Press Release: Review of Ukraines Fifth Periodic Report to the UN Committee against Torture
On 8-9 May this year the UN Committee against Torture will review Ukraines Fifth Periodic Report on its implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereafter the Convention].
The UN control mechanisms envisage that all State parties to the UN Convention against Torture must every four years report on measures aimed at preventing torture – changes to legislation and to practice, humanization of their penal system, training of personnel etc. The UN Committee encourages nongovernmental human rights organizations to submit commentaries on the official reports presented by their governments.
The Kharkiv Human Rights Protection Group submitted its reports on the implementation of the Convention and commentaries to the Governments Third and Fourth Periodic Reports in 1997 and 2001. It has now prepared an independent report and commentary to Ukraines Fifth Periodic Report.
Unfortunately, the Fifth Periodic Report was prepared by State bodies back at the beginning of 2004 and has not since been updated. This means that it does not reflect changes in legislation and practice over the last three years. In addition, the report is rather poor, with some problems in Ukraine not even given a mention. For this reason, instead of providing an Article by Article commentary, the Kharkiv Human Rights Protection Group [KHPG] has prepared a detailed report providing an independent systematic analysis of how the provisions of the UN Convention against Torture are adhered to in Ukraine.
It should be pointed out that all periodic reports and similar documents have been prepared by State agencies without public participation, without being published and discussed. In our view, the procedure for reporting by the State to the controlling institutions of the UN, Council of Europe and other international institutions must be public.
The report was prepared on the basis of official information, an analysis of Ukrainian legislation, KHPG work in providing assistance to victims of torture, material from monitoring the situation regarding torture carried out from 2003-2006 in all regions of Ukraine. The latter was undertaken by a network of human rights organizations within the framework of the Campaign against torture and ill-treatment in Ukraine. We also used results of the work of the Centre for Professional Aid to Victims of Torture set up within the framework of the Campaign, and analyses and observations from other Ukrainian NGOs.
Over the last few years there have been positive changes and trends in Ukraine, however many concerns remain. These include the following:
- continuing impunity in cases where torture has been applied;
- conflict in the functions of the prosecutors office which impedes efficient investigation of cases of torture;
- the routine infringement of the right to liberty and the rights of people detained;
- widespread use of violence in penal institutions.
The lack of an integrated system for preventing torture and ill-treatment undermines constitutional safeguards. These failings in the legal system contribute to or even encourage the use of torture.
Although Article 29 of the Constitution is unequivocal: “No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law”, legislation and case law pay scant heed of such constitutional norms. Another closely linked problem which increases the risk that people detained will be subjected to torture and ill-treatment is the possibility of holding people in police detention for up to 10 days.
The courts have over recent years begun paying more attention to the risk of ill-treatment where people are returned to a third country. This has been seen in very progressive decisions regarding refugee status. At the same time there have been recent cases of forced return of asylum seekers to countries where they could face persecution. The current procedure for rulings on extradition in no way complies with Article 3 of the Convention
Ukrainian legislation does not envisage a check of any of the circumstances which the State should consider to comply with Article 3 of the Convention. Furthermore, decisions on extradition are not taken by the Prosecutor Generals office openly and the law does not state that the person informed must be informed of the decision.
Criminal liability for actions bearing the features of torture as defined in Article 1 of the Convention has been considerably developed over recent years. Although these steps were, clearly, taken to fulfil Ukraines commitments under the Convention, the wording of a number of provisions of the Criminal Code does not entirely comply with the Conventions aim. Conviction of State agents guilty of using torture remains rare. Sentences passed by the courts for torture are often also not commensurate with the gravity of the crime.
In our view, the Committees recommendations to widely publicize the Committees conclusions in all relevant languages, to inform the public about the main provisions of the Convention against Torture, and to introduce training regarding the rules and norms of the Convention among officers of detective inquiry and criminal investigation units, as well as among penal institution staff, have not been fully implemented. These gaps are partially filled by human rights NGOs which publish and circulate a considerable amount of literature on preventing torture and also hold specialized seminars and training courses for judges, lawyers and law enforcement officers.
The Optional Protocol to the Convention [OPCAT] which Ukraine has signed envisages the creation of national preventive mechanisms aimed at preventing torture and ill-treatment. This step demonstrates the political will to change the attitude towards the problem of torture and to improve the situation. Despite these positive steps by the State, torture remains fairly widespread in Ukraine. There has also been an increasing amount of information over recent years regarding ill-treatment of people serving sentences in corrective colonies. Of particular concern is the practice of planned use of special subdivisions trained for subduing prison riots and other violent actions in order to intimidate prisoners.
The Government explains the bad conditions of remand in custody as being due to “limited financial and economic possibilities of the state”. However, the problem of overcrowding in remand units is only partially linked with funding of the system. It depends to a much greater extent on the ideology and the system of criminal justice with regard to holding those accused of crimes in custody. In practice, remand in custody remains the favoured option with the bail system remaining underdeveloped. Detainees have very limited procedural rights during detention hearings and have no right to periodic reviews of their detentions; while limits for the overall period of detention are not legally stipulated.
Ukrainian laws impose the obligation on prosecutors offices to investigate allegations or other evidence of torture and ill-treatment. However, an entrenched problem for the Ukrainian legal system is the lack of effective investigation into formal allegations of torture and ill-treatment. Such a situation 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.
The lack of independent, impartial and effective investigations and prosecutions of law enforcement officers in connection with allegations of torture and ill-treatment is partly rooted in the dual role of the Public Prosecutor in Ukraine, which is responsible for investigation and prosecution of ordinary criminal cases and for making a decision whether the case will be opened against police officers. The lack of independence of the investigating body means that cases against law enforcement officers are inadequately investigated, delayed or stalled, or are not opened at all.
Under Ukrainian law, victims have extremely limited possibilities for obtaining an independent expert opinion. It is often impossible to obtain documents from medical institutions, where the victim was examined or treated, and there are also complications in gaining access to the material on the case.
Of special concern are people who are deprived of liberty. The prosecutors office, as a rule, fails to act and does not show concern for the security of inmates who have complained of being subjected to torture.
The Civil Code envisages the possibility of a victim of torture obtaining compensation. However, in order to apply this provision, a final court decision is necessary where the actions of such an official are recognized as unlawful.
The Constitution and Criminal Procedure Code prohibit the use of confessions obtained «with breaches of legislation on criminal procedure». However, in the course of criminal proceedings, the use of confessions, which are unlikely to have been given without duress, is quite widespread. The law does not provide procedure for assessing and excluding confessions possibly extorted by torture.
Criminal law provides rather weak protection against the use of force by state agents executing “a lawful order or an instruction” and during apprehension of suspects.
Even though in the armed forces bullying and hazing (dedovshchyna) have been decreasing recently, they still present a very serious problem.
According to recent studies by human rights NGOs, the conditions in which prisoners suffering from tuberculosis are held can be regarded as inhumane and degrading.
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