Report of G. Udovenko, Head of the Committee on human rights, national minorities and interethnic relations, at the conference “Ukrainian realities and standards of the European committee for preventing torture”

Respected participants of the conference!

On behalf of the Verkhovna Rada Committee on human rights, national minorities and interethnic relations I want to greet all participants of the conference.

We have met today for one more discussion of very complicated and socially pressing issue – the problem of application of physical violence by officers of law enforcement bodies in the course of detention and pre-trial investigation. The wide discussion of this problem is also important because now, after coming of the new power, Ukraine has a unique chance to become a law-based state, to extirpate, at last, this terrible and disgraceful phenomenon.

So, I believe that it is important to consider not only application of torture, but the entire problem of application of the illegal physical violence to the detained by law enforcement bodies . This is a large-scale problem that gives rise to application of torture as an utmost form of physical and psychological violence.

According to the data of the research carried out in 2004-2005, 84% of the persons detained by law-enforcing organs underwent psychological or physical violence, more than 50% told that they had been beaten during the investigation, and 13% asserted that torture with the use of special equipment had been applied. At the same time, the illegal violence is not considered by the population as one of the main drawbacks in the work of law-enforcing organs.

The above-mentioned is proof not only of the importance of this problem, but also of the need to use a complex of measures to resolve the problem. In my opinion, it is necessary not only to change the operating laws and to toughen the responsibility for such actions, but also to change the psychology of the society, attitude of population to this problem. Unfortunately, during the years of functioning of the totalitarian system, human life and health have stopped to be the main social value. Officers of law-enforcing organs are born and educated in this environment, they are an unalienable part of our society. It is impossible to change their psychology without changing the psychology of the society as a whole.

At the same time, it is necessary to improve the operating laws in the sphere of human rights in the part of toughening of responsibility of law-enforcing officers for application of torture and cruel treatment. Being a worker of a legislative organ, I want to dwell on this question.

You now that until recently the Criminal Code of Ukraine has not envisaged any direct responsibility of officers of law-enforcing organs for such deeds. In case of institution of a criminal case for application of torture, the guilty were brought to responsibility mainly after Article 265 of the Criminal Code “Exceeding service authorities”. The mentioned article envisages rather light punishment for this kind of crime.

By the initiative of people’s deputies of Ukraine (in particular, our Committee), the Law of Ukraine “On introduction of changes into some legislative acts of Ukraine (on intensification of legal protection of citizens and introduction of the mechanisms for realization of constitutional rights of citizens for business activities, personal immunity, safety, respect to human dignity, legal aid and protection)” was adopted and came into force on 12 January 2005.

The mentioned Law contains new version of Article 127 of the Criminal Code of Ukraine. Parts 3 and 4 of this article envisage criminal responsibility of officers of law-enforcing organs for application of torture; the minimal term of incarceration is 10 years.

This Law introduces changes also to the Law of Ukraine “On police”, which changes are aimed at guaranteeing of rights of the detained, in particular:

-  the right for protection of a person is supported from the very moment of detention;

-  police is obliged, within two hours after the detention, to inform relatives and defender of the detained, as well as administration of the organization, where the detained person works or studies;

-  the detained has the right to refuse from any explanations or testimonies before the arrival of an advocate.

The Law also describes the grounds for compensation and the kinds of damage, which should be unconditionally recompensed according to court decision. Police officers must guarantee to the detained or arrested (taken into custody) persons the right for juridical protection in compliance with the order stipulated by this Law and other normative-legal acts.

In spite of a number of progressive steps of our state in the sphere of human rights protection, the situation is still strained. According to the information of the General prosecutor’s office of Ukraine, during the first half of 2005 Ukrainian courts brought to criminal responsibility 212 police officers for the crimes committed by them, 43 among them – for application of impermissible methods of investigation. During the same period of 2004, 52 police officers were brought to criminal responsibility for similar crimes. 33 criminal cases were instituted by investigating organs after Article 127 (during 6 months of 2004 – 21 cases).

I want to draw your attention to the later numbers. The present state statistics gives the total number of cases started after Article 127, not distinguishing among the crimes committed by law-enforcers and civil persons. So, one should agree with the conclusions, made in the report, without authentic information (even merely statistical) about application of torture by officers of law-enforcing organs. Moreover, such state statistics does not exist at all.

I want to remind that criminal responsibility exists in Ukraine for the crimes connected with application of physical and psychical violence. This responsibility is envisaged by Articles 127, 371 and 372 of the Criminal Code of Ukraine. In particular, Article 372 has the title “Compulsion to giving evidence”. The analysis of the appeals received by the Committee from citizens and public organizations shows that in 80% of cases application of physical and psychical violence by law-enforcing officers is committed just with the aim to force a person to giving evidence and, as a result, to increase the number of disclosed crimes.

Here the question arises: how many officers of law-enforcing organs have been sentenced in compliance with this article, the article, which must extirpate one of the most serious defects of our law-enforcing organs? Despite all our efforts, we could not find an answer to this question either in the General prosecutor’s office or in the Ministry of Interior. By the official information of the Supreme Court of Ukraine, these data are not represented in court statistics. Well, there is another question: why? And where are they represented?

During more than two years the Committee repeatedly put the question about the advisability of keeping by the prosecution organs and court instances of separate statistics reflecting the responsibility of law-enforcers for the committed crimes connected with violation of rights of the detained and incarcerated, application of physical violence and torture. Yet, there is no result yet.

Although the tendency to improvement of the situation is obvious, the cases of application of torture have been observed in 2005 too. State agencies of Ukraine, in particular the General prosecutor’s office, continue to receive numerous letters from citizens, which evidence on application of illegal methods of investigation by officers of law-enforcing organs.

So, by the official information of the General prosecutor’s office (for September 2005), investigating police officers perpetrated 49 cases of illegal bringing to criminal responsibility (54 cases during the similar period of the past year) and 31 persons (16 during the similar period of 2004) were acquitted by courts. The General prosecutor’s office points out: “The main reason of this situation is violation of criminal-procedural legislation by inquiry organs, in particular, too early detention of a person and absence of proper intra-agency control. All in all, 14117 police officers have been brought to disciplinary responsibility by demands of prosecutors, among them 105 – for use of the illegal methods of investigation and inquiry”.

Carrying out the activities for prevention of torture in Ukraine, the Committee focused a noticeable part of its attention on the work with law-enforcing organs, which work is conducted both on legislative and practical level. The legislative work is based on the appeals of citizens, physical and juridical persons. The majority of such appeals contain the information on application of physical force or use of the forbidden investigation methods by law-enforcing officers or in penitentiary establishments. None of these violations were ignored. In order to liquidate them the committee turned practically to all organs of judicial and executive power with the demands to conduct proper investigations and to bring the guilty to responsibility. However, unfortunately, we cannot provide any example of efficient reaction, the investigations are still lasting.

Meanwhile, numerous complaints and appeals are sent to the Committee. Here is a citation from a complaint from M. Kolesnichenko, which was received by the Committee on 16 September 2005: “Inadequate measures were applied to me; policemen put a gas mask on my head and blocked air until I fainted, they handcuffed my wrists behind my back and suspended on the door, they applied various torture with intolerable pain, thus forcing me to sign some documents”.

In its work the Committee actively uses the mechanism of parliamentary control. In particular, a number of “round tables” and seminars were held, where the questions on prevention of torture in Ukraine were discussed. We conducted several meetings with international human rights protecting organizations. For example, on 26 September of the current year a discussion was conducted in the Committee of the report of “Amnesty International” “Ukraine. The time to act. Torture and cruel treatment of the detained by police” for 2004-2005. It should be noted that this thoroughly prepared document contained not only the information on the problem, but also a series of concrete recommendations to the organs of state power concerning prevention of torture. The considered report was sent by the Committee to the interested ministries and agencies with corresponding recommendations on the ways of legislative solution of the problems mentioned in this document.

Yet, despite all efforts there are still some questions. The main of them: why such situation exists? What should be done for liquidation of this shameful phenomenon? It is especially shameful, since torture and cruel treatment are applied by officers of law-enforcing organs, whose main task is protection of human rights. The international juridical practice regards such actions as one of the most dangerous encroachment upon the judicial system, since these actions not only noticeably decrease its authority and citizens’ trust in law-enforcing organs, but also raise doubts about the legitimacy of this system. Protection of public order cannot be connected with its violation. Why law-enforcers are still feeling the impunity? The Committee emphatically tries to find the answers to this and other questions in order to reveal, first of all, the gaps in the existing, in particular criminal, legislation, which gaps should be immediately filled with corresponding norms. Probably, the existing norms demand more strict sanctions for such crimes? Or inefficiency of the existing methods of prevention of application of torture lies, mainly, in the moral sphere? An important part is played also by the insufficient professionalism of investigating officers of prosecution, carelessness of some officers of the self-safety departments of the Ministry of Interior, who conduct the preliminary check. All that is cemented with the impregnable cover-up of law-enforcers, which engenders the certitude in impunity and new cases of torture in the work of law-enforcing organs.

One more factor, which contributes to application of torture, is the wide practice of use, in particular by courts, of confessions as a doubtless proof. This happens even when the confession of the suspected is the only proof of his guilt. I think that even the notorious Soviet prosecutor Vishnevskiy did not hope that his juridical postulates would be so enduring.

Another important problem is irresponsibility of the state for the cases of application of torture and cruel treatment. I have already said that the main reason here is slowness and inefficiency of investigation of such cases. Prosecutor’s office conducts these investigations very unwillingly. Frequently they do not go beyond the superficial check of complaints of the victims of torture. If the criminal case is instituted, the investigation is protracted, even if the victim directly points at the persons, which applied torture.

It is noteworthy that this year and before the Committee has organized a number of discussions of the problem of use of physical and psychical violence by the workers of law-enforcing organs. These discussions were held in the framework of the enlarged sessions of the Committee with invitation of top officers of law-enforcing organs, experts and mass media, round tables, conferences, etc. The participants of these actions created and directed to the Cabinet of Ministers of Ukraine and central organs of state executive power corresponding recommendations and propositions concerning the measures for extirpation of this disgraceful phenomenon. Concrete changes to existing normative-legal acts, aimed at prevention of application of torture, were elaborated by the Committee or with its participation.

I fully agree with the opinion that torture and cruel treatment should be denounced by the President of Ukraine and the Government. And this must be done publicly, elucidated as a separate problem that worries the top authorities of our state.

It is necessary to ruin the very atmosphere of hushing-up of this phenomenon, to form, on the state level, the position of intolerance and inadmissibility of cruel treatment and torture in the system of law-enforcing organs.

I assure you that the Committee will do its best for familiarization of all power branches with these recommendations, for detailed analysis and realization of every item. After the result of the analysis of the recommendations, the Committee plans to organize the round table with participation of the interested representatives of the organs of state government, and to elaborate at this conference the concrete recommendations to the Ukrainian government and the collective position concerning their practical realization.