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13.12.2001 | Evhen Zakharov, the Kharkov Group for human rights protection.

Against torture.

   

On 14-15 November 2001 the UNO Committee against torture reviewed the fourth periodic report of Ukraine on the measures for realizing the obligations of Ukraine according to the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment. The control mechanism of the Committee requests reporting one tome per four years of all state-members of the Convention on measures devoted to prevention of torture, such as: changing a legal acts, reviewing a legal practice, humanizing the execution punishment system and so on.

Since April 1997, when the third periodic report was considered, a number of positive changes have occurred in Ukraine. The death penalty was acknowledged by the Constitutional Court as contradicting the Constitution, the incarceration for life was introduced instead. The Ukrainian Parliament signed and ratified Protocol No. 6 to the European Convention on human rights, Protocols Nos. 1 and 2 to the European Convention on preventing torture and inhumane or degrading treatment or punishment, the reservation was removed concerning Articles 20, 21 and 22 of the UNO Convention against torture, which meant the prohibition to consider by the UNO committee against torture of individual complaints of victims of torture and investigation such complaints by the committee. Torture is defined as a separate corpus delicti in the new Criminal Code of Ukraine (CC), which came into effect on 1 September 2001. The new CC extended the application of sanctions not connected with incarceration, which permits to hope that in future the number of the incarcerated will diminish. The Provisional statements of the Constitution were cancelled on 28 June 2001; this introduced some changes into the criminal and procedural legislation, which are very important for the prevention of torture. The Department in penitentiary matters was created on the basis of penitentiary directorate of the Ministry of Interior. Later the Department was transferred from the Ministry of Interior and became a separate organ of the executive power, penitentiary establishments became more open. Owing to the principal position of the Ministry of defense and the Main military prosecutor’s office, the extension of their co-operation with human rights protection organizations the notorious ‘dedovshchina’ in the armed forces has weakened. Due to efforts of human rights protection organizations the problem of torture and cruel treatment moved to a focus of attention of mass media.

At the same time, it is obvious that the cases of applying torture in Ukraine during inquiry and preliminary investigation become more often, and actions of militia become crueler. Some facts of death as a result of torture are known. As before, no system exists of independent investigation of complaints against cruel actions of militia. Service investigations are carried out by officers of another directorate of the Ministry of Interior and they are not fast and efficient. It is next to impossible to make prosecutor’s office start a criminal case. The court control over the activities of law-enforcing organs is not efficient, and the public control is rather fruitless. The efforts of the state organs to distribute the information about international mechanisms of preventing torture and cruel treatment are insufficient. Unfortunately, these problems are not even sketched in the fourth periodic report of Ukraine. Instead the report abounds in declarations that Ukraine steadily follows the policy of the priority of observing interests of individuals. That is why it is meaningless to comment the fourth periodic report, instead the Kharkiv Group for Human Rights protection (KG) has attempted to conduct an independent analysis how the UN Convention against torture is observed.

This report has been prepared on the basis of available official documents, analysis of the Ukrainian legislation, the KG experience in legal aid to persons, whose rights were violated, reports of Ukrainian NGOs (the Sevastopol and Vinnitsa human rights protection groups, regional branches of the association ‘Zeleny svit’, Donetsk and Lviv ‘Memorial’, Lugansk public committee for protection of constitutional rights and freedoms of citizens, Lugansk branch of the committee of voters of Ukraine, committee ‘Helsinki-90’, Ukrainian section of the International society of human rights, regional branches of the Union of soldiers’ mothers of Ukraine and other similar organizations) and publications in mass media on facts of torture and cruel treatment of the suspects, convicts, servicemen, refugees and other groups. The review of these information sources is presented in addition to the report, which was published as a separate book (272 pages) „Against torture. Review of the information sources on cruel treatment and torture“. The KG sent the report in Russian and English to the UN Committee against torture and other international institutions that are issued the problem of torture and interested in receiving such information.

In addition, the KG prepared and published the second book „Against torture. International mechanisms on prevention of torture and cruel treatment“. It includes the European Convention on Human Rights and Additional Protocols for it, materials on preparation of appeals to the European Court on Human Rights, European Convention on prevention of torture and other cruel, inhuman or degrading treatment or punishment, UN Convention against torture, the third periodic report of Ukraine (1997) and materials of discussion on this report in the UN Committee, commentaries to the third periodic report of the Amnesty International and the Ukrainian NGOs, fourth periodic report of Ukraine.

It should be noted that state officials prepared the fourth periodic report and other like documents without participation of public. In our opinion, it is obviously to open a process of preparation of state reports on human rights and to publish all reports. That is why the KG together with the Information Office of the Council of Europe in Ukraine organized and held the seminar „European legislation on torture and other cruel, inhuman or degrading treatment or punishment and improvement of the Ukrainian law“ on 17-18 October in Kyiv. The seminar is financed by the Directorate on Human Rights of the Council of Europe and the National Endowment for Democracy (USA). On 19 October the KG held a press-conference in the information press-center IREX ProMedia devoted to torture and cruel treatment.

Four foreigners (two represented the Council of Europe, two represented the embassies of USA and French) and 88 citizens of Ukraine took part at the seminar. 46 out of 88 Ukrainian participants are lawyers, including 13 juridical higher school teachers (from the National Juridical Academy, from the Advocate Institute at Kyiv University, from the Ukrainian Security Service Academy, from the National University of „Kyiv-Mohyla Academy“, from the University of Interior and others), 3 workers of the Academy Law Sciences and 7 advocates-practitioners. 18 participants are state officials (7 from the Ministry of Justice, 3 from the Security Service of Ukraine, 2 from the Supreme Rada and ombudsperson’s office, one representative was sent by each of the following organizations: the President’s administration, the Ministry of Interior, the Ministry of Defense, the General Prosecutor office, the Main State tax inspection). 37 out of 88 Ukrainian participants are human rights activists. 16 participants are journalists, 3 from them represented juridical editions: magazines „Law of Ukraine“ and „Practice of the European Court on human rights. Decisions. Commentaries“ as well as the newspaper „The Juridical Gerald of Ukraine“.

Each participant was given the above-mentioned information materials.

The seminar commenced with the report of Tatiana Termacic, who pointed out that the considered topic was very urgent, and that the efforts of non-governmental organizations, which collect, publish and analyze the data on applying torture in Ukraine, was very important. The report of Oleksandr Pavlichenko, the head of the Informational Office of the Council of Europe in Ukraine, was devoted to the co-operation of Ukraine with the Council of Europe. Various aspects of the activities of the European Committee for preventing torture, inhumane or degrading treatment or punishment were elucidated in the reports by Mark Kelly and Vladimir Evintov, the vice-president of the Committee, a Doctor of Law. Mark Kelly made a stress that Ukraine did not agree to publish neither of the three reports of the Committee about its visits to Ukraine in 1998, 1999 and 2000. This position of Ukraine, Mr. Kelly remarked, harms her reputation in Europe and confirms the negative attitude to Ukraine as to a country, which does not want to advance in the sphere of human rights. In his other report Mark Kelly reviewed the practices of the European Court of human rights according to Article 3 of the European Convention on protecting human rights and basic freedoms that protects from torture and cruel treatment. The reports of Roman Romanov, the executive head of the Sevastopol human rights protecting group, and of Yuri Zaytsev, the editor-in-chief of the magazine ‘Practices of the European Court of human rights. Decisions. Comments’ (published in Russian), were devoted to the court practices according to Article 5 of the Convention. Oleksandr Tolochko, an assistant professor of the National juridical academy, a candidate of law, told about the directions of the improvement of criminal-procedural laws. He made a stress on the fact that the right of a detained to turn for medical aid is not even mentioned in the laws, and the law drafts being prepared do not contain it either. Yevgeniy Zakharov made the brief survey of the UNO Convention against torture and its fulfillment in Ukraine.

The participants of the seminar expressed solidarity that the problem of applying torture requires a serious attention both of the state organs and of the society, that changes in laws are needed, in particular, introduction of the independent organ for checking complaints about torture, the legislative prohibition of interrogating a detained without an advocate, the prohibition to use in court the confessions made under duress, etc.

The seminar became a stimulus for discussing the problems in the Ukrainian mass media. The two all-Ukrainian TV channels -- ‘1+1’ and ‘New channel’ – informed the public about the seminar and showed the interview with Yevgeniy Zakharov, a co-chairman of the Kharkiv Group for human rights protection. Large articles were published in central and local editions (‘Den’, ‘Kievskie vedomosti’, ‘Yuridichny visnyk Ukrainy’, ‘Kryviy Rig vecherniy’, ‘Tiurma i volia’ – Donetsk, ‘Sobytie’ – Kharkov; all publications are appended).

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