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Human Rights in Ukraine - 2004: III. THE RIGHT TO PROTECTION FROM TORTURE AND CRUEL TREATMENT

   

1. The extent of the use of torture by law enforcement bodies

1.1. Information on cases involving torture

It remains as before difficult to assess the real extent of the use of torture in Ukraine. Although the influx of reports about torture and ill-treatment shows no signs of abating, it is practically impossible to obtain official data from prosecutor’s offices and offices of the Ministry of Internal Affairs (MIA), on the basis of which any conclusions can be made as to the degree of the use of torture, as well as to their reactions to these reports.

It is also impossible to analyze in detail court practice concerning convictions of persons, responsible for torture, because acts that contain elements of «torture» as defined by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are not singled out in court statistics.

It is practically impossible to obtain necessary data by making formal requests for information.

The Chief Editor of the bulletin «Prava Ludyny» («Human Rights») requested information from the General Prosecutor of Ukraine and regional prosecutors’ offices regarding the following issues:

– the number of law enforcement officers in their region who had been convicted under Articles 365 or 373 of the Criminal Code of Ukraine (Articles 166 and 175 in the Criminal Code of 1960) in 2001, 2002 and the first half of 2003. If such offences had taken place, they were asked to specify in which year and under which Article;

– the number of complaints made concerning unlawful actions by law enforcement officers in their region, against whom disciplinary charges had been brought for unlawful treatment of detainees; the number of complaints made concerning unlawful actions by prison officers in their region, against whom disciplinary charges had been brought for unlawful treatment of prisoners serving a sentence on their territory; those held in pre-trial detention centres in 2001, 2002 and the first half of 2003;

– the number of complaints made regarding unlawful activities of law enforcement officers in their region, as well as of penal institution staff of the State Department on Penal Issues in the region, the number of complaints satisfied and the number of officers against whom disciplinary or criminal charges had been brought, as well as the number of convictions.

In total 19 responses were received, of which only two – from the prosecutor’s offices of the Luhansk and Mykolayiv Regions – contained the requested data. All the rest contained refusals for a range of reasons, including the following:

– the information sought was used on an ongoing fashion and was not separately collated;

– the established forms of statistical reporting did not provide for registering the data requested, so the prosecutor’s offices did not have such statistics and reports;

– the information requested was for official use only and not available to the public;

– the data requested was confidential, protected by the State, and not available to the public;

– the information requested concerned undercover and investigative operations of prosecutor’s offices, offices of the MIA, of the Security Service (SSU), detective inquiry units, and courts, and its disclosure could harm investigative operations and the different stages of criminal investigation.

It is typical that the General Prosecutor’s Office sent no reply at all.

The letters with refusals to provide information had references to part 1 of Article 37 of the Law «On information» which prohibits disclosure of «information about undercover and investigative operations of prosecutor’s offices, offices of the MIA, SSU, detective inquiry units, and courts, the disclosure of which could harm investigative operations and the different stages of criminal investigation» and to Order No. 89 of 28 December 2002 from the General Prosecutor of Ukraine «List of documents arising from the activity of offices of the Prosecutor which contain confidential information and which are classified as being ‘For official use only’»

The Chief Editor of the bulletin «Prava Ludyny» [«Human Rights»] believing that the refusal to give information violates Article 40 of Ukraine’s Constitution and sections 28, 29, and 32 of Ukraine’s Law «On information», Article 6 of the Law of Ukraine «On Offices of the Prosecutor» has lodged complaints with the respective courts about the inaction of the prosecutor’s offices.

It should be noted that on 11 May 2004 amendments to Article 30 of Ukraine’s Law «On information» were introduced with provisions that directly prohibit the classifying of information about «natural disasters» or information «on the situation concerning human and civil rights, as well as cases where these are violated, and about unlawful actions by the State, local authorities, bodies of local self-government and their officials» as confidential information which is the property of the State.[1]

It is worthy of note that the General Prosecutor’s Office displays the same degree of secrecy in its relations with the Verkhovna Rada’s representative on human rights issues (the Human Rights Ombudsperson). According to «Podrobitsy»[2], «Human Rights Ombudsperson Nina Karpachova has accused Ukraine’s General Prosecutor Gennadiy Vasilyev of concealing cases involving harassment of people held in police custody. Nina Karpachova claims that the General Prosecutor Gennadiy Vasilyev refuses to provide her with information about the number of law enforcement officers disciplined for using violence towards detainees. She stated this on June 16 in Kyiv at an extended meeting of the Parliamentary Committee on Issues involving Human Rights, Minorities, and International Relations. According to Karpachova, in order to obtain information about the number of law enforcement officers disciplined for violence and torture of detainees, she sent requests to regional offices of the prosecutor, but ‘the instruction was the same as before: under no circumstances should they give information about these issues to the Human Rights Ombudsperson’. Karpachova added that because she has no full information about this issue, she cannot present data on the situation in Ukraine as a whole. She commented that she knew of some law enforcement officers having had charges brought against them for using unlawful methods to people held in detention only thanks to some regional prosecutors, ‘who were fearless and courageous enough to provide such information’».

In response to a similar request to the Ministry of Internal Affairs and its regional departments, the Chief Editor of «Prava Ludyny» received responses providing information from the central apparatus of the Ministry, from 22 regional departments and from the Sevastopol City Department, which suggests greater openness of police offices in comparison with offices of the prosecutor. The largest number of complaints about unlawful actions was recorded by the Luhansk Regional Department – around 1,800 complaints a year, of which 10 to 20% were satisfied; next was the Donetsk Region – around 1,300 complaints a year, of which 34% were satisfied. The maximum ratio of satisfied complaints was 55% - in the Kherson and Sumy Regions. It is worth noting that no police officer has been convicted under Article 373 of the Criminal Code of Ukraine (Article 175 of in the 1960 version), and the number of those convicted for exceeding their authority (Articles 365 or 166 of the 1960 version) is also small. On the whole, the number of complaints, satisfied complaints, and the number of law enforcement officers convicted for unlawful actions have decreased considerably in all regions.

The main source of information about cases of torture or ill-treatment remains reports in the media, as well as information obtained from civic organizations.

Approximately 200 reports of cases where the use of torture is alleged were received through the information network, created under the auspices of the project «Campaign against Torture and Cruel Treatment in Ukraine». Ninety three persons sent complaints to the Kharkiv Human Rights Protection Group, which allege the use of torture and ill treatment on the part of law enforcement officers. From the results of media monitoring, carried out by the Kharkiv Human Rights Protection Group, in 2004 56 cases involving the use of torture were reported. Six of these cases resulted in the death of the victim.

The cases described below which allegedly involved torture by law enforcement officers, are receiving legal assistance from the Fund for the Professional Support to Victims of Torture and Inhuman Treatment.

Case of Ivan Nechiporuk (Khmelnitsky)

On 20 May 2004 between 1 and 2pm, Ivan Nechiporuk was detained by police officers and brought to the South-West District Police Station in the city of Khmelnitsky. At about midnight, he was taken to Office No. 4, where police officers suggested that he confess to the murder of I. They proceeded to interrogate him until 4 in the morning, accompanying questions with threats. As to what happened next, here is Ivan Nechiporuk’s own story: «They brought a hexagonal crow-bar and a plastic bag; in this bag there was a dynamo with thick stranded cables. They handcuffed me, inserted the crow-bar between my elbows and knees, and suspended me between desks (there are markings left by the crow-bar: the desks were varnished, but some of the varnish was scraped off)… Rybalko [the name of one of the police officers] took the dynamo out of the bag and attached the two cables to my legs. Then he started turning the dynamo, asking, ‘Where is the gun? Who fired the shot?’ The pain was unbearable; I screamed so much that my lips cracked… Meanwhile Martsinyuk [another police officer] held a pillow over my face to silence me… Rybalko said that next they would attach the cable to ‘intimate spots’… There was also Igor, a tall guy with black hair in a crew-cut, he also helped to pin me up and get me down from the crow-bar. Shortly after 7am I scream that I’ll sign everything… Closer to 8 a.m. they stopped the ‘procedures,’ because I told them that I would make a confession».

Case of Yury Golubev (Kyiv)

On the morning of 14 February 2004, Yury Golubev left a friend’s place and walked toward his car. As he leaned over the boot of the car, he received a blow to the head and fell to the ground. When he came to, he saw a man in civilian clothes pointing a gun at him, while another man handcuffed him. When he asked them who they were, he received several punches and kicks. It was only when they drove him to the building of the Main Department of the Ministry of Internal Affairs on Volodymirska Street, that he realized that they were police officers. There they took him into a room where they demanded that he confess to several crimes.

Yuriy relates his story: «They punched and kicked me on my head, torso, and genitals, so that I almost lost consciousness. I felt dizzy and nauseous. I kept screaming, begging them to stop the beating, but my pleas only made them beat me more viciously. That ordeal lasted for quite some time. Then they asked me to sign some papers… Then they started threatening that if I refused to sign the papers, at very best I would leave that room a cripple, they would beat off all my internal organs, and I would urinate with blood and that I’d never be able to have sex with a woman again, because they would beat off all my organs. Or at worst, they would kill me and take my body to a forest, and bury it in a ditch, so that nobody would ever find me, since the detention was informal and was not recorded anywhere…»

«A few more people came into the room, holding a gasmask and bottles, which they began to use. From the gasmask and the smoke from the cigarettes, which they blew into it, I felt giddy, faint. I felt as though I was suffocating, I couldn’t breathe. I was faint also because of blows to my head from the bottles, I could hardly understand, what was happening…»

Case of Yevhen Ismailov (Kyiv)

On 11 September 2004, Yevhen Ismailov was detained by police officers of the Holosiyvskiy District Station of the Main Department of the Ministry of Internal Affairs in Kyiv. He was beaten when detained, and then later in the district police station.

On September 13, he underwent a forensic medical examination, which established numerous bodily injuries. Ismailov submitted a complaint to the prosecutor’s office, but on October 7 the latter refused to initiate a criminal investigation. On October 19, the Holosiyvskiy District Court in Kyiv overturned this decision to refuse to begin a criminal investigation. The prosecutor’s office has appealed.

Case of Valery Krykun (Kyiv Region)

On 28 March 2004, Valery Krykun was detained and taken from his home by police officers of the Brovary district police station (Kyiv Region). As he stated in his complaint, «On the fourth day [of his detention] police officers took me into a room in a temporary detention centre… The Gestapo sadists in police uniforms punched me in the head and the ears and threatened to leave me to rot there. They demanded that I confess to having taken out ‘a contract’ on my own father»

On 10 April 2004, Valery Krykun was detained for the second time and taken to the district police station. He relates: «After a while, two heavy-set men in civilian clothes came into the room. Without any explanation… they started calling me names, threatening me, and then began sadistically and brutally torturing me: they kicked me in the face, punched and elbowed me on my back, head, demanding that I sign a confession. They didn’t give me a chance to say a word in my defence, and when I tried to say something, they continued their savage torture. When… they saw that I was holding out and refusing to admit to a crime I hadn’t committed, they asked their colleagues to bring in police clubs. …They… continued to enjoy themselves beating me, this time with the clubs, on my back, head, legs, and the lower part of my belly. I fell off the chair, because I couldn’t fend off terrible blows from the two clubs, and I couldn’t hold on to the chair, because my hands were handcuffed behind my back. As I fell on the floor, I felt an awful pain through my whole body. I had never felt such a terrible pain before. … I felt giddy, at moments I lost consciousness… It seemed clear that if I refused to sign what they wanted, they’d beat me to death. So, I agreed to write everything [they] told me to… because I understood if I refused to follow their demands… they would beat me to death. Every time I paused for a second and stopped writing, or said something different from what they wanted to hear, they immediately started beating me with their clubs below my belly. … Then they took me to a temporary detention centre and ‘shut me inside’ for 3 days».

Case of Serhiy Korvyakov (Kirovohrad Region)

On 9 February 2004, in 11:30am, officers of the criminal investigative operations unit at the Svitlovodsk District Department of Internal Affairs, without any court order, came to Serhiy Korvyakov’s apartment and took him into custody on suspicion of using narcotics. During his apprehension, he was severely beaten by those police officers.

According to Korvyakov, in the police station he was subjected to torture with the use of handcuffs, a gasmask, and a rubber club – in order to obtain confessions to any crimes that he might have committed over the last two years. Hearing that the police officers were going to rape him with the use of a rubber club, Korvyakov tried to jump out from a window in the room which was on the third floor of the city police station, but the police officers stopped him.

Due to a deterioration in Korvyakov’s state of health by the end of the third day of his detention, the police officers called an ambulance and took him to hospital. He was in hospital from February 12 to February 23.

Case of Kostyantyn Kurazov (Dnipropetrovsk Region)

On 3 September 2004, businessman Kostyantyn Kurazov, a refugee from Chechnya and permanent resident of the city of Kryvy Rig (Dnipropetrovsk Region), was approached by three officers of the Department on Fighting Organized Crime (UBOZ) in Kryvy Rig, who told him that they were detaining him in connection with the terror attack in Beslan (Russian Federation). He was taken to the UBOZ, where for two hours he was beaten by three UBOZ officers, demanding that he confess to being involved in organizing the terrorist attack. Later they chained him with handcuffs to a handrail on the front-steps at the entrance to the police station and held him in this position for almost four hours. He was then placed in a centre for the reception and allocation of vagrants for a term of 30 days, although the police officers were well aware that he had a family and permanent residence.

Case of Denis Kuyan (Kirovohrad Region)

On 24 February 2004, Denis Kuyan was detained by police officers and brought to an inter-district station in the town of Svitlovodsk (Kirovohrad Region). The police officers started to beat him, demanding that he confess to committing the crimes they were accusing him of. At first they beat him with rubber clubs and punched him in the chest, and then, after handcuffing him, they hit him over the head with an armchair. The beating lasted several hours. He was then taken to a pre-trial detention centre in Kirovohrad.

On March 4, as Kuyan’s health deteriorated, he was placed in the Svitlovodsk Central District Hospital with the following diagnosis: «erysipelas of the thorax». He went through several operations in the hospital, but his health did not improve and he was continuously kept in an emergency care ward. Kuyan spent a month in all in the hospital and is still being routinely treated.

On March 17, he underwent a forensic medical examination, which established a fracture to his sternum in its middle third and a haemorrhage in the soft tissues of the front surface of his sternum.

Case of Andriy Yatsuta (Kharkiv)

On 24 May 2004, around 8am, Kharkiv resident Andriy Yatsuta was detained by police officers and taken to the Zhovtnevy District Police Station in Kharkiv. In the police station, he was told that he was suspected of involvement in the robbery of Ms. L. According to Yatsuta, in the investigator’s office, he was beaten by police officers: they hit him around the area of his liver, sternum, and on his head. They also tortured him with the use of a gasmask, inserting a lit cigarette through a plug made of paper or cloth with a cigarette-wide hole in its flexible hose. They also beat him with a plastic bottle filled with water; they chained him with handcuffs and suspended him onto a steel crow-bar. With his head in the gasmask, Yatsuta lost consciousness several times due to lack of air; they brought him around by using liquid ammonia. During breaks between torture sessions, the police officers demanded that he confess to stealing a mobile phone.

The police officers, seeing that Yatsuta was in a bad state, drove him around the city for two hours, threatening to get him if he told anyone what had happened to him. Around 8:30pm he was driven to his home.

On May 25, Yatsuta went to Hospital No. 4, and on May 27, underwent an examination at the Kharkiv Regional Bureau of Medical Forensic Examinations. Yatsuta attended the outpatients department of Hospital No. 26 from June 3 to June 29.

Case of Oleksy Ignatenko (Kharkiv)

According to Oleksy Ignatenko, on 2 January 2004, he was set upon by strangers, who inflicted blows to various parts of his body. They took away the keys to his apartment and 25 UH [$5], and then kicked him. Oleksy lost consciousness. When he came to, he found himself, handcuffed, being driven somewhere in a car. The strangers, it turned out, were officers of a police unit fighting drug trafficking. The police officers continuing beating him, demanding that he tell them the address of his apartment. Once they found out the address, the police officers, with him, entered the apartment and searched it without a search warrant.

They then drove Ignatenko to the Moskovsky District Station, where they beat him again, demanding that he make a confession. By kicking and beating him, they forced him into signing some protocols, printed on a typewriter. On January 6, around 4pm, Ignatenko was released. Releasing him, the police officer threatened Ignatenko, that if he told anyone what had happened to him, they would make him suffer, or even kill him.

1.2. Conclusions from sociological research

Within the framework of the project‘Campaign against torture and cruel treatment in Ukraine’ one of KHRG’s partners – the Kharkiv Institute for Sociological Research[3] - has finished the first stage of its sociological research concerning the use of torture in police offices. Below is the summary of the main results of this research stage.

The research conducted so far has shown that unlawful coercion is widely used in the activities of the Ukrainian police. During their lifetime, 23% of those surveyed had encountered situations, where police, in principle, could inflict on them beatings, torments, and torture (placing them in a pre-trial detention centre or a temporary detention facility, being taken as a suspect to a police station, being detained and / or frisked on the street by a police patrol, receiving a summons to appear at police station either as suspect or witness). One third of the respondents, who had had such dealings with the police (7.3% of those asked) had been subjected to unlawful coercion in order to uncover or provide information about a crime.

Of those surveyed, 3% had been victims of unlawful coercion by police officers within the last 12 months; 6% – earlier. 10 to 12% had at least one person among their family members, relatives, or close friends, who had suffered from unlawful coercion by police officers.

The likelihood of becoming a victim of unlawful coercion by police officers, according to the research, is fairly high: for those held in pre-trial detention centres there was a 65% likelihood, in temporary detention facilities - 57%, for individuals brought to a police station as a suspect - 36%, for those detained on the street and frisked - 31%, while for a witness, summoned to appear at a police station - the likelihood was 8%. Even, if a person had never encountered such a situation, there was still a 1% probability that he or she would become the victim of unlawful coercion by police officers.

The most common forms of physical coercion during detention are ill-treatment, torture, and beatings, while in the course of criminal investigations the most common are beatings, inflicting of bodily injuries, to a lesser extent, torture and torture using special means or techniques. The most common forms of psychological coercion are degrading treatment; intimidation; threats, including towards close relatives; blackmail.

Of all those surveyed:

- 52% believe that unlawful coercion must not be used under any circumstances;

- 31% believe that it is justified in exceptional cases;

- 14% consider the use of unlawful coercion to certain groups or categories of people justified;

- 3% believe that police cannot operate without it.

The main reasons of unlawful coercion, in popular opinion, are as follows:

– impunity of those police officers, who use unlawful methods in their work (48%);

– low professional and educational level of police officers (38%);

– poor staff recruitment, when people with sadistic inclinations fill the police ranks (35%).

The main measures how to prevent unlawful physical and psychic coercion, according to the public, should include:

– severely punishing police officers for any incidents of unjustifiable coercion, brutality, torture (52%);

– improving staff recruitment to the police (50%);

– improving training of police staff at the respective educational institutions (40%).

However, only a small number of respondents feel optimistic that unlawful coercion could be eradicated from police practice within the next three years.

Among the main flaws, which are pertinent to the personality of a police officer, all those polled listed:

– use of official position for personal material gain (49%);

– unwillingness to help «ordinary people» (39%);

– low educational level (39%);

– brutality, callousness (33%).

The main flaws, pertinent to the personality of a police officer, are perceived in a more or less similar way by the public as a whole and by victims of unlawful coercion, although among the latter there is a higher percentage of those, who refer to use of official position for personal material gain, brutality, callousness, and an unhealthy inclination to aggression and humiliation of other people.

Among the main flaws, which are pertinent to the police as a state institution, all those polled listed:

– corruption, extortion of bribes from citizens (50%);

– arbitrariness, exceeding of power and authority (38%)

– cover-ups, protection of police officers, who breach the law (35%);

– poor control over police work on the part of higher authorities (30%).

Respondents, who suffered from unlawful coercion, mentioned the following flaws:

– corruption, extortion of bribes from citizens (61%);

– cover-up, protection of police officers, who breach the law (49%);

– arbitrariness, exceeding of power and authority (42%)

– use of physical and psychological coercion as admissible practices (38%);

– internal corruption, paying to be appointed to a particular position (35%).

As to the main flaws in the work of the police, according to the poll, public opinion put the use of physical and psychological coercion as admissible practices in eighth and ninth place as to importance. Even such flaws as red tape and bureaucracy were seen by the public as a greater evil than unlawful coercion. For victims of unlawful coercion, those practices rise to fourth place of importance.

Perception of the widespread use of unlawful coercion in the police work greatly undermines public trust in the police, in the State on the whole, in the President, etc. To a slightly less extent, this perception influences public willingness to help the police.

Among those, who believe that unlawful coercion is widespread in the work of the police:

– 54% do not trust the police;

– 49% do not trust the Ukrainian state at all.

Among those, who do not consider it to be widespread:

– 15% do not trust the police;

– 22% do not trust the State.

According to contributors to the research, the practice of unlawful coercion in the police work is widespread: 7% of those polled, have experienced it themselves, and within the immediate circle of every tenth respondent, there is, at least, one person, who has suffered from coercion. Public opinion adequately reflects the picture of the wide use of this practice. Half of those surveyed believe that unlawful coercion in the police work is inadmissible, the other half believe the use of unlawful coercion to be justified in some cases, but in no circumstance are they seen as serving to improve police work. Those surveyed also do not accept unlawful coercion as a temporary measure to fight crime. However, unlawful coercion is not seen by the public as one of the main flaws of police work.

2. Analysis of causes of the widespread use of torture

2.1. Use of confessions in the course of legal proceedings

Ukraine’s Constitution and the Criminal Procedure Code prohibit the use of confessions obtained «by breaching legislation on criminal procedure». This provision has been repeated many times in resolutions of the Plenary Assembly of the Supreme Court of Ukraine (PSCU). However, in the practice of a criminal investigation, the use of confessions, which are unlikely to have been given without duress, is quite widespread.

This can be partly explained by the fact that, aside from the above-mentioned general provision concerning the inadmissibility of evidence obtained in breach of the law, there are no special rules or criteria as to the determination of that admissibility, in particular, whether the confession was made voluntarily. The rather weak development of the law on evidence has its historical explanation.

For a very long time, assessment of evidence was based upon the virtually unlimited personal conviction of a judge, which was, in turn, based on a «socialist sense of justice». In the doctrine of criminal procedure, the development of a theory of evidence was restrained by the spectre of a restoration of the «system of formal evidence». As a result, the term «due procedure» gradually lost any practical meaning. This lack of respect for procedural issues can be noticed, if one analyzes the practice of the highest judicial authorities and compares the number of resolutions from PSCU or published decisions from the highest judicial authorities devoted to issues of due criminal procedure with issues of material criminal law. The latter are astonishingly more numerous, although in recent years more and more attention is being given to the question of due criminal procedure.

As a result, in criminal procedure there are to this day no reasonably well-developed criteria for determining whether a confession was made voluntarily, nor is there any procedure for the exclusion of questionable confessions from case evidence. Courts hold to rather primitive tests to determine whether the confession was voluntary, usually failing to take into account the specific circumstances, under which defendants are forced, including through the use of torture, to confess.

Courts, in particular, assume erroneously that the use of torture or other kinds of coercion used to force a confession must be established by a court decision in order to declare a given confession inadmissible. Court practice shows that a well-grounded doubt as to whether a confession was made voluntarily is not sufficient to have it excluded from the evidence.

In cases, when a court considers that there are serious grounds for believing that «unlawful investigative methods» were applied to the defendant, the court instructs a prosecutor’s office to examine the relevant claims made by the defendant. As a rule, this examination is carried out by the same unit of the prosecutor’s office, which supported the case in court. In most cases, such examination results in a refusal to initiate a criminal investigation. Once courts receive the decision made by the prosecutor’s office refusing to initiate a criminal investigation or, when applicable, a decision to suspend a criminal investigation, they do not, in general, investigate the defendant’s claims of torture any further, and explain the claims away as being an attempt to avoid answering for their actions.

Such an approach by the courts to investigating and assessing defendants’ claims about the use of torture takes into account neither Ukraine’s international obligations, nor the existing system in Ukraine for examining claims that torture has been applied. Under the international obligations, in particular, according to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, rules as to whether confessions are to be excluded from admissible evidence should be governed by the shifting of the burden of proof that a confession was given freely on to the prosecution. The mere fact that, according to international standards, any claim that torture was used must be officially investigated suggests that a person who has been subjected to torture, will not be able to prove their claim on their own, still less to prove them «beyond reasonable doubt». Yet the standards for evidence actually used by courts, do not take this fact into account.

This means that at present the onus of proving «beyond reasonable doubt» that a confession was made under duress is on the defendant. Such a shifting of the burden of proof that a confession was not voluntarily given results in the fact that a great number of confessions made under duress are not excluded from admissible evidence, and this, in turn, encourages further use of torture and other means of applying unlawful duress on defendants.

Furthermore, the problem with regard to determining the admissibility of a confession is exacerbated by the fact that this approach makes no distinction between proving that torture did actually take place, and proving the personal guilt of those responsible. Thus, the defendant, who tries to prove that his or her confession was obtained by using torture, can do this only after criminal prosecution of the specific perpetrators has been completed.

2.2. Impunity of those who resort to ill-treatment

The doctrine of positive obligation of the State to ensure effective investigation of claims by victims about the use of torture or other forms of ill-treatment has been significantly developed in the legislation of the Council of Europe, especially since the European Court of Human Right’s judgments in cases McCann and Others v. the United Kingdom[4] (judgment of 27 September 1995) and Assenov and Others v. Bulgaria[5] (judgment of 28 October 1998).

The positive obligation of the State includes:

1) the criminalization of torture in wording, which corresponds to the definition of torture in international law, in particular Article 1 of the UN Convention against Torture and Inhuman or Degrading Treatment or Punishment;

2) the creation of a system to effectively investigate claims of the use of torture and ill-treatment.

2.3. Criminal responsibility for ill-treatment

Criminal responsibility for actions, which have elements of torture in the meaning of Article 1 of the UN Convention against Torture, has been substantially developed in the last few years.

Until the new Criminal Code came into force on 1 September 2001, there was no recognition in legal terms of the crime of «torture». Actions, which fell under the definition of Article 1 of the UN Convention against Torture, in relevant cases, could be classified as criminally «exceeding one’s power or authority» or «compelling somebody to testify». Even in the most serious cases of torture, the elements of torture were absorbed into a charge of aggravated «exceeding of power or authority», according to section 365 (part 2) (section 165 of the «former» CCU), specifically by such elements as «coercion, use of weapons, or actions, which are painful or degrading for the victim».

In the new Criminal Code, criminal liability for torture is provided in section 127, which defines the crime as follows:

«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to commit actions against their will».

Although Ukraine had clearly taken this step in order to fulfil its obligations under the UN Convention against Torture, the formulation of this section did not fully comply with the tasks set out by the Convention.

The subject of the crime under Article 127 of CCU was any person. Therefore, by taking into account the rule lex specialis, this provision was not applied in the case of officials, in particular of law enforcement officers who had used torture or other forms of ill-treatment. Therefore, this section failed to become a special tool intended to prevent the use of torture by agents of the State.

The term of punishment, – from 3 to 5 years deprivation of liberty, – provided by that section did not comply with international obligations either. Only if the crime was committed repeatedly or through the prior conspiracy of several people, was the possible punishment 5 to 10 years deprivation of liberty.

The practice of using criminal punishment against law enforcement officers, as before, was based on provisions, which established criminal liability for exceeding power and the authority vested in them (section 365 of CCU). This is confirmed by the Fifth Report of the Ukrainian Government to the UN Committee against Torture, which states that: «law enforcement officers who commit such actions shall face criminal prosecutions under sections, which establish liability for crimes committed in their official capacity» (section 365 ‘Exceeding of power or authority’ and others)».

However, the above-mentioned section contains a classification of crime, which could cover a wide range of offences. The dilution of the term «torture» into a wider term «exceeding power» makes it possible to conceal the actual extent to which torture has spread and impedes effective control over implementation of the obligations under the UN Convention against Torture concerning the severity of punishment and use of amnesty. It also interferes with the effective use of provisions under the criminal law to accomplices of individuals, who use torture.

A number of actions, which are qualified by the UN Convention against Torture as torture or ill-treatment can fall under section 373 of UCC «compulsion to testify». Paragraph 2 mentions «use of coercion or humiliation of the person» as elements of this and provides 3 to 8 years deprivation of liberty as punishment.

Convictions of State law enforcement officers for using torture remain rare. Furthermore, punishments meted out by the court in the case of conviction do not correspond to the gravity of the crime. Convicted officers often receive conditional sentences. Nevertheless, there have been some quite severe sentences:

For example, two former police officers in the Kherson Region were sentenced to 7 years, and a third to 5.5 years, deprivation of liberty, along with confiscation of their personal property and prohibition from holding any positions in law enforcement bodies. They had been found guilty of using torture to a suspect in order to obtain his confession. As the author of the report on the case points out, «during the entire period of Ukraine’s independence, this is the first case in the Kherson Region, when police officers have been sentenced to realistic terms of deprivation of liberty specifically for the use of torture». [6]

In another case, the Chernihiv Regional Court sentenced Police Captain Valeriy Stashko to 14 years deprivation of liberty. His accomplice, Senior Sergeant Mykola Reshotko, was sentenced to 5 years deprivation of liberty with a 3-year probation period. The Supreme Court of Ukraine upheld the sentence. In his address to the court, Prosecutor Anatoliy Lavrinenko said, «Stashko inflicted open cerebral injury on Ivashov, fracture of the sublingual bone, closed neck injury, which resulted in the death of the victim». [7]

Not only are convictions of law enforcement officers still rather rare, but so are even the bringing of charges against officers whose involvement in torture has been claimed by victims.

As far as one can deduce from press reports, it is only in isolated cases that charges have been laid.

For example, a charge was brought against Mykola Gurin, head of a criminal investigation unit at the Solomyansky District Police Station in Kyiv, who, in the early hours of 25 June 2003, was accused of torturing his former colleague suspected of murdering his wife. Earlier, under this case, the court had sanctioned the arrest of four top officers of the Solomyansky department – A. Gavrilenko, V. Otsalyuk, S. Deripapa, and Y. Martynyuk. All of them have been accusing of exceeding their authorities, and the investigation into the case is being carried out by the General Prosecutor’s Office.[8]

In another case, an investigation department of the Kyiv City Prosecutor’s Office submitted to court a criminal case, where three officers were accused of beating a detainee in order to calm him down. They have been charged with exceeding their power and official authority, leading to serious consequences. [9]

One more example: «three police officers have been charged with exceeding their power and official authority by torturing a suspect. The case has been submitted to a Kyiv court».[10]

According to information from the Fund for professional assistance to victims of torture, in 2004 charges were brought against the Head of the Criminal Investigation Department of the Vovchinetskiy district police department in Ivano-Frankivsk and an operations officer of the same unit for exceeding power, illegal imprisonment and a number of crimes committed against Oleksy Zakharkin.

It is not possible to carry out a detailed analysis of court practice with regard to convictions for using torture since the actions which include features of ‘torture’ as defined in the Convention against Torture are not singled out in court statistics.

Ukraine’s Law No. 2322-IV of 12 January 2005 introduced amendments to Article 127 of the Criminal Code. The components of the crime, set out in part 1 of this Article were changed in the following way:

«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to do something against their will, such as to obtain from him/her or another person information, testimony or a confession, to punish him/her for actions, which he/she has committed or is suspected of having committed, or to intimidate him/her or other persons…»

In addition, this section was supplemented by part 3, which defines a «law enforcement officer» as a special subject, and by part 4, which categorizes causing death as a result of the use of torture as an aggravated circumstance.

Part 3 provides punishment from 10 to 15 years of imprisonment, part 4 – from 12 to 15 years imprisonment or a life sentence.

These amendments leave certain discrepancies in the law.

Firstly, in the proposed version, the mark of ‘torture’ is a «violent act». This narrows the scope of that section compared to the definition of Article 1, which defines as torture «any act by which severe pain or suffering… is intentionally inflicted». Even though the narrowing of the definition of torture by the introduction of the element of «violent actions» may seem unimportant from the point of view of inflicting pain, it is very important with regard to suffering, which can be caused not only by violent action, but also by the creation of certain circumstances. These circumstances in some cases could be created by actions, which, in themselves, are not violent.

Secondly, the definition in Article 1 of the UN Convention against Torture is aimed only at representatives of the State. Yet the Law presents a definition of torture in part 1 of section 127, which covers a general subject, or perpetrator, of the crime. This creates a certain lack of logic which can be seen in the example of an indicator such as ‘«obtaining a confession». Only a representative of the State needs a «confession» in the technical meaning, in which it is used by the Convention. If we applied the purpose of «obtaining a confession» to a general subject, this would widen the meaning of «confession» far beyond the boundaries of its usual meaning. The same to some extent holds true for the purpose «to punish for actions».

Despite these shortcomings, the amendments to section 127 of UCC constitute a significant step forward in implementing provisions of the UN Convention against Torture. The fact that torture applied by law enforcement officers is placed in a separate part of section 127, leads one to hope that in the future, we will be able to obtain statistical data as to the implementation of this provision.

3. Investigation of torture

Until a mechanism to ensure effective investigation into complaints about torture is created, the problem of how to prevent torture will not be solved. Ineffective investigations into claims of torture being applied by law enforcement officers still pose a problem in Ukraine’s legal system. It creates the impression that law enforcement officers can torture with impunity, and significantly contributes to the fact that torture and ill-treatment are perceived by many such officers not as a crime, but as a routine element of their fight against crime.

Human rights organizations, which have joined forces within the framework of «Campaigning against Torture and Cruel Treatment in Ukraine», monitored claims of torture over a period of one and a half years (from July 2003 to December 2004). During this time, the partners tried to initiate investigations in over 25 cases. Although one can succeed in having a criminal investigation launched, it takes considerable effort and results in late investigations.

3.1. Initiating an investigation

In accordance with case practice of the European Court of Human Rights, there is a legal obligation to conduct an investigation, if a Prosecutor’s office receives trustworthy information from any source about possible ill-treatment of a detainee.[11]

In Ukraine, the only way to initiate a criminal investigation against law enforcement officers, who have used torture, is to address a complaint to a Prosecutor’s office, the latter having sole authorization to investigate this crime (section 112 of Ukraine’s Criminal Procedure Code (CPC)).

Although, according to section 97 of the CPC, «A Prosecutor, investigator, detective inquiry unit, or judge are obliged to accept claims and reports about crimes committed or being prepared, including cases, which do not fall within their jurisdiction», Offices of the Prosecutor have a lot of discretion on deciding whether to initiate an investigation. Although this wide discretion is not directly recognized by legislation or doctrine, it exists as a result of the unlimited margin in assessment, whether enough grounds are in place to begin a criminal investigation. Offices of the Prosecutor very cleverly use provisions of section 94 of CPC, which reads that «an investigation can be opened only in those occasions, when there is enough data suggesting the elements of a crime».

Moreover, in practice, such power of discretion is also determined by the insufficiently strong guarantees for complaints to the court, which would make it possible to immediately reverse unwarranted decisions by an Office of the Prosecutor. This subject will be discussed below.

The check which is carried out by the Prosecutor on receiving a complaint about torture is usually extremely superficial. Most often it is limited to questioning the law enforcement officers mentioned in the complaint. This questions ends with a written «explanation», in which the law enforcement officer in formulaic expressions denies the very possibility of the use of torture.

In most cases, these «explanations» are used to refuse to initiate a criminal investigation on the grounds that there is «insufficient data indicating the elements of a crime». Due to the fact that in the majority of cases no measures are taken by prosecutor’s offices to obtain «sufficient data», the numerous refusals to launch criminal investigations demonstrate the general belief of the Prosecutor’s office personnel that it is the victim, who is obliged to present sufficient data.

For the consideration of a complaint, the legislators have allocated three days, and if the claim needs examination, ten days; then a resolution must be made, whether to launch or to refuse to launch a criminal investigation. As a rule, these time limits are not kept, and a victim can be waiting for official notification about the decision reached for a month or longer.

For example, Ivan Nechiporuk’s lawyer and relatives submitted a complaint to the office of the prosecutor alleging that Nechiporuk had been subjected to torture on 26 May 2004. A decision concerning the complaint was made only on 18 June 2004, 23 days after the complaints were submitted.

Andriy Yatsuta submitted a complaint about torture to the prosecutor’s office on 26 May 2004, however a decision concerning the claim was made only on 27 September 2004.

Prosecutor’s offices are also slow in providing copies of their resolutions to suspend a criminal investigation (or to refuse to open a criminal investigation). On virtually every occasion, the office of the Prosecutor fails to send a copy of the respective resolution, or limits itself to sending a letter, informing that the investigation has been suspended, or that the request to open a criminal investigation has been turned down.

For example, a resolution by the Kharkiv Regional Prosecutor’s Office to refuse to initiate a criminal investigation concerning a complaint by K. Kucheruk was issued on 1 November 2004. Kucheruk’s representative received a copy of the resolution at the beginning of January 2005, after making a written request. Before that, neither K. Kucheruk, nor her representative had been informed about the progress of the examination.

In the case of Ivan Nechiporuk, the decision to refuse to launch a criminal investigation concerning Nechiporuk’s complaint was issued on 18 June 2004. He has still not been sent a copy of this resolution.

If one takes into consideration the high frequency and uniformity, with which prosecutor’s offices procrastinate over providing notification of the results of their investigation, copies of resolutions and documents explaining the grounds for their decisions, it can be concluded that the use of these and other methods are deliberate ploys aimed at sabotaging the investigation into claims of torture.

Section 236-1 of CPC sets out the procedure for appealing a refusal to launch a criminal investigation in the courts. The judge should consider any appeal against such resolutions within 10 days from the moment it is filed in court. However, in practice, consideration of appeals can drag on for months.

For example, Gennady and Valery Vladimirov (from the city of Bakhchisarai) lodged an appeal against the refusal to launch a criminal investigation on 17 May 2004. The appeal was considered by the court only on 30 June 2004, i.e. more than a month after the appeal had been lodged.)

Yevhen Bocharov (from Kharkiv) appealed the refusal to initiate a criminal investigation on 14 July 2004. As of February 2005, more than 7 months later, the appeal had still not been considered.

On 13 April 2004, K. Kucheruk lodged an appeal against a decision of the Head of the Kharkiv Pre-Trial Detention Centre, No. 27. The appeal was only considered on 1 October 2004.

The very delay in launching an investigation in most cases deprives the investigation of any effectiveness, and, as a rule, leads to its lack of success.

The European Court of Human Rights in its case-law has established that Article 3 of the Convention includes an obligation on the part of state institutions to initiate investigations even if there is no formal complaint by a victim or members of his/her family, where there are other circumstances, which give grounds for suspecting the use of torture. [12]

The European Committee for the Prevention of Torture has also recommended that in cases where people suspected of a crime, on their arrival in court, complain about ill-treatment from law enforcement officers, the judge is obliged to record the complaint, order an immediate medical examination and take all necessary measures in order to conduct a due investigation concerning the complaint. This approach must be followed regardless of whether or not that person has visible bodily injuries. [13]

As practice demonstrates, judges, prosecutors, and investigators, to whom law enforcement bodies bring detainees, pay little attention to formal complaints by the detainees about the use of torture to them, let alone taking initiative in clarifying the circumstances behind their having received visible bodily injuries. In some cases, the results of medical examination, obtained after a detainee was brought to court and took part in court hearing show that the detainee already had visible bodily injuries at the point of his or her first court appearance.

According to Viktor Kopcha, «On 30 November 2003, I was brought to court, where it was to be decided, whether I would be placed in custody or released. The judge asked me only one question, ‘What can you say in your defence?’ I said that I was innocent, that I had an alibi, that I had not been allowed to see my lawyer. The judge ordered that I be taken out and announced, ‘Give him seven more days.’ She did not respond to my request to conduct an interrogation».

In addition, for those victims, who remain in the custody of a law enforcement agency, it is even more difficult to complain about the use of torture or ill-treatment, because of their vulnerable position. Section 97 of CPC reads that «if there are relevant grounds which suggest that there is a real threat to the life and health of a person, who has stated that a crime has been committed, one must take necessary measures to provide security of the applicant, as well as members of his/her family, if by means of threats or other illegal actions against them, somebody is attempting to influence the applicant». Although practically in all cases, when allegations about torture come from a person, who is held in the custody of a law enforcement agency, one could assume some related risks, the Kharkiv Human Rights Group are not aware of any case, when this power has ever been used by prosecutors or judges. Moreover, established practice, in which the «examination» of a claim starts with questioning the law enforcement officers, possibly involved in the use of torture and ill-treatment, heightens still further the risk to the victim.

Detainees also do not often make formal complaints to the judge about ill-treatment meted out to them because they are, as a rule, usually brought to the court by exactly those people who possibly the day before subjected them to bad treatment. These officers threaten the detainees with more torture if they make any kind of complaint. In view of the fact that legislation allows a judge to extend detention in police custody, detainees are well aware of the possibility that they will remain under the control of the same people whom they complained about after the court hearing is over.

If we take into account that a judge has no authority to launch a criminal investigation, no legal obligation[14] to order a medical forensic examination, as well as the absence of real ways of protecting a detainee from the revenge of those against whom he or she complains – for example, by transferring him or her to other place of detention, – detainees consider expressing their complaints as a futile effort, which can only put them under threat of being subjected to even worse forms of ill-treatment.

One of the factors that has contributed to such a situation is the substantial reduction in the court’s competence after amendments to CPC were introduced in the summer of 2001. According to those amendments, the right to launch a criminal investigation was removed from the court’s jurisdiction.

This narrowing of a judge’s jurisdiction was confirmed by a decision made by the Plenum of Ukraine’s Supreme Court of 27 December 2002 (on reversing judgments by the Kyiv City Appeal Court of 15 October 2002, and that of 13 November 2002 on launching criminal investigations against President of Ukraine Leonid Kuchma). [15]

This excessively inflexible approach by both the legislators and the Supreme Court to the problem in practice leads not to the impartiality of the court, but to indifference and excessive self-restrictions on the part of courts. In any case, as far as investigations into allegations of torture are concerned, such an approach shows itself to be especially flawed.

Such features of the legal system do not encourage courts and prosecutor’s offices to take decisive measures, where there are indications of ill-treatment, but, on the contrary, in many cases, hamper not only any effective response to complaints, but also the very submission of such complaints by victims, especially those who are already held in custody.

3.2. Independence of investigation

According to section 112 of CPC, the investigation of cases concerning a crime in which law enforcement officers are implicated is in the exclusive jurisdiction of the Offices of the Prosecutor.

In some cases this section of CPC makes it possible to infringe standards of impartiality. For example, according to point 3 of Article 112, possible ill-treatment on the part of «servicemen of the Ukrainian Armed Forces» at the first stage will be investigated by a commander of the military unit. According to point 5 of the same Article, a complaint about ill-treatment by an officer of «a penal institution, pre-trial detention centre, corrective labour and treatment centre, and corrective labour settlement» will be considered by a head of the respective facility. Only if those officials launch a criminal investigation, does the prosecutor’s office take over.

For example, Volodymyr Kucheruk was held in Kharkiv pre-trial detention centre (PTDC) No. 27 from 16 April 2002 to 17 July 2002. Although a forensic medical examination established that he was suffering from a worsening of his psychiatric disorder, he was held there for over one and a half months. On 8 July 2002, the PTDC personnel violently suppressed his inadequate behaviour, and, at the decision of the PTDC head, he was put in a disciplinary cell, where he was held handcuffed for a week. Kucheruk’s mother submitted a complaint to the Kharkiv Regional Prosecutor’s Office however the examination was carried out by the head of PTDC No. 27, who refused to initiate a criminal investigation. After this refusal was appealed, the same official conducted an additional inquiry – with the same result. Only after a second appeal, did the judge overturn the resolution by the Head of the PTDC to refuse to launch a criminal investigation and sent the case-file to the regional Prosecutor’s office for an investigation to be organized. However, because the Prosecutor’s office started its inquiry only in the fall of 2004, a major part of its conclusions was based upon materials of the inquiry made by the Head of the PTDC.

3.3 Slowness of investigation

Investigations into claims of torture by law enforcement officers are conducted extremely slowly. Investigations can drag on for years.

For example, an investigation into a claim by Viktor Yatsenko (Kharkiv) began in April of 1997 and is still in process.

Oleksy Afanasyev (Kharkiv) lodged his claim in April 2000. The investigation is still continuing.

An investigation into a claim by Yevhen Bocharov (Kharkiv) began in April of 2002, but was terminated again in May of 2004. Bocharov’s complaint concerning the termination of the investigation, submitted to the court in July 2004, is yet to be considered.

Investigation concerning Volodymyr Kucheruk’s complaint is yet to begin. In December of 2004, a complaint about another refusal to open a criminal case was submitted.

3.4. Access to evidence

It is especially vital when investigating claims of torture to obtain timely and high-quality medical evidence. Doctors’ records, reports of medical examinations and conclusions of medical forensic experts can serve as evidence.

However, within the legal system, the possibility of obtaining an independent expert opinion is extremely limited.

In the first half of the 1990s, trends in legislation led us to hope that an alternative (non-governmental) expert examination would gradually develop, thereby laying the groundwork for the creation of wider access to independent expert opinion of people involved in legal proceedings.

At the end of 1992, the Basis for Ukrainian legislation on healthcare was adopted.[16] Article 6 of the Basis stipulated the citizen’s right «to have an independent medical examination conducted» in cases where he or she disagrees with the conclusion of the State medical examination, the imposition on him/her of measures of forcible treatment and in other instances». Article 73 specifically addressed this alternative medical examination: «In cases where a citizen disagrees with the conclusion of the state medical examination and in other instances prescribed by the law, at the demand of the citizen, an alternative medical (medical social, medical military, medical forensic, forensic psychiatric) examination or post mortem examination shall be conducted… Citizens shall themselves select an examination institution or experts…».

At the beginning of 1994, the Law of Ukraine «On forensic examination»[17], as well as the Law of Ukraine «On the introduction of amendments to Basis for Ukrainian legislation on healthcare»[18] were adopted. A citizen, disagreeing with the conclusions of experts who were assigned by an investigating authority or court, was limited to the option of requesting an investigating authority or court to order an additional or other examination, the latter bodies not being obliged to agree to assist..

By the Law of 23 December 1993[19], the Criminal Procedure Code of Ukraine was amended in such a way as to stipulate that a lawyer should be given «the right to collect information about facts, which could be used as evidence in a case, in particular… to obtain written conclusions by professionals on any issues requiring special expertise». However, the status of those conclusions, which were to be obtained at a lawyer’s request as evidence acceptable in court, was and remains unclear. In any case, these conclusions cannot replace the conclusions by experts, appointed by an investigating authority or court, and, at best, can lead to the ordering of another examination.

Nonetheless, from 1992 to 2000 in Ukraine there were a large number of non-State medical, forensic and other experts, and many non-State expert bureaus were set up.

On 1 June 2000, Section 4 of the Law of Ukraine «On entrepreneurship[20] was amended, as a result of which, part 2 of this section read: «activity connected with conducting forensic, medical forensic, forensic psychiatric examinations… can be carried out only by State enterprises and organizations».

Then finally, in 2004, the Law of Ukraine «On forensic examination» was amended so that several examinations, the conclusions of which are decisive in a criminal investigation, could be carried out only by «specialized state institutions».

According to the current text of Article 7 of the Law of Ukraine «On forensic examination», «forensic and expert activity connected with conducting forensic, medical forensic and forensic psychiatric examinations are carried out exclusively by State specialized institutions».

The same Article contains a list of agencies, under which these specialized institutions can operate. In particular, the «State specialized institutions» include:

– research institutions of forensic examination under the Ukrainian Ministry of Justice;

– research institutions of forensic examination, medical forensic and forensic psychiatric institutions under the Ukrainian Ministry of Healthcare;

– expert services of Ukraine’s Ministry of Internal Affairs, the Ministry of Defence, the Security Service, and the State Border Service.

Such an approach by the legislators aimed at maintaining control over the conducting of forensic examinations is hardly justifiable from the point of view of effective legal proceedings. According to an analysis carried out by the Supreme Court of Ukraine, «a great number of cases are not being considered for a long time because the examinations ordered by courts take months or even years». Such a situation shows that the number of experts and expert institutions is not sufficient.

However this approach is even more dangerous from another point of view. This turn in the legislation leads to a monopoly of «specialized State institutions» in the field of conducting expert examinations. This means not only that people involved in legal proceedings lose any possibility of seeking an independent expert opinion, but also seriously undermines the guarantees of independence of experts, who work in such «specialized institutions».

Firstly, the legislation does not set out any procedure for creating, reorganizing or closing such «specialized state institutions», nor for the criteria which govern such institutions.

Secondly, the legislation does not provide experts with safeguards adequate to protect them from unlawful pressure by their management. Guarantees of hiring and firing experts are the same as the general guarantees for hired employees, provided by Ukraine’s labour legislation. Professionally sound experts, whose work could contradict «instructions» from their management, have insufficient guarantees that they will not be dismissed. In view of the monopoly of «specialized institutions», for a forensic expert, his or her dismissal from one such institution would virtually destroy any possibility of practicing as a forensic expert. Thus, the guarantees provided by the labour legislation are not sufficient to secure his or her independence.

Therefore, the management at such specialized institutions has enormous scope for influencing the work of an expert and, in this way, for undermining the impartiality of examinations conducted or conclusions drawn.

It must be noted that in order to obtain expert status, it is necessary to receive professional attestation. However, such attestation is only available for employees of specialized institutions. Hence, employment in such an institution becomes a prerequisite for having the general possibility to obtain expert status and to conduct expert examinations. The monopoly of «specialized institutions» allows their management to establish «special» staff recruitment at the stage of taking on specialists. As there is no independent agency responsible for staff recruitment and attestation of experts, considerations of loyalty of a given specialist could outweigh considerations about his or her professional skill during recruitment by management.

Moreover, a part of the «specialized institutions», as before, are within the system of the Ministry of Internal Affairs, the offices of which take the side of the prosecution in most criminal cases. This fact alone, from the point of view of impartiality, could raise doubts in experts’ objectivity among participants in the legal proceedings.

In view of the nature of legal proceedings in Ukraine, and the lack of competition between expert examinations, the abovementioned flaws in the system of «specialized» expert institutions could lead and are leading to a fall in the quality of expert conclusions, loss of skills and scientific impartiality among experts, to manipulation of expert knowledge in order to fulfil objectives very far-removed from the task of objectively establishing the circumstances of a case.

Together with the vulnerable position of the victim of torture and ill-treatment, such a situation with expert examinations has a highly detrimental effect on the possibility of preventing torture and ill-treatment and of punishing its perpetrators.

3.5. Participation of victims in the investigation of torture

The European Court of Human Rights believes that adequate participation of the victim or his / her close relatives in the investigation of the case is a basic guarantee of public control. For example, in the case Anguelova v. Bulgaria, the Court noted: «There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests».[21]

Effective participation of victims of torture is seriously complicated by the fact that before the criminal investigation is formally initiated, they have no definite procedural status as far as the investigation is concerned given that the checks which are conducted before a decision whether to launch a criminal investigation take place «outside procedure». So, he or she cannot in any way influence the direction of investigation; at this stage, the rights of a victim of torture, in particular, the right to a lawyer are not available.

If we take into account the practice of delaying an inquiry, as well as the fact that prosecutor’s offices have wide discretionary powers as regards the decision to launch a criminal investigation, this flaw in many instances proves to be fatal for the effectiveness of an investigation.

In addition to the decision to launch a criminal investigation, the law requires a separate action on the part of the investigating authority to recognize the plaintiff as victim. This provision is stressed in one resolution by the Plenum of the Supreme Court:

«In accordance with Part 2 of Article 49 of CPC, a person who has suffered moral, physical, or material damage from a crime acquires the right to participate in the process, as prescribed by the law, only after he/she is recognized as victim. The recognition of a person as victim in a case or refusal to recognize them as such must be procedurally recorded by a resolution issued by a detective inquiry unit, investigator, prosecutor, judge or a court decision».[22]

The prevailing doctrine gives the criminal investigation units additional possibilities for manipulation in order to prevent a victim, his/her relatives or a lawyer from participating in the investigation. Participation of a lawyer in this case is of decisive importance, because in many cases at the time of investigation, a victim is held in custody, thereby he/she is physically restricted in his/her possibility to take part in the investigation.

Delay in recognizing a person as victim is a common phenomenon. This is confirmed by the fact that the Plenum of the Supreme Court has specifically noted in its resolution:

«In accordance with Part 2 of Article 232 of CPC, courts are obliged to respond to disclosed facts of unwarranted delays in recognizing a person as victim (when the harm resulted from a crime is evident), caused a detective inquiry unit or criminal investigation, separate decisions (resolutions)».[23]

Another important issue concerning effective representation of a victim is worth mentioning. If a victim from torture is held in custody, then his/her legal representation is complicated by several formal hurdles.

According to CPC and the Law on Preliminary Detention (section 12), only the defending counsel, in the meaning that is attributed to this term in Article 44 of CPC, has the right of access to a detainee. A legal representative of the person, who has submitted a complaint about the use of torture to him/her, is not covered by this regulation. Consequently, if the victim from torture continues to be held in custody, he/she has no possibility of meeting with his/her legal representative, unless this legal representative and the defending counsel in the criminal investigation, where the victim is defendant, are one and the same person. In addition, the same provisions of the Law on Preliminary Detention stipulate that permission from «the person or body conducting the case» must be obtained in advance. Since, in the legal system, a «criminal investigation» begins at the moment when a formal decision to launch such an investigation is taken, a meeting between the victim, who is held in custody, with his/her legal representative is virtually impossible.

Close relatives can be representatives of victims (Article 52 of CPC). Procedurally, it is possible to ‘replace’ a person, who died in the course of investigation, with a close relative. In this connection, there could be complications with recognizing the person as victim, if the causal link between events in question and death is the subject of investigation. Relatives of a victim of torture, who died, possibly as a result of the torture, could end up in a vicious cycle: they would be unable to obtain the status of victim until it is established that the victim’s death was the result of the actions which are the subject of the complaint; at the same time they would be unable to effectively participate in the investigation, which is intended to establish this fact.

The list of close relatives determined by the law is restricted (Article 32 of CPC). This list includes parents, a spouse, siblings, grandparents, and grandchildren.

3.6. Access to material on the case

One of the most adverse consequences of the lack of legal representation at the stage before a criminal investigation is formally initiated is the complications this creates is gaining access to the material on the case. Here too there are a range of formal impediments.

For example, on 8 January 2003, on the premises of the Leninsky District Police Station in Vinnytsa, Anatoly Komakha received severe bodily injuries to the head, which, according to the conclusion of a medical expert, constituted severe bodily injuries in terms of their danger to life. Komakha approached the Vinnytsa Regional Prosecutor’s Office with an application to have a criminal investigation initiated into this matter. In order to protect his rights and interests during the investigation, he turned to a lawyer and made an agreement about receiving legal assistance.

Concerning this case, the Vinnytsa Regional Prosecutor’s Office issued several resolutions to refuse to open a criminal case. When, after another refusal to open a criminal case, Komakha’s representative asked the Prosecutor’s office for access to the material which had formed the grounds for such a decision, she was denied it. An investigator of the Prosecutor’s office explained this by saying that legislation did not allow for interested parties and their lawyers familiarizing themselves with the material of the inquiry.

The investigator’s argument is not unfounded, since CPC does, indeed, lack a clear norm, which would provide for such a right. This right is enshrined in Article 59 of the Constitution of Ukraine and in the Ruling from 16 November 2000 by the Constitutional Court of Ukraine. This Ruling states that «by fixing the right of any individual to legal assistance, the constitutional norm ‘Everyone is free to choose the defender of his or her rights’ (Part 1 of Article 59 of the Constitution of Ukraine)», in its meaning is general and applies not only to a suspect, accused person or defendant, but also to other individuals, who are guaranteed the right to freely choose defending counsel in order to defend their rights and lawful interests… The general meaning of the provisions in Article 59 (1) of the Constitution of Ukraine is confirmed by provisions in Article 63 of the Constitution, which separately affirms the right of a suspect, accused person or defendant to defence» (Part 5).[24]

However, it would be highly desirable to directly provide clear provisions in CPC in order to secure effective participation of a legal representative of the victim of torture or ill-treatment, especially, when such a victim continues to be held in custody. This is also required by the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990) which reads: «It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time». (Principle 21)[25].

3.7. Access to medical documents

At the present time it has become common for victims, having turned to a medical forensic expert institution and undergone medical forensic examination, to not be able to receive the relevant certificate. Very often, as well, it is impossible to obtain documents from medical institutions, where a victim was examined or treated. Medical institutions refuse to give such information referring to some instruction by prosecutor’s offices, but it is impossible to find out more about the subject matter of this instruction.

For example, Andriy Yatsuta, detained on 24 May 2004 by police officers, on 27 May turned to the Kharkiv Bureau of Medical Forensic Examination where he underwent examination. He was then treated in two medical institutions in Kharkiv. In July 2004, Yatsuta turned to the Bureau of MFE, asking them to provide him with a copy of the medical forensic certificate, as well as to both medical institutions, asking them to give him his medical documents. His lawyer also submitted the same requests. Yatsuta’s requests for the documents were turned down. In his response, the Deputy Head of the Kharkiv Bureau of Medical Forensic Examinations wrote the following:

«We cannot give you a copy of the medical forensic examination certificate because all examinations (or research certificates) are material of preliminary inquiry and, in compliance with the Order of the Ministry of Healthcare from 17 May 1995 (point 2.21.1), a medical forensic expert is not entitled to make public data of a medical nature, which he/she has become aware of in the course of fulfilling his/her official and professional duties. A copy of the medical forensic examination certificate can be obtained only by court and investigating authorities on a request in writing».

Complaints about unlawful actions on the part of the expert institution and two medical institutions were submitted to court. At present, the complaint to one of the medical institution has been recalled, because the latter, albeit with a delay, provided the necessary documents.

This practice entirely contravenes legislation. Moreover, on a similar issue, a decision by the Constitutional Court of Ukraine was made in the case of Ustimenko,[26] according to which «the constitutional human and civil rights to information, its free access … in the amount needed for every person to exercise his/her rights, freedoms and lawful interests are fixed and guaranteed by the current legislation»; «medical information, i.e. information about a person’s health, his/her medical history… is information with restricted access. A doctor is obliged, at the patient’s request … to give (him/her) such information in full and accessible form».

The response by the deputy head also vividly illustrates how distorted the perceptions of different professional groups involved in criminal proceeding are over what constitutes investigation confidentiality. It is worthy of note that the Deputy Head of the Bureau refers to investigation confidentiality, even though in that case there was no criminal investigation to which the medical documents pertained, and the victim wanted them for the specific purpose of initiating such an investigation.

4. Recommendations

1. To clearly define the scope of the crime «torture» in Chapter XVIII «Official crimes» of the Criminal Code of Ukraine, and to agree the elements of this scope of the crime with the conceptual apparatus of the General Provisions of the Criminal Code;

2. To introduce statistics in courts and law enforcement agencies concerning crimes, which contain elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;

3. To create legislative provisions, which make it impossible to apply amnesty and parole for people who have committed actions, which have elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;

4. To create effective mechanisms of public control over investigations into complaints about torture and ill-treatment, which take place in law enforcement agencies and other closed institutions;

5. To review the legislative framework of forensic examination in order to provide the involvement of non-state experts and expert bureaux;

6. To exclude from legislation those provisions which make it impossible or complicated for victims and their legal representatives to obtain documents containing medical information concerning victims, including conclusions by medical experts, regardless of the title and nature of those conclusions;

7. To review the provisions of evidence law, which are present in the Criminal Procedure Code of Ukraine and court practice in order to assign the same validity as evidence to conclusions provided by independent medical and other experts, who conduct studies at the request of the alleged victim of torture, as that of conclusions made by experts assigned by an investigator or court;

8. To amend legislation in order to provide legal aid for people on low incomes, who seek to have criminal investigations and other legal proceedings concerning alleged torture and ill-treatment initiated;

9. To introduce provisions into the legislation stipulating that it is inadmissible to use as evidence any testimony from an accused (suspected) person, obtained at pre-trial stages of a criminal investigation without the assistance by lawyer. Before these amendments are introduced, it would be desirable, if the Supreme Court develop regulations concerning admissibility of confessions and procedures for examining whether they were given voluntarily. Such regulations should provide for the following:

- when there is a claim by a defendant concerning the involuntary nature of his/her confession made during a pre-trial investigation, it should be excluded from the evidence, unless a prosecutor proves the opposite beyond reasonable doubt;

- when determining whether a confession was voluntary, the court should take into account all circumstances, which accompanied the obtaining of the confession: the conditions and period of being held in custody by a law enforcement agency, access to a lawyer, possibility to communicate with outside world, etc.;

- the fact of bodily injuries should always entail the obligation on the part of a prosecutor to prove beyond reasonable doubt that no official was involved in inflicting these bodily injuries, or that the obtained confession was not connected with events, which resulted in the bodily injuries;

- absence of medical evidence concerning the use of torture or other forms of ill-treatment cannot as such exclude the trustworthiness of the claim about such treatment;

- when assessing why medical evidence is absent, the court should take into account the possibility for a defendant to approach a doctor or expert of his/her own choosing in timely manner, his/her access to a lawyer, the possibility to communicate with outside world, etc.;

- in cases, when a defendant earlier did not claim about extortion of her or his confession with the use of any form of ill-treatment, a prosecutor should prove that the defendant had a real opportunity to claim it shortly after the respective events, taking into account, among other things, access to a lawyer, period of detention without court control, grounds for delay in his/her bringing to a judge after arrest, etc.;

- assessing the trustworthiness of defendant’s claim about the use of any form of ill-treatment meted out to him or her, the court should assess the due diligence of the investigation into his/her claim, if such an investigation was conducted, in particular, the time of ordering expert examinations and conducting other investigations in order to determine whether the defendant received sufficient and practical possibilities to make the necessary claims and provide necessary evidence;

- to give the necessary instructions to prosecutors and judges to take measures for providing protection to individuals who claim that they have been subjected to torture. In particular, if this person is held in custody, to provide for his/her transfer to another place of detention;

- to exclude from the legislation the opportunity for the judge to «extend detention» of suspects held in police custody, or, at least, to introduce necessary amendments in order to transfer people, whose detention is extended by a judge, to a pre-trial detention centre, and not leave them held in police custody;

– to introduce into legislation an enforceable right of access to an independent doctor and independent expert of the detainee’s own choosing, especially for persons, who are held in custody, and to create appropriate procedure;

– to review provisions of current legislation in order to provide the right to legal representation to people who submit claims about the use of torture, regardless of whether or not a criminal investigation is launched;

– to give clear instructions to prosecutors and judges concerning immediate consideration of claims and complaints related to investigations into torture.



[1] See more details in the article by Yevhen Zakharov and Iryna Rapp: «Access to information in prosecutor’s offices regarding legality of law-enforcement agencies activity // News-letter «Svoboda vyslovluvan i privatnost» [«Freedom of Speech and Privacy»] No. 2, 2004

[2] «Podrobitsy» («Details») from 16 June 2004.

[3] The following people contributed to the research: Professor V.A. Sobolev, Doctor of Sociology (PhD); Professor I.P. Ruschenko, Doctor of Sociology (PhD); Lecturer Yu.A. Svezhentseva, Candidate of Sociology (PhD); Yu.L. Bilousov, Candidate of Sociology (PhD).

[4] ECHR, McCann and Others v. the United Kingdom: Judgment of 27 September 1995

[5] ECHR, Assenov and Others v. Bulgaria: Judgment of 28 October 1998

[6] Newspaper «Novy Den’ [«New Day»] (Kherson), 22 April 2004

[7] Newspaper «Vecherni Visti,’ [«Evening News»] 22 June 2004

[8] Newspaper «Svoboda», [«Freedom»] No. 5, 10-16 February 2004

[9] Newspaper «Sevodnya» [«Today»] No.96, 29 April 2004

[10] Newspaper «Sevodnya», №100, 7 May 2004 р.

[11] See, for example, ECHR, Labita v. Italy: Judgment of 6 April 2000, § 131; ECHR, Assenov and Others v. Bulgaria: Judgment of 28 October 1998, § 102

[12] See, for example: ECHR, Denizci and Others v. Cyprus: Judgment of 3 May 2001 § 359

[13] Fourteenth General Report of the European Committee for the Prevention of Torture, § 29

[14] The very fact that a judge has such authority could be doubtful..

[15] Journal «Yuridichny Visnik Ukrayiny», No. 1-2, 4-17 January 2003.

[16] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1993, No. 4, Article 19

[17] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1994, No. 28, Article 234.

[18] Ibid., section 236.

[19] Newspaper «Golos Ukrainy», 1994, No. 39.

[20] Newsletter «Oficialnyi visnyk Ukrayiny» of 21 July 2000, No. 27, p.1, Article 1109.

[21] ECHR, Anguelova v. Bulgaria: Judgment of 13 June 2002, § 140

[22] Resolution No. 13 of 2 July 2004 of the Plenum of the Supreme Court of Ukraine «On practice of court use of the legislation, which provides rights of victims from crimes», point 2.

[23] Ibid., point 5.

[24] Decision by the Constitutional Court of Ukraine No. 13-рп/2000 of 16 November 2000 (Case No. 1-17/2000) in the case concerning a constitutional claim by Mr. Gennadiy Soldatov as to the official interpretation of provisions in Article 59 of Ukraine’s Constitution, section 44 of Ukraine’s Code of Criminal Procedure, sections 268 and 271 of Ukraine’s Code of Administrative Offences (case about the right of free choice of a defender).

[25] Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990

[26] Decision by the Constitutional Court of Ukraine in the case of the official interpretation of sections 3, 23, 31, 47, 48 of the Law of Ukraine «On Information», and section 12 of the Law of Ukraine «On the offices of the prosecutor» (case of K.G. Ustimenko).

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