ON IMPEMENTATION UNO CONVENTION AGAINST TORTURE IN UKRAINE
On November 9, 1995, Ukraine entered the Council of Europe. The European Convention on fundamental human rights and freedoms and Protocol 11 were signed on the same day. The European Convention on Prevention Torture, Inhuman or Degrading Treatment and Punishment was signed on May 2, 1996, and ratified by the Ukrainian Parliament on January 24, 1997. It is a remarkable success, however, it is noteworthy that even experts are unaware of this Convention and, as far as we know, even its unofficial translation has not been published in Ukraine yet.
Undoubtedly, the movement of Ukraine toward a democratic and law-abiding country would be facilitated with the fact that current legal regulations of law enforcement agencies contain requirements to respect human rights (e.g., Art. 5 of Law on Militia and Art. 5 of Law on Security Service).
On the other hand, it is evident that reports on torture in Ukraine are rather frequent; the lethal incidents with the suspects as a result of torture are well-known, too. In our opinion, such a situation is caused by the aggravating economic crisis and general trend to s ’get-tough’ state policy in response to crime growth. So we see a vicious circle: in order to reduce crime the government inflicts harsher punishments, so that the number of prisoners grows, conditions in jails and prisons deteriorate, then recidivism is ever increasing and society as whole is getting even more cruel. Finally, all these facts procure further crime growth.
We should notice unprecedented escalation of capital punishment in Ukraine. Ministry of Justice reports that its dynamics was as follows:
Sentenced Executed Pardoned 1991 112, 42, 2 1992 103, 79, 6 1993 117, 78, 1 1994 140, 60, 2 1995 191, 149, 1 1996 167, 167, 2
The nation that allows such large-scale death penalty shall not be considered as democratic and civilized. These facts are even more shameful given the obligation of Ukraine to decree the moratorium on executions after entering the Council of Europe.
Art. 1-2: NATIONAL LEGISLATION MAKES TORTURE POSSIBLE
Art. 29 of the Constitution sets forth the standards of detention and arrest suited to the requirements of relevant international treaties: grounds of keeping a person in custody as a preventive measure should be checked out with a competent court within 72 hours, and unless a detainee receives the well-grounded court warrant within this term he or she is to be released immediately. Moreover, everyone arrested or detained should be promptly informed of the cause of his or her arrest or detention, told his or her rights and given opportunity to defend oneself in person or through a legal assistant. However, Sec. 13 of Additional Articles of the Constitution states that the former rules of arrest, detention and keeping in custody of suspects are to remain under provisions in force for five years. These provisions do violate human rights and make possible practising torture or degrading treatment.
For example, Art. 11, Sec. 5 of Law on Militia allows Militia to detain and keep in custody in special receiving centers "the persons who have been warranted to preventive detention up to 10 days with a competent investigation body, prosecutor or court". That is a citizen may be detained without bringing any charges up to 10 days, and suspects in vagrancy — even up to 30 days, if prosecutor authorizes. These practices do violate international standards and are evidently repressive.
Here we should mention Presidential Decree (signed by L. Kuchma in July, 1994) followed by the Law on Preventive Detention. It allowed arresting and keeping people in custody up to 30 days without bringing any charges if there exist any reasonable grounds to suspect these persons. Top officers of Ministry of Internal Affairs or Security Service could put a citizen in custody up to 30 days practically groundless, solely on the base of their own suspicions. The violations of human rights with law enforcement personnel had become so numerous, that the Law on Preventive Detention was abolished on July 1, 1995. Nevertheless, it has been revived with the Presidential Decree on RICO which allows detention of suspects without bringing charges up to 30 days.
The national legislation on using special technical means in search and seizure does make possible, we believe, degrading treatment. So, if Art. 11, Sec. 10 of the Law on Militia, concerning conventional and undercover actions for taking photos, audio-, visual- and film recording, as well as wiretapping for tracing crimes impose legal responsibility based of the Law on Search and Seizure, then Art. 11, Sec. 12 authorizes "film-, audio- and visual recording as auxiliary means of crime prevention and investigation" with no reference to legal regulations of these activities. By this means law enforcement agencies, generally, could inflict most severe mental suffering. Moreover, Art. 15 of the Law on Organizational and Legal Forms of Preventing Organized Crime allows special divisions of Ministry of Internal Affairs and Security Service to use additionally the special technical means to control or record conversations and other activities of the suspects, if there are any well-ground indications to consider them involved in organized crime; letters and telecommunications may be recorded too.
There are some substantial drawbacks in the Law on Preventive Detention, because several its provisions do violate international standards of human rights:
a) the Law in question never mentions presumption of innocence, even implicitly, i.e. suspects, the accused and convicted offenders are not distinguished. Art. 9 on the rights of detainees makes it clear that restrictive regulations for the accused (who are not found guilty yet) hardly differ from those for the convicted offenders. How should we explain cash limitations for buying food when these sums are the same for adults and children and women with kids?
b) Art. 8 prevents housing together adults and juveniles, although prosecutor may authorize putting juveniles in one cell with two adults accused for less grave crimes for the first time. It means evident violation of children rights and shows that special standards of juveniles detention are mere lip service.
c) limitations on writing documents and other notes are most unusual. Why should not an innocent person be allowed to put down some educational materials, keep diary or write verse? It could not be an obstacle to tracing crime or threat to the security, anyway.
d) Art. 15 on punishments of the arrested states nothing about relevant appellation procedure, but secure punishments without suspension. It makes everyone, who is not found guilty yet, fully dependent on law enforcement personnel. This article provides, inter alia, such punishment as incarceration, that is in itself very controversial for those not convicted yet. Given possibility of housing together the accused and convicted offenders, incarceration of both together is not unlike. That would be an egregious violation of law too.
One of sources of degrading treatment seems to be the Law on Alternative Service (although, we ought to welcome even such improper law). This law is most controversial and needs a lot of improvement. If Art. 2 grants exemption from active service because of serious conscientious objections, then Art. 4 prescribes to call an exempted citizen up for active service in case of any essential breaches of a fixed-term contract in the alternative service. There is an evident collision with Art. 2 provisions.
The law does not provide opportunities for social work (but not service), so some Jehova’s Witnesses have become prisoners of conscience, since they refused both active and alternative service. These believers would sooner be prosecuted than break their religious commandments. As a consequence, in 1992-1994 41 men were convicted under Art. 72 of Criminal Code (evading call up for active service) and imprisoned. Courts heard 24 more cases for 10 months in 1995. Believers and pacifists (this group has not been even mentioned in the Law on Alternative Service) used to receive new mobilization designations just after release, punishment following disobedience again and again until a citizen is 28 year — older ages are not called up for active service in Ukraine.
So believers and pacifists would rather simply evade active service; moreover, the exempted from active service (only about 1000 men in 1995) usually get the hardest, the most unskilled and low-paid jobs that often are incompatible with their religious beliefs (e.g., carrying arms while serving in warehouses or getting salary in... wine).
Art. 3. PROHIBITION TO EXTRADITE PERSONS TO THE COUNTRIES THAT APPLY TORTURE
Art. 26 of Constitution guarantees to "aliens and apatrides who are legal residents of Ukraine the equal rights as for nationals". By 1997 1161 persons have got refugee status in Ukraine, among them were 461 16-year or younger ones. Most of these people are the refugees from the areas of military conflicts like Upper Karabakh, Ossetia, Chechnia, etc. It is worth mentioning that illegal immigration is large-scale: in 1992-1996 thirty six thousand illegal immigrants from different countries (mostly from Iran, Afghanistan and China) were detained (7200 in 1996).
KG is unaware of deportations from Ukraine to the countries where citizens might be tortured. On the contrary, it is Ukraine where emigrees from the CIS countries are seeking asylum from extradition to their own countries.
Art 4. REQUIREMENT TO QUALIFY TORTURE AS OFFENCE AND TO LEAVE IT NOT UNPUNISHED
As we have mentioned above, the Ukrainian legislation does not define torture and cruel or degrading treatment. Similar offenses are added to definition of abuse or misuse of power aggravated with "violence, use of arms or painful suffering, degrading human dignity and intimidation of victims" (Art. 166, Sec. 2 of Criminal Code), as well as coerced confessions "aggravated with violence or intimidating the interrogated" (Art. 175, Sec. 2). These offenses are defined as grave ones in accordance with Art. 7-1 of Criminal Code. Nevertheless, we believe that absence of clear and strict legislative definitions makes difficult to classify certain acts of public officials as torture or cruel treatment; alleged offenders 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 investigation;
- conditions in detention centers and some prisons;
- so called "dedovshchina" in the army, i.e. torturing of younger soldiers by older servicemen.
Complaints of citizens against law enforcement agencies concern, as a rule, unlawful methods of obtaining confessions. Below we cite some proven facts.
1. Two adolescents were detained in Odessa region; their hands were tied and they were fiercely beaten. They were kept for the whole day, without calling a doctor and filing any records. The children were released at 4 A.M. The doctor found cerebral concussions, broken fingers and shock (Special issue of "Prava Ludyny" (Human Rights), No. 15, 1996).
2. I. Khomenko, sister of a wanted brother, was kept in custody for three days, hungered and beaten in order to obtain information of her brother whereabouts. Fearful of her safety, I. Khomenko signed some "confession" and was released, being recorded in city police precinct as a suspect in a theft. ("Nezavisimost", May 1996).
3. In Lviv, one suspect was beaten on heel-bones until flesh parted from bones, but the court prevented medical inspection ("Prava Ludyny", No. 1, 1996).
4. Militia officers put handcuffs on I. Yakshina in the Central marketplace of Mariupol and kicked her. District Prosecutor’s office has instituted criminal proceedings only under the pressure of public opinion (" Prava Ludyny", No. 3, 1996).
5. Militia officers killed 29-year S. Mishchenko in Kyiv in April, 1996 after having put handcuffs on him ("Vseukrainskie Vedomosti", No. 96, 1996).
6. Interrogation in a district police station led to death of 17-year O. Stotsky who died in Zamost (Vinnytsa region) on August 9, 1996 ("Vseukrainskie Vedomosti", No. 152, 1996).
7. 26-year Y. Mozola died in detention centre of Lviv Security Service on March 31, 1996 after two day interrogation. Mozola’s body was a horrible view; his relatives photoed it in the morgue and claimed to prosecutor’s office. Mr Mozola was the suspect in a serial murder, but the genuine offender was arrested and convicted after Mozola’s death.
List of examples may be enlarged easily. In our opinion, pre-trial torture is very common. For instance, infamous clashes between the believers and militia during the funeral of Metropolitan Vladimir near the walls of St. Sophia Cathedral led to detention of several men. Later they stated that there was a special room in Shevchenko district militia station (Kyiv), well-equipped with instruments of torture, where the detainees were beaten for the whole night. However, even these statements had no legal consequences. If such things are possible in the capital, one can assuredly state that these violations are spread nationwide and could vary on enthusiasm of local officials. A high-ranked militia officer reaffirmed off the record that some detectives put prisoners to torture for obtaining confessions. They could put on the accused gas masks and pump out the air or torture with electroshock. This officer said he had taken gas masks and other tools of torture from his subordinates threatening to dismiss them, but he could not guarantee they gave up any torture.
Why should we regard the jail conditions as torture? We base our statement on the conclusion of Special Co-Rapporteur of UNO Commission on Human Rights, Mr. Nigel S. Rodley, who was invited by Russian Ministry of Foreign Affairs to visit Russia and analyze the fulfillment of the judiciary reform and protection of the convicted offenders’ human rights. Mr. Rodley wrote in his report (Doc. E/CN. 4/1995/34/Add.1) in "Conclusions and Recommendations": "Prison conditions in Butyrki Prison or Detention Centre No. 1 ("Seamen’s Silence") are horrible, especially in so called common cells. They seem to be not unique in Russian Federation... The senses of smell, touch, taste and sight are repulsively assailed. The conditions are cruel, inhuman and degrading; it is torture in itself. While suspects are kept there to promote investigation and to break their will in order to obtain confession and information, it would be quite sound to consider them as tortured". Alas, the conditions in Ukrainian prisons are like Russian.
The Minister of Internal Affairs, Mr. Yuri Kravchenko, once stated that the jail population was twice over the operative capacity. The overcrowding in maximum-security prisons is 13000 inmates. In mid 1994 we got the information from the Ministry of Internal Affairs, that 38900 inmates were held in 30 Ukrainian detention centers on January 30, 1994; their capacity was only 11300 populations, so overcrowding amounted to 344%. Later the Ministry did not reply to our inquiries about jail populations, but the situation is unlike to be improved, as the courts pass ever increasing number of sentences. Lately Chief Deputy of National Corrections Agency (Ministry of Justice), Mr. Alexandre Ptashynsky, cited statistical abstracts: on February 1, 1997 43700 persons were held in 32 detention centers. He has pointed out that 3 detention centers for 1800 detainees had been built for the past five years ("Den", March 26, 1997). So, overcrowding detention centers is still a pressing problem.
Thus, men have to sleep on bed of boards in Wolyn detention centre, women on the concrete floor. Lack of air and space still promotes tuberculosis (25% TB cases in Ukraine are prisoners), pediculosis, scab, etc. On October 1, 1996, 5818 detainees were held in three detention centers in Donetsk region with capacity of only 4387 (All these and cited below data about Donetsk region penitentiary establishments are taken from the document "Review of regulations on prisoners health" prepared by the regional Prosecutor’s office). Overcrowding has caused ever increasing number of cases, infectious ones as well. 330 cases of active consumption were recorded in detention centers for the 9 months in 1996. While total number of 30461 prisoners in jails and prisons of the region, 3375 were recorded as tuberculars, 2297 were active — 1660 were hospitalized in special prison hospital (Prison No. 3) and 637 in other prisons. Mortality in Donetsk region prisons grew by 270% in 1996, in Prison No. 2 even by 500% (42 cases in 1996, 8 in 1995). Near 50 criminal proceedings in facts of death in detention centers are instituted in Ukraine per year (interview of Mr. Valery Danilchenko, Deputy General Prosecutor, to "Kievskie Vedomosti").
Only a few prisoners have got bed linen in Detention centre No. 2 in Artemovsk (Donetsk region), and even that is dirty. Similar conditions are observed in Detention centre No. 1 in Donetsk, too. Nutrition is deteriorating because of scarce ration. Visitors have found out that 986 prisoners in Donetsk region prisons are under weight by 10 or more kg. Bad conditions are caused by lack of funding, but the personnel is indifferent or even intentionally cruel, which only deepens the crisis. One of our colleagues saw in Dnipropetrovsk detention centre four accused locked in a cell of ten square feet, in 30 Centigrade, for 20 minutes while three empty cells were next doors.
Detention is still for years, and release on bail remains very uncommon.
Overcrowding of some prisons is an urgent problem, too. On February 1, 1997, 173000 prisoners are held while prisons capacity is only 166000. ("Den", March 26, 1997). But these are not the darkest figures — in some prisons, e.g., special one in Donetsk, overcrowding ratio is 1.73. It causes growth of number of cases and deteriorating the prison conditions. The only way out is a wider use of punishments alternatives to imprisonment. In words of Alexandre Ptashynsky, in 1996 85800 of 242100 convicted offenders were imprisoned, 56.6% for short terms; that is we have great opportunities to reduce prison populations by using alternative sanctions. As for the overcrowding of detention centers, the competent authorities believe the bail would do for 25000 detainees or arrested, i.e. 57.5% of overall detention centers population.
We believe delaying release of pardoned prisoners to be a sort of cruel, inhuman treatment (e.g., KG has uncovered a fact of "overservice" for two years!). Such delaying is common on implementation of Ordinance No.256 of May 13, 1992 (Ministry of Internal Affairs) on procedure of initiating courts review discharging prisoners on the grounds of grave illness’ (it was a great deal to get this text!). The personnel is often deliberately indifferent to medical needs of the seriously ill prisoners. For instance, examination of medical histories of those died in Donetsk prison No. 3 in 1996 shows that there were sufficient grounds to get them medically examined before lawful discharging. Those people might have been still alive! This conclusion would be right in case of Sergey Ivanov, the former chief accountant of "Kyiv Airlines " who died of heart stroke in Lukyanovskaya jail in Kyiv before being discharged in accordance with Sec. 7.1.7. of Ordinance No. 256. Media have reported on unlawful imprisonment of V. Kovalchuk, Archbishop of Great White Brotherhood. Suffering from inborn heart disease, he was to be discharged. But his relatives failed to get the result of medical examination for two years and half (!). When such a document from solid authorities (Institute of Blood Vessel and Heart Surgery of the National Academy of Medical Sciences) reaffirmed the diagnosis and stated that Kovalchuk needed extra examination and discharge, the proper decision was not made anyway. Kovalchuk was sent back to prison and his life is still in danger.
There is no improvement of conditions in the army. As Union of Military Officers reported in 1995, more than 300 men had lost their lives in the armed forces. Growth of suicides, as a rule caused by "dedovshchina": 64 servicemen committed suicides in 10 months of 1995; 59.3% of them were privates, 3/4 of the latter were recruits, for it is they who suffer most ("Kievskie Vedomosti", December 1995). "Ukrainian Gazette" reports that 719 soldiers suffered from dedovshchina in 1994 (No. 4, 1995). "Legal Herald" (No. 14, 1997) published data by Chief Military Prosecutor’s Office: 460 servicemen suffered from dedovshchina in 1996, 6 died and 38 were seriously injured; officers of various ranks gave at least 480 unlawful orders that violated rights of 330 servicemen. All in all, 3700 crimes were committed in the Ukrainian Armed Forces in 1996, 25% of offenders were officers. The total number of victims of various offenses and incidents made public is approximately 1600 servicemen.
Institute of Sociology of the National Academy of Sciences reports that 79% officers and 88% soldiers have faced the facts of personal violence. We are much troubled with attitudes of officers: only 12% believe the violent misconduct to be dangerous, and 11% agree that personal violence does undermine fighting efficiency of the army.
Moreover, soldiers are suffering from hunger. In Zaporizhye several cases were noted when soldiers of the local garrison went a begging or stole food. In Berdyansk (Zaporizzhye region) 12 soldiers were hospitalized because of "distrophia" (Kievskie Vedomosti", May 1996). One private died of distrophia in Evpatoria, he was hospitalized too late ("Vecherniy Kiev", April 1996).
Practices of calling up the disabled youth for active service, in our opinion, must be considered cruel and inhumane. Sometimes recruiting commissions do it to meet the mobilization plan, but quite often this practices are caused with doctors’ indifference to the youth fate. KG often faced similar cases which are too numerous to be described here. We would like to stress only that in 1996, as "Legal Herald" reports, more than 3500 persons were dismissed from the Armed Forces with medical certificates of disability.
We should mention cruel treatment of refugees and migrants by state officials. In 1995 several refugees from Chechnia were detained in Kharkiv and kept in special receiving center on the pretext of having no passports (retained, by the way, by militia officers) and proper checking out. Only after intervention of the human rights activists the detainees were released without any explanations and excuses.
Congress of Ukrainian Nationalists reports that in 1996 four citizens of Chechnia were detained in Lviv for "residence without permission". Militia officers tried to obtain confessions in alleged crimes (passports of the Chechens had been retained, too) and kept these aliens in a dispensary (as if for the AIDS-test) and special receiving centre for a fortnight without bringing any charges. The Chechens were threatened to be extradited to Russia as combatants ("Vseukrainskie Vedomosti", No. 39, February 1996).
It is quite clear that the procedure of detention is not a rare idea in various regions of Ukraine, despite the abolition of the Law on preventive detention in 1995.
Probably, Head of Staff of High UNO Commissionaire on Refugees, Jozsef Gyorka has had good grounds to state in Kyiv that refugees in Ukraine are persecuted by militia, in most cases for nothing.
Art. 10. PERSONNEL IS NOT TRAINED IN THE CONVENTION AGAINST TORTURE
Unfortunately, human rights courses are not taught in the law colleges and professional schools of the Ministry of Internal Affairs and Security Service. Thus, law enforcement personnel in agencies, where torture and cruel treatment might be practised, are ignorant of the international standards in this field, and NGOs’ efforts are absolutely insufficient to change the situation quickly. One of the main causes of neglecting these issues is the absence of legal definitions of torture and cruel treatment in Ukrainian legislation as well as court practices, based on international standards of human rights. That is why the classification of certain acts of public officials as torture, in accordance with Art. 1 of the UNO Convention against Torture, causes a lot of opposition and protest among law enforcement officials. One of the co-authors of this report delivered lectures on human rights at workshops for law enforcement personnel in Kyiv, Kharkiv, Dnipropetrovsk and Poltava (the lectures were delivered in the framework of the TACIS Program, "Development of Civic Society in the CIS"), and everywhere definition of torture in Art. 1 of Convention and comparison of Ukrainian practices and international standards was not accepted by the audience.
Art. 11. SECRET REGULATIONS OF DETENTION, ARREST AND KEEPING IN CUSTODY
While the former criminal procedure has not been amended essentially, the internal rules and instructions remain in force without any changes. For instance, food and clothes for prisoners are still to be received only from next of kin; rules in force just state nothing, if a prisoner has got no kin at all.
It not Criminal Procedure Code, but "Instruction on procedure of short-term etention of the suspects" that regulates this issue, and it has never been published, as far as we know.
Old rules remain in force that let the counsel meet his client only after the investigator’s permission.
All proceedings concerning executions are set forth in the secret rules of the Ministry of Internal Affairs, not in the open legislation.
Though prisons have become more open to public, even the access to their territory is often complicated. For example, Chief of female prison No. 74 refused to let the human rights activists in, ignoring the permission of Odessa Regional Corrections Agency of the Ministry of Internal Affairs).
We could not find out what documents regulate so called "riot duty training", when the personnel are trained in hand-to-hand fighting prisoners. We have learned from reliable sources that such "training" was held in near 20 prisons ("Prava Ludyny", No. 6, 1996).
In September, 1996 some similar "training" was held in Zaporizzhye Region; as a result, several prisoners were fiercely beaten: they were made to lie on the ground under automatic rifles, they were sprinkled heavily with water-cannons.
The prisoners managed to have Prosecutor’s office to institute the criminal proceedings in the only prison — ??-309/70 (Berdychiv, Zhytomyr Region). But the head of the League for Prisoners Protection that had acted there from August, 1994 to October, 1995, Mr. A.S. Fridson, was incarcerated ("Prava Ludyny", No. 13, 1996).
We should note that the Law on Security Service grants the Service no explicit power to detain or to keep in custody the suspects or the accused, simultaneously providing Security Service the right "to have detention centers for detainees or the arrested with Security Service of Ukraine". This law never mentions or refers to legislative regulations of detention and keeping in custody. It may cause — and does cause, as we saw in the well-known case of Mozola — violations of all standards. As it was proved in court, it is internal rules that regulate keeping in custody in Security Service jails.
Unfortunately, the list of similar cases is too long to be cited here.
Art. 12, 13. INSUFFICIENT RESPONSE TO COMPLAINTS OF TORTURE
Under provisions in force of crime investigation, it is the Prosecutor’s Office, which is to warrant arrest, to keep prosecution in court, and at the same time to ensure impartial investigation of complaints on pre-trial violations of human rights. Although the Constitution states it is court that warrants arrest (Art. 29), not Prosecutor’s Office, however, as mentioned above, the old provisions are to remain in force during the next five years. And prosecutors used to be blind to various violations, mostly aimed at obtaining confession and self-incrimination.
These figures are eloquent evidence of this attitude. Donetsk newspaper, "Jail and Freedom", has inquired Donbass law enforcement agencies at all levels about complaints of unlawful methods and practices, and figures on implementation Art. 166 of Criminal Code (abuse or misuse of power). Donetsk city prosecutor, N.D. Kirichenko, replied that no criminal proceedings were instituted in accordance with that article in 1994-1996; respectively, none of complaints was satisfied. In 1995 none of 8 complaints was satisfied; in 1994 one of two complaints was redressed. Prosecutor’s office of Yenakiyevo replied that only one citizen complained in 1996, but his reasons were false; all eight complaints in 1995 were baseless; in 1994 one of two complaints was redressed. Lugansk Regional Agency of the Ministry of Internal Affairs informed that they had received no complaints on unlawful methods of investigation; and Regional Prosecutor’s office examined 71 petitions on such cases and only one was redressed in 1996. In 1994-1995, respectively, 16 and 52 were examined and none was redressed.
Despite Art. 55 of the Constitution, that guarantees protection of individuals from acts or inactivity of public officials that abuse human rights, Ukrainian courts tend to support prosecution due to rooted attitudes and practices and to ignore complaints on unlawful acts of law enforcement personnel.
We know only a few examinations of facts of unlawful acts during investigation. For example, General Prosecutor’s Office has instituted a dozen criminal proceedings against personnel of Lviv detention centre of Security Service, in the case of death of Y.Mozola, but the only accused were Deputy Chief on duty, O. Lozovikov, and controller warrant officer, V.Braylian. In February and March 1997 the trial was held, and General Prosecutor’s Office dismissed charges against Chief of the detention centre, his deputies and controllers of three other shifts, because "acts of some accused were unpunishable, and guilt of the rest was not proven". The defendants argued they had not been guilty in the death of Y.Mozola, as he inflicted the lethal injuries on himself. Because of numerous omissions in facts, the court ordered additional investigation.
Criminal proceedings on death of V. Kulinich, who was detained by officials of regional militia in Donetsk on February 28, 1996 and died of loss of blood and numerous injuries on March 3, which were instituted on his father’s complaint, still continue. Regional and district (Kuybyshev district of Donetsk) prosecutor’s offices "examined facts" by sending documents to each other from May, 1996 to January, 1997. As late as on January 13, 1997 the district prosecutor’s office informed that it instituted proceedings and investigated the case. V.Kulinich and his wife were arrested at home as suspects in possession of some narcotic drugs, delivered to regional police station, beaten fiercely there and sent to Kuybyshev district police station. The spouse of V. Kulinich was released on February 29; her beating was confirmed in the medical certificate. On March 4, the investigator of Kuybyshev district precinct informed V. Kulinich’s father that his son had died in the hospital.
As a rule, it is nearly impossible to prove complaints on beating and suffering, especially mental one (e.g., fears that relatives would be arrested). Even in cases of beating, courts tend to examine only the medical certificates issued by demand of law enforcement agencies.
So the victims are unwilling to seek legal protection of individual rights: they reasonably believe the length of proceedings to be excessive and courts will not be impartial, and they fear of eventual revenge on the part of law enforcement officials.
For instance, M.P.Kashuk believed he had been convicted to 10-year imprisonment not for manslaughter, but rather for his complaints about beating, cruel treatment and persistent demands to punish his alleged offenders. Partially disabled, Mr Kashuk had taken a shot at a wall, when attacked by a drunken hooligan, and brickbats injuried the offender’s face. Evidently, the sentence was inappropriate, but periodic petitions of KG to grant Mr. Kashuk (who became permanently disabled after 7-year imprisonment) executive pardon led to no result. Given the poor health of M.P. Kashuk, KG was about to lodge a new pardon application, but in early February, 1997 the prison authorities informed us about the death of M.P. Kashuk.
Presidential Commission on pardoning, as we could conclude from their replies to our petitions, is not inclined to grant executive pardon for the crimes that are not subject to amnesty.
So one should not be surprised if victims of police abuse (e.g., fiercely beaten and released refugees) rarely seek legal protection of their individual rights through petitions to national authorities.
Art. 14. ON REDRESS OR COMPENSATION FOR VICTIMS OF TORTURE
Art. 56 of the Constitution provides right to redress of losses and moral damage caused by abuse of power or inactivity of the authorities.
The Law on Militia (Art. 25) and the Law on Security Service (Art. 35) impose responsibility (even criminal one) for abuse of power or inactivity by the authorities. The Prosecutor’s Office functionaries, as Art. 49 of the Law on Prosecutor’s Office states, are responsible under disciplinary proceedings.
The similar articles have been added to Criminal and Criminal Procedure Codes of Ukraine.
However, as far as we know, court decisions in this field are very seldom because of absence of due procedure, rules and criteria useful to assess personal losses and moral damage; anyway, prosecutors tend to offer a lot of opposition in such cases for covering up their colleagues.
In 1995, as the first vice prime-minister V. Durdynets states, over 4000 violations were traced in law enforcement agencies, 1430 officials were accused, but prosecutor’s office investigated only 62 cases. In 1996 2400 militia officials were accused of various violations by April 1 (170% to 1995 statistics), 419 persons were convicted ("Molod Ukrainy", April 11, 1996).
Art. 15. USING ILLEGALLY OBTAINED CONFESSIONS AS EVIDENCE
Art. 62 of the Constitution says that "charges shall not be based on illegally obtained evidence as well as assumptions. Benefit of the doubt must be the leading principle."
But court practices show that self-incriminating confessions obtained under investigation substitute for any other evidence, even if the accused later refuses his guilt in court.
For instance, three juveniles in Poltava were convicted for murder only on the base of the "confession" obtained under duress, although complex expertise and defense attorney substantiated their alibi.
KG has managed to get the information and sentence of Victor Butyrkin and his wife, Z. Butyrkina, accused of premeditated fratricide of Victor’s brother Vyacheslav (under Art. 94 of Criminal Code). Though their guilt was not proven by neither prosecutor nor court, the Butyrkins were found guilty and sentenced to 11- and 9-year imprisonment, respectively. As a matter of fact, the only ground for conviction was their "confessions": as the convicted argued, they had been beaten, the investigators had threatened to put their 16-year daughter in cell, etc. As a consequence, their confessions were qualified as surrenders. Both rejected their confessions in trial; even the court found the surrenders to be illegal, but the sentence was based on self-incrimination. Documents of this case are attached to this report.
Art. 16. CRUEL OR INHUMAN TREATMENT THAT IS BEYOND THE DEFINITION OF TORTURE IN ART. 1 OF THE CONVENTION
Certainly, capital punishment —a lawful homicide as the most cruel and inhuman punishment — is in this category. While entering the Council of Europe, Ukraine took obligation to abolish punishment of death. Within a year after entering the CE Ukraine was to decree the moratorium on execution of death sentences. However, declaration of this moratorium by the Ministry of Justice has changed nothing, and General Prosecutor argues that it is the Parliament that shall make the decision in question. The bill on abolishing the capital punishment was drafted, but MPs have not read it yet.
Now Ukraine is the world vice champion in the number of both sentenced and executed. It might sound cynically, but one may have the impression that law enforcement agencies are in a hurry to execute as many death sentences as possible before the moratorium or abolishing the death penalty. It is most uncertain that all those death sentences were proven and errors of justice were precluded.
CONCLUSIONS AND RECOMMENDATIONS
In 1992-1996 Ukrainian legislation was enriched with provisions with respect to human rights binding to state authorities, especially law enforcement agencies. The Constitution of Ukraine adopted on June 28, 1996 bans torture, cruel, inhuman or degrading treatment or punishment. However, Ukrainian laws do not define the terms "torture" or "cruel treatment"; the UNO Convention against Torture has not been published in official source-books, so court practices based on this Convention are very limited. State officials, top law enforcement and military officers are practically ignorant in provisions of the Convention against torture and other international treaties on human rights ratified by Ukraine; alas, government does nothing to promote information about these treaties.
Law enforcement practices show that violations of the UNO Convention against torture are increasingly abundant and unpunished. We are not inclined to state that cruel, inhuman treatment of suspects is flourishing everywhere. However, some ill-trained officials use unlawful methods of treatment, and the probability of getting them punished or redressing losses and moral damage is very low. Illegally obtained confessions are used as the best evidence in trial.
We think the conditions in detention centers and some prisons, and so called "dedovshchina" in the army, are permanent and large-scale violations of the Convention against torture.
Capital punishment, the most cruel and inhuman one, is frequently applied in Ukraine. Unprecedented number of executions (in 1996 Ukraine was following the world champion, China: 167 death sentences were executed in our country) makes impossible to count Ukraine among civilized states.
We should point out the common facts of cruel treatment of refugees and migrants from Caucasian countries by state officials.
Existing objective reasons of deteriorating the conditions in detention centers and prisons (lack of finances for prisoners maintenance and personnel wages because of economic crisis) cannot excuse of the current situation, as well as issues concerning crime growth and need to suppress it.
Deepening economic crisis and general trend to tough public policy in criminal proceedings in response to growth of crime create a vicious circle: in order to reduce crime the government inflicts heavier punishments, so the number of prisoners grows, conditions in detention centers and prisons are deteriorating, then recidivism is increasing and the society as a whole is getting even more cruel. Finally, all these facts procure further growth of crime. The government should break this vicious circle leading to escalation of torture and cruel treatment.
It is a most positive fact that NGOs are trying to monitor and examine facts of cruel treatment, to protect persons, whose individual rights have been violated by state officials, and to support law enforcement agencies in promoting information about human rights. Some 7 years ago such discourse was impossible. However, the civil society is still too weak in Ukraine to change radically the situation in this country.
In order to improve the situation it is necessary under the provisions in force:
- to substitute immediately the detention by the obligation to remain within the jurisdiction for all the accused in crimes punishable by imprisonment up to 3 years; — to make sure that every detainee be informed promptly of his or her rights, especially the right to complain about cruel treatment;
- to ensure that relatives of a detainee shall be informed of his or her detention immediately;
- to release the suspects on bail in more cases;
- to control the length of detention that it shall not be excessive, the detainee shall be informed of nature of charges and shall have the opportunity to meet his or her defendant before the first interrogation;
- to ensure to everyone, who claims to have been tortured, the opportunity to get impartial medical inspection within a reasonable time;
- alleged offenders in torture or cruel treatment shall be subject to criminal proceedings.
The following measures are to be taken to change the current situation radically:
- adoption of a new, more human oriented Criminal Code providing definition of torture and cruel treatment, sanctions for its infliction and enabling courts to pass more sentences imposing alternative punishments;
- adoption of new Criminal Procedure Code preventing eventual infliction of torture and cruel treatment to detainees, the arrested and accused;
- imposing strict legal limitations on preventive detention;
- enacting stern legal limitations on the terms of pre-trial detention;
- carrying on independent legal expertise of internal rules in the field of investigations and corrections;
- improvement of court practices, making common alternative punishments;
- adoption of new Corrections and Labor Code that is in compliance with the international standards for penitentiary establishments;
- professional training curriculum of law enforcement and military officials should include a course on human rights, with especial stress on documents against torture and cruel treatment;
- getting law enforcement personnel and military officers acquainted with provisions of the UNO Convention against Torture;
- ensuring legal grounds for court and civic monitoring the law enforcement agencies activities, promoting adoption of the law on ombudsman.