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Human rights in Ukraine 2011. II. THE RIGHT TO PROTECTION FROM TORTURE AND CRUEL TREATMENT

   

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1. SPREAD OF TORTURE

The maltreatment and torture in militia and penitentiary institutions is a special kind of illegal actions that are hidden from the public and statistical records.

Despite the fact that under the MIA of Ukraine the Public Council on Human Rights intended to monitor the work of this department was established, it is almost inactive, and therefore the public has no access to information. The penal system also remains closed to the public.

In addition, quite often the victims of maltreatment do not lodge complaints due to various reasons: they either fear reprisals from militia and penal system, or are simply ignorant of their rights.

As far as violence against the state-controlled detainees is latent by nature, its true extent is rather difficult to assess. Only through media reports about specific cases of torture and statistics of citizens’ complaints to human rights activists the general picture can be drawn.

As of October 28, 2011 the network of reception rooms of Ukrainian Helsinki Human Rights Union (UHHRU) registered 183 complaints of torture and other forms of maltreatment.

Former Minister of Internal Affairs of Ukraine Anatoly Mohyliov at his press conference on March 31, 2011 divulged the statistics of the MIA of Ukraine about appeals to the militia with complaints about the use of violence against them by law enforcers. According to his info, only during the first three months of 2011 the Ministry received 1402 complaints from citizens against unlawful actions of militia.

The results of monitoring of the spread of unlawful violence in the organs of internal affairs of Ukraine conducted by the Kharkiv Institute for Social Research indicates a strong tendency to increase the number of cases of torture in militia. According to the last year’s assessment of victims of unlawful violence by militia, the estimated number of victims amounted to more than 790,000 people. This year data are even more disappointing: the estimated number of victims of unlawful violence by militia in 2011 has gone up to 980,000 people. We can but state that the militia has begun beating more often, and we gradually draw nigh to that of 2004, when the estimated number of victims made 1 MN and more persons[2].

2. Cases of torture in 2011

2.1. Beating of prisoners and convicts

After the decision of European Court in the case of “Davydov and Others vs. Ukraine”[3] there were no additional investigations into the mass beating, and no perpetrators were punished.

In February 2011 the European Court sent to the Government of Ukraine as communication matter the appeals in such cases as “Karabet and Others vs. Ukraine” and “Danyliuk and Others vs. Ukraine” lodged in connection with mass beating of prisoners at Iziaslav penal colony number 31 in 2007.

Due to the sense of impunity of the staff of penal institutions the cases of mass beatings of prisoners took place in 2011 as well.

Simferopol investigative isolation ward. On the eve of May holidays about forty troopers armed with submachine guns of the special unit of the State Penitentiary Service of Ukraine arrived at the Simferopol investigative isolation ward and set about to mass beatings. Seven names of injured persons are known. Thus, one victim had his leg traumatized, another had his kidney damaged[4]. The official press release of the Crimean Department of the State Penitentiary Service of Ukraine read that, according to the order of the State Penitentiary Service of Ukraine, from April 30, 2011 to May 10, 2011, they carried out the coded “Shchyt” operation in Simferopol investigative isolation ward. As a result of the above operation, as of May 5, 2011, they seized 20 mobile phones, 40 chargers and headsets, DVD players, piercing-and-cutting items etc from the detainees of Simferopol investigative isolation ward[5].

Dnipropetrovsk PC-89. On July 5, 2011 the troopers of special unit of the State Penitentiary Service of Ukraine committed mass beatings of prisoners in Dnipropetrovsk PC-89. They were caused by the prisoners’ complaint about the conditions of detention. The prisoners maintained that they were hungered and thirsted[6]. As a result of beating 18 prisoners were injured[7]. Many had their ribs broken, limbs wounded, internal organs injured. Some prisoners had their jaws broken[8]. The Dnipropetrovsk Oblast Department of the State Penitentiary Service of Ukraine refutes the info that a special unit of troopers was in the colony and the fact that they beat prisoners. Former Chief of the Dnipropetrovsk Oblast Department of the State Penitentiary Service of Ukraine Anatoly Babets said that actually they conducted a routine search of all objects and personal effects of prisoners in the colony number 89[9].

2.2. Conditions of detention

In some investigative isolation wards they resort to torture with detention conditions. Thus, in early May, in Kyiv investigative isolation ward were kept 330 women, although the maximum number of beds for women prisoners is 303. Accordingly, 27 women had no bed, and they either took turns sleeping in bed or on the floor. “In the Kyiv investigative isolation ward they created almost unbearable medieval conditions for women carried in transit through the ward to penal institutions. There is acrid stench In the cells, no fresh air, no sun light, the persons transported under guard do not timely undergo sanitary treatment, anti-epidemic work has long been abandoned,” noted Commissioner of the Verkhovna Rada of Ukraine on Human Rights Nina Karpachova in her representation to President of the Criminal Executive Service of Ukraine Oleksandr Lisitskov in May 2011[10].

The government usually explains the bad conditions of detention by “the limited financial and economic possibilities of the state.” However, the problem of overcrowding of investigative isolation wards is only partially related to the funding of penitentiary institutions. To a large extent it depends on the ideology and criminal justice system regarding detainees. In practice, in many cases there remains a presumption in favor of detention. The recognizance system and other preventive measures are not developing[11].

3. Maltreatment by law enforcers

One of the main reasons for the spread of torture in Ukraine is a mental perception of militia officers: the detainee is guilty, and one should try to wring out a confession of the crime. The whole system of inquiry and investigation in Ukraine is based on beating a guilty plea out of the prisoner. The involved law enforcers believe that this is nothing but routine work. In addition, there is a stereotyped view in^ “confession is the queen of evidence”. Therefore, the law enforcers try hard to get a guilty plea in any way possible.

In 2011 the cases of militia torturing witnesses, lawyers and journalists became public. The ordinary villagers also suffered unlawful violence by law enforcers.

Torture of a detainee. Charged with murdering his friend, Andriy Onyskiv at his trial accused militia of torturing. In order to make him to give himself up, the militia inflicted injury on him in the form of burns of his private parts. Andriy said that all clues and all places mentioned in the criminal case were dictated to him by the militia and the layout of the victim’s body position he copied from a sample under strict supervision of the militiamen”[12].

The use of violence to the witness. In early July 2011 Natalia Kravtsova was summoned to Frunzensky District Department of Internal Affairs, Kharkiv, for interrogation because she witnessed a fight among strangers in a cafe. At the militia station the girl explained that she could not describe wrongdoers in more details, because she had met them in the cafe in the evening, when it came to blows, and had seen them no more. The militia officers were dissatisfied with this explanation. After she replied once more that she did not know those guys, militia officer Olexandr Teriannyk began beating her. Two other militiamen laid her on the couch, twisted her arms and legs, and gagged her with a towel to suppress her crying. Three law enforcers tortured the girl, until she slandered her friends. The girl was released only when the slandered persons were brought to the district militia department. After that she was admitted to the emergency surgery hospital with the diagnosis of “Brain concussion. Linear fracture of the occipital bone. Bruising of the soft tissue of occipital region.”[13]

Beating of a lawyer. On August 17, 2011, about 18:30, the militiamen brought to the Sosnivsky district court, Cherkasy, Kucherenko V.D., who was a client of lawyer Dmytro Karpenko, in order to prolong his detention. The court-fixed term of detention of lawyer Karpenko’s defendant expired that day at 16.30. The law enforcers hoped that the court would extend the term, but the judge had already gone home and there was nobody to make a decision. Instead of releasing Kucherenko V.D. from custody, as required by Article 29 of the Constitution of Ukraine, the investigator together with the officers of the operating unit “Sokil” convoyed him to the service vehicle and started driving him to an unknown destination. At the request of the lawyer to stop illegal activities, the officers of ‘Sokil’ of the Organized Crime Department knocked the lawyer to the ground, handcuffed him and dragged to the service vehicle. They put a black synthetic bag on his head and put him on his hunkers. The law enforcers started beating and kicking him in different parts of his body, mainly on his back, torso and head. The beating was accompanied with swearing and threatening to torture him to death in the basement of the Organized Crime Department. One of the Sokil officers stifled the lawyer, holding his head between her legs. This torture lasted about 15 minutes. The Sokil officers threatened the lawyer to arrest him for 15 days and apply electric current to him. The beating of the lawyer was carried on by new organized crime officers near the building of the Organized Crime Departmen. Then the lawyer was led out of the gate of the Organized Crime Department and left him there. At the city hospital number 3 the doctors diagnosed that lawyer Karpenko had closed craniocerebral injury, brain concussion, multiple contusions of the soft tissues of the body and limbs, kidney injury, numerous lacerated and slashed wounds on his hands (from handcuffs)[14].

Beating of a journalist. On August 10, 2011, at 23.50, during the dispersal of the picket organized to protect the rights of sacked workers of the urban electric transport in Kharkiv a militia officer injured Nasha Zhizn journalist Denys Korniev, who officiated on the picket. The chief of public order sector of Dzerzhinsky district militia department Volodymyr Chuhayevsky applied to the journalist a hand-to-hand combat hold. The ambulance took the journalist to the hospital, where the diagnosis was made: “multiple bruises and displacement of cervical vertebrae”[15].

Official violence. On the night of September ѕ, 2011 Chief Kalytianka village militia department Mykpla Symonenko came to Semypolki village disco (Brovary Region, Kyiv Oblast). There he found fault with local resident Vitaliy Zaporozhets, after which the latter brought a hunting rifle from his home and shot and wounded the officer in the stomach. Militia Major Symonenko died from blood loss. The next morning more than two hundred armed riot militiamen began combing the village. They broke into farmsteads and seized young persons. Nearly 20 boys were convoyed to Brovary Town Militia Department. There the troopers beat and interrogated the young persons and insisted that they had to witness against Vitaliy Zaporozhets and tell where he was. The boys were kept in the militia station for almost forty-eight hours. Some boys were taken to the forest near the quarry and, under threat of arms, were told to reveal where Vitaly Zaporozhets was hiding. The oblast militia fully justifies its subordinates from Brovary Region. Head of Press Service of the Main Office of MIA in Kyiv Oblast Mykola Zhukovych said that militia planned to use troopers to comb the area. But since on September 6, 2011 Zaporozhets had been detained, there was no need in it anymore. People maintaining that they were beaten during interrogation and detained for 40 hours are not even going to file a complaint against these actions of law enforcers. Some are afraid of possible retaliation, others fail to understand that their rights have been grossly infringed[16].

4. INVESTIGATION

The Prosecutor’s office is the only organ, structurally independent of the MIA of Ukraine, authorized by the legislation of Ukraine to investigate complaints of maltreatment by law enforcers. However, the statistics of criminal cases alleging maltreatment shows that the prosecution quite rarely files suits after such complaints.

Since 2005 the prosecutor’s office submitted to the court only 335 criminal cases concerning crimes in this category, while only during last two years the prosecutors’ offices registered over 13,000 complaints and reports about torture and other maltreatment of people in internal affairs organs[17].

Although international law on human rights requires the State to conduct an effective investigation of complaints of torture, in fact, the prosecutor’s office is often unable to conduct such investigation.

This is largely due to the ambiguous role of the prosecution: on the one hand it is the prosecutor’s office which is responsible for militia actions legality control, and on the other it holds charge in court and therefore has close professional links with the militia. This conflict of interest bears upon effective investigation of complaints of torture.

Another problem is that the militiamen investigated because of reports of their use of torture still have the same positions in law enforcement organs.

This situation promotes impunity in law enforcers and the majority of them consider torture and ill treatment not as a crime, but as a routine element of their fight against crime.

It should be noted that among the small number of complaints, which are nevertheless being investigated, they are qualified under Articles 364 (“Abuse of power or position”) and 365 (“Excess power or authority”) of the Criminal Code of Ukraine, not under Article 127 (“torture”) of the Criminal Code of Ukraine.

However, criminal cases brought under them, are not included in the statistics of criminal prosecution for torture, responsibility for which is provided for by Article 127 of the Criminal Code of Ukraine, which hides the real extent of the problem.

4.1. Legislation

The article 127 of the Criminal Code of Ukraine, which provides criminal liability for torture, has been already three times amended. The previous unsuccessful amendments of Article 127 of the Criminal Code of Ukraine were looked into in the reports for 2006 and 2009–2010.

As a result of last amendments (05.11.2009) the new text of the article does not mention the special perpetrator of the crime, i.e. officer, as well as the essence of qualification and meaning of the term “torture” defined in Article 1 of the Convention against Torture.

Unfortunately, in 2011 the situation did not change. The provisions of this article still do not comply with Article 4.1 of the UN Convention against Torture.

5. PRACTICE OF NATIONAL COURTS

5.1. Judicial practice of arraignment of law enforcers

As of October 10, 2011 in the State Register of court decisions (hereinafter — Register) of the 17 sentences, under which criminal charges were brought against individuals under Article 127 of the Criminal Code of Ukraine, only 3 court decisions apply to state agents.

At the same time the Register contains sentences, according to which the law enforcers have been held criminally liable for actions that can be qualified as torture under Articles 364 and 365 of the Criminal Code of Ukraine (“abuse of power or position” and “excess of authority or misconduct in office”).

For example, on April 1, 2011 the Shevchenko District Court, Lviv, found guilty of committing crimes under Articles 364 and 365 Part 2 and Part 3 of the Criminal Code of Ukraine two militia agents Lychakiv District Station of the Lviv City Department of the Main Office of MIA of Ukraine in Lviv Oblast, who used physical violence to the suspect “in order to verify his involvement in the theft of about UAH10,000 from the gas station #9.” The militia agents illegally punched, kicked, beat with different objects detained persons injuring various parts of his body, and hanged him on a metal hanger causing him light injuries[18].

This judicial practice also distorts real statistics of criminal liability of law enforcers for torture.

5.2. Judicial practice of using confessions derived from torture

The practice of using confessions obtained as a result of violence or under compulsion as appropriate evidence also promotes the use of torture by law enforcers as an instrument of inquiry and investigation. The legislation does not stipulate procedures for exemption of evidence obtained through torture.

Thanks to the European Court of Human Rights the first steps to break the existing system have been taken. One conviction by national courts was abolished by the Supreme Court of Ukraine (hereinafter — SCU) on the basis of the decision of the European Court, which had stated violation of Article 6 (“The right to a fair trial”) in connection with the fact that the conviction had been based on confessions obtained as a result of tortures applied by law enforcers and absence of lawyers[19].

The Donetsk Court of Appeal sentenced Leonid Lazarenko to life imprisonment. The Supreme Court confirmed the sentence. Then the case was referred before the European Court, which delivered the judgment in the case Leonid Lazarenko vs. Ukraine on October 28, 2010[20]. Having tried the case, the European Court noted that the deprivation of the applicant of the right to use the services of a lawyer and use of his confession made by him in this time period, which influenced his conviction, were sufficient signs of violation of fair trial guarantees, and therefore stated the violations of Article 6 §1 and §3 (c) of the Convention. The European Court also noted that although Leonid in his cassation appeal lodged with the Supreme Court alleged violations of his rights to protection, which, in accordance with national law, is a flagrant violation that could lead to the repeal of the sentence, and the national court ignored this complaint. In this case the European Court decided that the re-trial, review or re-examination of the case is in principle appropriate way to resolve violations of the applicant’s rights. Leonid applied to the Supreme Court for reconsideration of the judgment in his case, and on June 6, 2011 the Supreme Court, for the first time after the European Court had stated the violation of Article 6 in connection with violation by national authorities of the fair trial guarantee, reversed the judgments of the first instance court and court of review and sent the case for re-trial in the first instance court[21].

In 2011 the European Court stated violations of Article 6 in three similar cases: Nechiporuk and Yonkalo vs. Ukraine (application No. 39582/04, decision of January 27, 2011), Bortnik vs. Ukraine (application No. 42310/04, decision of April 21, 2011)[22] and Balitskiy vs. Ukraine (application No. 12793/03, decision of November 3, 2011)[23].

In 2011 the UN Committee on Human Rights (hereafter — the Committee) also made the decision on the cases of Victor Shchitka and Olexandr Butovenko, which read that the suspects were forced to plead guilty of committing crimes as a result of the use of torture to them by Ukrainian law enforcers.

On July 19, 2011 the Committee decided that Victor Shchitka was tortured to obtain his confession in the rape and murder, that there was no effective investigation, that the right of defense and the right to call and examine witnesses were violated, and such falsification and evidence manipulation were equivalent to the denial of fair trial[24]. On the same day in the case of Olexandr Butovenko the Committee found, inter alia, the use of torture to him to get his confession to the murder, the lack of effective investigation and violation of right of defense.

In its judgments in these cases, the Committee noted that under paragraph 3 (a) of Article 2 of the International Covenant on Civil and Political Rights Ukraine has to render Victor and Olexandr Butovenko effective legal assistance. According to the Committee, in the case of Shchitka such legal assistance should include an effective investigation into allegations of Mr. Shchitka about him being tortured and set up criminal proceedings against those responsible, start reconsidering his criminal case or release him, as well as initiate compensation for damages suffered. In the case of Mr. Butovenko the Committee pointed out that an effective legal assistance should include the revision of judgment on his conviction, effective investigation into his complaints about torturing him and prosecute those responsible, as well as initiate compensation for damages suffered.

Victor Shchitka made an attempt to initiate a review of the criminal case after appropriate instructions contained in the decision of the Committee. However, on November 3, 2011 the Judge Panel of the Judicial Court of Criminal Cases of the Supreme Court of Ukraine for handling of civil and criminal cases denied Mr. Shchitka access to his criminal case prior to the Supreme Court proceedings, because it concluded that the Committee does not act as an international judicial institution while in accordance with paragraph 2 of Part 1, Art. 400-12 of the Criminal Procedural Code of Ukraine the reason for the revision of judgments of the Supreme Court of Ukraine, which came into force, may be provided only by an international judicial institution, whose jurisdiction is recognized by Ukraine, eliciting violation by Ukraine of international obligations during trial by a court[25].

6. POLICY OF EUROPEAN COURT

Victims of torture in militia and criminal-executive institutions increasingly bring an action before the European Court. The latter has already given dozens of judgments about violation of Article 3 of the Convention by Ukraine. In 2011, the European Court found violations of Article 3 of the Convention in 12 cases against Ukraine.

In the case of Mikhalkova and others vs. Ukraine (application No. 10919/05, decision of 13.01.2011) the government did not provide plausible explanations for the occurrence of injuries on the body of the applicant during his visit to militia station; therefore the European Court concluded that these injuries were the result of inhuman treatment in violation of Article 3 of the Convention.

In the case of Dushka vs. Ukraine (application No. 29175/04, decision of 03.02.2011) the European Court found violations of Article 3 due to the fact that he received his injuries while being under control of militia. In addition, the European Court opined in this case, that, irrespective of whether he had gone through violence, the use of administrative detention in order to break the resistance of the person and use his vulnerable emotional state to obtain a confession of a crime already constituted a violation of Article 3 of the Convention. The European Court also found violations of Article 3 of the Convention in the improper investigation into his complaint about his being beaten by the militia. In this regard, the European Court paid special attention to the fact that higher prosecutor’s office and national courts used to repeatedly reverse judgments of the district prosecutor’s office not to institute criminal proceedings on grounds of incompleteness of the court verification.

In the case of Bocharov vs. Ukraine (application No. 21037/05, decision of 17.03.2011) the applicant after being under control of the militia was hospitalized with bodily injuries, which were quite serious and needed hospital treatment for a long time. The European Court concluded in this case that the applicant received injuries as a result of inhuman and degrading treatment contrary to Article 3 of the Convention. The European Court also decided that the public organs of Ukraine failed to fulfill their obligations to investigate applicant’s complaints of ill treatment by the militia, in violation of Article 3 of the Convention.

In the case of Nowak vs. Ukraine (application No. 60846/10, decision of 31.03.2011) the applicant, Polish citizen Pietr Nowak was detained by militia officers in Lviv and deported to Poland. After deportation two Polish doctors diagnosed cigarette burns, bruises on his body and broken tooth. Although the applicant complained of torture by the Ukrainian militia and took the matter to the Polish prosecutor’s office, the latter referred all relevant documents to the prosecutor’s office of Ukraine, nobody launched an inquiry into the abuse. The European Court found a violation of Article 3 of the Convention in this case and noted that public organs are responsible for injuries inflicted on this person controlled by them, if they fail to provide convincing explanations for the occurrence of injuries, which relieve them of responsibility. The public organs must also conduct an effective investigation into arguable allegation of torture by militia officers.

In the case of Matushevskyy and Matushevska vs. Ukraine) (application No. 59461/08, decision of 06.02.2011) the government failed to provide plausible explanations for the occurrence of injuries on the body of Igor Matushevsky while in investigative isolation ward. Taking into account the nature of the injuries received by Igor, the European Court concluded that they were quite serious, and therefore Article 3 of the Convention was violated.

In the case of Nechiporuk and Yonkalo vs. Ukraine (application No. 42310/04, decision of 21.04.2011) Ivan Nechyporuk complained that the militia forced him to confess a crime applying for this purpose an electric current. The European Court, taking into account the severity of abuse and attendant circumstances, concluded that Ivan Nechyporuk became a victim of torture. Accordingly, it found violations of Article 3 of the Convention. The European Court also decided that in this case the authorities failed to take reasonable measures to conduct effective investigations into Ivan’s allegations about the use of torture to him by militia, and found violations of Article 3 of the Convention by militia officers.

In the case of Fyodorov and Fyodorova vs. Ukraine (application No. 39229/03, decision of 26.07.2011) the European Court concluded that the use of physical force to the first applicant by militia in response to his attempts to determine the legality of his forced hospitalization in a psychiatric hospital was a degrading treatment. The government failed to prove that damage to the first applicant could be done as a result of the use of force appropriate in the circumstances in the militia station, where he tried to express his protest against his hospitalization. The European Court concluded that the use of force was disproportionate and, in fact, it was an inhuman and degrading treatment of the first applicant. The government also failed to supply plausible explanations for the second applicant’s injuries, and therefore the European Court stated that she was subjected to inhuman and degrading treatment in violation of Article 3 of the Convention. The European Court also found violations of Article 3 of the Convention in connection with the ineffective investigation of the applicants’ complaints of maltreatment in connection with the execution of the order of hospitalization of the first applicant.

In the case of Oshurko vs. Ukraine (application No. 33108/05, decision of 08.09.2011) The European Court concluded that the authorities had failed in its positive obligation to protect the physical integrity of the applicant; the applicant was maltreated while in investigative isolation ward, and therefore there occurred a violation of Article 3 of the Convention. The European Court also concluded that the authorities failed to respond adequately to applicant’s serious health problems, which amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. In this case the Ukrainian authorities failed to fulfill their procedural obligation to conduct an effective investigation, which means that they had violated Article 3 of the Convention.

In the case of Korobov vs. Ukraine (application No. 39598/03, decision of 21.07.2011) the government did not offer convincing explanations of detention circumstances, which had required the use of martial art holds. Moreover, the European Court concluded that the injuries were inflicted not only during the applicant’s detention, and that the injuries caused to the applicant were so serious that they fall under notion of torture in the sense of Article 3 of the Convention. The court also found that the national authorities failed to pursue an effective inquiry.

Moreover, in the cases of Kharchenko vs. Ukraine (statement No. 40107/02, decision of 10.02.2011), Izzetov vs. Ukraine (application No. 23136/04, from 15.09.2011), and Mustafayev vs. Ukraine (application No. 36433/05, decision of 13.10.2011) the European Court found violations of Articles 3 of the Convention due to the inadequate conditions of detention in the investigative isolation ward and forced labor camp.

The amount of compensation awarded to the victims by the European Court in the above cases made €274 774. The indemnification will be paid at the expense of the state budget of Ukraine, and not those guilty of the crime.

There is a Law in Ukraine “On the Judicial Decision Implementing and Observance of the Policy of European Court of Human Rights.” The above law stipulates that in cases of damages caused to the state budget of Ukraine because of compensation payments the Ministry of Justice has to file a claim of recourse to the authority which made the breach, or the Prosecutor General with a request to open a criminal investigation to establish the perpetrators. The Ministry of Justice demanded that the Prosecutor General opened 111 such cases, but no action was mounted[26]. It also promotes militia’s belief in their impunity and lack of any responsibility for torture.

7. PUBLIC ORGANS

7.1. Ministry of Internal Affairs of Ukraine

On April 28, 2011 Anatolii Mohyliov, the then Minister of Internal Affairs of Ukraine, officially acknowledged that militia used torture to detainees in order to increase the percentage of crime detection. He also informed the journalists after the meeting in the Ministry of Interior of Ukraine devoted to the issue of realization of human rights in the MIA of Ukraine that his ministry was about to change its policy[27].

On January 20, 2011 Minister of the Interior approved the decree number 17 about the new system of evaluation of the militia’s activity within the framework of one-year pilot project. Unfortunately, the hope that the new criteria for evaluating the militia’s activity will not be based on a quantitative approach has come short of reality. The effectiveness of crime detection in accordance with this order should be estimated based on the number of crimes detected[28]. Therefore it is still too early to talk about eliminating the main causes of torture applied by law enforcers.

On March 31, 2011 the Minister of Internal Affairs signed the order No. 329 “On additional measures intended to prevent cases of torture and maltreatment in militia’s activity,” which stipulated, inter alia, creation of a special supervisory commission for harmonization and coordination of preventive control of torture and cruel treatment in the organs of militia, proper consideration of statements and reports on relevant violations by law enforcers. Moreover, the order provided for surprise inspections of the relevant services of Ukraine organs and departments of the Ministry of Internal Affairs in order to reveal torture and cruel treatment[29].

Unfortunately, the activities of the supervisory committee, and unannounced inspections of employees of the MIA of Ukraine will be carried out by the personnel of the same system, and not by an independent body.

On October 5, 2011, during the parliament hearings in the Verkhovna Rada of Ukraine on the reform of the MIA of Ukraine and introduction of European standards Anatoly Mohyliov said that now there is no notion of percentage of crimes detection in the system of Internal Affairs of Ukraine. Moreover, the ex-minister informed about three major areas of reform of the MIA of Ukraine, namely: quality personnel changes, the appropriate logistical, financial, software and dataware supply, as well as creation of stable institutions of civil control over the militia. He said that there should be a continuous dialogue and partnership with public agencies and civil society organizations[30].

In this regard it should be noted that the Public Council, whose work was stopped in 2010, resumed its work in January 2011[31]. However, this year it spent its time discussing organizational matters. In 2011, the Public Council at the Ministry of Internal Affairs of Ukraine implemented no projects aimed at combating torture and cruel treatment[32].

Therefore, the ex-minister’s statements about future changes of the principles in the law enforcement and the reform of the MIA are nothing but declarations of intent.

7.2. Prosecutor General’s Office of Ukraine

In 2011, the Prosecutor General’s Office of Ukraine (hereinafter — the Prosecutor General’s Office) has repeatedly raised the issue of torture of persons by law enforcement agencies at the stage of pre-trial investigation.

Thus, on March 29, 2011 in the course of the enlarged session of the Board of the Prosecutor General’s Office on the observance of legality in the investigation into the use of torture to the citizens by militia the Prosecutor General Ukraine said that he requires prosecutors to effectively use all legitimate authority to eradicate the use of physical violence by law enforcers[33].

On June 21 at the enlarged session of the Board on efficiency of public prosecution bodies for the first six months of 2011, the Prosecutor General again noted that in Ukraine there was a thorny issue of human rights in criminal proceedings and existence of numerous cases of torture at the stage of pre-trial investigation.

Fully sharing the idea expressed, the Association of Ukrainian human rights monitors (hereinafter — Association) made him a suggestion to set up a working group including representatives of prosecutors, academics and NGOs, which might develop the forms of access to institutions of social control in the investigation of facts of torture and cruel treatment of people in militia’s custody.

In his response, Chief of the Main department supervising the observance of laws in the investigation and search operations, inquiry and pre-trial investigation of the Prosecutor General’s Office V. Bilous in his letter told the Association that “the current legislation does not provide for participation of public prosecutors in the work of NGOs”[34].

Unfortunately, both the Prosecutor General’s Office and Interior Ministry of Ukraine resorted to declaration of intent only.

7.3. State Penitentiary Service of Ukraine

On April 6, 2011 the President of Ukraine approved by the decree No. 394/2011 the Regulations on the State penitentiary service of Ukraine (hereinafter — Regulations). According to Head of the State Penitentiary Service of Ukraine Lisitskova O.V., the creation of the State Penitentiary Service of Ukraine reflects the strategic course of state policy towards social reorientation of the process of execution of punishments according to international standards, compliance with the principles of legality, humanism, democracy and justice, and modern global penitentiary doctrine[35].

However, the new Regulations repealed many previous positive provisions, such as, for example, ensuring human rights and civil legislation in execution of punishments, realization of legitimate rights and interests of prisoners and detainees[36].

In the penal system, as before, there are numerous human rights violations. Among the key issues are its isolation, lack of public control, overcrowding of investigative isolation wards and penal institutions.

Year by year the number of convicts and detainees is growing: at the end of 2010 the prisons and investigative isolation wards contained 154 000 people.

In 80 out of the 151 penal institutions housing standards do not meet the requirements of the Penal Code of Ukraine. Such low standards are unacceptable, as well as pretrial detention facilities, where detained are forced to sleep in turns and stay in inappropriate conditions that demean human dignity. The overcrowding in cells, insanitariness, lack of proper medical examination, fresh air, clean drinking water, poor nutrition etc. lead to frequent illnesses of convicts and persons taken into custody. As a result, in 2010 over 86 000 cases of diseases were registered among such citizens, i.e. every second fell ill. The rights of prisoners to work are also violated. Adoption of regional programs job creation for prisoners gave no positive results. Today only about 40 percent of able-bodied inmates do useful work. However, the absolute majority of people deprived of their liberty has not a single kopeck on personal accounts, while almost 40 000 of them receive writs of execution for a total of about UAH0.5bn[37].

The functioning of the State Penitentiary Service of Ukraine may change radically, if the penal system has a new aim; now it is essentially a repressive system focusing on isolation and punishment of criminals, and not on reformation of their minds and attitudes toward crimes.

Besides, the changes in criminal justice ideology that prefers detention among other precautions would allow to withdraw the investigative isolation wards from occupancy, refocus State Penitentiary Service of Ukraine from finding funds to build new institutions to reconstruction and technical upgrading of existing ones, bring conditions of detention in accordance with European standards.

8. International bodies

8.1. Parliamentary Assembly of the Council of Europe

In resolution 1787 (2011) the Parliamentary Assembly of the Council of Europe (hereinafter — PACE) listed systemic problems of some states, including Ukraine. The PACE noted that there are still substantial systemic deficiencies causing large number of cases of violation of the Convention and seriously undermining the rule of law in these States. In particular, we are talking about the facts of maltreatment by law enforcers and lack of real investigation of these cases. The PACE noted that Ukraine needs to take measures to combat excessive use of force by militia officers and carry out inquiries into all reports of maltreatment.

8.2. UN Subcommittee on Prevention of Torture

The UN Subcommittee on Prevention of Torture (hereinafter — the Sub-Council), as a result of official visit on May 16-25, 2011, presented its opinion to the Cabinet of Ukraine, which noted the absence of the national preventive mechanism to prevent torture in Ukraine.

Subcommittee Chairman and head of the UN delegation Malcolm Evans noted that although the decision about the form of national preventive mechanism is the prerogative of the Ukrainian authorities, it must be adjusted in accordance with Ukraine’s international obligations with regard to the relevant provisions of the Optional Protocol to the Convention against Torture. Evans also said that the mandate, powers and independence of such mechanism should be guaranteed by law and implemented into practice[38].

8.3. European Committee for the Prevention of Torture (ECPT)

On November 23, 2011 the ECPT published a report on the visit to Ukraine from September 9 to September 21, 2009. The ECPT report contains a number of recommendations for the government of Ukraine[39]. In particular, the Committee noted that any non-standard items that can be used for abuse and cruel treatment should not be available on the interrogation premises of the organs of interior affairs. The ECPT also recommended that the law enforcers regularly receive clear instructions about the maltreatment “zero tolerance”. The law enforcers should understand that those who apply maltreatment, as well as those who closes his eyes to it or contribute to such practices will be punished. The Committee also urges the Ukrainian authorities to develop more stringent recruitment procedures and increased training of employees of the organs of interior affairs, operative agents and investigators. In the course of training, special attention should be paid to the methods of crime investigation, thereby reducing dependence on crimes confessions received during inquiry. Therefore, investments should be made into the acquisition of modern technical means of investigation (e. g., forensic and laboratory equipment). In addition, admissions made as a result of torture shall not be used as evidence during any trial, but proceedings against the person accused of maltreatment. The ECPT also recommended to ensure adequate conditions of detention in district militia stations and penitentiaries.

8.4. Amnesty International

On October 12, 2011 the Amnesty International presented its report “No legally defined crime: retribution for the impunity of militia in Ukraine.” The report reads that by some estimates hundreds of thousands of people in Ukraine become victims of militia arbitrariness each year. The violations range from non-compliance with the Code of Criminal Procedure to racist acts, extortion, torture and other manifestations of violence and deaths in custody. Wakefulness is the result of impunity culture that took root in the militia environment of Ukraine. Individuals who filed complaints of serious human rights violations are often faced with the standard refusal to institute criminal proceedings “in the absence of legally defined crime.” And the vast majority of cases of human rights violations — both major and minor — do not fall in official statistics because the victims fear reprisals from the militia or do not believe that their cases will lead to positive reaction. The Government of Ukraine has, after all, to enter into commitments to reform the monitoring of militia. These three issues must be resolved in the first place: lack of monitoring of detention facilities, lack of independent investigative bodies and unwillingness to sue law enforcers. The effective solutions to these problems are necessary to eliminate corruption, prevent torture and maltreatment, as well as ensure that the guilty person will be sued[40].

9. On the national preventive mechanism

By ratifying the 2006 Optional Protocol to the Convention against Torture (hereinafter — the Optional Protocol), Ukraine took on the obligation to establish national preventive mechanisms, i. e. body (or bodies), which would freely make inspection visits and monitor institutions of confinement in order to prevent torture. Although the this mechanism should have been created within a year, but it took five years to make the first step only.

On September 27, 2011 the Presidential Decree No. 950/2011 approved the regulations of the Commission on the Prevention of Torture (hereinafter — Commission)[41]. The Commission is a standing advisory body under the President of Ukraine set up to promote the implementation of Ukraine’s commitments under the Optional Protocol.

The Commission shall consist of chairman, executive secretary and other members of the Commission working on a voluntary basis. The Executive Secretary of the Commission shall be ex officio authorized public representative for the European Court of Human Rights. The members of the Commission shall approved by the President of Ukraine on submission of the Head of the Commission.

The main objectives of the Commission are the facts of torture and other cruel, inhuman or degrading treatment or punishment, making propositions to the President of Ukraine in accordance with the established procedure in order to stop them and prevent their recurrence; participation in the preparation of proposals on amending legislation on the prevention of torture and other cruel, inhuman or degrading treatment or punishment and making proposals to the President of Ukraine in accordance with the established procedure.

In order to fulfill its mission the Commission is entitled to visit in accordance with the established procedure and plan approved by the Commission and, if necessary, or on off-schedule bases places of interim custody, pre-trial detention, penal institutions, psychiatric wards, special teaching and educational institutions, question detainees and obtain information about prison conditions.

The Chairman of the Commission regularly, at least once a month, reports to the President of Ukraine on the activities of the Commission. The organizational and technical support of the activities of the Commission is carried out by the Administration of the Presidential of Ukraine and Public Executive Office.

On November 18, 2011 the Decree of the President of Ukraine approved the composition of the Commission[42]. It includes people’s deputies, civil servants, researchers, lawyers, representatives of NGOs and international organizations. The Commission was headed by Andriy Portnov, Advisor to the President of Ukraine, Head of the Main Judiciary Department of the Administration of the President of Ukraine.

Undoubtedly, such Commission created by Presidential Decree, fails to meet the basic requirements of the Optional Protocol. Its main drawback is the financial and structural dependence on public organs. Lack of worked-out procedures of Commission’s activity and practice do not allow drawing conclusions about other aspects of its work. So, Ukraine still has no independent preventive mechanism which might meet the requirements of the Optional Protocol and be functionally independent and have independent staff.

10. RECOMMENDATIONS

1. The MIA of Ukraine should develop new criteria for evaluating the effectiveness of militia officers unrelated to the quantitative indicators of crimes.

2. Stop practicing mass beatings in the criminal-executive institutions and interrogative isolation wards.

3. Create an organ, independent from the Ministry of Internal Affairs of Ukraine and prosecution authorities, to conduct effective investigations into allegations of torture by law enforcers and officers of the penitentiary system.

4. The law enforcers, which are under investigation or internal affairs inquiry conducted by special units of the MIA of Ukraine on reported cases of their use of torture, should be suspended from their duties for the whole period of investigation or check.

5. The public organs should recognize the actual scale of torture. To this effect the law enforcement agencies, penal system and courts have to keep statistical records of cases of torture and publish their statistics.

6. To create effective mechanisms for public control of law enforcers and officers of the penitentiary system.

7. To begin the work of the Commission on prevention of torture and make its work optimally transparent to the public.

8. To work out a preventive mechanism to prevent torture, which would meet the requirements of the Optional Protocol.

9. To amend the legislation of Ukraine with provisions on the inadmissibility of confessions obtained under pressure or coercion and without counsel as appropriate evidence as well as procedure for removal of evidence obtained through torture.

10. To amend the provisions of Article 127 of the Criminal Code of Ukraine in order to conform to the requirements of the UN Convention against Torture.

11. The Ministry of Justice has to commence recourse actions against law enforcing agencies whose officers resorting to torture if the European Court establishes the violation of Article 3 of the Convention.

12. To amend legislation and change the practice of national courts on the procedure of taking into custody pursuant to the pilot decision of the European Court in the case of Kharchenko vs. Ukraine[43], which will “offload” the overcrowded investigative isolation wards and, ultimately, bringing detention conditions in line with European standards.

 

[1]  Prepared by Yana Zaikina, lawyer of KHPG

[2]  Read more on the results of sociological survey of the spread of violence in the organs of internal affairs of Ukraine on the site of Kharkiv Institute for Social Research: http://www.khisr.Kharkiv.ua/index.php?id=1319741619.

[3]  Read more in “Human Rights in Ukraine: 2009–2010”, p. 73.

[4]  http://www.khpg.org/index.php?id=1305032377 and http://www.khpg.org/index.php?id=1304704212

[5]  http://maidan.org.ua/special/pk/?p=2082 http://kvs.crimea.ua/index.php?limitstart=12

[6]  http://maidan.org.ua/special/pk/?p=2412

[7]  http://maidan.org.ua/special/pk/?p=2446

[8]  http://maidan.org.ua/special/pk/?p=2398

[9]  http://maidan.org.ua/special/pk/?p=2412

[10]  http://ombudsman.kiev.ua/pres/releases/rel_11_05_13.htm

[11]  http://www.khpg.org/index.php?id=1308825893

[12]  #more-2057

[13]  http://maidan.org.ua/special/pk/?p=2123

[14]  http://www.advokatura.org.ua/

[15]  http://www.khpg.org/index.php?id=1313069649

[16]  http://umdpl.info/index.php?id=1316639430

[17]  http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=72169&fp=931

[18]  http://www.reyestr.court.gov.ua/Review/18015898

[19]  http://hr-lawyers.org/index.php?id=1313410341

[20]  http://hr-lawyers.org/index.php?id=1289377962

[21]  http://hr-lawyers.org/index.php?id=1309863250

[22]  http://hr-lawyers.org/index.php?id=1295954597

[23]  http://hr-lawyers.org/index.php?id=1321360325

[24]  http://hr-lawyers.org/index.php?id=1317410175

[25]  http://hr-lawyers.org/index.php?id=1321523619

[26]  From the answer of the Ministry of Justice to the inquiry of Ukrainian Helsinki Human Rights Union.

[27]  http://korrespondent.net/video/ukraine/1212585-mogilev-priznal-primenenie-pytok-v-milicii

[28]  http://umdpl.info/index.php?id=1297444961

[29]  http://umdpl.info/index.php?id=1303471514

[30]  http://www.mvs.gov.ua/mvs/control/mai%20n/ru/publish/article/678418

[31]  http://library.khpg.org/http://khpg.org/files/docs/1277206750.pdf

[32]  http://www.mvs.gov.ua/mvs/control/main/uk/publish/category/47315

[33]  http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=72169&fp=1061

[34]  http://www.khpg.org/index.php?id=1314698287

[35]    http://depkvs.kh.ua/index.php?option=com_content&view=article&id=408%3Aanalizpolojennya&catid=34%3Aanalityka&Itemid=27

[36]  http://www.khpg.org/index.php?id=1312883196

[37]  http://www.ac-rada.gov.ua/control/main/uk/publish/article/16737372

[38]  http://umdpl.info/index.php?id=1306388608

[39]  http://www.cpt.coe.int/documents/ukr/2011-29-inf-eng.htm. Answer of the Government of Ukraine: http://www.cpt.coe.int/documents/ukr/2011-30-inf-ukr.pdf

[40]  http://amnesty.org.ru/system/files/2011_Ukraine_police_briefing.pdf

[41]  http://www.president.gov.ua/documents/14032.html

[42]  http://www.president.gov.ua/documents/14191.html

[43]  http://hr-lawyers.org/http://khpg.org/files/docs/1298370111.pdf

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