Let everyone get what he deserves
The decision of the Frankivskiy district court about paying the compensation to the parents of Yuri Mozola, who was tortured to death in a USS preliminary prison in March 1996 (he was tortured to make him confess in a series of murders), makes a very important precedent.
The matter is that the application of torture for extracting confessions is massive and frequently used. According tot he statement of ombudsperson Nina Karpacheva, in 1998-1999 as many as 194 criminal cases were started connected with misuse of power, applying torture and degrading treatment; 285 militia officers were brought to criminal responsibility. Ms. Karpacheva also published the following data: during 11 months of 2000 the Lviv oblast prosecutors office started 14 criminal cases on applying torture to the incarcerated. Yet, only seven cases advanced to be considered by court. At the same time 129 complaints against the illegal actions of law-enforcers remained disregarded. And here is the data concerning the Kharkov oblast: during the first seven months of 2001 the oblast militia directorate received more than 500 complaints against illegal actions of militia. The oblast prosecutors office is considering 21 criminal cases against militiamen. Three former militiamen have been already condemned („Rabochaya gazeta“, No. 107, 31 July 2001). Thus, the majority of similar complaints are not satisfied. This may be also confirmed by the comparison of the data on the number of the complaints concerning illegal detentions, arrests, searches, physical violence and rude treatment of citizens mentioned in item 44 of the fourth periodic report of Ukraine to the UN Committee against torture (554 complaints in 1996 –99) and the data made public by deputy Minister of Interior Nikolay Anufriev, who informs that each week the Ministry of Interior receives about 40 complaints about violations of laws by militia staff. Nikolay Anufriev told that in 1997 as many as 2045 law-enforcers were brought to responsibility for violations during inquiry, investigation and application of administrative laws; in 1998 this number was 1921. 10 criminal cases were started, two militiamen were condemned („Molod Ukrainy“, No. 55, 25 May 1999).
Our organization, the Kharkov Group for human rights protection (the KhG), permanently collects information about applying torture during inquiry and preliminary investigation. During four years (April 1997 – July 2001) we collected and processed the data concerning 205 cases, where, in our opinion, the actions of militiamen had to be qualifies as torture and cruel treatment; in 26 cases the torture resulted in death of the suspected. We published these data in the book „Against torture. Review of the data on cruel treatment and applying torture“. Judging by the complaints against law-enforcing organs, the most frequent occasion, when torture is applied, is the stage of inquiry before formulating the accusation. It is very difficult to make militiamen responsible for their illegal actions. In the cases we mentioned the guilty were punished only in especially obvious and scandalous situations; only 17 militiamen were condemned.
The information about the real punishment, which threatens those few law-enforcers, who, after all, were brought to the court dock for their excesses, is not less striking than the torments applying to the suspected. „Zerkalo nedeli“ (2 December 2000) wrote about two militiamen, who, wishing to get confession, beat the suspected, broke his ribs, handcuffed his and several times nearly drowned him in a river. As it appeared later, this man was not involved in the theft, which was the reason for this „third-degree interrogation“. The law-enforcers were brought to criminal responsibility. They were condemned to three years of incarceration… conditionally. Alas, such examples are too plenty.
It should be noted that in the infrequent cases, where the complaint is satisfied, the affair is investigated and the guilty are condemned, it is next to impossible to execute the court verdict. Most frequently such a verdict consists of a conditional prison term and prohibition to work in militia. It is very difficult to execute the decision about the dismissal of law-enforcers, which is confirmed by numerous examples presented in the mentioned book. The KhG encountered the situation, when two militia officers, who had beaten a minor and had been condemned conditionally for this, continued to occupy their posts for a long time after the verdict came into force; they were fired only after we turned to the head of the oblast interior directorate.
It is possible make a sad conclusion from the above-said: torture will continue to be applied until it were strictly punished. That is why it is extremely important to punish pitilessly the law-enforcers guilty of torture and to demand the compensation of the moral and material damage.
Since, as it was demonstrated above, the investigation of the complaints against torture is inefficient, the decisions about recompensing the moral and material damage are taken by courts very rarely, and one must be dogged to achieve such a decision, as well as to get the recompensing sum appointed by court. That is why the seemingly individual question, whether Mozolas parents will get the compensation and when is socially important.
Although the Ukrainian laws contain the norms about recompensing the damage inflicted by illegal actions of law-enforcing organs, and in the end of 1994 the special law was adopted about recompensing the damage inflicted to a citizen by illegal actions of the organs of inquiry, preliminary investigation, prosecutors office and court, the exact mechanism of paying compensation did not exist for a long time. It is noteworthy that, according to this law, the right for compensation appears only in the cases, where: a) a non-guilty court verdict was issued; b) the criminal case was closed because of the absence of crime event or corpus delicti, or because of the absence of proofs of participating in the crime by the accused; c) the refusal was get in starting the criminal case, or the criminal case was closed by the reasons listed in item b), or the case on administration violation was closed. Thus, this law does not stipulate any recompensing of moral and material damage to a victim of torture, if the victim actually committed a crime or an administrative offence.
Only in summer of 1999 the Cabinet of Ministers adopted the Resolution envisaging the unconditional payment from the accounts of law-enforcing organs, if there is a court verdict that came into effect. At the same time the Ministry of Finances put aside 637.5 thousand UAH for paying the compensations. This sum seems misery even under the comparatively small number of verdicts on recompensing. As the newspaper „Ukraina moloda“ (No. 136, 28 July 2000) wrote, the Cabinet of Ministers gave from its reserve fund 485.8 thousand UAH additionally for paying for claims satisfied in 1999. So, in order to get the proper compensation, one must wait for several years.
The procedure of recompensing looks more than strange. It is difficult to imagine a court decision about paying compensation from the budget sums intended for the maintenance of courts. The expenses for recompensing damage inflicted by illegal actions of law-enforcing organs must be separated in the budget. This was the reason of the constitutional presentation of the Supreme Court on the lawfulness of Article 32 of the law on state budget of Ukraine for 2000 and Article 25 of the law on state budget of Ukraine for 2001 that envisage such an absurd procedure. On 3 October 2001 the Constitutional Court of Ukraine acknowledged these articles as disagreeing with the Constitution and thus abolished them. This decision is just, yet any payments of compensations have been suspended.
The decision on the claim of Nina Karpacheva (by the way, her activities at the ombudspersons post becomes more and more fruitful) became one of the loud decisions, which testify on the tendency of the judicial power to achieve real independence from the executive power. Among those decisions are there are the decisions on the removal of all accusations from Yulia Timoshenko and her husband; on releasing from the courtroom of the suspected in Igor Aleksandrovs murder because of the absence of proofs of his guilt and impossibility to procure new proofs by the prosecutors office; on recompensing the moral damage by the sum equal to 3000 UAH to advocate Sergey Salov from Donetsk (for „torture and humiliation during investigation“) [The accusation against Salov was not removed. On the eve of the Presidential election of 31 October 1999 Mr. Salov found in his mailbox a newspaper „Golos Ukrainy“, which the information about L. Kuchmas sudden death. The newspaper was faked, and Salov was not involved in this falsification. Salov showed this newspaper to several people and was arrested. He was accused of violating Article 127 of the Criminal Code „Impeding the election right“. In July 2000 Salov was condemned to five years of incarceration with the postponement of the verdict for two years. Before this he was kept under custody in the Donetsk preliminary prison; he was kept in the only cell without bunks and had to sleep on the bare floor.]; on the refusal to satisfy several claims against journalist about protecting honor and dignity handed by militia top officers, as well as many other court decisions. These decisions more than once provoked anger and irritation of Ukrainian top authorities. The dependence of courts on the executive power and the facts of the intervention of the latter into judicial processes are often debated by Vitaliy Boyko, the chairman of the Supreme Court, his deputies and other judges of the Supreme Court. The real attitude of the executive power to the judicial one is also illustrated by the following numbers: for the reconstruction of the main Kyiv square devoted to the 10 thanniversary of independence and erecting the column with Khrystyna 52.4 million UAH were given during three months, whereas they gave out only 40 million UAH during four years for reconstructing and repairing all court buildings in the country. No comments are needed. Judges salary also leaves much to be desired. Thus, the institution of the judicial power needs active support and protection on the side of the society.
To sum up, some general remarks. It is difficult for me to agree with Nina Karpacheva, who said that for the first time a claim was handed not against concrete law-enforcers, but against the whole system. Such a claim should be directed against the Ukrainian state, which preserves and supports the inhumane Soviet system of extracting confessions, one of whose founders was Vyshinskiy („Confession is the queen of proofs“), and which treats a human as a screw. Yet, claims against the state, perhaps, are impossible in Ukrainian legal system (it is only possible to hand a complaint against the state to international courts, for example, to the European court of human rights when the Convention on protecting human rights and basic freedoms was abused), since, according to the Constitution, courts are related to state organs, and the justice is realized from the name of Ukraine.
Such practices, in the case of a claim against the state, makes the state the judge in its own affair, and it is inadmissible. This means that the court considering complaints against the state may not be a branch of the state power, it must be a special type of power, which is a referee between the state and an individual, and it must take decisions from the name of Law.