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Human Rights in Ukraine - 2004: II. THE RIGHT TO LIFE

13.10.2006

The right to life is a fundamental human right and the right which ensures basic democratic values. It is guaranteed by the Universal Declaration of Human Rights (Article 3): «Everyone has the right to life, liberty and security of person». Article 6 of the International Covenant on Civil and Political Rights recognizes the inherent right of every person to life, adding that this right «shall be protected by law» and that «no one shall be arbitrarily deprived of life». The right to life of those under the age of 18 and the obligation of States to guarantee this right are both specifically recognized in Article 6 of the Convention on the Rights of the Child.

These provisions of a universal nature should be interpreted in the context of other treaties, resolutions and declarations, adopted by UN competent bodies as well as those of regional organizations. These include in the first instance The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter «the European Convention»), Article 2 of which affirms the right to life and to protection by law of this right.

The Constitution of Ukraine also states that «The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value. (Article 3) and «Every person has the inalienable right to life. No one shall be arbitrarily deprived of life». (Article 27).

Cases from the European Court on Human Rights are of particular interest in the interpretation of the right to life as the Court considers more cases than other authorized international bodies and its interpretations of the European Convention are binding. Interpreting the duties of a State in accordance with Article 2, the Court defines them as negative and positive. Procedural duties which concern a retrospective investigation into any violent deprivation of life also constitute positive duties.

1. Negative duties

For a long time an interpretation of Article 2 on the right to life was widespread which, in addition to allowing the death penalty,[1] defined the circumstances under which the representatives of the State had or did not have the right to legitimate killing. This means, that under certain circumstances, State representatives, for examples, the police, have the right to use force which could cause death when enforcing law and order.

The issue of whether the use of force is reasonable concerns law enforcement actions. The use of excessive force or unjustified use of fire-arms constitutes a flagrant violation of the right to life.

However there can be situations, when use of force can be justified, as it is «absolutely necessary». These situations concern self-defence; defence of others from unlawful violence; a lawful arrest or to prevent the escape of a person lawfully detained; action lawfully taken for the purpose of quelling a riot or insurrection.[2]

In addition to the Convention, other legal sources which should be consulted when considering complaints of excessive use of force and unjustified use of fire-arms are: the UN standards on the main principles of the use of force and fire-arms by law enforcement officials,[3] the principles of the efficient prevention and investigation of extra-legal, arbitrary and summary executions.[4] The attention of the international society is also focused on the need to train the Police to work in a spirit of respect for human rights, to ensure that they learn about the international standards regarding use of force in law enforcement activities. Thus, it is possible to achieve success (both at a national level and the level of the European Court) in cases seeking compensation for the victims of acts, that were committed by the police if it can be proven that the policemen had not received special training on the use of fire-arms, or where there were deficiencies in the process of planning or control over the operations by law enforcement agencies.[5]

Ukrainian legislation which regulates the use of fire-arms is considered on the whole to not be in contravention of international standards.[6] However, official information is not available on incidents of unwarranted use of fire-arms by law enforcement officers or on the conducting of with investigation into these incidents.[7]

In autumn 2004 the Litigation Fund for the Victims of Human Rights Violations of the Ukrainian Helsinki Human Rights Union received an application from a resident of Kherson, H. Lovygina. The following events formed the reason for her application.

On 14 January 2000, during a training exercise of the State Automobile Inspection (SAI), H. Lovygina’s son – a junior police sergeant, P. Lovygin, who was «acting» the role of a person breaching the law, was killed by officers of the Ministry of Internal Affairs (MIA). After a formal investigation, the person responsible for the death of her son, according to the findings of the investigation through the careless use of firearms, was amnestied and released from the MIA at his own request. The investigation ignored facts that could have proven the infringement of rules as to the running of training exercises within the system of the Ministry of Internal Affairs; carelessness and criminal negligence on the part of those in charge and falsification of the materials of the trainings.

Not being satisfied with the decision of the authorities, the parents of junior sergeant P. Lovygin lodged a claim with the court demanding moral compensation. The Ukrainian courts refused to satisfy the claim. The parents of P. Lovygin have now applied to the European Court on Human Rights.

2. Positive duties

The European Court has also repeatedly emphasized, that Article 2 in certain cases defines also the positive duties of the state authorities to take preventive measures for the protection of person whose life in under threat. The positive duties in this context appear (1) in connection with the lack of any effective result from an investigation by the national law enforcement bodies into the complaints of the claimants or their relatives; (2) during consideration of complaints regarding an inefficient public health service; (3) during consideration of complaints about environmental pollution.

2.1. The lack of any investigation into the circumstances around a case of violent death constitutes a violation of Article 2 of the Convention. The lack of an effective investigation might also constitute a violation of the respective article.

The situation in Ukraine during 2004 as regards consideration by the courts of crimes against human life was as follows:[8]

(1) premeditated murder: the number of cases during the given period – 4006; the number of outstanding cases which had not been considered at the beginning of this period – 1307. Proceedings were concluded in 4068 cases during this period;

(2) deliberately causing severe bodily injuries: during the given period proceedings were initiated in 5299 cases, with 1878 cases carried over, still unconsidered, at the beginning of this period. Proceedings were concluded in 5460 cases during this period.

Certainly these dry statistics provide little indication as to whether investigations into crimes against life have been effective. Moreover, it is well-known that the majority of cases in Ukraine are solved on the basis of personal confessions. However, available statistics do not provide us with this classification. The methods which the law enforcement bodies apply to achieve their figures for solved crimes are also well-known (graphic evidence of these methods can be found in the chapter here on cases of torture and cruel treatment).

The effectiveness of investigations into prominent cases in Ukraine remains unsatisfactory. It is long-established practice in Ukraine for those in charge of the law enforcement bodies to avoid reporting to parliament, or even informing parliament and society about the course of investigation into such prominent cases. Moreover, law enforcement bodies in general ignore official requests from parliamentary institutions (for example, from the Human Rights Ombudsperson) or from individual State Deputies.[9]

Unfortunately, during 2004, the state authorities did not make any progress in high-profile murder enquiries, in particular, with regard to the murders of Gongadze, Aleksandrov, as well as of some prominent businessmen.

The Constitution of Ukraine does not foresee the right of citizens, civic organizations and political parties to control the activities of the law enforcement bodies. Legislation stipulates that citizens have the right to appeal to the law enforcement bodies, their officials and functionaries; civic organizations in turn have the right to the information necessary for the achievement of their aims and tasks. Yet, although the law establishes that these bodies should, within a stipulated period, consider the request and provide an appropriate response, responses to such requests are rare.[10]

Investigation into the Gongadze case

Before the Presidential elections, pressure was put on the Ukrainian government to find those guilty of one of the most notorious cases of the last years, that of the disappearance of the journalist, Georgiy Gongadze. On 19 June 2004, the British newspaper ‘The Independent’, on the basis of documents it had received, published an article where they claimed that the investigation was being blocked by high-ranking officials, including «delaying tactics» by the General Prosecutor of Ukraine, as well as a number of other circumstances of the case. Shortly all the material involved in the case, including the protocols of witnesses’ interrogations, appeared on the Internet.[11]

In June 2004, the General Prosecutor refuted the allegations made in the article. It was stated at that point that investigators of the General Prosecutor were working with a man who claimed to have killed Gongadze.[12]

However, at the end of November 2004, the Deputy General Prosecutor, Mikola Holomsha, was dismissed for demonstrations of political engagement, improper organization of investigations into criminal cases, including the improper investigation of the criminal case involving the murder of Georgiy Gongadze which he was directly in charge of[13] At the end of December, after the dismissal of G. Vasilyev from his position as General Prosecutor, and the reappointment of S. Piskun to that post, M. Holomsha again became Deputy General Prosecutor.[14]

The general chronology of the investigation of the Gongadze case in 2004 was as follows:[15]

January: General Prosecutor Vasilyev announces that extra tests are to be undertaken in the Gongadze case, including tests on Melnichenko’s tapes, by the Kyiv scientific research institute of forensic testing, with the involvement of foreign experts. Representatives of the CoE monitoring committee express disappointment with the state of progress: «It appears that the issue is simply being put aside».

May: Vasilyev announces that in the Gongadze case «Everything has started again from scratch».

July: The Ministry of Internal Affairs begins an internal investigation into the shadowing of Gongadze immediately prior to his disappearance.

September: The television program «Closed zone» offers a new version about the circumstances of Gongadze’s murder The Kyiv Forensic Investigation Institute announces that Melnichenko’s tapes are fakes.

October: New detailed research establishes weak points and shortcomings in the Gongadze case: the research is sponsored by the International Federation of Journalists, the National Union of Journalists, the Institution of Mass Information and the Gongadze Foundation.

November: Gennady Vasilyev is removed from his post as General Prosecutor of Ukraine.

December: Svyatoslav Piskun is reinstated as General Prosecutor. He appoints the former investigators to work on the Gongadze case.

2.2. An inefficient health service also constitutes a violation of the State’s positive duties. The State should develop rules that oblige public and private hospitals to take appropriate measures to protect the life of patients. Positive duties also demand the introduction of an efficient independent investigation system in order to obtain information and ensure liability of medical staff if they are found guilty of causing a patient’s death.

In world practice there are various forms of control over health service efficiency. For example, in the United Kingdom there is a Parliamentary and Health Service Ombudsperson; in Italy a Tribunal on Patients’ Rights works with representatives from all over the country; in the USA, in addition to the Commission on Ethics, which includes doctors, lawyers, representatives of insurance companies, patients’ rights are also protected by a huge number of NGOs. They became especially active following the publication of research which had been carried out over a four year period through the country. Findings suggested that medical errors may be the reason for the death of 40 thousand patients every year.

In Ukraine, where it can be problematical for a patient to receive his or her own medical records, there are certainly no statistics on medical errors. Nor is any independent medical expertise guaranteed by law, there is no state body for protecting patients’ rights nor are there formal health care standards. There are very few civic organizations working in the area of protection of patients’ rights. One such organization, the all-Ukrainian Council for the protection of patients’ rights and safety, founded in 2002, receives a huge number of applications from citizens and presents cases to the courts concerning violations of patients’ rights.

According to the Council’s lawyers, usual factors such as a low level of awareness of one’s rights and unwillingness to protect these rights are compounded by such problems as:

(1) flaws in current legislation making it impossible to receive compensation awarded by the court;[16]

(2) the lack of a law on patients’ rights.

A Draft Law on patients’ rights, introduced by State Deputy S. Shevchuk, was submitted to the Verkhovna Rada for consideration at the beginning of 2000[17] The Draft Law defines and specifies the rights of patients in the field of health service; it also considers the creation of a system that will allow all to enjoy these rights, and to be protected from any infringements of them, and that will ensure respect for the dignity of a patient, and, where needed, the possibility of legal protection.

In March 2004, the Cabinet of Ministers of Ukraine recommended that the area in the Draft Law concerning personal data protection be further refined.[18] However, during the year there was no more progress as far as the given Draft was concerned, and in fact, a Draft resolution for a decree of the Verkhovna Rada of Ukraine rejecting the original Draft Law was tabled by three State Deputies and members of the Committee of the Verkhovna Rada on issues related to health care, motherhood and the child, M.E. Polishchuk, L.S. Grigorovich, and M.V. Loboda.

Data from sociological research on the situation with the rights of patients in Ukraine

– 6 out of 10 patients have experienced violation of their rights in a health service institution;

– 9 out of 10 patients think there is a need to increase measures to ensure the protection of their rights;

– only 7 out of 100 have ever used legislation in order to protect their rights;

– 9 out of 10 patients consider available information on their rights as insufficient;

– every second Ukrainian citizen first learned of the concept of «patients’ rights» from the questionnaire used during the sociological survey;

– 7 out of 10 citizens think that attempting to protect their rights by means of law would be a waste of time;

– every second patient has had experience of not being given correct information on the state of his health or the likely health prospects for the future;

– every third patient stated that confidential information as to the state of his/her health had been disclosed;

– every second patient, that no information had been received in advance involving invasive surgery and its likely affect on the organism from medical personnel;

– every second patient did not know about the right of free choice and change of his or her doctor.

Based on material from the information bulletin «Civic rights of patients in Ukraine» of the Doctors’ Association of the Mikolayiv region.

The Ukrainian Helsinki Human Rights Union has received a number of complaints on the death of new-born babies, which, according to the mothers, were caused by medical errors. In all these cases, prosecutor’s offices have refused to launch a criminal investigation. Those making appeals did not have access to efficient and independent mechanisms for the protection of their rights, in particular, due to the lack of independent medical expertise in the cases involved.

2.3. The positive duties of the State with regard to environmental pollution include providing information as to risks to people’s life. Experts consider that even today, notwithstanding the long time that has passed since the Chernobyl disaster, a case over Cherrnobyl could be taken to the European Court of Human Rights.[19] After all, the situation with Chernobyl is an ongoing violation, with people who suffered from it becoming ill and dying up till now.

3. Recommendations

1) To introduce changes to legislation on criminal procedure in order to provide more rights to victims, including to the family members of a victim, and to increase their influence on the course of investigations.

2) To introduce efficient independent mechanisms to investigate deaths caused by the actions of law enforcement officials and / or medical staff.

3) To introduce independent medical expertise.

4) To adopt a Law of Ukraine «On the rights of patients» that would provide for legal guarantees of the rights of patients to life; the right to confidentiality and private life and a minimum range of services available as free health care..

5) To publish information on investigations into crimes against life on an annual basis.

6) To increase the efficiency of State and public control over the activities of law enforcement bodies.



[1] Article 2 of the European Convention should be read today together with Additional Protocol No. 6 which prohibits the death penalty, and which Ukraine has ratified.

[2] Part 2 of Article 2 of the European Convention.

[3] UN General Assembly Resolution № 45/121 from 14 December 1990.

[4] UN General Assembly Resolution № 34/169 from 17 December 1979.

[5] European Convention on human rights: principal provisions, practice of application, Ukrainian context. Kyiv, VIPOL, 2004, page 25.

[6] Рабинович П., «Право людини на життя (стаття 2 ЄКПЛ)», Європейська конвенція з прав людини: основні положення, практика застосування, український контекст. Київ, «ВІПОЛ», 2004, с. 36-37 / P Rabynovych P., «The Right to life», The European Convention on Human Rights: principal provisions, practice of application, Ukrainian context. Kyiv, VIPOL, 2004, pages 36-37.

[7] Formal requests from the UHHRU to the Office of the General Prosecutor and Ministry of Internal Affairs for information received no response.

[8] Report of the State Court Administration of Ukraine to the State Department of Statistics on the consideration by first instance courts of criminal cases for 2004.

[9] Поляков Л., Шангіна Л., «Правоохоронні органи в Україні: контрольована безконтрольність», Дзеркало тижня, 12 червня 2004/ Polyakov, L, Shangina, «L: Law Enforcement bodies in Ukraine: controlled lack of control», Dzerkalo Tyzhnya, 12 June 2004.

[10] A number of requests for information on the issues that are considered in this report received no response. An open letter to the Speaker of Parliament concerning unlawful persecutions during the presidential campaign in 2004 was an exception. Speaker V. Lytvyn forwarded the open letter to the Regional offices of the prosecutor; UHHRU subsequently received about ten responses. Unfortunately, the responses should be classified rather as formal replies, than as actually providing the information requested..

[11] The website address being: http://delogongadze.org.

[12] The official website of the General Prosecutor of Ukraine on the Internet, News and publications from 21 June 2004:
http://gpu.gov.ua/ua/archive.html?id=883

[13] News and publications from 29 November 2004: http://gpu.gov.ua/ua/archive.html?id= 982>

[14] News and publications from 29 December 2004 at http://gpu.gov.ua/ua/archive.html?id=1008>

[15] «Investigation into the failings of legal and judicial processes in the case of Georgiy Gongadze», Preliminary Report of the Institute for Mass Information on the Internet, http://imi.org.ua.

[16] According to information from Lawyers of the All-Ukrainian Council for the protection of patients’ health and safety, there have been many such incidents in Ukraine. See also O. Grigorenko «To treat – and cripple with impunity?», Dzerkalo tyznya, № 5 (480), 7–13 February 2004 року; T. Parkhomchuk., «The lack of accountability of the State Hippocrates», Dzerkalo tyznya, № 14 (489), 10-16 April 2004 року.

[17] Draft Law № 2649 «On the rights of patients « from 16 January 2003 року, available on the server of the Verkhovna Rada of Ukraine: http://rada.gov.ua.

[18] Instruction of the Cabinet of Ministers «On the measures concerning the realization of the priority provisions of the Program on Integration of Ukraine to the EU» from 4 March 2004, № 111-p.

[19] Рабинович П., «Право людини на життя (стаття 2 ЄКПЛ)», Європейська конвенція з прав людини: основні положення, практика застосування, український контекст. Київ, «ВІПОЛ», 2004, ст. 35-36P.:/ P. Rabinovych: «The right to life», the European Convention on Human Rights: principal provisions, practice of application in a Ukrainian context. Kyiv, VIPOL, 2004, pages 35-36.

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