The European Initiative for Democracy and Human Rights
CAMPAIGNING AGAINST TORTURE AND CRUEL TREATMENT IN UKRAINE
2 July 2003 - 1 July 2006
Priority theme (s) addressed
a) Strengthening the capacity of civil society;
b) Contributions to promoting and strengthening the rule of law and the independence of justice with regard to improving the legal framework related to prevention of torture in accordance with the European human rights standards;
c) Support for education, training and awareness of the judges, personnel of law-enforcing agencies, barristers and human rights activists in the area of HR;
The aim of the Project is to decreasethe scale of torture and cruel treatment in Ukraine. The work includes gathering information on and public investigation in cases of torture, publication and dissemination of the relevant data and organising the joint actions for protection of the freedom from torture and cruel treatment (together with other human rights protection organisations), sociological research, as well as comparative analysis of national and international legislation and law-applying practices concerning prevention of torture, strategic litigations before ordinary courts and the Constitutional Court of Ukraine, printing results of the researches and other information in KhPGs periodical «Human Rights» and in the form of books and brochures in Ukrainian and English, awareness-raising with and educational seminars or training for target groups (officers from law-enforcing bodies, judges, barristers, experts, human rights activists, general public).
The objectives are as follows.
1. Gathering information and carrying out public investigations of facts of torture and cruel treatment, as well as passing, in particular, through the Internet, this information to people, mass media and organisations involved.
2. Creation of the mechanism directed to render legal, expert and medical aid, including judicial protection, to victims of torture.
3. Development of the network connecting people and organisations interested in problems of torture and cruel treatment.
4. Organisation of joint actions of network members aimed at the prevention of torture and protection from torture and cruel treatment.
5. Organisation in mass media, including electronic ones, the campaign for changing attitude of the society to problems of torture.
6. Analysis of the administrative, criminal-procedural, criminal laws and law-applying practices in the spheres, where torture and cruel treatment are possible.
7. Comparison the laws and practices with:
a) the UNO Convention against torture and Articles 7, 9, 10 of the International Covenant on Civil and Political Rights;
b) the decisions of the European Court on Human Rights concerning Articles 2, 3, 5 and 6 of the European Convention of Human Rights;
c) the CPT Standards on conditions of holding under custody;
d) the CPT recommendations to the Ukrainian government on changing the laws and practices.
8. Preparation of the digests of judgements of the European Court on Human Rights concerning Articles 2, 3, 5 and 6 of the European Convention of Human Rights in the context of preventing torture.
9. Analysis and improvement of the laws and practices concerning minors in the spheres, where torture and cruel treatment are possible.
10. Improving the laws and practices in the sphere of detention, arrest and holding under custody, as well as creating laws concerning investigation of torture.
11. Preparation, publication and distribution of the results of monitoring and research in the form of four books in 1000 copies.
12. Systematic work with target groups for improving their knowledge in the sphere of international and European standards on human rights, as well as their skills:
a) conducting the sociological research with the aim to understand the attitude of target groups to torture and their knowledge of the laws on preventing torture;
b) conducting the seminars and training for different target groups;
с) preparing, publishing and distributing the materials for the course «Human Rights and Police» in the higher educational institutes of the Ministry of Internal Affairs.
The problem of torture in police detention partly arises from the conventional wisdom deep-rooted in public consciousness that any, sometimes severe, methods are permissible for the sake of «final extirpation of criminality». The accused confessions are à cornerstone of a great part of criminal investigations. So, despite of declarations as to their adherence to the human rights, legislators and courts are reluctant in changes of law, institutional facilities and established practices, which either fail to prevent torture effectively or create auspicious conditions for impunity of persons involved in torture. The last factor maintains the high latency of violations and allows portraying the problem as far-fetched in the eyes of the Ukrainian society and international institutions.
The set of factors creates grounds for torture in police. One of the insistent problems is poor development of the laws concerning police arrest without warrant and police detention rules. Indeed, there is no effective machinery to prevent arbitrary arrests by police because the conditions of lawful arrests without a warrant are not defined with the sufficient degree of certainty. Too vague terms used in the laws have lead to the result that, although the illegal arrest and detention constitute a crime under the domestic laws (Article 371 of the Criminal Code), the case-law in this field is lacking.
In June 2001, the significant reform was introduced in the criminal-procedural laws of Ukraine. In particular, it was ruled that the mandatory bringing to a judge must follow every detention by police; other important provisions in the field of pre-trial detention were also introduced. But the overall effects of these changes proved to be not so effective as it was expected.
Under the Ukrainian Constitutional provisions it is a rule that a court decision is required for any deprivation of liberty. The Constitution permits arrest without a warrant only «in the case of urgent necessity to prevent or suppress the crime» (Article 29). But the above amendments to the Criminal-Procedural Code have not conveyed this requirement distinctly, so the arrest without a warrant remains rather rule than exception. Moreover, the legislation allows an investigator in charge of the case to order to arrest a suspect and to detain him/her in a police station or a preliminary prison not longer than 72 hours. Contrary to the Constitution, an investigator, who usually is not in the situation of «urgent necessity», is not obliged to seek the court warrant. Under authorisation of the investigators the overwhelming number of arrests and detentions occurs. These detentions are considered by the law-enforcing agencies as usual and indeed effective measure to push forward the investigation.
According to the Constitution, a detainee must be brought before a judge in 72 hours, and it is a time-limit for detention without court review. But usually a judge is inaccessible for a detainee before expiration of the 72 hours period, so practically the constitutional time-limit turns into a usual term of detention without bringing to a judge. Subject to the 72-hours rule, police is not responsible for groundless delay with the bringing to a judge. Usually a judge is not interested whether the duration of the detention in police custody within 72-hours period was justifiable. A judge has the power to prolong the detention under police custody up 10 days (Article 165-1 § 8 of the Criminal-Procedural Code). Moreover, in some circumstances, the laws (Article 165-1 § 4 of the same Code) permit the police to hold detainee in their custody without bringing to a court for longer than 72 hours prescribed by the Constitution.
Such a long uncontrolled detention enables the police not only to apply of tortures, but also to conceal the evidence of such practices.
Such factors as vagueness of the detention rules, the legal opportunity to manage arrest without a court warrant and therefore to avoid advance examination of the grounds for detention by an independent body, lack of responsibility for illegal arrests and excessively long detentions in police custody cause the situation, when police resorts to detention of suspects readily without more or less serious grounds. Arbitrary detentions are applied by police forces just to create favourable conditions for extorting confessions, also using torture.
The second urgent problem is to guarantee the free access to a lawyer and physician. Timely access to a lawyer not only enables to prevent torture, but, if it happened, to record such cases and undertake needed measures for gathering evidence and bringing investigation. Immediate interference of a lawyer has vital importance in such cases.
There are substantial impediments in the laws and legal practices for free access to a lawyer. Admittance of a lawyer to his/her client legally depends on special permission of an investigator in charge of the case. The investigators frequently disguise their reluctance to permit lawyers aid referring to different formalities (for example, the permission of a higher-rank officer), which formalities have no legal basis. Frequently the suspect is forced to waive the legal assistance in the same manner as he/she is compelled to the confession. Moreover, the problem of legal aid to the indigent suspects is very hard because the Ministry of Justice practically does not remunerate the free legal aid granted to suspects.
In this respect it is important to remove decisive impact of discretion of investigators and police officers, who are responsible for the outcome of the case, from the decisions as to the access to a lawyer, to simplify and facilitate the procedure of admittance and to secure convenient conditions for confidential lawyers consultations.
Violation of the right for legal protection during criminal procedure and intrusion in activity of defender are regarded as crimes by the Ukrainian laws. However, taking into account that these provisions came in force only in September 2001, there is no case-law corresponding to these laws. The precedents in applications of these clauses would also facilitate access to a lawyer and therefore would assist to improve the entire situation in preventing tortures.
As to access to a physician, the problem is practically not considered by lawyers or mass media. The laws do not provide any rules about the access to physicians. Police officers, investigators, judges and lawyers know almost nothing about the CPT, not to mention the suspects. Here the education on the problem is as important as developing the amendments to the laws aimed to secure the free access to independent physicians.
The next persistent problem is impunity of state officials involved in torture and irresponsibility of state as a whole.
Slowness and inefficiency of investigations of the cases of torture is the main obstacle in solving this problem. Under the domestic law it is the duty of prosecutors office to carry out the inquiry, if police allegedly tortured the suspect or accused, and, if it is the case, the prosecutors office must conduct the investigation. But prosecutors office is reluctant in performing this duty. Frequently the inquiry, if any, is confined to interviewing the persons indicated by the victim. Sometimes, if the involved persons deny their guilt, it is considered a sufficient reason for the refusal to begin the investigation. In most cases prosecutors office finishes the investigation, if it was begun, without ascertaining of substantial facts of the case.
A victim has the right to challenge in court the lawfulness of prosecutors refusal to begin criminal investigation or discontinuance of it. A judge is empowered to revoke the prosecutors decision, but it falls beyond judges jurisdiction to begin the investigation. Slowness of judicial procedure leads to the result that the victim is not able to receive the court decision, even favourable, until several months later.
However, if the investigation is begun, the laws permit prosecutors office to do nothing for a long period. The Criminal-Procedural Code provides a time-limit for criminal investigations, but prosecutors office treat frequently the cases concerning torture as «cases, where a criminal is not identified». Prosecutors office resorts to this provision regardless whether the victim indicated the involved person or persons, because the above provisions allow conducting the investigation without a time-limit.
There exists the acute problem of the access to independent experts in the connection with torture investigations. The expert opinions, especially the opinions of physicians, have the decisive importance in the cases of such kind. Now the direction and success of such investigations entirely depend on the attitude of investigator and general policy of relevant prosecutors office. Some features of this above-mentioned policy give little hope to the victim. Moreover, the number of opportunities for manipulation exists thus permitting to find evidence unfavourable for the victim. According to the Ukrainian laws, only the opinions drawn up by state experts are admissible as evidence in court. A number of private experts, which appeared in Ukraine during the last 7-8 years, now practically ceased to exist. This enables the investigating bodies to influence the state experts in different ways, since the situation deprives a victim of torture and his/her representatives of any effective means to control objectivity and validity of the expertise by involving the independent experts.
We select the following target groups:
personnel of law-enforcing agencies (police officers, investigators of the Ministry of Internal Affairs, Security Service of Ukraine and Prosecutors Office)
professionals (lawyers, medical experts, doctors);
human rights activists;
Direct beneficiaries are suspected and accused persons in criminal proceedings and detainees under police custody.
We believe that the indicated professional target groups constitute most significant factors in the torture prevention problem. Understanding of the people, who determine how the laws are practically applied, is very important. Now the inefficiency of laws is caused in some degree by unfavourable environment of outdated practices. It is crucially for any improvement in the field protection from torture to realise the true reasons of activity (passivity) of these professional groups.
Courts as traditional guardians of human rights may and must play a substantial role in protection against torture in police detention, if they pay due attention to examination of allegations about torture claimed by the accused at judicial proceedings. Courts also may reduce the great number of torture, if they occupy more balanced position in the detention/release proceedings and will require account of police in the cases of arbitrary arrest or unjustifiable long detention in police station. The self-constraint of judges in review and evaluation of legality and validity of the actions of state agencies are based on now forbidden but deep-rooted ideological postulates of the totalitarian society, on many prejudices and misunderstanding of their roles in democratic society. Another problem is insufficient and very vague knowledge about the international standards in the relevant field and the practical meaning of the requirements. Any reforms in legislation will be useless until they remain without support of adequate practical application.
Barristers can do a great deal in this respect. They are the first, who face the events of torture, and namely from them the detainees expect help and support. Lawyers must become promoters of new standards and approaches in protecting human rights. Only lawyers are capable to raise legal questions in court competently and to assist thereby to development and modification of case-law. Yet, the insufficient knowledge of international standards and jurisprudence and, what is the more important, lack of practical skills in using them in the course of their ordinary practice, lead to helplessness of criminal lawyers in many cases. Another task of our work is contribution to the development of common strategy for lawyers in torture-risked cases since, as we believe, they encounter and must resist the common policy of law-enforcement organs toward the suspected and accused persons, where torture constitutes a part and parcel of usual practices.
We think that medical personnel and forensic experts play essential role in prevention of tortures and in successful prosecution of suspected perpetrator. The honest, timely and detailed fixation of bodily injuries and other objective medical data is a crucial point for the majority of investigations in torture cases and for substantiating the responsibility of the state agency in civil proceedings.
We also believe that we must proceed with our activity regarding the personnel of law-enforcing agencies. The effect of the involvement campaign among the people, whose attitude is decisive for existence of torture practices, is self-evident. But we regard this activity as a part of more general influence on law-enforcement strategy and tactics. The combined influence of educational actions and practical impact trough judicial and public control will bring, we hope, more essential results.
We consider that the change in the attitude of general public to torture of the suspects is an inevitable condition for the success of other actions of ours. Public interest in the problem, perception of importance of equitable and humane approach to the suspected and accused persons and understanding torture practices as destroying factor for the society will exert influence upon administrative and judicial practices. Our task is to implant in the society more discerning views toward the laws and practices based on the idea that for a good aim all means are good.
As our prior task is to reduce the torture in police, we think that our efforts aimed to change the administrative and judicial practices in detention-related questions, in access to justice for the victims and in creating the legal aid network with common strategy and experience will improve the legal environment in torture risks and directly affect the spread of maltreatment in police. All our objectives are mutually connected, and each of them, we suppose, will intensify requisite impact of others.
To realise this Project we suppose to use the existing network of human rights protection organisations that we were developing since 1993. To this end, we have agreed to co-operate with our partners, who have consented to specialise in the sphere of torture prevention. We will create a special network included mostly NGOs, our partners, and some private persons. The network will cover all 25 regions of Ukraine.
The first eight weeks will be assigned to preparation of the workshop for the network members, to concluding contracts and leasing equipment as well as to printing materials for seminars and workshops. The goal of the workshop is to organise the operation of the network according to the Projects goals. The duration of the workshop will be two days, two sittings lasting four hours, i.e. 8 hours a day. The expected number of the participants is 60, including team from 10 experts and 50 representatives from all 25 region of Ukraine, and among whom about 40 will be representatives of regional partners that regularly work jointly with KhPG in this direction, the rest will be novices. We suppose to invite two persons from each region. One of them will be a human rights activist, another – a barrister.
At the workshop we expect to discuss the following topics:
– international standards of prevention of torture and cruel treatment;
– prevention of torture in the Ukrainian law and practice;
– the organisation of monitoring aimed to prevention of torture in police and army;
– principles of mutual relations of partner organisations with the authorities;
– the co-operation of partners with mass media and other structures of the civil society;
– summing up the results of the previous operation of the informative network and needed steps of the reorganisation according to the goals of this Project;
– techniques for assessing the influence of the Project activities on the attitude of the society.
As a result of the discussions, the modus operandi of the network will be adopted, acceptable to all the regular contributors, contracts with the regular contributors will be concluded. Each participant of the workshop will get a package of materials on human rights (see Appendix 1).
We suggest the following manner of the network operation. Regular contributor of the network in co-operation with regional barristers will disseminate information aimed at prevention of torture (leaflets «What need know on detention», «What is ‘dedovshchina?» and others, educational articles in local mass media and so on), will collect information on facts of torture and cruel treatment from different sources (regional mass media, personal complaints on torture to local NGOs and barristers, analysis of the work of the regional ambulance, visit to military unions and so on) and protect victims of torture. They will help to victims of torture to prepare appeals to a local prosecutor office or a court if victims agree to appeal. In order to prevent ‘dedovshchina, partner will carry on a monitoring of the status of young soldiers recruited from the region where partner is located. In order to provide help, partner will address local and central government and law-enforcing bodies, the Supreme Rada, the Supreme Court, General Prosecutors Office. In addition, they will carry on legal assistance in co-operation with the Fund for professional support to individuals suffered from torture created according to the Project.
Regular contributors to the network will send information collected in their regions to Kharkiv, where KhPG, which supports and administers this Project, is based. The Group will act in Kharkiv region in the same manner. Furthermore, KhPG will advise other members of the network in question, pass them educational materials, administer activity of the Fund for professional support to individuals suffered from torture. In addition, KhPG will inform the Ukrainian public through the bulletin «Prava Ludyny» («Human Rights») published twice a month and through Ukrainian mass-media on problems of torture, will communicate about this violation to international human rights organisations, such as Amnesty International, the Association for Prevention of Torture, the CAT, the Special Reporter of the UN and the CPT etc., in particular, through monthly extract from «Prava Ludyny» in English.
At the end of the second and third years of the Project we plan to have a workshops in Kharkiv for members of the network. It will be aimed to generalise the results of the network operation, to discuss its prospects and to consider other questions related to prevention of torture. The duration of the workshop will be two days, two sittings lasting four hours, i.e. 8 hours a day. The expected number of the participants is 60 persons.
A detainee subjected to torture finds himself in communicatory and psychological vacuum. Legislation and life conditions of police detention allow officials involved in torture practice to demonstrate that detainees fate depends entirely from their disposition. So, the victims of torture frequently physically and psychologically are incapable to defend themselves effectively. Moreover, due to evident shortcomings of the legislation and lack of well-established case law only a competent lawyer can effectively resist to various violations of detainees rights, to minimise the risk of torture, to secure appropriate remedies in the case of torture during detention and to choose a proper tactics in instituting and conducting of criminal investigation against responsible officials. The assistance of a lawyer is especially important if a torture victim remains in detention.
We intend to set up a fund for full or partial remuneration of legal and medical aid in torture-related cases.
We plan to cover with fund resources several forms of assistance to victims of torture or individuals threatened with torture:
1) legal assistance in cases of police arrest and detention, including any case of police arrest of a minor;
2) legal assistance in cases of detention under police custody that last beyond time-limit fixed in legislation;
3) legal assistance during preparation for and presentation of the case at detention hearing;
4) legal representation of victims before prosecutor office and court during of criminal proceedings against persons involved in torture and during court examination of civil claims against the Government for redress, including the European Court of Human Rights, if it is the case;
5) urgent medical examination by an independent physician of a detainee who allegedly is a victim of torture;
6) remuneration of expert examination of an alleged victim of torture by competent physicians, psychologist and other specialists with purpose to prove the event of torture.
At the first stage, we plan to confine the Fund activity by City of Kharkiv. After development and strengthening of ability of the Fund structure, we intend to expand our activity through the Kharkiv Region and other regions of Ukraine.
(1) We plan:
to develop general principles of assistance and criteria for selection of the eligible cases;
to form a Board for policy making and adopting decisions concerning activities of the fund, including financial questions;
to assign the staff of the fund;
to create a permanent Consultation Centre.
The scheme and rules of the Fund will take into account the importance of immediate interference, so the procedure for granting of a lawyer and a doctor for urgent actions in the case of torture will be simplified as possible. Urgent professional aid will be aid provided for free to anybody who will be subjected or exposed to torture.
(2) We are going to establish co-operation with lawyers and physicians who are capable to work in emergency-aid framework and have special knowledge and skills in the field. In the recruiting activity we will rely on our training course for lawyers. Although our task is a long-term co-operation, we also intend to reimburse to external professionals their legal and medical aid, if their activity is eligible for the Fund.
(3) We intend to send notification to all local courts of Kharkiv, to the Appeal Court of Kharkiv Region, to the Regional Department of the Ministry of Interior Affairs and to the local police stations. The notification letter will contain information about the Fund, its purpose, names of lawyers and physicians co-operating with the Fund, contact persons and telephones, addresses and other information.
The Consultation Centre will provide methodological assistance for the enlisted lawyers and other specialists, to accumulate legal practice and elaborate practical recommendations. Every two week the Centre will organise brief seminars with lawyers and stuff of the Fund for discussions at practical problem of the activity. The experienced barristers and physicians, forensic experts will be invited.
This measure will allow us to clear up root causes of poor legal representation of detainees at an early stage of criminal proceedings: whether the problem is due to detainees indigence or due to the law-enforcement policy.
The main task of the Funds activity is assistance to the victims of torture and torture-prevention, but the significance of it goes beyond this purpose. The fund will allow us to gather detailed information about the torture practice, police tricks to disguise application of torture, to prolong detention beyond time-limit and to impede access to a lawyer and physician. These data are indispensable for analysis of real life situation, for development of efficient amendments to the legislation and for well-grounded lobbying for the necessary changes through public pressing campaigns and other forms of aware-raising activity. The Fund will also serve as a laboratory for developing the most appropriate scheme of legal and medical assistance and for practising co-ordinated legal policy in the protection of human rights.
Public enlightenment activity
Information about torture and cruel treatment collected in result of the network operation and the Fund activity will be monthly summarised in a special review and disseminated through the web-site http://www.khpg.org and communicated in electronic version to subscribers and to mass-media. The review will cover also relevant information found through Ukrainian segment of Internet, references to the publications on the subject in national and local periodical, case-law and reviews of the legislation. We will publish three annually review in print. This continuously updated database will have constituted important factual basis public awareness-raising campaigns as well as for analytical and educational modus of the Project.
In order to change public attitude toward treatment of suspected offender in police detention we plan to take part in several TV programmes of one of national TV companies – Studio 1 + 1. The letter of Studio 1 + 1 Company with confirmation of co-operation with KhPG is enclosed to the application. The first three broadcasts will be devoted to (1) torture during criminal inquiry and investigation, (2) conditions in the places of detention and (2) ‘dedovschina in armed forces. For participation at programmes representatives of each of the target groups, victims and relatives of deceased victims of torture and ill-treatment will be invited.
The total term of the research is 36 months.
At the first year, we will carry out a survey in five regions of Ukraine. The survey will consist of two parts: pilot survey (100 respondents) and mass survey (3000 respondents). Each part will include (a) a survey of general population according to representative sampling, (b) a survey of ‘target group (people who was subjected to criminal prosecution or had other contacts with law-enforcement agencies in torture-risked situations) and (c) a survey of ‘expert group (criminal lawyers, judges, law-enforcement officials, journalist, doctors). At the result we will gain the information about
(a) occurrence of torture depending on:
– type of population (urban or rural);
– type of the state agency (police, security service, army etc.);
– type of situation (police detention, administrative arrest, etc.);
– type of victim personality;
(b) attitude of population toward torture practice,
(c) causes inducing officials to resort to torture practice,
(d) acquaintance of law-enforcement officials with international legal standards,
(e) efficiency of state programmes at prevention of torture and cruel treatment,
(f) reasons of latency of torture occurrence
At the second year we will employ qualitative methods of the research (interviews and focus groups) what allows us to learn more specifically root causes of the problem and to form practical recommendations for preventing activity.
The results of the research will be used by experts for drafting work and lobbying of necessary changes in the legislation as well as for the preparation the seminars, training course and for public awareness-raising campaigns.
At the third year we plan to examine and correct our conclusions in the light the result received under other directions of the Project activity, to test the changes in situation and to assess the influence of partners efforts on the attitude of the society and various target groups toward the problem.
It is our intention to shift public discourse at the problem torture to discussing specific legislative and institutional mechanisms of the defence against torture. Then, accomplishment of any part of the Project will be impossible without thorough and well-grounded analysis of the law and practice and without positive proposals to the improving the situation.
We will establish several expert groups focused on different, but mutually connected fields:
– access to information concerning torture in the law-enforcing bodies;
– conditions and procedure of police arrest and detention for the purposes of investigation in crimes and administrative offences;
– access to a lawyer and doctor;
– conditions and period of detention in a police station;
– violations of detainees rights and admissibility of confessions;
– investigation of torture, redress for victim of torture.
For analysing (1) how the tortures are prevented by the legislative means and (2) what are the obstacles for the system to act effectively, we are going to analyse the national legal documents (the Constitution, primary and secondary law) and law-applying practice (decisions of administrative and judicial bodies) relevant to the observance of the international obligations by Ukraine.
Each group will have a co-ordinator responsible for research process, for selection of appropriate specialists and for other aspects of the activity. The co-ordinator will tie up efforts of the working group with those of other groups and with other directions of the Project activity. The data gathered through our network will be made available to the experts for analysis.
We will analyse in detail the law and judicial practice of countries with well-established democratic traditions, especially those constituting the Council of Europe. Also, each working group will study relevant provisions of the national legislation, the legislation of the counties of the former USSR in order to determine tendency and solutions in the legal systems relative to ours. The experts will scrutinise the influence of the European Court case-law upon the national legal approaches.
The working groups will prepare a detailed review and legal analysis of relevant issues for reports, which will be sent to the Council of Europe, European Committee on Prevention of Torture, UN Committee against Torture, UN Special Rapporteur on torture.
The groups will also prepare several drafts on improving of the existing legislation. They will include:
(1) A detailed document on police urgent arrests and detentions under police custody. It will include:
– clear conditions for arrest without warrant,
– procedure of arrest,
– time-limit of conveying to the designated police station,
– conditions for prolongation of detention in a police station in different circumstances,
– regulation as to access to a lawyer and doctor,
– interrogation rules,
– provisions for review by an independent officer responsible only for well-being of detainees and empowered to order release,
– time-limits within 72-hour period prescribed by the Constitution and legal consequences for their infringement.
The draft will lay down clear guidance for discretion of police officers and precise indications for detainees about right and remedies available for them
(2) A draft on special procedure of investigation in alleged torture and another forms of abuse of power in respect of detainees. In the course of drafting, we will examine prosecutor offices status on compliance to independence criteria. The document will contain regulation securing prompt and effective investigation; that is:
– guarantees for independence of an investigator,
– time-limits for investigation,
– prompt judicial review,
– possibility for alleged victims to resort to independent medical, psychological and other expert examination,
– guarantees for the a victim deprived of liberty to present her or his case effectively,
– access to files of the investigation,
– rules reconciling investigation of alleged torture with principal investigation of crime, in which victim of torture is accused.
The draft will implement Principles of Effective Investigation and Documentation of Torture adopted by UN Resolution 55/89.
(3) Draft of amendment to the Criminal-Procedural Code provisions concerning obtaining of a court warrant for arrest, bringing detained persons to a court and carrying out further proceedings. This amendments will contain more detail rules securing fair and adversary hearing, based on presumption in favour of release.
Special working group will research application of general approaches developed by other group in specific conditions of juvenile justice and will elaborate relevant amendments. We plan to draft some amendments providing more flexible system of conditional release for accused minors, improvement of detention conditions and widening of educational opportunities for detained minors.
During work experts must determine and draft necessary amendments for the existing codes and laws to reconcile them with proposed amendments.
The results of analytical activity will also be published in editions described below (see section 2.2. Publications and other outputs).
Furthermore, the experts will participate in substantiation of applications to the European Court of Human Rights and submissions to the Constitutional Court of Ukraine, in preparation of explanatory notes to the amendments and other materials for lobbing groups and persons in the Verkhovna Rada and in the Government, will draw up of Code of Practice for police concerning treatment of suspects.
The experts will be involved in discussions with public authority and representatives of target groups, the intermediary results will be subject to professional discussions within the expert groups and will be take into account for further work. We plan to publish and disseminate widely the results of this activity, what, as we believe, will challenge helpful discussions in legal and scientific communities. The work within each specific objective will be co-ordinated through the consolidating activities, common meetings and current exchange of information. Co-ordinator for each working group will monitor the implementation of the objective activities. Consortium partners will be effectively participating in the discussions of the results of the assessments and evaluations.
As the outputs of this activity we plan to publish several drafts with detailed explanatory notes in which the results of analytical, sociological and practical activities under the Project will be summarised and processed. Moreover, the drafting work will help to prepare more detail and thorough review of existing legislation and practice, well-reasoned commentary of ideas and concepts persisting in legal theory and practice.
One of the important tasks of the Project is publication and dissemination among professionals involved in criminal proceedings comprehensive and detail knowledge of the jurisprudence of the European Court in Strasbo urg.
This publication is necessitated by the evident lack of information about the European Courts case-law, in particular, by insufficient number of full-text publications of the judgements in Ukrainian or Russian.
Although translations of individual judgements have been publicised lately, such scanty information satisfies neither research requirements nor practical needs. The lawyers have extremely vague knowledge about the means available through the Convention and, as a result, they resort rarely to its provisions in their practice. The domestic courts, which are called to play a primary role in effective implementation of the Convention, occupy cautious attitude toward the application of the Convention. One of the reasons for that is lack of full and accurate information about the whole system of the European Court jurisprudence. This publication partly can solve that problems.
Publication will be helpful in the light of the changes in domestic criminal justice system in the summer of 2001, considering, in particular, the adoption of judicial review in relation to arrest and detention of the accused persons. The lack of well-established case-law and dominance a lot of outdated theories turn the case-law the European Court into an invaluable manual for practitioners.
We plan to publish two volumes (on Articles 2,3; and Article 5) in Ukrainian and Russian.
The digests will cover all judgements concerning relevant Conventional provisions (Articles 2, 3 and 5), that have been held within the period of Court activity.
Work at digest will include:
– preparing stage: selection of fragments of the judgements and dissenting or concurring opinion, translation of selected fragment in Russian and Ukrainian, marking of fragment with relevant references;
– main stage: developing of structure of the publication, editing of the text and checking of terminology, systematic arrangement of fragments, analysis and cross-referring of the fragments, preparing of explanatory notes.
– final stage: making-up of the publication, compiling of table of the cases, external review, final correcting and editing, and publication.
The training course development will consist of several parts. The first part – gathering various information on the problem of tortures and cruel treatment. This part will include:
– search of the information through the Internet and mass media, non-governmental and international organisations;
– analysis of the materials prepared by other working groups of experts, of the results of seminar and training activities;
– analysis of the documents of law-enforcement bodies (The Ministry of Interior, Security Service, The prosecutor office, courts);
– study of positive experience of law-enforcement bodies of Ukraine and foreign countries on the prevention of the cruel treatment;
– study of modern approach in human rights teaching.
The second part will be based on the analyses of gathered information. It will consist:
– development and approbation of training;
– preparation of the training course «Human Rights and Police», reviewing by the Partners and external expertise;
– registering it by the Ministry of Education of Ukraine;
– putting themes on human rights in different training courses (criminal law and procedure, administrative and state law) that are presently taught at the National University of Internal Affairs;
– preparation and edition of the textbook «Human Rights and Police» for the students of Police Institute of professional skills improvement, cadets of the National University if Internal Affairs.
In order to promote strengthening of good practice in prevention of torture we plan to carry out series of seminars for judges with participation of leading scientists, lawyers and human right activists. It will be emphasised the specific problems concerning judicial review of police and other law-enforcement agencies activity during pre-trial criminal investigation, interpretation and application of international instruments and jurisprudence, judicial discretion and consistency of judicial practice, evidentiary rules etc.
We plan to hold the pilot seminar in Kharkiv Appeal Court. The judges of that court and local judge of Kharkiv will be presented. The judges of the Supreme Court of Ukraine, officials from the Prosecutor-General Office, lawyers of Kharkiv Bar Association, scientists from the National Yaroslav Mudry Law Academy will be invited. The theme of the pilot seminar will be the same as the theme of first regular one. We expect participation of sixty persons during one-day seminar. The purpose of the pilot seminar is to correct and develop approaches of conducting the action, to match audience perception, to determine most acute and insisting problems, to check a methods and agenda of further seminars.
The theme of the first seminar is: Protection against Abuse of Power during Investigation: Domestic Judicial Practice in the light of International Obligations of Ukraine.
The first seminar will be adjusting one. Judges of the Supreme Court of Ukraine, Presidents or Vice-Presidents of Judges of Criminal Appeal Chambers of the Regional Appeal Courts will be present. The main purpose of the seminar is to present aims and purposes of the Project, to specify courts approaches and reasons for current domestic case-law in review of investigative activity, to clear deficiencies in legislation and organisational shortcomings and to outline the direction of Project-relating co-operation.
The agenda of the seminar will be distributed to the participants in advance with proposal to submit the outlines of reports on the subject. To the agenda will be attached overall review of domestic practice prepared by expert groups. For the purpose of the seminar we plan to request from the Supreme Court of Ukraine statistical information as to the judicial practice in specific questions (trials concerning torture, illegal arrest and detention, administrative arrest hearings, pre-trial detention hearings, number of persons detained and released by courts in different stages if criminal proceedings, number of complaints about torture and illegal arrest by police). Co-ordinator of the seminar will collect the outlines and send it to other participants for consideration.
The seminar will be held in Kiev during three days.
The first day will include:
– presentation of the Project goals and directions of activity;
– expert report in analysis of case-law in police arrest and detention without warrant and pre-trial detention court hearing;
– expert report in analysis of case-law concerning torture, abuse of power and breach of rights for defence by police and other law-enforcement officers;
– expert report in analysis of case-law in relation of complaints about refusing, discontinuance or delay in criminal investigations in cases that embrace torture and other forms of ill-treatment;
– report of the Supreme Courts Judge as to the judicial practice and the Supreme Court policy in protection against torture;
The second day will contain:
– report of the Council of Europes expert about CEs approaches to the protection against torture and about role of courts in solution of this problem;
– reports of two or three Presidents of Regional Appeal Courts as to practical difficulties in maintenance of international human rights standards.
The third day:
– presentation of final document of the seminar which will indicate goals and needs, outline of co-operation points (including information exchange), list of topics of further seminars etc;
During the seminar will be scheduled time for informal discussions and networking.
Course of the seminar will be tape-recorded and printed further. Copies will be presented dispatched to the Supreme Court of Ukraine, the Regional Appeal Courts, the Office of the Ombudsman, to appropriate committees of the Verkhovna Rada, to the scientific institutions. The electronic version of the record will be placeon the web-site of KhPG.
The results of the seminar will be explored by our experts and working groups for more comprehensive and detailed researches of the problems formulated at the seminar, for straightening of conclusions and elaboration of practical recommendations.
The approach to preparation and conduct of subsequent seminars will follow in general the lay-out of the first one, and the they will be destined for closer consideration of specific issues indicated there. Sample agendas of the seminars are:
– Investigation of Torture and Access to a Court for Torture Victims: International Document and Jurisprudence;
– Police arrest and detention under police custody: International Standards and Jurisprudence;
– Procedural Aspects of Detention Hearing: Equality of Arms, Burden of Proof, Access to Files, Legal Representation and Others;
– Substantial Conditions of Legitimate Pre-trial Detention: Reasonable Suspicion in the Crime, the Legitimate Aims;
– Access to a Court for Detainees: International Jurisprudence and Domestic Legislation;
– Access to a Lawyer and to a Doctor: the CPTs Standards and the European Courts Case-Law
– Confessions of Suspect and Accused Persons: condition of admissibility to Trial;
– Evidences at a detention hearing and at a detainees complaints examination.
Judges of the Supreme Court, presidents and judges of criminal departments of appeal courts and judges of local courts of host and neighbouring judicial district will be involved in the seminars activities. The second and third seminars will take place in Kharkiv Appeal Court and will cover delegates from Sumy, Poltava, Lugansk, Dnipropetrovsk, Donetsk districts. The forth and fifth will be held in Cherkassy Appeal Court (also for Kyiv, Chernigiv, Kyrovograd, Vinnitsa, Zhitomir districts), the sixth and seventh – in Odessa Appeal Court (also for Mikolayiv, Kherson, Crimea, Zaporozhye districts), the eighth and ninth – in Lviv Appeal Court (also for Transcarpathian, Ivanofrankivsk, Volhynia, Rivno, Khmelnitski, Ternopil, Chernivtsy). We expect to invite 8-15 judges from each neighbouring district (including judges from regional appeal court and local judge in equal parts) and 30-40 local judge from host district. There also will be present 20-30 judge of the appeal court in which the seminar will take place. Overall number of participants is 100-120 persons.
For the participation in all seminars the scientists from different scientific and educational establishments, representatives from the Office of the Ombudsman, criminal lawyers, officials from prosecutor offices and governmental bodies, NGOs activists and mass-media will be invited.
At the seminars the drafts of amendments worked out by our experts will be presented for consideration and discussion.
During the seminar will be introduced and disseminated:
1. Quarterly Case-law of the European Court of Human Rights. Judgements. Commentaries (12 issues)
2. Publications by the Kharkiv Human Rights Group (free):
– Mykhailo Buromensky. How to Appeal European Court in Human Rights.
– Ivan Lishchyna. International Mechanisms of Human Rights Protection.
– Arkadiy Buschenko. Systematic digest of case-law of the ECHR on Article 5 of the Convention.
– Arkadiy Buschenko. Systematic digest of case-law of the ECHR on Articles 2 and 3 of the Convention.
– «Against torture. Review of the information sources on cruel treatment and torture (1997-2001)»,
– «Against torture. European mechanisms on prevention of torture and cruel treatment»»
– «Against torture. UNO mechanisms on prevention of torture and cruel treatment
3. Vasyl Bryntsev Legal Protection of Personal Rights and Interests in Criminal Procedure.
4. Vasyl Bryntsev. Judicial Review. Theory and Practice.
5. Publication of CPT Standards
6. Reviews of the expert group as to the conformity of national legislation and practice to international obligation
Also it will be presented for consideration and discussion a draft of the Resolution of the Plenum of the Supreme Court of Ukraine (an authoritative guide for judicial practice in Ukraine): The Role of Courts in Prevention of Torture in Police Detention and in Protection Against Other Forms of Abuse of Power in the course Investigation.
Educational seminars for the personal of law-enforcing bodies (Ministry of Internal Affairs of Ukraine, Security Services of Ukraine, General Prosecutors Office of Ukraine)
It is continuation of the TACIS Project that KhPG fulfilled in 1999. We held 12 seminars devoted to prevention of torture in 11 regional centres of Ukraine and Sebastopol for regional officers with dissemination of publications and discussions on reasons of torture. We would like to hold the same seminars in other 12 regional centres of Ukraine. We intend to invite for participation at the seminars of Western expert, supposedly through the APT, who worked in the police.
We plan to hold (together with our local partners) seminars in Chernivtsi, Ivano-Frankivsk, Kherson, Kirovograd, Lugansk, Lutsk, Nikolaev, Poltava, Sumy, Ternopil, Uzhgorod, Zaporizzia). Each seminar will be devoted to the international legislation about tortures and cruel treatment, and also to the organisation of right protecting monitoring and principles of mutual relations of right protecting organisations with the authorities.
The goal of each seminar is distributing information about international standards on torture prevention and a mechanism of the work of the CPT, CAT among the law-enforcing officials and HR activists, further organising the operation of the network according to the Projects objectives, approbation of the training course «Human Rights and Police». The duration of each seminar will be two days, two sittings lasting four hours, i.e. 8 hours a day, the expected number of the participants is fifty.
Participants of each seminar are investigators from the MIA, SSU, Regional Prosecutors office, barristers, human rights activists, journalists, etc.
The agenda of each seminar is such.
1. Ukraine is a member of the Council of Europe: acquisitions, perspectives, problems.
2. Overview of the European Convention on Human Rights. The procedure of preparing complaints to the European Court of Human Rights.
3. European Convention for the Prevention of Torture and procedures of its use.
4. Article 3 of the European Convention on Human Rights.
5. Article 5 of the European Convention on Human Rights.
6. Prevention of tortures in the Ukrainian Law.
7. The UNO Convention against Torture and how it acts in Ukraine. Cases of using torture during the crime investigation and in the Ukrainian army. Prevention of torture in the penitentiary system.
8. The problem of the implementation of international standards of torture prevention into the Ukrainian law.
9. HR Protection organisations in Ukraine and their relations with authorities.
Each participant of the seminars will receive three books («Against torture. Review of the information sources on cruel treatment and torture (1997-2001)», «Against torture. European mechanisms on prevention of torture and cruel treatment»» and «Against torture. UNO mechanisms on prevention of torture and cruel treatment») and the series of books prepared for the training course «Human rights and police», other educational materials.
We believe that activity of trained criminal lawyers has crucial significance for strengthening of international and European standards in domestic legal practice. But, just as judge and law-enforcement staff, lawyers find themselves in situation where their knowledge, skills and experience proved to be insufficient for the effective use of the international human rights law.
So, we intend to set up permanent training course for lawyers practising in criminal justice system (1) to elaborate approaches and practical skills in using of international document, the CTP standards and the European Courts case-law in national proceedings and (2) to master international mechanisms for defence of rights of person.
We plan to form group of 15-20 criminal lawyers for one-day training. The studies will include (a) a practical-oriented review of international standards and approaches, international bodies and their procedure and (b) practical training in specific subjects of lawyer activity. Practical training will include thematic workshop and a hypothetical litigation workshop, situational training, discussing of real cases. The student will be provided with methodical materials and publications. The scientists from National Law Academy of Ukraine, our experts, experienced barrister, foreign lawyers, qualified medical experts, psychologists will be invited for lecturing and conducting of workshops. During the training course the students will be engaged in the Project activity as lawyers.
The sample themes of training course are follow:
– securing of access to a client deprived of liberty, fixation and averting of different barriers for such access,
– the first consultation with client: substantial information; first advice; urgent acts of the lawyer in case of suspected torture and for torture prevention,
– securing of access to a doctor: legal and practical problem,
– institution of criminal prosecution in cases of torture, illegal arrest or detention: representation of the victim case, preserving of evidences, curtailing possibilities for delays in investigation,
– tactical aspects of co-operation with experts, using of independent expert conclusions,
– representation of client at detention/release hearing, appeal as to the illegal police arrest and detention,
– security of a lawyer activity, prevention of challenge of the lawyer and prevention of compelled waive from legal assistance by detained client,
– prevention of arrest of the client,
– ethics of the legal profession.