted access;
– to introduce official statistics of sentences of and formal charges against state agents for crimes, which contain elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;
– to regularly publish statistics of sentences and charges for committing crimes stipulated in section 127 § 3 and 4 of the Criminal Code of Ukraine brought against law-enforcement personnel and to ensure that this information reaches law-enforcement personnel;
– to speed up the work on creating an effective system of free legal aid in accordance with the Concept approved by the Decree of the President of Ukraine of 9 July 2006;
– to introduce into curricula for professional training of law-enforcement personnel a course on human rights, in particular, studying documents related to torture and ill-treatment;
– to constantly inform personnel of law-enforcement agencies about the provisions of the Convention against Torture and other international standards for torture prevention;
– to develop standards for assessing the work of police officers used for their promotion and other forms of reward in order to eliminate the dependence of such assessment on the number of crimes solved and to publish these standards.
To bring criminal legislation into line with the requirements of the Convention:
– to bring the elements of the crime of «torture» into line with Article 1 of the UN Convention against Torture;
– to make it impossible to apply amnesty and parole for people who have committed actions, which have elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;
– to review formulations of sections 41 and 43 of the Criminal Code in order to exclude the possibility of freeing from responsibility those who have used torture or ill-treatment;
– to clearly define in the Criminal Code and other laws that an order that directly or indirectly entails ill-treatment is manifestly criminal in the meaning of section 41 of the Criminal Code;
– to amend the formulation of section 41 of the Criminal Code in such a manner that it would not free from responsibility the state agents who resorted to disproportionate means to follow a lawful order or instruction.
To provide for effective investigations of claims about torture:
To ensure that the investigating agency is independent:
– to create an independent agency for investigating complaints against unlawful police actions;
– to provide for legislative norms that would guarantee formal and functional independence of persons investigating claims about torture;
– to provide clear guidelines to prosecutors and judges concerning immediate and thorough investigation of claims and complaints related to torture in reasonable time;
To ensure that investigations are thorough:
– in each investigation of the use of torture, to consider an issue of possible leniency or tolerance towards torture on the part of superiors of the perpetrators and, if the grounds exist, to bring these persons to criminal responsibility;
To ensure that victims actively participate in the investigation of torture:
– to ensure access by victims to medical documents and other evidence which are of importance in proving torture or ill-treatment;
– to change evidence law in such a way to assign the same validity as evidence to conclusions provided by medical and other experts, assigned by alleged victim of torture or their legal representative, as to conclusions made by experts assigned by an investigator or court;
– to review the legislative framework of forensic examination in order to provide the involvement of non-state experts and expert bureaux;
– to ensure that accused and victims have a right to apply to experts independently from an investigating unit;
– to provide the appropriate guidelines to prosecutor’s offices and judges for using measures to ensure the safety of individuals who have made an allegation of torture, in particular, if such an individual is held in custody, then to move him or her to another remand centre;
– to review provisions of current legislation in order to provide the right to legal representation to person who make allegation of torture;
– to provide indigent individuals who initiate an investigation or other legal procedure regarding allegations of torture or ill-treatment access to free legal aid;
To provide provisions in Ukrainian legislation on the inadmissibility of any involuntary statement of the accused:
– to introduce provisions into the legislation stipulating that it is inadmissible to use as evidence any testimony from an accused (suspected) person, obtained at pre-trial stages of a criminal investigation without the assistance by lawyer;
– to develop regulations concerning admissibility of confessions and procedures for examining whether they were given voluntarily; such regulations should provide for the following:
– when there is a claim by a defendant concerning the involuntary nature of his/her confession made during a pre-trial investigation, it should be excluded from the evidence, unless a prosecutor proves the opposite beyond reasonable doubt;
– when determining whether a confession was voluntary, the court should take into account all circumstances, which accompanied the obtaining of the confession: the conditions and period of being held in custody by a law enforcement agency, access to a lawyer, possibility to communicate with outside world, etc.;
– the fact of bodily injuries should always entail the obligation on the part of a prosecutor to prove beyond reasonable doubt that no official was involved in inflicting these bodily injuries, or that the obtained confession was not connected with events, which resulted in the bodily injuries;
– absence of medical evidence concerning the use of torture or other forms of ill-treatment cannot as such exclude the trustworthiness of the claim about such treatment;
– when assessing why medical evidence is absent, the court should take into account the possibility for a defendant to approach a doctor or expert of his/her own choosing in timely manner, his/her access to a lawyer, the possibility to communicate with outside world, etc.;
– in cases, when a defendant earlier did not claim about extortion of her or his confession with the use of any form of ill-treatment, a prosecutor should prove that the defendant had a real opportunity to claim it shortly after the respective events, taking into account, among other things, access to a lawyer, period of detention without court control, grounds for delay in his/her bringing to a judge after arrest, etc.;
– assessing the trustworthiness of defendant’s claim about the use of any form of ill-treatment meted out to him or her, the court should assess the due diligence of the investigation into his/her claim, if such an investigation was conducted, in particular, the time of ordering expert examinations and conducting other investigations in order to determine whether the defendant received sufficient and practical possibilities to make the necessary claims and provide necessary evidence;
To bring the practice of detaining under suspicion of committing a crime into line with Article 29 of the Constitution:
– to introduce amendments into the legislation, which would exclude the practice of detention without a warrant in cases, which are not provided for by Article 29 § 3 of the Constitution, in particular, to provide a clearer formulation of circumstances, in which a law enforcement officer is empowered to detain a person without warrant;
– to provide a clear procedure how to obtain a court permission in case it is necessary to detain a person under suspicion of committing an offence;
– to determine a starting point for detention on suspicion of committing a crime or an administrative offence depending on factual circumstances;
– to provide for an immediate notification of detainee’s family members or other person of the detainee’s own choosing about his/her detention and a place of his/her detention;
– to counteract the practice of holding in custody under police control until the end of the term permitted under Article 29 § 3 of the Constitution and to shorten in the legislation the maximum term for bringing to a judge to 48 hours;
– to annul provisions in point 2.5 of the Joint Order by Ukraine’s Ministry of Internal Affairs and the State Penal Department No. 300/73 of 23 April 2001, which consider a detainee’s release, when the suspicion is not confirmed, or when the term of detention has expired, as breach of the law, and other similar instructions;
– to introduce amendments into the legislation, which would exclude the use of administrative detention for the purpose of criminal investigation, for example, by providing obligatory release of a suspect in committing an administrative offence pending a trial of the case;
– to introduce amendments into Ukraine’s Code on Administrative Offences (in particular, into Article 263 of CAO) and other legislative acts, which would exclude police custody of a person without a court order for over 72 hours;
– to provide procedure for court hearings concerning the detention of vagrants, or, at least, enable them to appeal such detention and provide rules for a judicial procedure;
To provide for control over detainees’ held in detention by the police and to shorten terms of such detention:
– to introduce into legislation an enforceable right of access to an independent doctor and independent expert of the detainee’s own choosing, especially for persons, who are held in custody, and to create appropriate procedure;
– to provide for a system of detailed recording of everything what happens to detainees after their detention;
– to ensure that in each district police station there is an official, independent from investigating units, who is responsible for wellbeing of detained persons and to empower him/her to solve all issues related to their detention in the police, medical aid, etc.;
– to eliminate the practice whereby judges «extend detention» of suspects held in police custody, or, at least, to introduce necessary amendments in order to transfer people whose detention is extended by a judge to a pre-trial detention centre, and not leave them held in police custody;
– to amend legislation in order to provide for access of a lawyer without a permission from an investigating agency;
To bring legislation related to judicial control over detention and holding in custody into line with international standards:
– to establish a clear presumption in favour of a person’s release and provide that the onus of providing proof about grounds for detention be shifted to the prosecution;
– to introduce provisions, which would exclude the practice of detaining a person after his/her release by a judge, on the basis of «concealed» accusations;
– to introduce amendments into Article 165-2 § 4 of CPC, in order to exclude detention without judicial control over the period established by Article 29 § 3 of the Ukraine’s Constitution;
– to entitle persons, who are detained to seek periodic review of the basis of their detention;
– to work out procedures, which would encourage the use of bail instead of detention;
– to introduce into legislation a maximum term of detention during court hearings and to shorten the maximum term of detention during pre-trial investigation and trial to 18 months;
– to extend the list of measures alternative to holding in custody and to encourage courts to take these alternative measures.
To provide for a judicial procedure for detention hearings:
– to provide an obligation to officially inform persons who are facing extradition about this fact and all circumstances that are important for the effective appeal of this decision;
– to provide, that detention and subsequent remand in custody of a person pending extradition must be enforced exclusively on the basis of a court decision, as well as the right of a person to periodic review of detention pending extradition;
– to give individuals facing extradition the right to court review of the relevant decision of executive bodies, and appropriate court procedure capable of investigating the circumstances which could significantly influence the decision on extradition;
– to provide for clear provisions listing the circumstances to be considered during detention hearings;
– to provide for obligatory participation of a lawyer in an extradition procedure and to provide him/her with all possibilities for the effective defence of the client: possibilities to visit, to communicate in writing, etc.
To clearly define a possibility to claim damages from the state, if it failed to establish or indict persons who have used torture.
To bring legislation and practice of the use of force into line with international standards:
– to cancel the practice of deploying masked and armed units into establishments of the State Department of Corrections for training and other activities, which are not directly related to suppressing mass disturbances;
– to conduct training of such special units only on training grounds, where special unit’s personnel cannot contact inmates;
– to conduct training seminars with personnel of the units designated to be used in conditions of mass disturbances to instruct them in the proportionate use of force;
– to cancel the practice of using special units created under Order No. 167 of 10 October 2005 “On confirmation of the Statute of special units” for conducting searches in establishments of the State Department of Corrections;
– to systematically train law-enforcement personnel in the proportionate use of force when detaining suspected offenders, when securing order during mass actions and in other situations prune to the use of force.
To introduce courses on human rights in curricula of professional education and retraining of law-enforcement personnel, prosecutors, judges and lawyers.
To continue efforts in order to end the practice of bullying and hazing (dedovshchina) in the armed forces
To improve conditions in penitentiaries
– to adopt a new Criminal Executive Code that would be in line with international standards for penitentiary establishments and to review by-law within the criminal executive legislation;
– to improve living conditions of inmates diagnosed with tuberculosis, in particular:
to ensure that patients are placed in wards for no more than 8 beds;
to ensure that wards have sufficient lighting;
to ensure that a necessary temperature regime is kept in wards;
to ensure that patients have regular access to cold and hot water;
to install more wash-stands in wards;
to rebuild lavatories;
to construct shower rooms in each hospital building and to provide there necessary conditions.
– to improve patients’ diet:
to rebuild canteens;
to ensure that canteens are equipped with lighting;
to ensure that food for patients is prepared by a hired worker, a cook, in order to make food acceptable for consumption.
– to improve the efficiency of treatment:
to supply patients with specific anti-tuberculosis medicines, including “new generation” ones, in sufficient quantity;
to supply patients with medicines those stimulate immunity and improve their general condition.
– to ensure that members of human rights organizations have access to correctional establishments by preparing and approving a necessary law.
– to ensure that inmates enjoy a right to apply to state and local authorities and a right to education.
[1] Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 24 February 1998.
[2] Joint Order by Ukraine’s Ministry of Internal Affairs and State Penal Department No. 300/73 of 23 April 2001 «On measures to secure legality during the detention of persons suspected of having committed a crime, decision on preventive measures in the form of remand in custody of such a person and adherence to legally stipulated time limits for detention and detention in custody during pre-trial investigation», point 2.5.
[3] Report on the results of the research conducted at the Kyivskiy District Court in Kharkiv in the framework of a pilot research project «Police arrest and pre-trial detention in Ukraine» (chief researcher – Professor V.S. Zelenetsky, Doctor of Law, Corresponding Member of Ukraine’s Academy of Legal Sciences).
[4] Ibid.
[5] Analytical summary of the court practice of detention hearings in the Melitopol City-Disctrict Court, Priazovskiy, Akymovskiy, and Veselovskiy District Courts. (The summary was made by Judges G.I. Aleynikov and M.I. Galyanchuk of the Zaporizhye Appeal Court).
[6] Law of Ukraine No. 266/94-BP of 1 December 1994 (Vidomosti Verkhovnoyi Rady, 1995, No. 1 p.1)
[7] Newspaper «Novy Den’ [«New Day»] (Kherson), 22 April 2004
[8] Newspaper «Vecherni Visti,’ [«Evening News»] 22 June 2004
[9] Newspaper «Svoboda», [«Freedom»] No. 5, 10-16 February 2004
[10] Newspaper «Sevodnya» [«Today»] No.96, 29 April 2004
[11] Newspaper «Sevodnya», №100, 7 May 2004
[12] Unlawful violence in law enforcement agencies: Sociological, legal and historical analysis/ Collective of authors; General Editor Fellow Member of the Academy of Legal Sciences of Ukraine, Doctor of Law, Professor O.N. Yarmish; Foreword by Y.V. Lutsenko and Introduction by G.Y. Udovenko. – Kharkiv: National University of Internal Affairs Publishing, Kharkiv Human Rights Protection Group, 2005. – 212 p.
[13] Ibid, p. 92-93
[14] Ibid, p. 93.
[15] The following people contributed to the research: Professor V.A. Sobolev, Doctor of Sociology (PhD); Professor I.P. Ruschenko, Doctor of Sociology (PhD); Lecturer Yu.A. Svezhentseva, Candidate of Sociology (PhD); Yu.L. Bilousov, Candidate of Sociology (PhD).
[16] Resolution No. 4 of 25 April 2003 «On the use of pre-trial detention and its extension», point 18.
[17] ECHR, Kalashnikov v. Russia: Judgment of 15 July 2002, § 114
[18] Lyublinskiy P. Personal liberty and criminal process. Means for securing attendance of accused person during criminal proceedings. Saint-Petersburg (Russia), 1906
[19] Resolution No. 4 of 25 April 2003 «On the use of pre-trial detention and its extension», point 3.
[20] The analysis of work of general jurisdictions’ courts in 2002, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua
[21] The analysis of work of general jurisdictions’ courts in 2003, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua
[22] The analysis of work of general jurisdictions’ courts in 1st half of 2002, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua
[23] Resolution No. 6 of 26 March 1999 «On the use of bail by courts».
[24] Resolution No. 6 of 26 March 1999 «On the use of bail by courts», (along with amendments of 6 June 2003) point 2.
[25] ECHR, Herczegfalvy v. Austria: Judgment of 24 September 1992, Series A no. 244, § 75
[26] ECHR, Niedbała v. Poland: Judgment of 4 July 2000, § 66
[27] ECHR, Schöps v. Germany: Judgment of 13 February 2001, § 44
[28] Notably, section 43 and 43-1, which contain a list of accused and suspect’s rights, do not provide for a similar right.
[29] Resolution No. 4 of 25 April 2003 «On pre-trial detention and its extension», point 6.
[30] Amnesty International. Briefing to the Human Rights Committee. June 2006
[31] See, for example: ECHR, Denizci and Others v. Cyprus: Judgment of 3 May 2001 § 359
[32] Fourteenth General Report of the European Committee for the Prevention of Torture, § 29
[33] The very fact that a judge has such authority could be doubtful..
[34] Journal «Yuridichny Visnik Ukrayiny», No. 1-2, 4-17 January 2003.
[35] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1993, No. 4, Article 19
[36] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1994, No. 28, Article 234.
[37] Ibid., section 236.
[38] Newspaper «Golos Ukrainy», 1994, No. 39.
[39] Newsletter «Oficialnyi visnyk Ukrayiny» of 21 July 2000, No. 27, p.1, Article 1109.
[40] Decision by the Constitutional Court of Ukraine in the case of the official interpretation of sections 3, 23, 31, 47, 48 of the Law of Ukraine «On Information», and section 12 of the Law of Ukraine «On the offices of the prosecutor» (case of K.G. Ustimenko).
[41] Resolution No. 13 of 2 July 2004 of the Plenum of the Supreme Court of Ukraine «On practice of court use of the legislation, which provides rights of victims from crimes», point 2.
[42] Ibid., point 5.
[43] Decision by the Constitutional Court of Ukraine No. 13-рп/2000 of 16 November 2000 (Case No. 1-17/2000) in the case concerning a constitutional claim by Mr. Gennadiy Soldatov as to the official interpretation of provisions in Article 59 of Ukraine’s Constitution, section 44 of Ukraine’s Code of Criminal Procedure, sections 268 and 271 of Ukraine’s Code of Administrative Offences (case about the right of free choice of a defender).
[44] Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990
[45] “The status of observing rights of incarcerated and convicted persons in Ukraine” carried out by the Ukrainian-American Bureau of Human Rights Protection in 2006.
[46] Against Torture: Review of Reports on Cruel Treatment and Tortures: 2003. Kharkiv: Folio, 2003 [in Ukrainian]
[47] Report of the Dnipropetrovsk section of the International Society for Human Rights – Ukrainian Section, prepared by Taisa Shkryum. The full report is available in Ukrainian at http://www.khpg.org/index.php?id=1152287185
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