Human rights in Ukraine – 2007. 2. Protection from torture and other forms of ill-treatment

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In 2007 there were several important international events which give a general idea of Ukraine’s implementation of its commitments with regard to protection from torture and ill-treatment.

From 7-8 May 2007 the Committee against Torture (CAT) reviewed Ukraine’s Fifth Periodic Report under Article 19 of the Convention against Torture. Alternative reports were submitted by the Kharkiv Human Rights Protection Group, Amnesty International and Human Rights Watch. The Committee published its Conclusions and Recommendations on 18 May 2007.

On 20 June 2007, with the Ukrainian Government’s consent, the Report of the European Committee for the for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Ukraine from 9-21 October 2005 was published.

In 2007 the European Court of Human Rights issued three judgments relating to torture and ill-treatment in Ukraine: Kucheruk v. Ukraine from 6 September 2007[2], Yakovenko v. Ukraine from 24 October 2007[3] and Kozinets v. Ukraine from 6 December 2007/[4].

The conclusions of the two Committees as well as the European Court judgments contain a reasonably detailed analysis of how Ukraine is fulfilling its international commitments with regard to protection from torture and ill-treatment.  This enables us to not provide an overall view of the situation, but to concentrate on particular issues which were not covered or not in sufficient detail in the reports of these international bodies.

Torture and ill-treatment in structures of the Ministry of Internal Affairs

During 2007 human rights organizations continued to receive numerous reports about the use of torture and unwarranted force by police officers. We can cite just two examples which highlight the problem.

  On 12 December Yury Zabolotny came into conflict with the driver of another car on the road in the Vinnytsa region. On the same day four people in civilian clothes detained him in Vinnytsa and brought him in chains to a police building where he was brutally beaten and where they threatened to kill him. According to Zabolotny, the Deputy Head of the Vinnytsa Region section of the Department for Fighting Organized Crime took an active part in this. They demanded that he sign a document confessing to having attacked the driver of the other car. In the evening he was put in a temporary holding facility (ITT). The next day he was admitted to the neurosurgical department of the city hospital with concussion.

  On 8 January 2008 the Vinnytsa Regional Prosecutor refused to initiate a criminal investigation. The same day Zabolotny was sentenced by a court to 3 days custodial arrest for persistently refusing to comply with the lawful demands of a police officer. It should be noted that from 12 December 2007 to 8 January 2008 police officers could not question Zabolony and carry out a medical examination since he “was under treatment in the Vinnysa City Hospital No. 2, and at the present time is under administrative arrest”.

On 16 November 2007 in the city of Drohobych 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.

Charges and convictions for torture

Official statistics still do not separately indicate crimes under Article 127 of the Criminal Code. According to a Ministry of Internal Affairs (MIA) report[5] in 2007 888 crimes linked with exceeding authority were investigated. It is not clear whether these figures include crimes under Article 127 since of the crimes under Article 365 of the Criminal Code (“Exceeding authority”) actions are included that contain features of torture in the understanding of Article 1 of the Convention against Torture.

According to press reports[6], in Simferopol at the beginning of 2008 a district inspector was convicted, who on 4 March 2007 caused the death through torture of a suspect. However his actions were not classified as torture and he was convicted under Articles 365 “Exceeding authority” and 121 (“Premeditated grave bodily injuries”).

In Khmelnytsky police officer was convicted  ??????????

In September 2007 the Kharkiv Regional Prosecutor initiated a criminal investigation over the inflicting of medium-severity bodily injuries to Oleksandr Skrypnyk. Soon one of the police officers was charged under Article 122 of the Criminal Code and the case is presently under judicial examination.  Up till now the court has not allowed the lawyer representing the interests of the underage Skrypnyk to take part in the case.  It is not therefore possible to read the case material and find out why, for example, the police officer is not charged with a crime in his official capacity. According to our information, in some incredible fashion he ceased to be a police officer literally a second before he inflicted bodily injuries on Skrypnyk.

Torture and ill-treatment in penal institutions

Mass-scale beatings by special units in penal colonies

During 2007 information continued to emerge about cases of mass beatings of prisoners in penal colonies by special units of the State Department for the Execution of Sentences [the Department].

  The Department’s special unit was created in 2000 through a secret departmental order. Only a new order No. 167 from 10 October 2005 which replaced previous orders was made public. According to this order, the special anti-terrorist unit is to be used for searches of prisoners and penal institutions and Pre-trial Detention Centres.

Amendments were also made to the Internal Regulations which allow for these armed anti-terrorist units to carry out such searches on a regular basis. According to the Department’s figures, in 2006 the special unit [spetsnaz] was deployed in penal institutions 43 times. We do not have figures to suggest that in 2007 the anti-terrorist and swift response units were not used, or that they were used less often than in 2006.

As a rule so called “swift response groups” are also involved in such an anti-terrorist unit, these being made up of employees of the local penal colony and others nearby. These groups also wear masks or motorcycle helmets and are equipped with special gear. In total a combined anti-terrorist unit and swift response groups contain from 15 to 100, and sometime more, “fighters”.

  News reached the public about the shocking beatings on 22 January 2007 in the Izyaslav Colony No. 31, on 7 June 2007 in Buchansk Colony No. 55, on 10 November 2007 in the Slovyanoserbska Colony No. 60 and several other cases.

The Kharkiv Human Rights Protection Group has received the most reliable testimony over the mass beating on 22 January of 41 prisoners at the Izyaslav colony No.31 and the beating of the same prisoners in the Khmelnytsky and Rivne Pre-trial Detention Centres. The events developed as follows:

On 14 January 2007, virtually all prisoners at the Izyaslav Penal Colony No 31 began a peaceful protest action -  a hunger strike – putting forward certain demands regarding the conditions and brutal treatment by the administration.

On the same day, Mr Iltyai, Deputy Head of the Department for the Execution of Sentences arrived with several of his people and promised the prisoners that he would take measures to improve the situation. Mr Iltyai departed, leaving Major Kislov to rectify the situation.  The hunger strike was ended that day.

On 16 January the prisoners, angered by the lies about the events in the Izyaslav colony being spread by the administration and representatives of the Department via the mass media, as well as by the fact that the administration, together with the Department representatives, were engaged in concealing the traces of violations in the colony, restarted their hunger strike. They demanded that the media be allowed on the territory of the colony and that the Human Rights Ombudsperson and the Prosecutor General be informed about the events. After a visit on 17 January 2007 from a representative of the Ombudsperson Mr Kudruk to the colony and his promises to deal with the matter, the prisoners again suspended their hunger strike.

In the morning of 22 January an anti-terrorist unit and swift response groups were brought into the colony. As always, the faces of the unit members were covered by masks and protective helmets, and they were armed with rubber batons, shields and other special equipment.

According to the prisoners’ statements, the beatings occurred in several areas. Around ten prisoners from the heightened security unit were called to the room for educational work where around 50 men from the unit beat them. Other prisoners were beaten in the staff headquarters of the colony. The beatings of prisoners from different sections were continued as they were transferred from one section to another. All of the prisoners say that in the shower rooms at the pass between the living and work zones they continued to be beaten, being driven past a line of spetsznaz officers.

After several hours of beating and humiliation approximately 40 prisoners, beaten, with broken limbs and other injuries, were divided up into two groups and transferred by convoy to the Rivne and Khmelnytsky Pre-trial Detention Centres.  All of the prisoners who were thus removed were barefooted and in light clothing. They were transported in chains which were pressed so tight that the blood couldn’t circulate. During the journey the prisoners were not given enough water.

The prisoners say that the humiliation and beating continued after they arrived at the Pre-trial Detention Centres and continued for several days. They mention visits apparently by representatives of the prosecutor’s office who spoke with the prisoners in the presence of administration personnel. Virtually in front of the people from the prosecutor’s office, the administration staff threatened the prisoners with new beatings if they complained.

Understanding from the behaviour of the prosecutor’s office people that the latter had no intention of protecting them from the unlawful behaviour of the administration, most of the prisoners refused to speak to them or denied any beatings. A lot of the prisoners signed documents stating that they had no grievances against the administration. One of the prisoners was so intimidated that he denied having any physical injuries, despite the fact that there were medical documents confirming them.

  On 24 December 2007 the Ministry of Justice revoked the State registration of Order No. 167.  However there continue to be reports of the deployment of these units in penal colonies. According to information received, on 31 January 2008 a group of around 25 spetsnaz officers in masks and full fighting gear were brought into Penal Colony No. 46 (Rivne region) where they allegedly beat 16 prisoners.

Independent medical care

  The Judgments of the European Court of Human Rights on the cases of Kucheruk and Yakovenko concerned ill-treatment of prisoners who needed and did not received urgent medical care. Similar problems over independent medical care continued in 2007. it is not only Department personnel who bear responsibility for ill-treatment of prisoners with special needs, but also the courts which firstly act unwarrantedly slowly, and secondly maintain dubious standards in deciding on prisoners’ release. There is also a discriminatory approach as regards release from custody differentiating between convicted prisoners and people held in custody pending a court verdict. This approach can be clearly seen in the provisions of the Joint Order of the State Department for the Execution of Sentences and the Ministry of Health No. 3/6 from 18 January 2000 which envisages the release from serving their sentence of prisoners in the case of certain types of illness, with this not being extended to people remanded in custody.

  Viktor Polishchuk, born on 4 October 1978, was sentenced to 8 years imprisonment. He was held from 19 November 2005 in the Horodyshchinsk Colony No. 96 (Rivne region). At the beginning of 2007 he received a leg injury which due to insufficient medical care turned gangrenous. On 30 March 2007 Polishchuk was transferred to the medical unit of the Lviv Pre-trial Detention Centre where his condition significantly worsened. On 9 November 2007 the leg was amputated. On 21 November 2007 a medical commission found cancer of the left testicle with metastases, as well as other illnesses.

A representative of the Department applied to the court for Polishchuk’s release on the basis of the above-mentioned Joint Order.  However on 29 November 2007 the Halytsky District Court in Lviv turned down the application stating, among other things, that “the disease does not prevent him from serving his sentence since it is possible for a certain amount of time to hold the person in a place of confinement”.

It was only on 5 February 2008 that the Lviv Regional Court of Appeal released Polishchuk. However by that stage his condition was hopeless.

On 6 March 2008 Viktor Polishchuk died.

This means that during the course of a year Viktor Polishchuk could not receive adequate medical care nor be released in order to undergo treatment in a civilian hospital. It is staggering that it took the Court of Appeal more than 2 months to pass a ruling on which a prisoner’s life depended.

Serhiy Okhrimenko was arrested on 14 March 2007 on suspicion of having committed a crime. From 23 March 2007 he was held in SIZO [Pre-trial Detention Centre] No. 27 in Kharkiv. On his arrival at the Pre-trial Detention Centre, he complained on a number of grounds about his health. In April under SIZO conditions he was diagnosed as suffering from cancer (hyper-nephroma) of the left kidney with metastases in the lungs, and chronic liver cirrhosis  He was only given painkillers and treatment of the symptoms with the use of drugs.

According to available information, the SIZO administration repeatedly applied to the court to change the preventive measure applied due to Okhrimenko’s state of health since they acknowledged that in SIZO conditions he could not receive adequate treatment. However the court which considered the charges against him ruled to keep him in custody.

Only an application to the European Court of Human Rights asking for urgent measures of assistance resolved the problem. On 11 December 2007, on the day that the European Court approached the Ukrainian government, Okhrimenko was transferred to the oncological clinic in Kharkiv for the necessary treatment.

On 11 January 2008 Okhrimenko underwent a successful operation resulting in a considerable improvement in his health. At present he is in hospital and his life is in no immediate danger.

  Investigations into allegations of torture and ill-treatment

There were no noticeable changes in the system for investigating allegations of torture. As previously, the prosecutor’s office which is responsible for investigating such allegations does not carry out investigations which even remotely meet minimum standards of efficiency.

This is first of all linked with the irreconcilable conflict of interests which is created by the double function of the prosecutor’s office during a criminal investigation. The Committee against Torture stated in its Comments from 2007 that: it “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 Prosecutor’s office, (1) for prosecution and (2) for oversight of the proper conduct of investigations. The Committee notes the conflict of interest between those two responsibilities resulting in a lack of independent oversight of cases where the General Prosecutor’s office fails to initiate investigation “(Conclusions and Recommendations of the CAT, 2007)

The lack of a system of effective investigation is also confirmed by two judgments handed down by the European Court of Human Rights which found violations of Article 3 of the European Convention on Human Rights in the cases of Kucheruk v. Ukraine and Kozinets v. Ukraine.

  In both judgments the same systemic shortcomings are noted in investigating allegations of torture and ill-treatment which were deemed by the Court to be clearly not without grounds, that is such that requires swift, comprehensive and unbiased investigation.

  The Court noted that investigations take a very long time (more than four years in the case of Kozinets and more than five years in the case of Kucheruk. They were suspended several times and only reinstated after complaints to the court. The timeframe established in law was not observed.

In both cases, the domestic courts in revoking the decisions to terminate the investigations, noted the low quality of the investigation and the fact that no steps had been taken by the prosecutor’s office to rectify the failings.

Furthermore, in the case of Kucheruk the prosecutor had entrusted the investigation to the Head of the Kharkiv SIZO, that is, a person directly implicated in the ill treatment of the claimant.

In each case it was stated that the investigation had been confined to a mere superficial establishing of the circumstances which could suit the people implicated in the ill-treatment and therefore were not unbiased. In the case of Kucheruk, the Court established that “The scope of the examination was limited to establishing the fact that the guards used their special equipment in accordance with the relevant regulations. This conclusion was made on the basis of the written statements of the guards involved, taken at face‑value, and the outline of the events of 2 and 8 July 2002 from the inmates who shared a cell with the applicant.” (§ 157)

The lack was also noted of even the minimum guarantees of public control over the investigation. For several months the claimants had not even been informed of the decision taken.

It should be recalled that the very first judgments of the European Court of Human Rights regarding Ukraine (Poltoratsky v. Ukraine and Kuznetsov v. Ukraine, 29 April 2003) commented on the inability and unwillingness of the prosecutor’s office to ensure effective investigation into allegations of ill-treatment. Later, in the judgments regarding the cases of Afanasyev v. Ukraine (5 April 2005); Gongadze v. Ukraine (8 November 2005); and Serhiy Shevchenko v. Ukraine (4 April 2006), the lack of effective investigation by the State was again found to be a violation of the Convention.

Shortcomings in the system of investigation into complaints and reports of cases of torture are many times greater when we are talking of possible large-scale violations, including mass beatings and other forms of ill-treatment in places of confinement.

Firstly, according to testimony from all prisoners, the ban on reading correspondence with the prosecutor, the Human Rights Ombudsperson, and the European Court of Human Rights is virtually not being observed. No complaint about the behaviour of the colony administration, particularly allegations of mass beatings, can be sent out through legal channels since such complaints are simply removed by the administration.  In sending a complaint out through illegal means the prisoner takes the risk of being punished since on receiving such a complaint the prosecutor’s office, instead of investigating its substance, can send the administration a demand to punish the prisoner for sending it illegally. Sending such illegal correspondence to the Ombudsperson entails the same risk since the Ombudsperson’s Secretariat always sends these complaints on to the Department or the Prosecutor’s Office.  

The deployment of the special unit is agreed with the local prosecutor’s office. A representative or several representatives of this prosecutor’s officer are also presently when the unit is brought in and during its further actions.

If there are complaints from the prisoners over beatings by the officers of this special unit, the investigation is conducted by the staff of this same prosecutor’s office. This creates an insurmountable conflict of interests since the prosecutor investigating must establish whether a mass beating of prisoners took place in his presence (or at best, in the presence of his boss or colleague). Clearly, by establishing that such a mass beating took place, the prosecutor will need to bring himself, his boss or colleague to answer for complicity in a mass beating.

The prosecutor’s office does not ensure the safety of prisoners who complain or witnesses. What is more, the way in which the investigation is conducted always gives prisoners the impression that the prosecutor’s office is acting together with the representatives of the Department and the colony administration. Questioning of the prisoners is either entrusted to Department staff, or takes place in their presence.

As a rule, the investigation is confined to taking signed statements from the prisoners that they have no grievances against the administration.

In addition, prisoners who have suffered from mass beatings are transferred to other institutions. This technique is a very effective way of concealing any traces of the beating. During the transfer the prisoner has no way of communicating with the outside world since visits are not allowed for in legislation and these transfers can last from several weeks to several months.

Furthermore prisoners who have complained about mass beatings are then in constant danger of repression from the Department. According to their testimony, they are frequently and unwarrantedly punished which creates grounds for presenting charges under Article 391 of the Criminal Code.

The investigation conducted into the events of 22 January 2007 in the Izyaslav Colony was characterized by these same features. A decision had already been issued by 7 February to refuse to initiate a criminal investigation. It should be noted that the victims of the mass beating or their relatives have been trying ever since to receive a copy of this decision in order to be appeal to appeal against it in the court.

Payment of compensation to the victims of ill-treatment

In November 2007 the Voroshilovsky District Court in Donetsk awarded 2 million UAH (400 thousand US dollars) icompensation to the family of Svitlana Zaitseva. who was wrongly convicted in 2001 of murder and died of tuberculosis. The claim was submitted on the basis of the Law “On compensation for damages …” of 1994. It is difficult to say how the fact that the woman contracted tuberculosis through ill-treatment effected the designation of compensation, however it should be noted that compensation in the case of judicial error is different in its legal character from compensation for the unlawful actions of State agents which should be granted independently of the presence of a court error.

  It cannot be said that court practice has progressed in determining the grounds and criteria for compensation in the case of torture or other forms of ill-treatment.

Serhiy Aleksakhin tried during 2007 to get compensation from the State for the damage caused him by a police officer O. V. Khodorkovsky. In July 2006 the latter was convicted under Article 101 § 1 of the Criminal Code for causing Aleksakhin grave bodily injuries placing his life in danger and under Article 365 § 3 for exceeding his official powers.

The claimant cited the clear norm in Article 1174 of the Civil Code which envisages that “damages incurred to an individual … through the unlawful … actions of a public official or official of a State body shall be compensated by the State … regardless of whether the official was to blame.” The unlawfulness of the police officer’s actions aroused no doubt since the court had convicted him. His status as a State employee was also undeniable. Yet the Kyivsky District Court in Kharkiv refused to allow the claim in full for the following reasons:

“For the liability envisaged in Article 1174 of the Civil Code it is necessary that the public official or functionary inflicted the harm in carrying out his duties with the scope of these being established by the relevant legal acts.

At the same time the third party, O. V. Khodorkovsky, who worked within the structures of the Ministry of Internal Affairs exceeded his official powers in causing damage to the victim, namely the claimant S.V. Aleksakhin for which he was convicted by the court.

That is, the unlawful actions with respect to the claimant committed by the third party went beyond the range of official duties and powers, with this precluding the respondent’s liability.”

This decision inevitably forces the conclusion that in the view of the Kyivsky District Court, certain unlawful actions by State officials can be included in the scope of their direct powers. Effectively with such logic from the court it follows that the State bears liability under Article 1174 only where the violation of the law is the direct duty of a public official or functionary of a State body.

It should be noted that on 15 January 2007 this same court ordered the Central Department of the MIA for the Kharkiv region to pay damages inflicted by a police officer. This ruling was however later revoked by a court of appeal.

There is thus no established practice at present regarding compensation for damages caused a victim through ill-treatment by a police officer or other State functionaries.

  The use of forced confessions in court proceedings

  The courts continue to use as evidence confessions to a crime obtained through the use of torture although both the Constitution and the Criminal Procedure Code prohibit the use of confessions gained “with violations of criminal procedure law”.

  One of the most glaring examples of verdicts indicating the practice of using forced confessions obtained through torture and ill-treatment was the case of Ivan Nechyporuk and Oleksandr Motsny issued on 31 August 2007.

  The case involved a whole range of violations of the principles of just court proceedings.

  The core of the prosecution’s case is several so called “voluntary confessions” obtained from Nechyporuk in May 2004. On ten out of eighteen pages of the verdict devoted to an analysis of the evidence in the case,   the focus is specifically on the confessions of the defendants given at the beginning of the investigation after being detained and while being held in the police station. The court considered that “Nechyporuk’s guilt is attested to by the confessions written in his own handwriting, his testimony given at the beginning of the pre-trial investigation and the face-to-face confrontation with the defendant Motsny where Nechyporuk described in detail and recounted the circumstances of the crime committed”.

Later the court cites two “confessions” from 21 May 2004, one of which was “taken away” by police officer M.M. Borodiy. The court then refers to testimony given by Nechyporuk  that same day during interrogation as a witness. On 26 May Nechyporuk already appears with a confession to police officer O.O. Pasichnyk, and soon, on 28 May he brings a confession to the Khmelnytsky City Prosecutor V.I. Shevchuk. Such numerous “voluntary” “appearances” by Nechyporuk  to various officials with the irrepressible wish to confess to a crime did not disconcert the court, nor was their suspicion aroused by the fact that the detained Nechyporuk was considered a witness and interrogated under threat of liability for refusing to give testimony or giving false testimony.

Nechyporuk was held in the temporary holding facility for around a month although there was no reason not to transfer him to a SIZO. Except one – this is a different department which would not have wanted to answer for causing him bodily injuries and would have definitely recorded them upon his admission. Both defendants from 2004 to 2008 have steadily asserted that brutal torture was used to get confessions out of them.

In 2005 the Khmelnytsky City-District Court acquitted both men finding that it could not consider the confessions to be proof since they had not been obtained voluntarily. The court also revoked the decision to refuse to initiate a criminal investigation into allegations of torture suffered by Nechyporuk and Motsny while being held in the police station.

The acquittal and what is worthy of note, the resolution of the court effectively demanding an investigation into allegations of torture, were revoked by the Ternopil Court of Appeal which the case was transferred to by the Supreme Court in violation of the rules of jurisdiction.

Then the Shepetivsky District Court sent the case back for further investigation since it was not convinced by the confessions given by the accused men. The decision of the district court was changed by the Ternopil Court of Appeal with all the comments about the investigation being excluded except one: that the charges should be changed for more serious ones (Article 115 § 2 of the Criminal Code).

During the further investigation, the prosecutor’s office did only this and the case, with the same evidence which had resulted in an acquittal in 2005, landed in the Ternopil Court of Appeal  which found the confessions admissible evidence and based their verdict on them. This is despite the fact that the confessions were obtained in circumstances which demanded thorough investigation which that same court had ordered should not be conducted.

Recommendations

Not one of the recommendations from last year’s report were implemented and they therefore all remain current.

1.  adopt at legislative level a strategy concept for creating a system of prevention and protection from torture and ill-treatment, as well as an action plan, based on the said concept, with clearly defined directions and stages of activity;

2.  bring the elements specified of the crime of “torture” into line with Article 1 of the UN Convention against Torture;

3.  institute the gathering of statistical data in courts and law enforcement agencies on crimes which contain elements of “torture” in the understanding of Article 1 of the UN Convention against Torture;

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

5.  promote the creation of effective mechanisms of public control over investigations into allegations of torture and ill-treatment;

6.  provide by legislative means for the activities of non-governmental experts and expert bureaux;

7.  ensure access by victims to medical documents which are of importance in proving torture or ill-treatment;

8.  assign the same validity as evidence to conclusions provided by independent medical and other experts, who conduct studies at the request of the alleged victim of torture or their legal representative, as that of conclusions made by experts assigned by an investigator or court;

9.  provide individuals who initiate an investigation or other legal procedure regarding allegations of torture or ill-treatment access to free legal aid should they be unable to pay for the services of a lawyer;

10.  introduce provisions in Ukrainian legislation on the inadmissibility of any testimony of the accused (suspect) received at the pre-trial stage of the criminal investigation without a lawyer being present;

11.  provide the appropriate guidelines to prosecutor’s offices and judges for using measures to ensure the safety of individuals who have made an allegation of torture, in particular, if such an individual is held in custody, then to move him or her to another remand centre;

12.  eliminate the practice whereby judges «extend detention» of suspects held in police custody, or, at least, introduce necessary amendments in order to transfer people whose detention is extended by a judge to a pre-trial detention centre, and not leave them held in police custody;

13.  introduce into legislation the right of access and the appropriate procedure for gaining access  to an independent doctor and independent expert whom the person detained may choose, especially for persons, who are held in custody;

14.  review provisions of current legislation in order to provide the right to legal representation to people who make allegations of torture, regardless of whether or not criminal proceedings are initiated;

15.  provide clear guidelines to prosecutor’s offices and judges concerning immediate consideration of claims and complaints related to investigations into torture;

16.  give individuals facing deportation to another country the right to court review of an appeal against the relevant decision of executive bodies, and appropriate court procedure capable of investigating the circumstances which could significantly influence the decision on deporting (extraditing) the individual to the other state.

It is also necessary to:

-  put an end to the practice of deploying special anti-terrorist units and swift response groups in response to peaceful protest actions by prisoners;

-  conduct investigations into reports of mass beatings of prisoners at the level of the Prosecutor General;

-   create a system for ensuring the safety of people making complaints about torture and ill-treatment, as well as witnesses, especially those in places of confinement;

-  Ensure in practice uncensored correspondence by prisoners with the prosecutor’s office, the Human Rights Ombudsperson and the European Court of Human Rights;

-  Put an end to the practice of punishing prisoners for sending complaints to State bodies via illegal channels, and in each case where a complaint was delivered by illegal means conduct a check as to whether the administration are making it possible to send complaints about the actions of the administration;

-  Stop the practice of passing on complaints sent by prisoners to the Human Rights Ombudsperson to the Department for the Execution of Sentences;

-  Apply measures to create the possibility for nongovernmental organizations to visit institutions of the Department for the Execution of Sentences.

[1]  By Arkady Bushchenko, lawyer and legal expert for the Kharkiv Human Rights Protection Group

[2] Judgment in English at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId= 823015&portal=hbkm&source=externalbydocnumber

[3]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=824944&portal=hbkm&source=externalbydocnumber,

[4]  http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId= 826669&portal=hbkm&source=externalbydocnumber  

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[6] http://unian.net/ukr/news/news-236129.html