Cruel torture is a routine in Ukraine.
PL publishes the summary of the report of the Kharkov Group (KG) for human rights protection and the unedited version of the document ‘Conclusions and Recommendations of the UNO Committee against Torture, which was approved by the Committee on 21 November. The KG report and the materials of the discussion of the fourth periodical report of Ukraine help in Geneva on 14-15 November we plan to publish fully in the second edition of the book ‘Against torture. International instruments of preventing torture and cruel treatment.
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. 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 prosecutors 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, especially „Mirror weekly“ and „Kievskie Vedomosti“.
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 prosecutors 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.
Unfortunately, alleged offenders, prohibited by the Article 28 of the Ukrainian Constitution, often evade a punishment, and even worse, their acts are considered to be normal.
We think the following violations of the Convention against torture are systematic and large-scale:
- cruel, inhuman treatment of suspects under inquiry and preliminary investigation;
- conditions in detention blocks, preliminary investigation cells and some prisons;
- so called ‘dedovshchina in the army, i.e. torturing of younger soldiers by older servicemen.
Kharkiv Group for Human Rights Protection prepared the commentary to the 4 thperiodic report and appendix to the report (this is a rather thick book containing information in Russian and Ukrainian)
In the appendix to the report (this is a rather thick book containing review of messages on torture and cruel treatment in Russia and Ukrainian), we shall present data on 174 conflicts during inquiry or preliminary investigation in which, in our opinion, the actions of militiamen should be classified as torture, in 26 cases the torture resulted in the death of the suspects, and data on 27 conflicts, where the actions of militiamen may be classified as cruel and inhumane treatment. Judging by complaint of citizen about the actions of law-enforcing organs and judging by publications in mass media, the illegal methods of ‘getting evidence are applied most often on the stage of inquiry, before the accusation is presented.
It is next to impossible to manage law-enforcers to be punished. In the 202 cases described in the appendix the guilty were punished only in quite obvious and most scandalous situations, only 17 law-enforcers were incarcerated, practically all according to Article 166 of the CC ‘Misuse of power. Ombudsperson Nina Karpacheva stated that during 11 months of 2000 the Lviv oblast prosecutors office started 14 criminal cases concerning torturing of the detained. Yet, only seven such cases came to courts. On the other hand, 129 complaints against militiamen remained without response. 575 such complaints were handed to the Kharkov oblast militia directorate in 2000, 50 of them were completely confirmed, 102 were confirmed partly, 76 militiamen were brought to disciplinary responsibility, 3 persons were condemned for misuse of power.
The problem of overcrowded preliminary prisons and penitentiaries of strong regime remains very acute, though new preliminary prisons are built and new cells are introduced. The data given by Ivan Shtanko, the then head of the penitentiary department, are the following on 1 January 2000: 222.3 thousand prisoners were kept in 180 penitentiary establishments of the department, among them 171 thousand stayed in 128 colonies, 3.3 thousand minors stayed in 11 colonies for minors, 46.2 thousand persons – in 32 preliminary prisons and 1.8 thousand – in anti-alcoholic correction colonies. Nonetheless, now the input to penitentiaries much exceeds the output, in spite of the annual amnesties, in which about 35 thousand convicts are released on the average. Thus, for example, in 1999 83 399 people were incarcerated, while 60.2 thousand were released. The proportion of those, whose terms were three years and less, was about 59% during all these years. Yet, for the time being the repressive mode of the criminal-legal policy remains unchanged as a whole. That is the reason why the proportion of verdicts of ‘not guilty steady equals 0.33-0.35% all the recent years. As before the proportion of people imprisoned for three years and less staying in penitentiaries is about 30% of the total number of the incarcerated. Other reason of cruel treatment of convicts is catastrophically insufficient, especially if one takes into account the number of the prison personnel, according to the law, may not be less than one third of the total number of convicts. The average cost of the upkeep of one imprisoned was in 1998 – 70 UAH per month, in 1999 – 78, in 2000 – 77 and in 2001 – 115. Yet, the existing objective reasons of the cruel conditions of the upkeep may not be recognized as an excuse in this situation.
Although penitentiaries became more open than before, the penitentiary system remains, upon the whole, closed. For example, it is rather difficult to communicate with convicts face to face. Besides, when one gets complaints about cruel treatment of convicts, it is difficult to understand the situation in reality. The requests addressed to the Penitentiary Department are usually fruitless: ‘facts are not confirmed and the author of the complaint is punished in this or that way. It is necessary to establish special commissions for inspecting penitentiaries, consisting along with officers of the Department, prosecutors office and ombudspersons office also members of non-governmental human rights protecting organizations.
The problem of cruel treatment of younger soldiers by older ones, so called ‘dedovshchina, remains acute. Yet, according to our data dedovshchina becomes weaker. Mass media also frequently wrote about the phenomenon. So, for example, according to Aleksey Protsenko, the head of the main directorate of indoctrination work of the Ministry of Defense, the number of crimes connected with dedovshchina has diminished by 69% from 1995 to 2000. In our opinion, the improvement of the situation is due, first of all, to the principal position of the Ministry of Defiance, which thoroughly investigates all complaints, actively and benevolently co-operates with human rights protection organizations, in particular, with regional branches of the Union of soldiers mothers. Consultants in charge of legal and social protection of servicemen have appeared in oblast recruiting commissions; almost everywhere this position was given to activists of the Union of soldiers mothers. Representatives of public organizations may now visit military units, meet with soldiers and their commanders, conduct polls, etc. To put it briefly, the commandment of the Ministry of Defense does not hush-hush the problems, but is open for their discussion. One could only dream about such a level of openness in the penitentiary system.
Somehow, prosecutors offices do not hurry to inform the public about their successes in the surveillance over the legality of the activities of law-enforcing organs. So, reacting to our request to the General Prosecutors office about the number of militiamen, who were condemned by Articles 166 and 175 of the Criminal Code of Ukraine of 1960, we were politely sent to the Ministry of Justice. Most oblast prosecutors offices did not answer our requests about the number of complaints against militia in 1998-2000 and the first half of 2001, the number of satisfied complaints and the number of militiamen, who were punished administratively. This certainly rudely violated the law ‘On information. Prosecutors office of the Crimea and Sevastopol answered that this information must not be divulged, since it is classified as ‘For service use only. So the data about the legal violations committed by militia is a secret guarded by laws. Nonetheless, most oblast militia departments, unlike prosecutors offices, answered these questions. All this creates an interest pattern, which is worth of a separate publication. Upon the whole, we get an impression that the new administration of the Ministry of Interior is willing to change to the better the shameful situation with torture. In particular, it is confirmed by the joint order of the Ministry of Interior and the Penitentiary Department about measures of controlling the legality. Yet, it needs control of an independent organ. It is obvious that nowadays prosecutors offices fulfil these functions unsatisfactorily.
In order to correct the situation it is necessary to change the operating laws and law-applying practices:
to make more exact the definition of torture in the CC of Ukraine agreeing it to the definition given in Article 1 of the Convention against torture;
to make sure that every detainee is informed promptly of his or her rights, especially the right to complain against cruel treatment;
to ensure that relatives of a detainee shall be informed of his or her detention immediately;
to establish legally that anyone may not be interrogated at any stage of investigation without an advocate;
to impose strict legal limitations on preventive detention;
to enact stern legal limitations on the terms of preliminary detention and trial, in particular, to diminish the maximum term of preliminary detention from 18 to 9 months and to limit the total time of keeping under custody during the investigation and trial down to two years, after which the incarceration must be exchanged for another preventive measure not connected with imprisonment;
to adopt a law, which would prohibit judges to use as evidence the confessions obtained under duress;
to adopt the new Criminal-Procedural Code, which would guarantee the right for defense at all stages of a criminal investigation and efficient court control over inquiry and investigation;
to ensure to everyone, who claims to have been tortured, the opportunity to get impartial medical inspection within a reasonable time;
to carry on independent legal expertise of internal rules in the field of inquiry, preliminary investigation and punishment;
to improve the court practices, making common alternative punishments;
to adopt the new Correctional Labor Code will be in compliance with the international standards for penitentiary establishments;
to remove the label ‘for service use only from the information about complaints against illegal actions of law-enforcing organs and about the results of consideration of such complaint, to publish such data every half a year;
to create a curriculum of professional training for law enforcement and military officers that should include a course on human rights with especial stress on documents against torture and cruel treatment;
to familiarize law enforcement personnel and military officers with the provisions of the UN Convention against torture;
to publish the reports of the CPT on visits to Ukraine in 1998, 1999, 2000;
to ensure legal grounds for court and civic monitoring of the activities of law-enforcing organs.