26 June - International Day in Support of Victims of Torture
It was on 26 June 1987 that the UN Convention against Torture came into force.
On 23 June 2011 the Kharkiv Human Rights Group (KHPG) held a press conference to mark International Day in Support of Victims of Torture.
Arkady Bushchenko, Arkady Bushchenko, bar lawyer, KHPG legal expert and Head of the Board of the Ukrainian Helsinki Human Rights Union, and Yevhen Zakharov, KHPG Co-Chair and member of the UHHRU Board spoke of worrying trends in Ukraine and the measures vitally needed.
Over the last year and a half, they report, the situation with torture and ill-treatment in Ukraine has become more acute.
According to research carried out at national level by KHPG, with the support of the European Commission from 2009 to 2010, the estimated number of victims of unlawful violence by police officers in 2010 came to 780-790 thousand, against 604 thousand in 2009. This means that every 40 seconds somebody suffers from unlawful violence at the hands of the police.
We know that in 2010 51 people died in police custody against 23 in 2009.
As of 20 June 2011 there were already 26 deaths.
In some SIZO [remand units], particularly those in Kyiv, Kharkiv, Donetsk, Simferopol, Dnipropetrovsk and others one can say that the actual conditions constitute torture. For example, due to serious overcrowding in some cells the remand prisoners take turns sleeping in bed once every two days, sometimes even once every three. In the Lukyanivsk SIZO [in Kyiv] there are around 4, 000 remand prisoners with only 2, 900 places (in actual fact there are considerably fewer places). The government explains the bad conditions in remand units as being due to the “limited financial and economic possibilities of the country”. Yet the problem of overcrowding in SIZO is only partly linked with funding. It is caused to a much larger extent by the ideology and system of criminal justice. In many cases the assumption remains that a person will be remanded in custody and a bail system is not being developed. Detainees have extremely limited procedural rights during hearings to decide whether a person is to be remanded, and the law does not stipulate a maximum timescale for remand in custody.
We remain concerned by impunity where torture has been applied; the conflict between the functions of the Prosecutor, this impeding effective investigation into cases of torture; the routine violations of the right to liberty and detainees’ rights; the wide-scale use of violence in penal institutions.
The lack of an integrated system for prevention of torture and ill-treatment undermines the meaning of constitutional safeguards.
Although Article 29 of the Constitution stipulates that a court ruling is needed for any case involving deprivation of liberty, legislation and practice show little respect for this norm. The risk of detainees being subjected to torture and ill-treatment since detention in police custody can be extended to 10 days.
It remains rare for State agents guilty of torture to be convicted., while the sentences meted out by the courts are often not commensurate with the gravity of the crime.
Ukraine’s signing of the Optional Protocol to the UN Convention against Torture (OPCAT), among other things, involves the commitment to create a national preventive mechanism against torture and ill-treatment. In 5 years not one practical step has been taken to implement this.
Laws stipulate that the Prosecutor’s office must investigate complaints and other information regarding cases of torture and ill-treatment. Yet the lack of effective investigation into such complaints is a systemic problem for Ukraine’s legal system.
This creates a sense of impunity among police officers who use torture and leads to most of them treating torture and ill-treatment not as a crime, but as a routine element of fighting crime.
The lack of independent, objective and effective investigation and court prosecution of law enforcement officers over complaints alleging torture and ill-treatment is partly rooted in the ambivalent role of the Prosecutor’s office. It is responsible both for investigation and support for the prosecution in court over criminal cases, and for taking decisions to initiate proceedings against police officers implicated in such investigations. The lack of independent bodies of investigation means that cases against law enforcement officers are investigated inadequately, dragged out, terminated or not initiated at all.
There are very limited opportunities for victims to receive an independent expert opinion. It is also often impossible to receive documents from medical establishments where the victim was examined or treated. This is on top of difficulties in gaining access to file material.
Of particular concern is that the fact that the Prosecutor does not as a rule do anything to ensure the safety of prisoners who have made allegations of torture.
Ukraine’s Civil Code envisages the possibility of receiving compensation where torture has been applied. However in order to make these provisions work, a final rule from the court is needed finding the actions of a particular official unlawful.
The Constitution and Criminal Procedural Code prohibit the use of confessions received with violations of criminal procedure law. Yet in practice it is quite common for confessions to be used in criminal cases where there is serious doubt that they were given voluntarily. The law does not provide a procedure for assessing and excluding confessions which may have been obtained under torture.
Criminal law provides fairly weak defence from the use of force by agents of the state “in order to enforce a lawful order or instruction” when detaining a suspect.
In our opinion, the recommendations of the UN Committee against Torture to ensure that the public are informed by the press and other media outlets about the main provisions of the Convention against Torture and that investigation officers and personnel of the penal system should have to study the rules and norms of the Convention, are not being followed by the government.
This gap is partially filled by human rights organizations which publish and circulate a considerable amount of literature on countering torture and hold specialized seminars and training courses for judges, lawyers and Internal Affairs offices. They also provide direct protection for victims of torture. With the help of the Centre for Professional Defence of Victims of Torture, founded by KHPG in 2003, more than 200 people have received proper legal aid. With the financial assistance of the Fund, around 150 applications have been made to the European Court of Human Rights. More than 40 have been won, and more than 30 are at the stage of communication with the Ukrainian Government and the others await review.
Further work will be aimed at ensuring that European Court judgements are enforced by domestic courts and the law enforcement bodies. Recently, for example, the Supreme Court revoked the life sentence passed on Leonid Lazarenko and sent the case for new investigation as a result of the European Court having found the proof used as unlawful and obtained under torture. This should be a signal for the law enforcement bodies that unlawful violations in order to obtain evidence must be stopped.