Concept Paper of State Policy on Prevention of Torture, Inhuman or Degrading Treatment or Punishment (draft)
Ukraine has been a member state of the United Nations since its creation, is a member state of the Council of Europe and a party to numerous international agreements which entail commitments on the prohibition and prevention of torture and ill-treatment. These include the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); the International Covenant on Civil and Political Rights (1966); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989), as well as Optional Protocols to these. A number of provisions in these agreements set out specific obligations to ensure absolute prohibition of torture and ill treatment. The latter are prohibited by Article 28 of the Constitution of Ukraine.
International structures, especially the European Court of Human Rights (ECHR), the UN Committee against Torture (CAT), and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) continue to develop ever more stringent standards for the protection of human rights in this area.
A systematic approach to radical changes in practice in many spheres of activity of the authorities is crucial for overcoming the problems of torture and ill-treatment.
Section 1. The objective and tasks of the Strategy plan__________________________ 2
Section 2. The main issues in prevention of torture and ill-treatment_____________ 2
2.1. The use of torture during criminal investigations_________________________________ 2
2.2. The use of evidence obtained through the use of torture or ill-treatment_____________ 3
2.3. Bad conditions and over-crowding in closed institutions_________________________ 3
2.4. The lack of effective investigation into allegations of torture or ill-treatment________ 4
2.5. The use of force in places of detention__________________________________________ 5
Section 3. Ways of preventing torture and ill-treatment_________________________ 5
3.1. Criminal justice bodies________________________________________________________ 5
3.1.1. Developing zero tolerance for the use of torture_____________________________ 5
3.1.2. Changes in the principles of work__________________________________________ 6
3.1.3. Changes in selection and assessment of staff________________________________ 6
3.1.4. Strengthening safeguards against arbitrary detention________________________ 6
3.1.5. Safeguarding the rights of those detained__________________________________ 7
3.2. The court system_____________________________________________________________ 7
3.2.1. Strengthening the influence of the judiciary_________________________________ 7
3.2.2. Establishing rules for the admissibility of evidence____________________________ 7
3.2.3. Extending the control of the courts over the activities of criminal justice bodies_ 7
3.2.4. Creating a system of periodic review of the grounds for remand in custody____ 8
3.3. Places of detention___________________________________________________________ 8
3.3.1. Review of normative regulation___________________________________________ 8
3.3.2. Regular visits to places of detention________________________________________ 8
3.3.3. Maintenance of discipline________________________________________________ 9
3.3.4. Legal assistance_________________________________________________________ 9
3.3.5. Correspondence_________________________________________________________ 9
3.4. Coordination of the work of State bodies in carrying out the recommendations of international structures 9
3.5. Creating an effective mechanism for criminal investigation_______________________ 10
3.6. The role of doctors_________________________________________________________ 11
3.7. Access to medical information_______________________________________________ 12
3.8. Deportation and extradition__________________________________________________ 12
3.9. Education__________________________________________________________________ 12
3.10. Establishing coordinating bodies and their tasks_________________________________ 13
Section 1. The objective and tasks of the Strategy plan
The objective of this Strategy plan is to create a system for preventing torture and ill-treatment in Ukraine.
The tasks are to draw up a scientifically justified methodological basis for determining the content and direction of State policy on preventing torture and ill-treatment, specifically:
defining the main issues in prevention of torture and ill-treatment;
elaborating the basic principles for changing legislation and practice;
creating a system of regular visits, on the principle of independence and competence, to places of detention in order to oversee the work of the authorities
creating the foundations for involving (participating) the public in regular visits to places of detention and other forms of public control.
Section 2. The main issues in prevention of torture and ill-treatment
The risk of torture and ill-treatment within the system of criminal justice remains high. It is noted in the reports of Ukraines Human Rights Ombudsperson, of the CAT and the CPT. Ukrainian human rights organizations have repeatedly warned of this danger.
Experts in the field believe that torture and other forms of unlawful violence are quite widespread in the police force. This is to a significant extent the result of the criminal justice system and evidence law which is largely based on confessions by those accused of committing a crime.
Figures for solved crimes continue to play a major role in the assessment of professional activities of criminal investigation officers. This provides even more encouragement to use any means to achieve high results, this creating favourable environment for the prevalence of ill-treatment.
This system has brought about a situation whereby law enforcement agencies are given wide powers to detain and hold under their control any person if they believe that it could be useful for a criminal investigation, with no serious safeguards against the use of torture and ill-treatment. Such wide powers remain so deeply entrenched in criminal prosecution that even the clear provision in Article 29 of the Constitution, which requires a court order for any detention except in cases of urgent necessity to prevent or stop a crime, has been unable to change existing practice. People are detained or held in custody without being brought before the judge and often without any contact with the outside world for as long as possible, as a rule until the end of the maximum period envisaged by law. Moreover, the practice has become widespread in criminal justice of so-called “administrative detention” or detention “on suspicion of vagrancy” which makes it possible to detain a person without judicial control from 3 to 30 days. It is also common to not keep records of the actual time of detention. Due to the unclear status of people who are under the control of the law enforcement agencies yet have not had a protocol of detention drawn up, such people do not have access to legal assistance.
The widespread practice of unwarranted detentions, the lack of immediate judicial control and the insufficient safeguards for those held for a long period under police control, all encourage the use of torture in order to receive self-incriminating statements and make it possible for those who use such measures to go unpunished. This creates a atmosphere of impunity and encourages law enforcement officers to apply unlawful means, including torture.
Ukraines Constitution and Criminal Procedure Code prohibit the use of evidence obtained “with violations of the law on criminal procedure”. However in practice, the use of evidence which arouses well-founded doubts as to their voluntarilyness remains widespread. In its Conclusions and Recommendations of 18 May 2007, the UN Committee against Torture states that it is “concerned with the current investigation system in which confessions are used as a principal form of evidence for prosecution, thus creating conditions that may facilitate the use of torture and ill-treatment of suspects” (Item 11).
Courts often fail to fulfil their role as “guardians of liberty” and avoid using their authority to influence the behaviour of the law enforcement agencies. Ukraines legislation and court practice do not provide judges with any reliable criteria and procedural possibilities for ascertaining the admissibility of evidence, for example, whether testimony was given voluntarily, as well as for excluding evidence. The availability and consistent application of clear rules of admissibility, set out in advance, is one of the components important in the prevention of torture and ill-treatment.
The European Court of Human Rights in the case of Jalloh v. Germany (judgment of 11 April 2006) and Göçmen v. Turkey (judgment of 17 October 2006) found that the use in court of coerced evidence, including confessions which could have been obtained through the use of torture, violated the accused persons right to a fair trial. Courts must bear in mind such conclusions from the European Court.
Despite the fact that over recent years considerable material resources have been allocated for improving conditions in places of detention, the situation remains unsatisfactory.
State policy to this day has failed to take into account that bad conditions only partially depend on the provision of material resources. For a solution to the problem, changes are also needed in criminal policy, and the attitude of the courts and law enforcement agencies to the use of various forms of deprivation of liberty. It should be noted that the criminal system overuses deprivation of liberty in order to resolve problems of criminal proceedings and policy. The practice is still too widespread of detaining an accused person on remand, which not only worsens the situation in the relevant institutions, but also does serious harm to the accused and their families, ruining the life of a person whose guilt has not been established. Bad conditions are also a problem for other institutions where people are deprived of their liberty, for example, hospital units where people are forcibly held, institutions for minors, homes for the elderly, migrant holding centres, and others.
A flexible system of other measures not connected with deprivation of liberty is lacking, and there is also no organization to ensure enforcement of these alternative measures, with this serving to encourage judges and other authorities to overuse imprisonment. The authorities still fail to treat criminal policy as a part of the State social policy and do not introduce into the legal system approaches aimed at supporting or renewing integration into society.
The lack of restrictions in legislation of the term of pre-trial detention; the failure to allow the accused access to the court for periodic review of their pre-trial detention; the lack of criteria and experience of assessment of the factors that could influence the designation of a preventive measure, the attempt to prevent any, even minimal risk, results in people being unwarrantedly remanded in custody in the great number of cases. This not only increases the financial burden of the State, but also leads to the violation of peoples rights through the inability of the State to finance decent conditions for remand in custody.
The conditions for pre-trial detention are harsher than those in penal institutions which is not in keeping with the status of a person who is innocent until proven guilty. This situation creates the impression that pre-trial detention is one of the means for forcing a person to admit guilt.
Judgments from the European Court of Human Rights in the cases of Nemerzhytsky v. Ukraine of 5 April 2005, Kucheruk v. Ukraine of 6 September 2007 and Yakovenko v. Ukraine of 24 October 2007 highlighted problems linked with medical care and medical intrusion which require urgent attention.
The Prosecutors Office in Ukraine has not proved capable of creating a system of effective investigation into allegations of torture and ill-treatment. International bodies, for example, the UN Committee against Torture, note the Prosecutors low level of effectiveness in this area. In its Conclusions and Recommendations of 18 May 2007, the Committee “is concerned by the failure to initiate and conduct prompt, impartial and effective investigations into complaints of torture and ill-treatment, in particular, due to the problems posed by the dual nature and responsibilities of the General Prosecutors office, (1) for prosecution and (2) for oversight of the proper conduct of investigations” (Item 10).
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has pointed on many occasions to the lack of effective investigation into cases which give cause for concern (see the Committees Reports on its visits to Ukraine from 9 to 21 October 2005 § 25; and from 24 November to 8 December 2002 § 90)
In the cases of Poltoratsky v. Ukraine (judgment of 23 April 2003); Afanasyev v. Ukraine (judgment of 5 April 2005); Gongadze v. Ukraine (judgment of 8 November 2005); Serhiy Shevchenko (judgment of 4 April 2006); Kucheruk v. Ukraine (judgment of 6 September 2007) and Yakovenko v. Ukraine (judgment of 2 October), the European Court of Human Rights pointed to the lack of effective investigation by the prosecutors offices which had lead to Ukraine breaching its commitments under the European Convention on Human Rights.
The lack of a system for proper investigation into allegations of torture and other forms of ill-treatment has also been criticized in the reports of Ukrainian human rights organizations.
The main problems which hamper effective investigation are the lack of functional independence and the prosecutors offices conflict of interests; the lack of any form of public control over investigations; the unclear legal status and vulnerability of people who have suffered torture or ill-treatment, or pressure or threats from those responsible; the lack of skills in investigating allegations of torture and ill-treatment and insufficient knowledge of safeguards about such treatment, as well as the lack of a system of legal aid for its victims.
The lack of detailed legal regulation of conditions for the use of force, insufficient skills in apply the least harmful and dangerous means, inadequate development of the techniques for resolving difficult situations through non-violent means, all contribute to a situation where from time to time force, sometimes lethal force, is applied unwarrantedly.
Of particular concern is the maintenance of law and order in places of detention. The traditions of closed institutions which have remained from Soviet practice, the structure and functioning of penal, psychiatric and other systems, give preference to the use of violence and intimidation over other methods of maintaining discipline. Although the administration has the possibility and duty to take measures to reduce the need to apply force in such places to the minimum, use of force remains widespread in maintaining order. Without disregarding all the difficulties inherent in keeping discipline in closed institutions, a system needs to be created in which the use of force is the exception and any case involving the use of violence becomes the subject of disciplinary proceedings aimed at establishing whether the measures were justified.
Section 3. Ways of preventing torture and ill-treatment
An attitude of zero tolerance for the use of torture and ill-treatment needs to be developed within the law enforcement agencies. The heads of subdivisions should have clearly defined duties added on ensuring the safety of the people under the control of their staff. In the course of investigations into torture and ill-treatment, the investigation bodies should thoroughly investigate circumstances which could indicate direct or indirect instructions from the superior of the person suspected of such behaviour. They should also look for any other forms of abetting this behaviour, including tacit consent to the use of torture and ill-treatment, and bring criminal charges against these superiors for complicity in the crime.
The courts must take a more principled stand on assessing ways of receiving evidence, keeping in mind their vital role in society and direct responsibility for the end result of the examination of a case. The courts need to be more active in using the case-law of international institutions, in particular, the European Court of Human Rights, for creating a system of evidence law which will make it impossible to use evidence obtained with the use of torture and other forms of ill-treatment. The position of the court should be of definitive importance in establishing the refusal to tolerate such forms of behaviour in other State authorities.
The work of the law enforcement agencies in fighting crime must be built on the new principles set out in the “Conceptual Strategy for reforming the criminal justice system”. The assessment of the work of the law enforcement agencies must be made on the basis of realistic criteria. The practice of setting unrealistic figures for crimes solved must be stopped.
Acquittals, terminations of criminal proceedings must not be viewed as a sign of ineffective work by the system of criminal justice, since they are a normal part of such activities. The work of prosecutors and law enforcement officers should be assessed on basis of the professionalism of their efforts, and not on the end result of the criminal investigation.
In selecting staff for work in the law enforcement agencies, self-control and attitude to any forms of ill-treatment should be priority. The system of incentives and promotion within the law enforcement agencies should be contingent on factors related to ensuring prevention of torture and ill-treatment.
The system for assessing the effectiveness of the work of law enforcement agencies should be based on modern ideas about the role of such agencies in a democratic society.
Detention of an individual should only be carried out on the basis of a court order issued following examination of the evidence justifying such a measure, as is required by Article 29 § 2 of the Constitution. Cases of detention without a court order should be clearly defined in legislation, and not exceed the authority of the State as set out in Article 29 § 4 of the Constitution.
Clear sanctions against violating the right to liberty must be set out in legislation. In the case of unlawful detention, the person involved must be paid compensation without delay.
Measures need to be drawn up and implemented which exclude any deprivation of liberty without the appropriate registration and notification of other persons at the choice of the person deprived of liberty.
Any person deprived of liberty should be immediately brought before a judge who must review the legality and reasonable grounds for the detention, as well as ensuring that the person is properly treated. Any delay in bringing them before a judge or informing a third party should be considered a serious violation of the law and entail the appropriate consequences for those implicated in such violations and for the State.
People deprived of their liberty must be given special guarantees regarding access to a lawyer and doctor. Access to a lawyer must be stripped of any excessive formalities not demanded by security considerations. In any case access to a lawyer must not be contingent on permission from any State authority, and formalities must be such as can be dealt with within minutes. Furthermore, since the vast majority of people deprived of their liberty do not have enough money to pay for a lawyer, there must be a functioning system of legal assistance created in accordance with the “Conceptual strategy for free legal aid”, approved by Presidential Decree № 509/2006 from 09.06.2006.
The role played by the judiciary in safeguarding the individuals rights and freedoms, including their protection from torture and ill-treatment needs to be strengthened. To heighten the influence of the courts on State policy in the area of human rights, acceleration is needed of measures to ensure access to the courts, guarantees of justice of court procedure, legal certainty and consistency of case-law as set out in the “Conceptual strategy for improving the judiciary to affirm fair trial in Ukraine in accordance with European standards”, adopted by Presidential Decree of 10 May 2006 № 361.
As part of implementation of the “Conceptual Strategy for reforming the criminal justice system”, provisions in evidence law should be created which would exclude the use of statements made as the result of torture and ill-treatment. Such rules should provide judges with wide powers for examining the circumstances under which such statements were made and placing the burden of proof that a confession was voluntary on the prosecution.
Furthermore, public officials, including the prosecutors office, should not use evidence obtained in circumstances which could indicate that torture and ill-treatment were applied, except in cases where such evidence are used to prove the fact of ill treatment and to bring those responsible to justice. The use of such evidence by public officials should be treated as a violation of the standards of professional conduct and be subject to disciplinary proceedings.
The courts should have the power to demand that any individual held in places of detention be brought before a judge to determine the lawfulness of his detention and to take the necessary measures to prevent torture or ill-treatment. It is unacceptable that the power of the courts in such issues should depend on the discretion of the executive authorities.
Liability must be increased for non-enforcement or inadequate enforcement of court rulings, especially regarding public officials or functionaries.
Deprivation of liberty, except in cases where a sentence is being served after conviction by a court, should be subject to periodic review by the court at the initiative of the person involved, in accordance with Article 5 § 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 9 § 4 of the International Covenant on Civil and Political Rights
Courts should be given wide powers to assess the arguments for or against deprivation of liberty, and the burden of proving the need for detention or an extension of the detention should lie with the State.
The normative base for the functioning of places of detention should be reviewed. As well as adequate financing for such places, the very principles of State policy need to be reviewed in order to ensure that deprivation of liberty on any grounds is the exception, not the rule. In order to achieve this, the grounds for deprivation of liberty should be reviewed, and an extensive system of alternative measures created.
A system should be created of regular visits by independent experts of places where people deprived of their liberty could be held. The creation of such a system is not only a requirement of State policy, but also one of Ukraines commitments under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [OPCAT]. This Protocol was ratified by Ukraine on 21 July 2007, yet a system has still not been created which could be deemed national preventive measures in the sense of Article 17 of this Protocol.
To ensure that the system of regular visits is effective, it must be trusted by the public, the authorities and international bodies. It is vital that the actual process of creating such a system is transparent and open to participation by as large a number of interested parties as possible. Representatives of State bodies involved in the organization and work of places of detention; the Human Rights Ombudsperson, Ukraines representatives in international bodies, Ukrainian NGOs, professional self-government bodies, scholars and representatives of the Verkhovna Rada should all be involved in discussing the creation and principles of work of this system.
This system should become part of a constant process of analysis of all aspects of the system of deprivation of liberty from the point of view of observing the rights of people deprived of their liberty, especially the prevention of torture or ill-treatment. The system should involve independent experts with various areas of specialization and experience who will be able to obtain information directly during visits, and by studying the real state of affairs, and through documents, face-to-face conversations with people deprived of their liberty, and personnel of the administrations. They will thus be able to identify those components of the system for deprivation of liberty which could lead to conditions and behaviour which can be classified as torture or ill-treatment. The independent experts should compare the conditions and current procedure with international and national standards, and draw up practical recommendations for the authorities and the public officials on whom their implementation depends.
Maintenance of discipline and order in places of detention should be carried out through non-violent methods and a flexible system of incentives. Force should be applied only in cases where the use of other methods is impossible, or when such measures have proved ineffectual. Any case where force has been applied by the personnel of places where people are detained should be subject to mandatory checks as to whether its use was lawful and justified.
The authorities responsible for places of detention must not have enforcement units. The deployment of any units not belonging to the personnel of the place of detention should be carried out solely in exceptional circumstances and with the permission of senior management of the State Department, as well as of the prosecutor of high rank. In cases where it is impossible to prevent or put an end to a riot, seizure of hostages or other violent behaviour from people deprived of their liberty, Special Forces units of the Ministry of Internal Affairs may be brought in at the decision of the Minister and agreed with the Prosecutor General.
After the use of force by a Special Forces unit, the place of detention involved must be immediately checked by independent experts in accordance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
People deprived of their liberty must have the possibility of unimpeded legal assistance including free legal aid in appropriate cases. Unimpeded access to legal assistance should be viewed as one of the integral features of the system for preventing torture and ill-treatment.
Correspondence of individuals deprived of their liberty must not be interfered with by the administration of institutions except on the basis of a court order issued with regard to a specific item of correspondence. Strict punishments should be established for invasion of privacy of correspondence of people deprived of their liberty, especially with regard to correspondence with their lawyer, the Ombudsperson, the Prosecutor and the European Court of Human Rights.
Implementation of the recommendations of UN, Council of Europe, OSCE and other international institutions should become one of the permanent priorities of the authorities. Timely information should be provided to the relevant authorities regarding recommendations, comments and other conclusions of these institutions; they should participate in developing methods for resolving the problems at issue, in control the implementation and preparing respondent reports. The State authorities and their officials which report to or represent the interests of the State before an international institution under an international agreement (as, for example, does the Government Representative at the European Court of Human Rights) should be responsible for preparing further measures of a general nature aimed at preventing in future the violations highlighted.
Work on implementing conclusions and recommendations of international institutions in national practice should be systematic. The main aim of such work should not be to enable Ukraine to “save face” with the international institution, but real and systematic work on implementing international standards on human rights in national practice, creating consistent State policy which will safeguard the interests of the State with no loss to observance of human rights. To coordinate work on implementing international commitments it would be wise to create a coordination centre which would be responsible for determined and consistent policy in this area, drawing up the relevant recommendations and liaising with the appropriate State authorities and nongovernmental organizations involved in this sphere and the Verkhovna Rada. At the first stage, the role of such a coordination centre should be assigned to the National Commission for the Strengthening of Democracy and the Rule of Law.
Prevention of torture and other forms of ill-treatment is virtually impossible if public authorities who should answer for such abuse escape liability for their actions. After the State has become aware, from whatever source, of possible torture or ill-treatment, there should be a prompt and efficient reaction. Without this, those who are inclined to use unlawful violence will have grounds for believing that they can act without impunity. Any other efforts aimed at combating torture will be devalued if the State fails to create an effective mechanism for investigating statements alleging torture or ill-treatment.
To ensure that investigations into alleged torture or ill-treatment are effective, it is important that the people responsible for running them are independent of those who may possibly be implicated in the wrong-doing. In Ukraine the single body which can initiate a criminal investigation into the alleged use of torture or ill-treatment by officials is the prosecutors office. However, in order that its investigation can be considered effective, reform of the prosecutors office is needed in order to eliminate the clear conflict of interests when the same body carries out an investigation into an allegation of torture or ill-treatment and supports a prosecution based on evidence obtained through the use of such treatment. This conflict of interests has been pointed out by international institutions (see for example, the UN Committee against Tortures Conclusions and Recommendations from 18 May 2007, Item 10). During discussion of any reform of the prosecutors office, safeguarding of independence and effectiveness of investigations into allegations of torture or ill-treatment must be taken into account.
The investigation must also be full and thorough, and can only be carried out within the framework of a criminal case. There must therefore be a review of the practice of refuses to initiate criminal cases in response to allegations of torture or ill-treatment. Although the obligation to carry out an effective investigation does not envisage the duty to achieve a certain result, but only to make efforts to establish the real circumstances, all conclusions on the existence or absence of such wrong-doing should be taken within the framework of a criminal investigation, and not before this is initiated.
The investigation must be initiated immediately and independent of a formal statement from the alleged victim of torture or ill-treatment. The grounds for initiating an investigation should be any report which gives cause for suspecting that torture or ill-treatment has been applied. Any obstacles to carrying out an effective investigation must be removed. The people who may have been victims of such treatment should be immediately granted the relevant status in order for them to exercise the requisite procedural possibilities which is also an element of the investigation into allegations of torture or ill-treatment. Furthermore, officials carrying out the investigation must ensure that the people who may have been victims of such treatment are protected from repressions. To achieve this, it is important to review the approaches on the use of measures envisaged by the Law “On safeguarding the safety of people taking part in criminal proceedings”, as well as creating a system ensuring the effectiveness, efficiency and practical accessibility of the relevant measures.
Wide discussion should also take place of the possibility of creating a separate effective and independent mechanism for ensuring timely, objective and effective investigation into all allegations of torture or ill-treatment during a criminal investigation where the conflict of interests of the prosecutors office proves too strong.
Doctors working in places of detention must be independent of the administration of the institution where the people are held and be guided by the principles of their medical profession which follow from the Standard Minimum Rules for the Treatment of Prisoners, declarations and other documents of the World Medical Association, World Psychiatric Association and others.
Doctors treatment of people deprived of their liberty must not differ from their treatment of any other patient. Any doctors conclusion must depend solely on the professional assessment of the facts and medical necessity and not be influenced by any needs not linked with concern for the health of the patient.
Rules should be established which oblige any doctors or representatives of medical personnel (in the absence of a doctor) to carry out a good quality examination and to make a full description of injuries received if a person claims to have been the victim of torture or ill-treatment, by representatives of the authorities or if other circumstances give grounds for suspecting this. Interference in the doctors fulfilment of this obligation by any person shall be classified as a criminal offence. On the other hand, the non-adherence or inadequate adherence to these rules of any doctors or other medical personnel will entail strict disciplinary sanctions.
The methods used by doctors should be reviewed for their compliance with modern medical standards. Those methods should be excluded which, according to the contemporary legal approach, can be considered ill-treatment in violation of Ukraines international commitments.
All obstacles must be removed preventing a person from receiving medical information about injuries sustained. The person involved should take precedence over other parties, including the bodies carrying out an investigation, in having access to the information. Any person should have the possibility, independently of the decision of any State body, of approaching an expert of his or her own choice to receive an assessment of the injuries incurred or any other deterioration in his or her state of health which could be used as evidence in court. The provisions in legislation on court forensic examinations should be reviewed to achieve this objective.
Under no circumstances should Ukraine return or extradite people to a country where there are serious grounds for believing that they may be subjected to torture or other forms of ill-treatment. Legislation must be created which will safeguard enforcement of obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The interests of international cooperation and protection of the interests of the State from illegal immigration must not outweigh the obligation of the State to ensure protection from torture and ill-treatment. Each time the question arises of expulsion or extradition of a person to another country, the State body taking the decision must study all circumstances which could suggest that there is a risk that the person will be subjected to torture or ill-treatment in that country. This body must not restrict its study to only the formal grounds for extradition or expulsion, but should thoroughly check how real the risk is of torture or ill-treatment within the appropriate timeframe bearing in mind the absolute nature of the prohibition of torture and ill-treatment.
A person should be ensured the right to lodge an appeal with the court against the decision of the body to allow extradition or expulsion to the other country. The scope of the court examination should provide the court with the opportunity to study all the circumstances concerning the possible threat of torture or other forms of ill-treatment in that country, basing its conclusions not only on information from official sources, but on any material which the court considers trustworthy. Слід визнати обовязковою участь адвоката під час будь-якої процедури, що проводиться з метою видачі або висилки особи для забезпечення ефективного представництва таких особи.
A person must not be handed over to another country before the completion of all appeal procedure.
Circulation among judges and other public officials on Ukraines international commitments in this area should include not only the texts of the relevant international agreements, but also the practice of international bodies.
To this end it is necessary, in compliance with Article 6 of the Law “On execution of judgments and implementation of case-law of the European Court of Human Rights” to begin without delay official publication of the judgments of the European Court of Human Rights. A system should also be created for providing regular information about new European Courts judgments both through printed editions, and electronic format available on the Internet.
The study of standards in this area needs to be introduced into the curriculum of secondary specialized and higher educational institutions preparing personnel for work connected with the risk of torture and ill-treatment. This applies in the first instance to higher educational institutions which train lawyers, doctors and staff of the penitentiary institution and social services. Knowledge of standards in prevention of torture and ill-treatment should become one of the main requirements for these professions.
In order to carry out State policy on prevention of torture and ill-treatment within the makeup of the National Commission for the Strengthening of Democracy and the Rule of Law, a Committee for coordinating work on creating a system for preventing torture and ill-treatment shall be created.
The Committee should collect information about current places of detention in Ukraine in the meaning of Article 4 of OPCAT.
The Committee should carry out an analysis of the functions and effectiveness of the bodies already making visits and carrying out supervision over such places. The results of the analysis should be set out in a report indicating:
which body visits which places; how often, and what authority they have during the visits;
how independent of the authorities a particular body is, based on objective criteria, as well as from the point of view of people held in the particular places of detention and public opinion;
which bodies use which methods during visits and what issues they pay attention to;
how accessible the reports are on the results of the visits;
what the consequences are of identifying specific shortcomings during visits or other types of checks.
At the same time the Committee should also make an analysis of legislation and subordinate acts in order to identify obstacles to the effective visiting of places of detention, and propose the relevant amendments to normative acts, as well as preparing a draft National Action Plan on prevention of torture and ill-treatment.
The Committee should also prepare proposals on optimum models for organizing a system of regular visits and begin drawing up practical recommendations on the work methods of the future system, basing this on the experience of both domestic bodies and international organizations.
The Committee should draw up proposals on reforming the system of investigations of statements alleging torture and ill-treatment.
In order to create the conditions for the Committees effective work in these areas, the members of the Committee should temporarily, until the creation of a system of regular visits, be given the powers to make visits to places of detention within the understanding of Article 4 of OPCAT, receive information from the administration of these institutions regarding procedure and conditions people are held in, have a private interview with people held in these institutions. The Committee should also be given the power to receive information which is of importance for carrying out its objectives from the authorities.
The Committee has the right:
to invite to meetings and listen to information from representatives of ministries, other central and local authorities, heads of enterprises, institutions and organizations, regardless of their form of property, on issues within their competence;
to turn to the public directly or via any media outlets, including to provide information about its assessments and recommendations;
to develop links with nongovernmental organizations involved in defending and promoting human rights;
The Committee should publish reports on visits to places of detention and provide the relevant recommendations to the appropriate authorities. It should organize widespread discussion of models and principles of work for the future system of regular visits by a broad spectrum of the public, scholars, representatives of the authorities and specialists in various fields.
The Committee shall be guided in its activities why Regulations adopted at a meeting of the Committee.
The Committee shall work in cooperation with the Human Rights Ombudsperson.