The freedom from torture and cruel treatment

Moderators: Mykola Kozyrev and Andriy Sukhorukov.

Plenary report: Gennadiy Udovenko.

Participants of the session:

Yevgeniy Zakharov, the KhG. The campaign against torture and cruel treatment.

Arkadiy Bushchenko, the KhG. The problems of investigation of the complaints about torture during the inquiry and investigation.

Oleksandr Stepanenko, “Zeleny svit”, Chortkiv. Silent truth does not frighten anybody (on the problem of the illegal violence applied by militia).

Mykola Kozyrev, the Public committee for the protection of constitutional rights and freedoms of citizens, Lugansk. Torture in the context of dehumanized economics.

Irina Sarancha, the NGO “Parostok”, Vinnitsa. The protection of the handicapped in the Vinnitsa oblast.

Mykola Korobko, “Zeleny svit”. Non-freedom from torture is generated by the fear of the irresponsibility.

Nine conferees took part in the discussion.

Unfortunately, frequently the cruel treatment and application of torture remain unpunished or, what is worst of all, are regarded as a norm.

Here is the list of torture and other kinds of cruel treatment that are applied regularly:

–  torture and cruel, inhumane treatment during the inquiry and preliminary investigation applied to the persons suspected in the commitment of a crime;

–  the conditions of the upkeep in the preliminary prisons and some other penitentiaries;

–  the so-called “dedovshchina”, when older soldiers maltreat the younger soldiers and humiliate them.

The main reason of applying torture to the suspected is the stable prejudice of the society that any methods, even cruel ones, may be used for the extermination of criminality. The investigation of the majority of crimes is based on the confession of the suspected. Therefore, in spite of the declarative adherence to the ideas of human rights, both the legislators and the persons, who apply the laws in practice, do not want to change the existing laws and law-applying practices. This situation hampers the effective prevention of torture, on the one hand, and creates the auspicious conditions for the concealment of torture applied by militia, on the other hand. The latter factor gives the opportunity to represent the problem as insignificant both to the Ukrainian society and to the international institutions.

There are the factors, which create the favorable conditions for the application of torture. The most essential problem is the weakly developed national legislation on the arrest by militia and placing under militia guard. This thesis is not adequately reflected in the operating laws. The efficient mechanisms of the protection from the arbitrary arrest by militia do not exist, since the legal conditions of the arrest without court warrant are not envisaged sufficiently clear. It should be noted that, despite the fact that the illegal detention and arrest are regarded as crimes by the Ukrainian legislation (Article 371 of the Criminal Code), the court practices connected with the application of this legislative norm almost do not exist.

In June 2001 the serious reform of the criminal-procedural legislation was carried out in Ukraine, in particular, every detained must be taken to court now. Other important changes concerning the preliminary incarceration were introduced too. Yet, the results of this reform were not so significant, as it was expected.

According to the Constitution, any detention may be realized, as a rule, after “a court decision”. The Ukrainian Constitution permits the arrest without warrant only “in the case of absolute necessity in order to prevent or stop a crime” (Article 29). Thus, the innovations introduced to the criminal-procedural code do not stipulate this demand distinctly, so the arrest without warrant still remains a rule, but not an exception.

Besides, the legislation permits an investigating officer to approve the detention of a suspect for the term up to three days without court warrant. So, an investigating officer must not obtain the court warrant, in spite of the absence of “absolute necessity”. This provision obviously does not agree with the demands of the Constitution, but the overwhelming majority of arrests are realized on the basis of the resolutions of investigators, and such detentions are considered by the law-enforcing organs as one of the effective methods for conducting the investigation.

The Ukrainian Constitution states that a detained must be brought to court during three days, but not later. Yet, as a rule, the detained are not brought to court earlier than in three days, so in practice the deadline turns into the usual term. Militia is not responsible for the ungrounded delay, if the deadline was not exceeded. Judges are not interested whether the term of keeping under arrest is well-grounded. A judge also can prolong the term of detention of a suspect up to 10 days (part 8 Article 165-1 of the CPC). Besides, in the accordance to the legislation, militia has the right to keep a detained under arrest for the term more than three days under the special circumstances envisaged by law (part 4 Article 165-1 of the CPC).

Such long and uncontrolled term of keeping under arrest gives the opportunity not only to apply torture, but also to conceal the traces of torture. The inexact definition of the legal conditions of the detention by militia, legal opportunity to act without court decision (and to evade the check of the reasons for the detention), absence of the real responsibility for the illegal detention result in the situation, when militia detains people readily and without serious grounds. Such detention is used just for the creation of the conditions for obtaining the confession, in particular with the application of torture.

The improvement of the situation in this sphere depends both on the improvement of the legislation and on the change of the attitude of judges to the questions of the illegal arrest and detention. The change of advocates’ attitude is also very important, since the court check of the validity of a detention is a new sphere of juridical practices, and our advocates have neither the sufficient knowledge about the international standards, in particular the practices of the European Court of human rights, nor the experience in the cases of such kind.

Another important problem is the right for the access to advocate and medical aid. The timely access to advocate gives the opportunity to avoid torture, as well as the opportunity to disclose the cases of applying torture and to take the appropriate measures for collecting the proofs and starting the investigation. The quick reaction of an advocate is vitally important in such cases.

The legislation and law-applying practices create serious obstacles in the access to advocate. The admittance of an advocate to his client depends on the special decision of investigator. The investigators, who do not want to admit the advocates, refer to various rules (for example, the necessity to get the permission of a senior officer) that are absolutely illegal and unjustified. Often the law-enforcers try to make the detained to refuse from advocate’s aid using the same methods as for obtaining the confession. Besides, the problem of rendering advocate’s aid to poor suspects exists, because the Ministry of Justice practically does not pay for the work of the advocates, who are given gratis by the state.

Thus, the influence of investigating officers on the solution of the question about the access to advocate must be liquidated, the procedure of the access must be simplified and the real opportunity for confidential contacts of suspects and their advocates must be guaranteed.

According to the Ukrainian laws, the violation of the right for defense and meddling into the work of an advocate are regarded as crimes. However, these norms are rather new, they came into effect on 1 September 2001, so the court practices concerning such crimes do not exist yet. The precedents in this sphere will also facilitate the access to advocate, thus improving the situation with torture.

As for the access to medical aid, this problem is practically not discussed either in special literature or in the press. The legislation does not contain any provisions about the access to medical aid. Militia officers, investigators, judges and advocates, to say nothing about the suspects, know almost nothing about the standards of the European committee for preventing torture and cruel treatment (the CPT, in what follows). So, the enlightenment activities in this sphere are extremely important, as well as the development of the amendments to the legislation, which would guarantee the free access to medical aid.

Another essential problem is the impunity of those, who apply torture and the irresponsibility of the state as a whole. The main reason of this is the slowness and ineffectiveness of the investigations of the cases of torture. The prosecutor’s office, which, according to the law, must conduct the investigation in the case of applying torture to a suspect, fulfills this duty very unwillingly. Most often the investigators content with the perfunctory check of the complaint, and if the persons, against whom this complaint was handed, deny their guilt, then the investigation is terminated. Very frequently such complaints are rejected without the proper study of circumstances.

A suspect has the right to appeal to court against the rejection of his claim or the termination of the case. The court has the right to abolish the corresponding resolution, but may not institute a criminal case. Owing to the slowness of court procedure a suspect can obtain the court decision (even the favorable one) only in several months.

However, even if the criminal case was started, the law gives the opportunity to the prosecutor’s office to be passive during a long time. The laws stipulate the term of investigation of criminal cases, but during the investigations of torture the prosecutor’s office prefers to apply the legal norm permitting to conduct the investigation without the restriction of the term “if the person, who committed the crime is unknown”. The prosecutor’s office applies this norm even if the victim names the persons, who tortured him.

During the investigation of the cases of torture the problem also exists connected with the access to the independent experts. The direction of the investigation completely depend on the attitude of the investigating officer and the general policy of the prosecutor’s office. Of course, the conclusions of medics are fundamentally important, but there exists the possibility of getting the conclusions unfavorable for the victim. The legislation contains the clause, according to which an advocate has the right “to get the written conclusions of experts on the questions that demand the special knowledge” (Article 48 of the CPC). Yet, firstly, law does not envisage the status of these conclusions, and, secondly, according to the letter of the law, this right is rendered only to an advocate, who defends the interests of the suspect, but not to some other representatives of the victim.

Moreover, now in Ukraine the forensic expertise may be carried out only by the personnel of state expert establishments. Thus, the independent expert establishments, which existed in Ukraine during last 7-8 years, practically disappeared now. This fact gives the opportunity to the investigation organs to exert influence on the experts, and the victims of torture and their advocate have no effective methods for the control of the objectivity and validity of expert conclusions, as well as the possibility of obtain the alternative conclusions.

Another serious problem is the conditions of upkeep of the detained in the preliminary prisons and other places of preliminary incarceration, in penitentiaries, prison hospitals, disciplinary battalions and other closed establishments. According to the conclusions of the CPT, these conditions do not meet the CPT standards. It is necessary to analyze the Ukrainian legislation and law-applying practices connected with the upkeep conditions from the viewpoint of the CPT demands and standards.

The CPT visited Ukraine and handed the reports on this question to the Ukrainian government in 1998, 1999 and 2000. These reports were published only on 10 October 2002 and were not sufficiently elucidated in mass media, as well as the responses of the Ukrainian government to the reports. The CPT recommendations were not analyzed and made public.

Thus, it is necessary to change both the legislation and the law-applying practices. The three-year project started by the KhG is devoted to this problem.