The Roots of torture lie in legislation and in entrenched practices among law enforcement agencies
On 8-9 May Ukraine presented its Fifth Periodic Report to the UN Committee against Torture on its implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereafter the Convention]. The Kharkiv Human Rights Protection Group presented its alternative report. Our correspondent spoke with Yevhen Zakharov, KHPG Co-Chair and Head of the Board of the Ukrainian Helsinki Human Rights Union about what prompted such a report and other issues
Could you first tell me something about the actual procedure for considering the Report?
- Each of the six basic human rights conventions has its own body which monitors adherence to the Convention’s provisions. For the International Convention on Civil and Political Rights this is the UN Human Rights Committee. The International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child both have Committees with the same names. Similarly the UN Committee against Torture is responsible for monitoring and implementation of the Convention against Torture. The mechanism for this control is as follows: once every four years each Member State must prepare an official report on the measures used to implement the provisions of the Convention. In order to ensure an objective assessment, the Committee also encourages nongovernmental human rights organizations to submit their reports. It then examines them together with the Government report. Since Ukraine’s independence, such reports were reviewed by the. Committee in 1992, 1997, 1999, 2001, and this latest fifth will be heard on 8-9 May in Geneva at the CAT session.
Yet the Ukrainian Report was prepared back at the beginning of 2004
Yes and for that reason we decided to, shall we say, supplement it, using new studies. We consider that such an alternative report is absolutely vital since up till now the Government reports have not reflected in full the problems at issue. I would say the third and fourth reports were especially “for show”. And as for the fifth, it is extremely limited in substance since in the main it pertains to the implementation of those recommendations which the Committee against Torture made after studying the fourth report. The new Report does not take into consideration latest amendments to legislation and practical application. The Government can, in principle, give more detail to its report and expand it, however this has not, unfortunately, been done.
Even we, while in the main criticizing the Government, noted more positive moves in the legal system than in the official report.
I should also mention that, regrettably, these reports were prepared by the Government with virtually no public discussion, in secretive fashion with it not even being submitted to Deputies (MPs). Clearly recommendations of the Committee prepared on the basis of such material cannot fully respond to the whole range of problems which have accumulated in Ukrainian society with regard to these issues. At the present stage the situation has somewhat changed. The Ministry of Justice has on its website published a document relating to Ukraine’s report on its implementation of the European Charter for Regional or Minority Languages. Let’s hope that the same will be done with other documents.
Our organization has been involved in combating torture for a long time, since 1996, and we could simply not bypass such an effective tool as these reports for drawing attention to the problem. We had already prepared alternative reports in 1997 and 2001. The present report is based on an analysis of Ukrainian legislation and its practical implementation, as well as on studies made by our organization and reports from our NGO partners. We also used press reports, material from applications to the organization and to the Centre for Professional Aid to Victims of Torture which we set up in 2003.
What are the fundamental issues focused upon in the alternative report?
I should first point out that we limited the amount of specific instances, confining ourselves to simply providing examples to illustrate particular problems. Instead we focused on a systematic analysis of the situation, since we are convinced that the problem of torture remains acute and is of a systemic nature. Its causes - are in legislation and in fixed practices among the law enforcement agencies. This essentially creates the main problem, namely the insufficient protection of the right to liberty not only of prisoners, but also of those temporarily detained and those against whom a criminal investigation is under way. This results in the use of torture being extended to broad layers of the population.
What particularly hits the eye in the data we collected is that we are receiving ever more information about ill-treatment in penal institutions. Several years ago, such information if it leaked out at all was of a once-off nature. Note that we are not talking here about an increase in such cases (they certainly don’t differ greatly from the situation a year or two ago), but specifically about information coming out, i.e. we could say that there has been some kind of breakthrough in that specific information blockade.
It is precisely thanks to this that we have been able to find out that in many institutions of the State Department for the Execution of Sentences a rather cynical and brutal form of intimidation of prisoners is being used. Around once a month so-called anti-terrorist special units appear in penal colonies in full combat readiness and uniform (masks, bullet-proof vests etc). So why are they being brought in? Some of the institution staff say that its for training, other colleagues – that it’s to carry out searches in the cells. Both pretexts seem, to put it mildly, far-fetched. These units are well trained in fighting terrorists and rescuing hostages, not in professionally carrying out searches. We therefore hold that the legalized practice of bringing in special units is being used solely for the purpose of intimidation, psychological pressure on prisoners and maintaining order in the colony. It is clear that such a situation in no way complies with the Convention against Torture.
Since, as you put it, the information blockade in the penal system has been lifted, is it possible to say that complaints from prisoners are reaching the prosecutor’s office for the appropriate reaction?
Unfortunately there is almost no effective system in Ukraine for investigating allegations of torture. Although such allegations have in recent times been reaching the prosecutor’s office (this being the only body authorized to investigate claims of torture), there are only isolated cases where charges are laid, let alone getting a case to court. There are extremely few guilty verdicts. The prosecutor’s office neither wants nor has the skills to investigate allegations of torture. The use of torture therefore continues both within bodies of the Ministry of Internal Affairs and in the State Department for the Execution of Sentences. You get the impression that those officials have received some kind of blessing from the State and can do whatever they please with detainees and prisoners. They can use any means to get a confession since once a person’s behind bars, s/he has become a second-class citizen even if the person’s guilt has yet to be proven.
It should be said that there is a somewhat distorted idea about the right to liberty since in practice the rights of detainees are not observed. These included, for example, the right to a lawyer and to the family being notified. Access to a doctor is not stipulated by legislation at all and it’s hard for a person to prove later that he had arrived in the police station without physical injuries and received them there. People’s rights are also infringed in cases of so-called unrecognized detention.
A person is detained, taken to a police station, interrogated but it is not recorded anywhere. So even if the person has been subjected to torture, it will be impossible to prove that the injuries were received specifically there since there is no record of the person’s presence in the station. In effect such detentions border on disappearance, if not downright abduction.
Presumably such “know how” is applied to beat out a confession?
In fact confessions and “voluntary confessions” are a completely separate story. Yes, that’s proof and useful for the investigation, but it’s a very dangerous instrument. Very often it’s achieved under considerable pressure which places its voluntary nature in doubt. We give examples in our report not only of physical, but also of psychological pressure. This problem could, in principle, be resolved by putting pen to paper and legislating a norm stating that such evidence, obtained under pressure or with the use of torture, shall not be taken into consideration by the court (as has been done, for example, in Turkey where only a confession given in court is recognized).
I mean here that we need new procedural legislation, a change in court practice, new judges who know what evidence law is and what evidence is inadmissible. With regard to the police, while not justifying their behaviour, I have to say that they act like this not because the police are brutal or some kinds of sadists, but because they simply have to solve a crime, receive evidence to punish the criminal. Another matter that they sometimes lack the patience or the ability, or they simply want to save time: one fist blow and you can avoid all kinds of routine work, like medical opinions, lengthy interrogations and investigation experiments.
Incidentally, on the subject of liability which we discussed above, at the beginning of 2005 amendments were introduced to the Criminal Code establishing liability for torture committed by officials. In the same year court practice also appeared, with 15 people being convicted of torture. Last year the number was 25. We also cite this year’s cases in the report (the Government report of course, for objective reasons, has none of these). One can thus say that the article of the Code has worked, and I hope that, taking head of court rulings, law enforcement officers and penal institution staff will be more careful in how they treat detainees and prisoners.
In your opinion, are the mobile groups within the MIA system contributing to the improvement in the situation with torture which you have mentioned?
Despite the fact that we are constantly criticizing the authorities and law enforcement agencies, we do feel that the police department has an awareness of the problem and is ready to take part in resolving it. One of these steps has indeed been the creation of mobile groups which check that law enforcement officers are complying with the law. We are virtually the only country in Europe where, thanks to such groups, members of NGOs have access to police stations, temporary holding facilities for detainees. The project was launched in 2004 through the efforts of the National University of Internal Affairs in Kharkiv. At present this experience has already been extended to the whole country and there is the relevant normative base. Clearly, as with all innovations, there have been organizational and staffing problems, however the main point is that the process is developing.
We are trying to achieve something similar, by the way, in the system of the Department for the Execution of Sentences. However we have already mentioned how lacking in openness this department is, and we see this here. Although such measures are of absolutely no danger (as the police have already understood), and quite on the contrary are of benefit to the police system itself, since the results of the monitoring by mobile groups go to the Minister of Internal Affairs who can assess more objectively what is happening in the police force.
With regard to court defence of victims of torture, it would here, surely, be appropriate to speak of applications by Ukrainian nationals to the European Court of Human Rights.
Last year there were eleven such judgments against Ukraine regarding torture. Our organization has filed more than 40 applications to the European Court on violations of Article 3 of the Convention and not one has been rejected. In one case a positive judgment has already been issued. 14 are presently under communication with the Government. At the same time, I would like to say that in Ukraine there are very few people able to competently prepare applications to the European Court. And that is one of the main factors for ensuring that an application is accepted for examination. In my opinion, considering the fact that clearly the number of applications is going to rise, we need to ensure that there are qualified people for preparing and accompanying such applications. The office of the Government Representative on European Court of Human Rights matters is clearly insufficient for this. Incidentally, Ukraine is already quite well represented in the makeup of the European Court – there are ten lawyers working in the Secretariat, including two previous colleagues in the Kharkiv Human Rights Protection Group. In the next few days a new judge from Ukraine will be chosen.
What, in your opinion, will be the recommendations of the Committee against Torture?
We hope that the recommendations of the UN Committee will be the same as our, that being to create a national integrated system for preventing torture, to bring criminal legislation into full compliance with the Convention, to ensure effective investigation into allegations of torture. We also need to introduce norms in Ukraine legislation stipulating the inadmissibility of any statements by people accused which were not made of their own free will, as well as to ensure control over detention in police units and to reduce the period of such detention.
In general the problem is reasonably well studied. We need only the political will to treat it with the seriousness it warrants.
The interviewer was Halyna Makarenko