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22.03.2012

Human rights in Ukraine 2011. I. THE RIGHT TO LIFE

   

[1]

1. Security measures taken by the state to protect
the lives of persons under its control

The State is responsible for the life of persons who are under its control, such as in custody or temporary detention, armed forces, public hospitals (especially in places of forced treatment) and so on.

There is a vital problem of numerous violations of the right to life in institutions of confinement or temporary detention (temporary confinement cell, investigative isolation ward, establishments of execution of punishment, etc.). The appalling conditions, often practically non-existent or ineffective medical treatment lead to death of people. On this occasion, the Minister of Internal Affairs of Ukraine noted that for MIA there is a major problem of “unsatisfactory technical condition of penitentiary institutions”, which causes death of detainees who need medical aid[2].

In addition, the Concept of state program of the development of State Criminal-Executive Service of Ukraine up to 2015 prepared by the State Department of Ukraine for Execution of Sentences admits that Ukraine has a poor health care of prisoners and detainees[3].

Thus, the improper organization of medical aid, inadequate funding of health care, as well as denial of treatment opportunities in the institutions of the Ministry of Health of Ukraine lead to many violations of the right to life of confined persons.

A striking example is the case of Olexandra Robeyko who died in Lukianivka investigative isolation ward in Kyiv on September 15, 2011.

28-year-old Olexandra had a number of serious diseases: TB, AIDS etc. On August 15, 2011 the management of investigative isolation ward turned to the Shevchenko district court to provide her medical aid outside the ward because no proper medical aid could be rendered at the ward, but the court ignored this appeal. Moreover, on September 10 Judge Andriy Asaulov imposed sentence on Ms. Robeyko, who was brought to court in a state of unconsciousness. Only on September 12, 2011 she was brought to the Kyiv City Hospital No. 9 where on September 15, 2011 Ms. Robeyko died[4].

There was another case of Victor Skvortsov, who died in Dnepropetrovsk TB prophylactic center on January 27, 2011.

Since November 9, 2010 the authorities were aware of the serious condition of Mr. Skvortsov. On this day, they failed to bring him to court because of a serious condition. Then the judge changed the preventive measure and Mr. Skvortsov was sent to the TB prophylactic center for treatment, where he was treated for three weeks. After treatment, his health somewhat improved, and he was able to move independently. However, despite the fact that Mr. Skvortsov still needed treatment, he was transferred to the investigative isolation ward where he was kept until January 26, 2011. And only on January 27, 2011 he was again transferred to the TB prophylactic center, where he died. It should be noted that during the period when Mr. Skvortsov’s condition worsened, his family repeatedly requested from the chief of the ward to render him necessary medical aid, but their requests were ignored[5].

There is also a noteworthy case of Andriy Zhurov, who died at Donetsk investigative isolation ward. It is rather unusual that at the time of death Mr. Zhurov, 180 centimeters tall, weighed 35 kg[6].

Unfortunately, these cases are not uncommon, and it shows the urgent need for reforms of medical aid to confined persons.

2. The use of violence by state agents

There still remains an urgent problem of violence on the part of administration in penitentiary institutions, which in some cases leads to death of prisoners.

Thus, according to info from the official site of the Prosecutor General’s Office of Ukraine, “the Volyn Oblast Public Prosecutor’s Office sent to the court the criminal case on charges against officers of the Manevychi penal colony number 42 and the Office of the State Department of Ukraine for Execution of Punishments in the Volyn Oblast for commission of tortures and abuse of authority that has caused grave consequences, i.e. the death of prisoner … Among the ten accused in this case there were Chief of Manevychi penal colony number 42 and militia agent of the UDDUPVP operational activities management in Volyn Oblast[7].”

There is a separate problem of the death of people in militia under obscure circumstances.

And first comes the fact that the vast majority of cases of violent crime (and in many cases other crimes as well) contain defendants’ confessions received from them at an early stage of investigation, often without an attorney and during unchecked detention or arrest for committing administrative offense and so on. The above situation is not acceptable, especially in the light of decisions of European Court of Human Rights regarding Ukraine on this occasion[8], and, taking into account the number of such cases, suggests that one method of solution of such crimes is the use of coercion, and in some cases even torture, which may lead to the death of detainees.

A striking example of such cases is a case of Yevhen Zvenyhorodsky, who died after visiting Kharkiv Oblast militia department in March 2011.

32 years old Yevhen and his friend Vitaliy Adonin officers were detained by criminal investigation officers, because according to the version of the official website of Interior Ministry of Kharkiv Oblast they were suspected of a crime. And during the detention, according to the eyewitnesses, the officers resorted to forcible actions against Mr. Zvenyhorodsky. Afterwards the detainees were brought to the Chief Militia Department in Kharkiv Oblast, where Yevhen began to complain of feeling unwell. However, nobody called for an ambulance; his relatives maintain that the militia officers started beating Yevhen instead, and when his condition aggravated, the officers led him out of the chief department and laid on a bench in the nearby park, where Mr. Zvenyhorodsky died.

There is another case of Laszlo Kolomparov, who, during his interrogation at the Lozovsky City Militia Department, Kharkiv Oblast, jumped from the fourth floor and died from his injuries in the hospital. According to relatives of the deceased, the militia tortured Mr. Kolomparov and his wife in front of their little daughter and realizing that after beating a man could not survive, threw him out of the window[9].

In our opinion, this situation is a result of the lack of effective safeguards that would have averted the use of statements obtained from suspects during the investigation if they claimed that such testimony had been given involuntarily.

3. General life-protection measures taken by the state

In general, the Ministry of Internal Affairs collects statistics of people who suffered from crimes and died in the first quarter of 2011[10]:

 

Crime victims

 

Out of them: died

 

last year

 

this year

 

last year

 

this year

 

Total

 

72 133

 

76 759

 

1 346

 

1 350

 

per 10,000 of population

 

15,5

 

16,7

 

0,3

 

0,3

 

Victims of

 

Grave and gravest crimes

 

30 266

 

31 389

 

1 222

 

1 193

 

Calculated homicide (and attempts)

 

618

 

669

 

515

 

510

 

Out of them

 

Two or more persons

 

56

 

45

 

41

 

26

 

rapes (and attempts)

 

145

 

118

 

 

 

premeditated severe bodily injury

 

871

 

781

 

221

 

191

 

robbing with violence

 

1 087

 

952

 

 

 

despoilment

 

5 481

 

4 668

 

 

 

thievery

 

47 014

 

50 193

 

 

 

human traffic

 

81

 

96

 

 

 

RTA

 

1 803

 

1 831

 

403

 

408

 

Out of the total
of victims

 

Deputies of all levels

 

11

 

19

 

 

 

Mass media staff

 

14

 

48

 

 

3

 

Postal workers

 

18

 

44

 

1

 

 

incl.

 

Letter carriers

 

8

 

28

 

 

 

doctors

 

253

 

381

 

 

1

 

Retired persons

 

6 003

 

8 241

 

129

 

167

 

foreigners

 

180

 

334

 

5

 

13

 

із загального числа
потерпілих

 

CEOs

 

558

 

1 255

 

2

 

3

 

Finance-and-credit staff

 

29

 

97

 

 

2

 

military personnel

 

44

 

187

 

 

 

personnel

 

home affairs authorities

 

287

 

361

 

2

 

12

 

public prosecutor’s office

 

21

 

32

 

 

2

 

courts

 

14

 

14

 

 

2

 

The Bar

 

18

 

42

 

 

 

SSU

 

9

 

10

 

 

1

 

 

In this respect it should be noted that in the first quarter of 2011 the number of grave and especially grave crimes slightly increased, compared with the same period last year[11].

However, it should be noted that the statistics of recorded crimes reflects instituted proceedings only. But proceedings may be not instituted, especially in controversial cases or where there is some interest of investigators.

But the protection of lives of people by militia during special operations intended to arrest suspects arouses concern as well. There is a striking example of the process of detention of Mr. Dikayev near Odesa.

On the night of September 30, 2011 the militia planned a special operation to arrest Mr. Dikayev, who was suspected of committing a double murder. Mr. Dikayev’s car was put to a stop on the Odesa-Mykolayiv highway, but special operation failed: during the detention Mr. Dikayev and his accomplices, who were in the car, began shooting at militia officers with automatic weapons and threw hand grenades in their direction. As it turned out later, the participating militia officers were unarmed and without body armor. As a result of exchange of fire two militia officers were killed and another four wounded.

The next day Mr. Dikayev and his accomplices were surrounded in a boarding house in a densely populated district of Odesa. The special operation combined not only militia units, but the security service as well, including the special unit “Alfa” backed by army units and armored vehicles. In general, the special operation was carried out by about a hundred soldiers and military militia. However, nobody warned the residents of the nearby houses about the special operation. According to eyewitnesses, they had to hide in the bathrooms during the crossfire.

In general, the special operation took four hours, during which time the house, where the suspects were hiding, was machine-gunned and hit with grenade launcher.

As a result, Mr. Dikayev and one of his accomplices were shot and killed and another accomplice managed flee[12].

Such formulation, development and working out of operational plan cannot be considered adequate, and it causes serious worry because the execution of such plan endangered the lives of civilians.

Moreover, according to the post-operational info, Mr. Dikayev was shot and killed by militia after he had laid down the arms and tried to surrender.

The eyewitnesses told the media that “he ran outside apparently attempting to run away … They hit his right shoulder. He held his submachine gun in his right hand. He threw it on the ground, raised his left arm and shouted “Do not shoot, I’m unarmed. I give myself up.” However, despite this, the militia killed Mr. Dikayev[13].

Moreover, there is a serious problem of frequent contract killings. Thus, according to media reports, “every tenth murder in Ukraine is a contract killing”[14].

The most obvious example include the murder of Olexandr Korobchynsky, businessman, leader of the Party of Industrialists and Entrepreneurs, committed on January 5, 2011 in Odesa, attempted murder of journalist of the local newspaper “Our Town”, which was assaulted on the night of October 19, 2011 and shot at his head, and murder of the head of a brokerage firm in Odesa, who in November 2011 was found shot in the head inside his car.

Therefore the media brought militia under fire criticizing its attempts to hide real statistics of contract killings[15].

It should also be noted that the cases of arms trafficking involving the militia became more frequent.

Thus, according to Head of the Internal Security Department of MIA of Ukraine Oleksandr Michetny: “The Interior Ministry identified the government-issue weapons trafficking in the Kominternivsky Department of Kharkiv City Department of Interior. An armorer, using the fact that the department head appended unauthorized instructions on a document, brought out of the district department guardroom 23 units of the government-issue weapons”[16].

According to Prosecutor General Viktor Pshonka, they identified 11 people involved in arms stealing from the Lviv University of the Interior, which they “sold to all comers”: 126 units including 33 Kalashnikovs, 10 machineguns and 60 pistols of various systems[17].

There remains high death rate of population[18], including infant mortality[19]. In this regard, experts point out that Ukraine has actually lost its preventive health care and primary medical aid, and health care is financed on the leftover principle. The experts emphasize that the health care system needs urgent and quality reforms[20].

4. The state must ensure the effective investigation of homicide

The state’s obligation to protect the right to life implies that if the person has been deprived of life, a formal investigation must be conducted. Such investigation should be conducted immediately by an independent and impartial body; in the course of investigation they should take all reasonable steps to provide evidence relating to the incident, and so on.

However, the investigation is not always carried out properly, especially in cases, when government officials are involved.

It should be noted that under national law a full investigation cannot be conducted without formal commencing criminal proceedings.

The only act that permits to institute criminal proceedings is a decision to commence criminal proceedings (Part 1 of Art. 98 of the Criminal Procedural Code of Ukraine), which creates legal basis for further procedural actions. According to the legislation of Ukraine only after institution of criminal proceedings one may conduct investigations and other procedural actions. Before institution of criminal proceedings the law makes no provision for questioning, searches, seizures, expertise and other investigative actions. In urgent cases, by way of exception, they may inspect the scene of crime (Part 2 of Art. 190 of the CPC of Ukraine), seizure of correspondence and communication channel info read-out to prevent crime (part 3 art. 187 of the CPC of Ukraine).

Consequently there is a common situation when an investigative organ refuses to institute criminal proceedings in order to avoid investigation. Very often the refusal to institute criminal proceedings takes place in cases of homicide by a law enforcer, deaths in hospitals, deaths as a result of accidents, deaths in custody etc.

Later, these refusals can be abated by court, but more often it does not affect the effectiveness of the investigation, because at the initial stage the evidence was not fixed.

In the case of refusal to institute criminal proceedings the procedure of access of victims to case material is rather complicated. The investigative organ almost always denies such persons the access to case material, and the only way for them is to lodge an appeal against the refusal to institute criminal proceedings get access to case material in court.

There is also a problem with recognition of procedural status of victim in public criminal proceedings. A person is recognized as a victim of the crime only under a special decision of the investigator.

The investigation of criminal cases is often carried out slowly and not in quality, especially in cases when suspected perpetrators are public agents.

The investigation of deaths in places of confinement and due to the use by militia and other public agents of lethal force need special attention. In most cases the initial investigation is conducted by a party concerned (administration of the places of confinement, where the said person died, or the investigatory department of the MIA, SSU etc., an officer of which had used lethal force), which collects evidence of guilt or innocence of their personnel, and only then sends these materials to the prosecutor’s office. In fact, there is a situation, when the public prosecutor’s office decides to initiate criminal proceedings or deny its initiation solely on the basis of evidence collected by the authority concerned, which does not satisfy the requirement of independence.

In 2011, the European Court passed five decisions on violation of Article 2 of the Convention on Human Rights pointing at improper investigation of deaths.

These are as follows: Mikhalkova and others vs. Ukraine, No. 10919/05, dated January 13, 2011, Matushevsky and Matushevska vs. Ukraine, No. 59461/08 of June 23, 2011, Merkulova vs. Ukraine, No. 21454/04 dated March 3, 2011, Kachurka vs. Ukraine, No. 4737/06 of September 15, 2011 and Antonov vs. Ukraine, No. 28096/04, November 3, 2011[21].

In these decisions, among other things, the European Court found that:

—  The investigations were too time-consuming and led to no final decisions on the case that, according to the European Court, largely undermined public trust in justice;

—  The investigations contained too many faults, which had been pointed out by national authorities, but had not been promptly corrected;

—  A lot of necessary investigations either were not carried out or were carried out with considerable delay and were not conducted on time;

—  During the investigation, there were long periods when no investigative actions were conducted;

—  Relatives of the victims had no access to the records of investigation and could not participate in establishing the circumstances of the death of their nearest and dearest;

—  In one case, during the investigation, key evidence disappeared from the case file etc.

Thus, taking into account the decisions of the European Court, one can conclude that the trend of ineffective investigation of deaths persists. The public authorities take no effective measures to improve the situation.

5. The disappearance of people

Ukraine has not signed the UN International Convention for the Protection of All Persons from Enforced Disappearance. The said Convention took effect on December 23, 2010, 30 days after the number of participants had reached twenty. As of October 1, 2011 already 30 countries ratified the Convention[22].

In this respect it should be noted that one of the resonant criminal cases in 2010 — the disappearance of editor of the Kharkiv newspaper “Novyi Styl” Vasyl Klimentyev — has not been investigated yet.

6. Recommendations

1. Establish effective mechanisms for investigation of deaths, particularly those that were caused by the actions of law enforcers, namely:

—  To provide for legislation obliging to institute criminal proceedings in any case of a person’s death so that the investigating authorities could fix the necessary evidence without undue delay, or even opt out of such stage of criminal investigation as institution of criminal proceedings;

—  Develop detailed guidelines which fix the minimum set of investigations to be conducted in every case of death to the investigating authorities could question the closure of criminal proceedings;

—  to develop detailed guidelines listing the minimum set of investigative actions to be conducted in every case of death so that the investigative agencies could initiate closing the file;

—  Conduct regular training (retraining) of investigative personnel to improve the quality of their investigation;

—  To bring out in the legislation and minimize the number of grounds for appeal against decisions on institution of criminal proceedings, to prohibit the courts to repeal these regulations on formal grounds.

—  To set up an independent agency to investigate deaths of persons in places of confinement and deaths as a result of the use of lethal force by public agents.

2. To amend legislation with additional guarantees for the use of statements obtained from suspects in the early stages of crime investigation and fix the presumption that the investigating agency must prove the voluntariness of such evidence in the case of the statement to the contrary. The variants of such guarantees may include the judicial control, when during the investigative stage all interrogations of suspects and defendants are held only in the presence of a judge or legal requirement to conduct interrogations only in interrogation room with automatic video recording.

3. To legally obligate the investigative agency to inform victims and their relatives about the investigation at reasonable intervals.

4. To amend the law with the possibility of independent forensic examination to assess the cause of the death of the person.

5. To conduct regular training and instruction of militia officers involved in special operations intended to detain criminal suspects.

6. To reform the health care system to prevent the growth of death rate, including infant and child mortality.

7. To amend legislation providing opportunities for individuals in places of confinement to be treated in institutions of MHC, especially in cases when the institutions of MIA and State Penitentiary service cannot render effective treatment.

8. To sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance adopted on December 20, 2006 (UN General Assembly resolution
A/RES/61/177).

 

 

[1]  Prepared by Mikhailo Tarakhkalo, lawyer of KHPG

[2]  Anatoliy Mohyliov: “Any violation of human rights cannot justify solution of crime” /http://mvs.gov.ua/mvs/control/main/ru/publish/article/518933;

[3]  The Concept of state program of the development of State Criminal-Executive Service of Ukraine up to 2015 / http://www.kvs.gov.ua/control/publish/article?art_id=73927

[4]  Woman having TB and AIDS died at Lukyanivka investigative isolation ward/ http://gazeta.ua/articles/np/_u-luk-yanivskomu-sizo-pomerla-zhinka-hvora-na-tuberkuloz-ta-snid/400563

[5]  The mother of the accused person in Dnipropetrovsk blames the administration of the investigative isolation ward No. 3 for the death of her son / http://www.11channel.dp.ua/news/dp/2011/02/04/18881.html

[6]  Thirty-two-year-old detainee died from exhaustion at Donetsk investigative isolation ward / http://ntn.ua/uk/news/corruption/2011/04/01/5695

[7]  The Volyn Oblast Public Prosecutor’s Office sent to the court the criminal case on charges against officers of the Manevychi penal colony number 42 http://www.gp.gov.ua/ua/reegions_news_detail.html?_m=publications&_c=view&_t=rec&id=98690

[8]  Mikhalova and others vs. Ukraine, No. 10919/05, January 13, 2011; Dushka vs. Ukraine, No. 29175/04, February 3, 2011; Nechiporuk and Yonkalo vs. Ukraine, No. 42310/04, April 21, 2011 et al. / http://hr-lawyers.org/index.php?id=1295954597;

[9]  Willful Kharkiv: Lashyn’s militia school / http://helsinki.org.ua/index.php?id=1307371131

[10]  Crime in Ukraine: Condition and Structure (2011: 1st quarter) http://mvs.gov.ua/mvs/control/main/uk/publish/article/519179

[11]  Crime in Ukraine: Condition and Structure (2011: 1st quarter) http://mvs.gov.ua/mvs/control/main/uk/publish/article/519179

[12]  In Odesa they storm the building, where the killers of militiamen are hiding / http://lb.ua/news/2011/10/01/117381_V_Odesse_berut_shturmom_dom_gde_.html; NG: The Ukrainian militia got down into the Velyky Fontan / http://ua.korrespondent.net/worldabus/1269565-ng-ukrayinska-miliciya-sila-u-velikij-fontan

[13]  Killed on Sunday, October 2, hit-man Aslan Dakayev asked the law to stop shooting, but they went on shooting, http://ru.tsn.ua/ukrayina/svidetel-dikaev-prosil-snayperov-pomilovat-ego.html

[14]  Every tenth murder in Ukraine is a contract killing. The hit-man gets from $1,000 (home murder) to $200,000 (pro man) / http://ru.tsn.ua/ukrayina/killer-bum-v-ukraine-uslugi-naemnogo-ubiycy-ot-tysyachi-dollarov.html.

[15]  Every tenth murder in Ukraine is a contract killing. The hit-man gets from $1,000 (home murder) to $200,000 (pro man) / http://ru.tsn.ua/ukrayina/killer-bum-v-ukraine-uslugi-naemnogo-ubiycy-ot-tysyachi-dollarov.html.

[16]  The MIA gave details of arms trafficking in Kharkiv / http://kharkiv.unian.net/ukr/detail/198827

[17]  In Lviv the Kalashnikovs and machineguns were sold to all comers / http://www.unian.net/ukr/news/news-463228.html

[18]  http://www.ukrstat.gov.ua/ Express Info / Mortality in Ukraine: everyday death from external causes

[19]  http://www.ukrstat.gov.ua/ Express Info / Demographic situation in Ukraine

[20]  Medicine in the miror of independence / http://dt.ua/HEALTH/meditsina_v_dzerkali_nezalezhnosti-86400.html; Reforms of the MHC: stop delaying / http://www.pravda.com.ua/articles/2011/05/23/6211440/

[21]  For more details see: http://hr-lawyers.org/index.php?id=1295954597

[22]  http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en

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