Human rights in Ukraine – 2007. 1. The Right to life

  [1]

1.  The State’s duty to protect life (positive duty)

The right to life entails the obligation of the State to ensure that this right is protected via the national legal system. This demands an effective system of laws and of law and order; the appropriate actions of representatives of the police, prosecutor’s office, the courts, as well as the imposition of a system of punishment for crimes against life.  The taking of a human life should be prohibited expect in cases legally stipulated.

The State is responsible for the actions and inaction of its representatives, including the law enforcement agencies, military and the personnel of prisons. The State does not, however, bear responsibility for the actions of private individuals which caused a person’s death.

The State is also obliged to ensure the enforcement of those rules which guarantee proper investigation of all suspicious cases involving the taking of life. These investigations must be carried out swiftly, without delay and need to be effective and independent.

The State must also take measures to protect life in the case of a real and urgent threat which it is aware of or should be aware of, for example, in the case of manmade disasters and industrial incidents.

In 2007 there were no recorded killings carried out by representatives of the authorities for political motives.

Ukraine has not signed the International Convention for the Protection of All Persons from Enforced Disappearance..

The number of deaths from external causes in everyday life between January and December 2007

(broken down by cause of death and type of location)[2]

According to figures from the State Committee of Statistics the mortality ratio remains high (16.4 people per 1000 head of population), this including the mortality rate for infants up to 1 year (11.1 per 1000 babies born, or 5, 188 infants in 2007). The coefficient for child mortality is lower than in the 1990s however it has risen significantly in comparison with 2003-2004.  The number of those dying per 1000 head of population has been rising inexorably by the year (1990 – 12.1, 1998 – 14, 4, 2006 – 16, 2 per 100 head of population). With a low birth rate, there continues to be a negative coefficient in natural increase of the population (-6.4 per 1000 people). The population last year decreased by over 290 thousand. However in comparison with past years a positive aspect is an increase in the birth rate from 9.8 in 2006 to10, 3 per 1000 head of population.

It is also worth analysing the situation with protecting the right to not be unlawfully deprived of life.  For this, statistics on crimes linked with unlawfully taking of life should be considered..

Crimes causing the death of the victim[3]

The number of cases of homicide fell (from 3, 220 to 2, 906 or a 9.8% drop). There was, however, an increase in the Ivano-Frankivsk (+41, 7%), Dnipropetrovsk (+20, 5%), Kherson (+9, 0%), Khmelnytsky (+5, 6%) and Volyn (+2, 3%) regions. 200 murders remained unsolved against 230 the previous year. Most were in the Donetsk region (51), the Crimea (18), the Dnipropetrovsk  (15), Luhansk (14), Kyiv (12), Kharkiv (10) and Lviv (9) regions and in Kyiv (14).

We should add that the number of registered crimes gives the statistics only for criminal investigations initiated. However it is not uncommon for investigations to not be initiated, especially in contradictory cases or where the investigators have a certain interest in this. Refusals to initiate a criminal investigation are particularly common in cases of deprivation of life by a law enforcement officer, deaths in hospital, fatalities from a road accident, deaths in places of confinement, etc.

In implementation of the Law “On amendments to Article 112 of the Criminal Procedure Code of Ukraine from 19 April 2007 which came into force on 1 July 2007, a separate category of crimes against the person, including over cases of killing, were transferred from the prosecutor’s office to the jurisdiction of Ministry of Internal Affairs (MIA) pre-trial investigation bodies. Over 7 thousand homicide investigations were handed over.

In order to properly organize implementation of this Law, the Prosecutor General and the Acting Minister of Internal Affairs issued a joint instruction on 21 June 2007 regulating rules of procedure for deciding on reports and information about such crimes and their investigation.

Last year the prosecutor’s office concluded investigations into 2, 250 murder investigations, with 2, 152 being passed to the court (71% of the total number of cases investigated by the investigation units of the prosecutor’s office and the pre-trial investigation units of the MIA). At the same time, Internal Affairs bodies concluded 938 cases, with 875 being passed to the court.^[5]

At the same time problems remain with organizing examination of the place of an event in cases of violent death when instead of Internal Affairs investigation units it is not uncommon for officers with little experience of such work to be sent, this resulting in an unqualified examination and to serious complications in investigating the cases.

Prosecutor’s offices have taken measures to increase the level of prosecutor supervision over the investigation of criminal investigations into road accidents, especially where fatalities were involved.

Scrutiny of such criminal investigations led to the Acting Minister of Internal Affairs issuing a submission on 30 August 2007 on the basis of which police officers faced disciplinary charges and measures were taken to remove the infringements identified.

According to figures from the State Judicial Administration, in 2007 3, 170 prosecutions were submitted to the court over murder, with another 1, 077 not having been examined from previous years. The courts examined 3, 162 criminal prosecutions with verdicts being passed in only 2, 605 cases.

There was particular publicity over deaths in pre-trial detention centres [SIZO].  According to checks carried out by the Prosecutor General and the Kyiv Prosecutor’s Office, in connection with two killings and other deaths in the Kyiv SIZO during the second half of 2007, 5 documents of prosecutor’s response were issued, disciplinary charges were brought against 23 public officials, with two being dismissed.  A criminal investigation was initiated against the Deputy Duty Assistant Head of the SIZO by the Kyiv Prosecutor underder Article 367 § 2 of the Criminal Code (negligence, with grave consequences – translator), this being passed to the Shevchenkivsky District Court in Kyiv.  In addition, on the basis of rulings from the Kyiv Court of Appeal and the Shevchenkivsky District Court with regard to the people who killed O.H. Orlov and O.V. Postnikkov in the Kyiv SIZO, in view of their not being legally answerable, compulsory measures of a medical nature were taken in accordance with Articles 92-94 of the Criminal Code.[6]

The situation with protecting the right to life in the Armed Forces should also be mentioned. Civic organizations receive information about cases of ““didivshchyna” [bullying or worse of conscripts by those senior to them], including cases leading to the death of a soldier. One can welcome an improvement in investigations into such reports and the conviction of those responsible in some prominent cases.

From time to time cases emerge involving medical blunders and the victims of these.  Some cases have involved deaths.

It should be noted that there is no law to protect the interests of victims of medical error. Yet the main problem is not even the fact that this or that article of the Criminal Code is difficult to apply because of the unclear or excessively narrow wording of the provisions. A greater problem is that the Ministry of Health at one stage lobbied to have prerogative in carrying out expert assessments of medical activities whereas this should have been under the jurisdiction of the Ministry of Justice. Any expert assessment is carried out by the Ministry of Justice with only medical ones for some reason left to the Ministry of Health. After all those accused or suspected of an offence cannot check themselves. If you then add the closing of ranks, it is easy enough to predict the court prospects of such cases. We can cite one typical case where there was no proper investigation into such a case.

On 4 March 2007 twenty-year old Volodymyr Fedoruk turned to the Vinnytsa Region Clinical Hospital named after Pirogov complaining of pains and with septic pathology. He was examined and advised to undergo an operation the next day. According to the information which the hospital issues Fedoruk turned for medical assistance on 5 March. He was operated upon the same day, but died on 8 March from septic infection. According to the case material, it is clear that as well as many infringements when providing medical care, an anaesthetic was used which is directly prohibited in treating such cases.

The Vinnytsa Regional Prosecutor’s Office refused on 14 April to initiate a criminal investigation into inadequate fulfilment by medical staff of the hospital of their professional duties. The parents lodged an appeal against this decision with the court. However the case was examined in the absence of the applicants on 10 May and the appeal was rejected.  Helped by lawyers from the Vinnytsa Human Rights Group, they then against this court ruling. On 26 July the Court of Appeal sent the case for a new examination.

The Leninsky District Court in Vinnytsa on 20 August revoked the decision of the prosecutor’s office about refusing to initiate a criminal investigation and sent the case for a new check. The court noted that the prosecutor’s office had carried out an incomplete check that nothing had been resolved regarding contradictory evidence and a forensic medical assessment had not been obtained.

Without virtually any investigative work on 11 November the police again refused to initiate a criminal investigation. This decision was appealed in the court.[7]

Investigations into such cases sometimes drag on for years and are most often conducted in a superficial manner.

The following is a typical example of an investigation being dragged out.

On 10 August 2005 after hospital treatment for 21 days (first in the Uzhhorod Regional Infectious Diseases Clinic, and then in the Uzhhorod Central Clinical Hospital), due to the fault of doctors (this being later confirmed by a commission forensic assessment in Lviv), Zoryana Mykhailivna Petranych died at the age of 24.

The Uzhhorod Prosecutor’s Office on 19 September 2005 launched a criminal investigation under Article 40 § 1 of the Criminal Code over inadequate fulfilment by medical personnel of their professional duties. On 2 November the case was passed to the Transcarpathian Regional Prosecutor’s Office which has since then been running the investigation. In August 2007 the investigation unit of the regional prosecutor’s office sent an application to conduct another forensic assessment to establishment the cause of death..[8]

Separate attention should be paid to the constant rise in infant mortality.

Infant deaths (up till the age of 1) broken down by cause of death[9]

There is no effective programme at the present time for overcoming this problem..

We can cite the following case where a new-born baby died as the result of inadequate fulfilment by medical personnel of their professional duties. There were, in our view, clear infringements of the standards and requirements during childbirth, and failure to provide information about the state of the patient which led to grave consequences.

On 9 November 2006 at 4 a.m. A. Mykovoz was taken to the Kharkiv City Maternity Unit No. 6 due to the beginning of labour. Five hours later an examination was carried out which showed that the foetus was entwined in the umbilical cord. A caesarean birth was recommended, however the doctors assured the woman that all would be alright in any case.

The birth took place at 8 a.m. the next morning. However they were unable to get the newly-born baby to breathe independently. He was placed in a box for artificial lung ventilation and 6 hours later was transferred to the city prenatal centre. From then on he remained in a very serious state in the regional intensive care unit for new-born babies. He died on 4 February 2007.

The parents were unable until autumn 2007 to receive and study the conclusions of the department of commission assessments of the Kharkiv Regional Forensic Medical Assessment Bureau from the autopsy and forensic examination. The prosecutor’s office has refused to initiate a criminal investigation. Relatives have filed a civil claim against the hospital.[10]

2.  Prohibition on taking life except in cases stipulated by law (negative duty))

The Death penalty

On 16 March 2007 Ukraine ratified the Second Optional Protocol to the International Convention on Civil and Political Rights pertaining to the abolition of the death penalty. Thus, after the Constitutional Court judgment finding the death penalty to be unconstitutional and the ratification of this Protocol, as well earlier as the supplementary Protocols No. 6 and 13 to the European Convention on Human Rights, Ukraine has ratified all international agreements prohibiting the death penalty under any circumstances.

Permitted use of force resulting in death

In accordance with international standards, in cases of urgent need, law enforcement officers may take a human life where there was no prior intention to kill in order to prevent a criminal running away or to protect any person from violence..[11]

There are, however, often no proper investigations into the justification for use of force by law enforcement officers.

On 16 November 2007 in the city of Drohobych in the Lviv region, a police officer used his gun killing 19-year-old Vadim Shestakov on the spot and fairly seriously injuring another young man

That evening young people had been celebrating the Day of the Student in a café. After two police officers came into the café, the young people began dispersing. They grabbed one of the young men and began searching him near the police car. Shestakov and his friend tried to help this young man run away from the policeman. According to witnesses, one of them went up to that police officer and shoved him with both hands in the chest, and the other hit him twice in the face, and he fell on his back. A witness says that “when the police officer felt, the lads ran off … The police officer got up immediately, stood up fully, and shots immediately rang out”.

Vadim Shestakov did not stand out physically. He weighed 47 kilograms and was 1.55 metres tall. The other young man is 1.6 metres and weighs 55 kilograms. As confirmed by the witness, the weapon was used when the police officer was no longer in any danger. The young men were not suspected of any crime. There was no warning that a gun would be fired before the fatal shots.

According to available information there has been no significant progress in the investigation into this case.

3. Recommendations

1)  Introduce effective independent mechanisms for investigating deaths, especially those caused by the actions of law enforcement officers

2)  Change criminal procedure legislation in order to provide more rights to victims, including to the families of those killed, and to increase their impact on the course of the investigation

3)  Pass a Law “On patients’ rights” providing safeguards for the observance of patients’ right to life.

4)  Ensure the availability of independent forensic medical examinations for assessing causes of death

5)  Introduce proper mechanisms for ensuring adherence to legislation in the work of the law enforcement agencies, as well as appropriate government and public control;

6)  Carry out reforms into health care aimed at reducing infant and child mortality

7)  Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance passed on 20 December 2006 (Resolution of the UN General Assembly A/RES/61/177).

[1]  Prepared by Volodymyr Yavorsky, UHHRU Executive Director.

[2] The number of deaths from external causes in everyday life between January and December 2007.  Express issue of the State Committee of Statistics No. 40 from 21 February 2008

[3] MIA official statistics for 2007, available at the MIA website  http://mvs.gov.ua/mvs/control/main/uk/publish/article/53966.

[4] This refers to criminal investigations submitted to the court. It should be noted that according to figures from the State Judicial Administration of Ukraine, on average 11-14 thousand criminal investigations are returned each year from the courts for further investigation (in accordance with Articles 232, 246, 281 and 249-1 of the CPC), this being approximately 6-8% of the total number of criminal investigations

[5] Information “On the level of lawfulness in the country in 2007 (in accordance with Article 2 of the Law “On the prosecutor’s office”) // The Prosecutor General of Ukraine. Official website  10.03.2008, http://gp.gov.ua/ua/vlada.html?_m=publications&_t=rec&id=12985.

[6] Checks carried out by the Prosecutor General’s office into deaths in SIZO  // The Prosecutor General of Ukraine. Official website  10.03.2008, http://gpu.gov.ua/ua/news.html?_m=publications&_t=rec&id=12345&fp=61.

[7]  The case is supported by the UHHRU Strategic Litigation Fund for Healthcare Cases, run with the financial support of the International Renaissance Foundation. More information on this case is available in Ukrainian at:
http://33channel.vinnitsa.com/2007/m07-07-17.php,
http://33channel.vinnitsa.com/2007/m07-08-02.php h,
http://fmob.vn.ua/memorial/vavan.php?page=1

[8] The case is supported by the UHHRU Strategic Litigation Fund for Healthcare Cases, run with the financial support of the International Renaissance Foundation

[9] The demographic situation in Ukraine in 2007. Express Bulletin. State Committee of Statistics. http://ukrstat.gov.ua  

[10] The case is supported by the UHHRU Strategic Litigation Fund for Healthcare Cases, run with the financial support of the International Renaissance Foundation

[11] See the Judgment of the European Court of Human Rights in the Case of Egri v. Turkey (1998)