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2. PROTECTION FROM TORTURE AND OTHER ILL-TREATMENT

   

   [1]

   INCIDENCE OF TORTURE

     Over the past few years a situation has emerged when practically anyone may become a victim of violence committed by militiamen. Previously, the greatest risk of being subjected to unlawful violence in militia was run by criminals; later the suspects, witnesses, their relatives (i.e., all people who somehow found themselves in the focus of interests of law enforcers) augmented the list. Today, everyone faces a potential risk: ordinary passerby, witness of events, and sometimes even a militia officer may be subject to unlawful coercion by law enforcers. This not only deprives a person of the possibility to build a behavioral strategy in order to assure themselves against the probability of facing beatings and torture, but also generates a constant distrust, apprehension and fear of law enforcers. It should be noted also that many militia officers do not expect trust and love from the public, believing that fear is a sufficient indicator of respect. However, militia are not working in a vacuum; it works with people, among people, and for people; therefore fear negates the results of law enforcement, undermines the credibility of militia, and makes it difficult for law enforcers in general[2].

   The results of survey confirm the attitude of Ukrainians to the threat of becoming a victim of torture in militia[3]. Thus, only 1.5% believes that mistreatment does not threaten anybody. However, year in and year out this figure goes down. For example, in 2009 this opinion was shared by 2.5%, in 2010 by 1.8%. On the other hand, the majority of respondents (60.7%) believe that no one is immune from violence at the militia stations. Although in comparison with 2010, this figure dropped to 5, 4%, there is a significant increase in all categories of potential victims. Thus, 7.7% more respondents believe that unlawful violence endangers any perpetrator, 6.9% more respondents noted danger for the homeless. Another 7% were added to those who believe the potential victims include people, who offend militia or just poor people, 6.4% more include suspects here[4].

   The Ukrainian government recognized that the problem of torture and ill-treatment of people in law enforcement institutions remains one of the most pressing issues[5]. It is mentioned in the National Report on the situation with the human rights protection that the Ukrainian delegation presented to the members of the UN Human Rights Council in the second cycle of the Universal Periodic Review. In its National Report the Government, in particular, noted that during the first three months of 2012 the departments of internal security of Internal Affairs Ministry received 211 complaints of torture and bodily harm. At the same time, according to the Government, at the penal institutions the facts of torture and other ill-treatment are not common and are usually allowed only in rare cases.

   However, the statistics of human rights organizations show that the scale of violence in Ukraine is much larger.

   Only the UHHRU network of receptions registered 159 complaints of torture and other forms of ill-treatment (as of November 20, 2012).

   Monitoring of unlawful violence in militia conducted by the Kharkiv Institute for Social Research in recent years is leading us to a disappointing conclusion: the rollback to the figures of 2004 is underway, when the estimated number of victims of ill-treatment by militia officers was more than 1 million people[6].  

   Cases of torture in 2012  

   Beating of detainees

   Igor and Nadiya Martynenko went to the Simferopol public prosecutor’s office on November 1, 2012. They wrote a statement about causing grievous bodily harm to their son Artem Heraymovych that at the time, after beating, had been treated at home for five months. Artem claims that he was tortured by the militia. The tore his nostrils with iron hook.

   In December 2011, Artem, who was drinking beer near the store, was arrested by two district inspectors Teliatnykov and Mykola Syzov for drinking alcohol in a public place and brought him to a militia station. At the Zaliznychny District Militia Station under senior district inspector Eldar Ibragimov they beat him up and took away passport. The parents were not informed about Artem’s detention. They searched for him everywhere, and appealed to the militia. There they were assured that everything is fine: they saw their son with homeless, sometimes he comes to the station. On June 6, 2012 Artem came home. The man had his nose torn, he was all beaten, in scars, could hardly walk. Artem explained that in April he was in the intensive care department of Semashko hospital. The hospital confirmed that in late April Artem was delivered there by ambulance brigade from the investigatory isolation ward.

   The parents contacted the Zaliznychny District Militia Station for explanations and the passport of their son. "When we came the first time, the militiamen asked whether he still was alive?" says father of Artem.

   Artem has lost his memory, but partly he remembers what happened to him. He recalls that he was not tortured at the Zaliznychny District Militia Station, but in another place. By the description the parents identified that apparently their son was tortured at Kyiv District Militia Station. Now Artem recollects that a militiaman forced him to sign something, trusted some weapon into his arms though Artem refused to take it. When he refused, they thrust an iron hook into his nose."[7]

   Now the Prosecutor of Zaliznychny District, Simferopol, is carrying out official checkup of keeping a law in criminal proceedings against Artem Heraymovych. According to the press service of the Public Prosecutions Department of ARC, the check revealed that severe injuries were caused by his cellmate in the investigatory isolation ward. In late April this year, on the grounds of fact relevant to the issue the Zaliznychny District Militia Station, Simferopol, initiated criminal proceedings and referred the case to court for decision on the application to the offender of compulsory medical measures.

   The Prosecutor’s Office of Zaliznychny District, Simferopol, is conducting now a checkup on the grounds of parents’ complaint about the use of torture by the personnel of the Zaliznychny District Militia Station[8].

   Unfortunately, the victims of ill-treatment by law enforcers usually receive from the prosecution standard answers regarding their allegations of torture, namely, that the action against law enforcers was dropped “for lack of corpus delicti”.

     A particular anxiety was caused by a letter of a staffer of Nikopol CD of MDMIAU in Dnipropetrovsk Oblast to the Minister of Internal Affairs of Ukraine, in which he complains about the behavior of his colleagues, who, in order to solve crimes, tortured suspects, planted drugs, etc. He describes the story of one of the suspects, which he witnessed. The officer says that at the request of the head of a militia unit the militiamen brutally tortured an innocent person for the purpose of forced admission of serious crime, and when tortures failed, the suspect was thrown out onto the street and threatened that if he started complaining, they would plant something forbidden on him[9].

     In our opinion, this situation has occurred because in practice there are no effective safeguards that would have made it impossible to use evidence obtained from suspects during investigation if they claim to have given such testimony involuntary. It should be noted that the provisions of the new Criminal Procedure Code impose general prohibition on the use in court of testimony given to the prosecutor or investigator and require that such attestation be given in the presence of the judge only. Exceptions include only particular cases related to the necessity of obtaining testimony of a witness or victim during the preliminary investigation of the existence of danger to their life and health, illness or other circumstances that would preclude their examination in court or affect the completeness or credibility of evidence.    

   Beating of detainees and convicts

   In 2005, for the antiterrorism purposes a special unit was created (see the order of the Department of Execution of Punishments of 10.10.2005, no. 167 (registered by Ministry of Justice of Ukraine on 16.02.2006 under no. 138/12012). Its terms of reference cover conducting surveys and searches of prisoners and persons detained, their things, search of other people and their belongings, as well as removal of prohibited items and documents. In practice, the main job of the antiterrorist unit was the use of mass beatings in the penal system to intimidate convicted and untried persons.

   The mass beatings of prisoners by such special division was described in detail in the judgment of the European Court of Human Rights (hereinafter––the European Court of Justice) in the "Davydov and Others vs. Ukraine”. In this case, the European Court found violations by Ukraine of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter––the Convention) in connection with mass beatings of prisoners in the Iziaslivsky penal colony no. 58 in 2001-2002.

   Although the decision on state registration of the above order of the State Department for Execution of Punishment of Ukraine on the creation of this task force was abolished on the authority of theconclusion of the Ministry of Justice no. 15/88 dated 24.12.2007 and on January 14, 2008 it was removed from the State Register of legal acts; however the fighting men of anti-terrorist unit continue practicing in mass beating of inmates.

   The Kopychintsi penal colony no. 112. On July 26, 2012 people in black suits and army greens and body armor vests with masked faces, armed with cans of tear or nerve-paralyzing gas, with handcuffs and batons came to the colony. In the colony a general search was declared.

   The first day the search took place in a residential area of the colony. All convicts were thrust out of residential areas. Frightened and scared people waited for reprisals while masked men broke, crushed and spoiled everything that happened in their path. Approximately fifteen prisoners on the orders of the staff of the colony were singled out and taken to the headquarters where they were beaten, forced to strip naked, and squat.

   The next day, on July 27, 2012, the masked riot continued at the intensive control station (ICS), cell-type facilities (STF), and disciplinary detention wards (DDW). Each cell was opened in turn, the sentenced were forced to run out and run through the so-called “corridor” formed by soldiers of the special unit standing on both sides of the prisoners. The soldiers from both sides of the "corridor" beat with sticks the prisoners who ran past them along the “corridor”. Then followed the strip search: according to various sources, the prisoners were forced to squat naked over a hundred times, they were kicked, humiliated, and beaten with hands and feet.

   Both Prosecutor’s Office of Ternopil Oblast, and the Central Office of the State Penitentiary Service of Ukraine (DPSU) failed to comment on these events in the colony no. 112. The Central Office of DPSU said that they have no information about human rights violations in Kopychintsi penal colony.

   However, the official site of the Central Office of DPSU in Ternopil Oblast informed that from July 26 to July 27 at the Kopychintsi Penal Colony of DPSU in Ternopil Oblast (no. 112) special tactical exercises took place for the consolidated fast-response unit of penal institutions with participation of the special force unit of the Central Office of DPSU in Zhytomyr Oblast. The training was conducted with a view to action in the event of such an emergency as riots among the prisoners, and to organize and conduct search in penal institutions. During the special tactical exercises the members of the special consolidated team of the fast response squad demonstrated hand-to-hand fighting with a weapon and without it, which helped to consolidate the theoretical skills of the personnel. Following the demonstration of special tactical training the actions of personnel and consolidated unit were rated "excellent"[10].

   Thus, despite the opinion of the European Court on the inadmissibility of the use of military forces for intimidation and beatings of prisoners, as well as cancellation of the decision on state registration of the corresponding order on the creation of this task force, the practical training is going on involving armed troops in camouflage suits and masked faces for searches in prisons and investigatory isolation wards for training on prisoners and / or intimidation.  

   Torture by conditions of detention

   Kyiv investigatory isolation ward. On April 2012, the Ukrainian TV channels showed a film of journalist Kostiantyn Usov "Lukyanivka. Prison #1"[11] and the general public for the first time saw the conditions, in which people are detained in Kyiv investigatory isolation ward. The movie cuts were made from videos filmed by prisoners on mobile phones sneaked to them by administration personnel for pecuniary reward. Actually, one case of informal talks on sneaking a mobile phone to the investigatory isolation ward and remuneration for "courier services" was also filmed. An officer of the investigatory isolation ward was willing to provide such a service for UAH400.

   The prison conditions shown in the movie differ a great deal from those typically demonstrated to delegations of international institutions, human rights defenders and journalists: two-by-twice dirty cells, dangerous fungi on the walls, and disgusting food. In some cells of Lukyanivka investigatory isolation ward a dangerous fungus was discovered, and the quality of potable water, which the prisoners have to drink, is below the standard.

   The full version of the film can be found on the website blog of Kostiantyn Usov: http://blogs.pravda.com.ua/authors/usov/4f7b6f67ec61a/.

   Head of the Penitentiary Service Olexandr Lisitskov told reporters at a press conference that the management of DPSU in the Kyiv Oblast conducted an internal investigation: 90% of the facts presented in the journalistic investigation of Lukyanivka investigatory isolation ward were not substantiated[12]. However, Lisitskov did not deny that in the investigatory isolation ward there were problems with fungus. As for the fact of sneaking mobile phones by personnel of investigatory isolation ward for pecuniary reward, Lisitskov said that the results of inquiry among the personnel of investigatory isolation ward and inmates did not corroborate such facts.

   However, after the release of the controversial film the head of the Kyiv investigatory isolation ward Yevhen Dombrowsky was suspended from office. Instead, they appointed Pavlo Holubovsky.

   The newly appointed head of the investigatory isolation ward said that there were no repairs carried out at the institution for 20 years[13]. After the release of the movie they had redone kitchens, renovated women’s building, children’s and medical enclosures, and shower rooms.

   The Dnipropetrovsk VC-89 became the record-holder among Ukrainian penal colonies concerning the reports on human rights violations which were made public in the last two years. It is in this colony last year there was a massive beating of prisoners with the use of the special unit of DPSU (see more details in annual report for the year 2011). And in March of this year there was a hunger strike of prisoners with active TB, which published the video with their comments documenting horrific prison conditions[14].

   The prisoners complained about the lack of treatment and proper nutrition for patients with tuberculosis and demanded from the administration of the institution to improve detention conditions, proper treatment and food. The prisoners also reported that the institution exerts pressure on prisoners demanding their legal rights and freedoms. Thus, the administration of the colony puts healthy people together with sick ones with an active form of tuberculosis[15].

   The unverified sources inform that all prisoners (except two), who participated in the hunger strike and filmed video, were transferred to wards for healthy people, and only two remained in a specialized hospital for tuberculosis patients. One prisoner, Yuri Klevzhytsa, was brutally beaten and transferred to Volniansk colony. According to his wife, in the Volniansk colony her husband receives no treatment, even to the extent prescribed in Dnipropetrovsk[16].

   Moreover, the administration of Dnipropetrovsk VC-89, instead of correcting the deficiencies and providing adequate detention conditions and necessary medical care for the inmates, attempted to resolve all issues through harassment of complainants, repression and torture.

   Usually the Government explains the bad conditions of detention with limited financing of institutions of the DPSU. However, the problem of overcrowding in investigatory isolation wards is only partly related to the funding of the penal system. To a large extent it depends on the ideology and the system of criminal justice regarding detention in custody. In fact, in many cases there remains a presumption in favor of detention. The bailment and other security measures have not been fully implemented[17].

   However, the requirement of the new Code of Ukraine regarding the obligation of the judge to assess the weight of available evidence concerning the infringement of law by a suspect accused of a criminal offense, that is presence of a "reasonable suspicion" for imprisonment is quite a high standard, which was absent in the previous criminal procedural legislation of Ukraine and which should facilitate the unloading of investigatory isolation wards.  

   INVESTIGATION  

   According to the legislation of Ukraine, the public prosecution bodies are authorized to investigate complaints of ill-treatment by the personnel of the Ministry of Internal Affairs of Ukraine.

   The General Prosecutor’s Office maintains that it controls violations of law by law enforcers. Deputy Head of the Department of Law Enforcement Control Pavlo Pawliuk says that they are continuously working to eradicate cases of torture performed by militiamen and the perpetrators are always punished[18].

   However, the statistics of criminal cases instituted on the grounds of complaints of ill-treatment suggests that the Prosecutor’s Office quite rarely takes legal steps in such situation.

   Thus, according to Mr. Pavliuk, this year 36 criminal cases were brought before the court on the subject of violence used by law enforcers against 75 people, and that 23 employees are already in custody. This miserable outcome of the criminal prosecution of law enforcers who used torture, given that according to the same Mr. Pavliuk, for the last 9 months of this year the prosecution received 3600 complaints of ill-treatment[19].

   This result indicates the inefficiency of the Prosecutor’s Office as an organ that has to investigate complaints of ill-treatment.

   Among the small number of complaints, which undergo investigation, the offense is often graded under Articles 364 ("misuse of authority or abuse of office") and 365 ("excess of authority or transgression of authority") of the Criminal Code of Ukraine, and not under Article 127 (“Torture”) of the Criminal Code of Ukraine, which hides the real scale of the problem of torture in creating statistics of prosecution for torture.

   An example is the criminal case opened in Khmelnytsky against two district militia station employees. At night the militia illegally detained 18-year-old student and brought him to the militia station premises where they forced him to confess to a crime he had not committed. The law enforcers resorted to physical and psychological violence causing minor bodily injuries[20]. Although in this case there exist all signs of torture within the meaning of the Convention against Torture and Other Cruel, Inhuman or Degrading, Treatment or Punishment, the criminal case against the law enforcersa was initiated by the Prosecutor5’s Office of Dunayevetsky Region of Khmelnytsky Oblast on the grounds of crimes under Part 2 of Article 365 (abuse of authority accompanied by violence) and Part 1 Art.371 (obviously illegal detention) of the Criminal Code of Ukraine.

   To a large extent the failure of the prosecution to conduct an effective investigation into a complaint of torture is associated with conflicting functions that it performs in accordance with national legislation. So, on the one hand, the prosecutors are responsible for checking the lawfulness of the actions of militia, and, on the other hand, they support the charges in court. And then, the prosecutors have close professional relationships with militia officers. This conflict of interests is detrimental to the effective investigation of complaints of torture. As a result, in Ukraine there exists a prevailing situation of impunity of militia officers who use ill-treatment during their daily work. This atmosphere of impunity is a major cause of the spread of torture in Ukraine.

   Thus, Ukraine needs an independent body to investigate allegations of the use of ill-treatment by law enforcers. This body should meet five principles specified by the European Court of Human Rights, namely: independence, adequacy, timeliness, public scrutiny and participation of victims in the proceedings. This body should not have any hierarchical or institutional connection with the militia or the government.

   The provisions of the new Criminal Procedure Code of Ukraine provides for the establishment of the State Bureau of Investigation. The functions of this office should include an independent mechanism for investigating complaints against militia officers in accordance with the international human rights standards.  

   LEGISLATION  

   The Criminal Code of Ukraine

   One of the reasons, which permit avoiding criminal liability under Article 127 of the Criminal Code of Ukraine "torture", is imperfect wording of this article.

   It has been amended three times (see previous annual reports). As a result of amendments on 05.11.2009, they omitted the special subject of crime, i.e. the officer, and with it went the nature and qualification of "torture" within the meaning of Article 1 of the UN Convention against Torture. Thus, the current version of the article does not meet the requirements of Article 1.4 of the UN Convention against Torture.

   Unfortunately, in 2012, the provisions of this Article were not adjusted in line with the requirements of Article 1.4 of the UN Convention against Torture.

   Therefore, the Ukraine’s legislation still contains a keyhole that allows the militia officers to avoid criminal penalties for torture and hide the real scale of this phenomenon in statistics.  

   The new Criminal Procedure Code of Ukraine

   At the same time, it should be noted that the entry into force of the new Criminal Procedure Code of Ukraine (hereinafter––CPC) should help eliminating some problems that led to ineffective investigation of allegations of torture in the past.

   According to the criminal procedure legislation of Ukraine acting before the entry into force of the new Code of Ukraine, one could not hold a full investigation without a formal act of initiation of criminal case. The law did not provide for conducting interrogations, searches, seizures, examinations and other investigations pending the resolution on initiation of criminal case.

   The provisions of the new Code of Ukraine foresee the mandatory criminal prosecution in all cases of circumstances which may indicate the commission of a criminal offense (Article 214 of CPC) allowing to tackle the problem repeatedly stated in the decisions of the European Court about multiple failures in initiation of criminal proceedings under relevant complaints and conduct all necessary investigations and gather evidence during the investigatory actions.

   The shortcomings that led to the findings by the European Court of violations of Article 3 in connection with the ineffective investigation also include the refusal to recognize a person a victim under criminal law and the victim’s lack of access to materials of investigation in the course of preliminary investigation.

   Under Article 55 of the new Criminal Procedure Code of Ukraine the victims in criminal proceedings may include, in particular, a natural person, who, as a result of criminal offense, suffered moral, physical or property damage. The victim may also be a person who was not the applicant, but who, as a result of criminal offense, suffered a loss and in this connection, after the start of criminal proceedings, filed for the initiation of the proceedings as a victim. The rights and obligations of the victim arise from the moment of submission of complaint about commission of a criminal offense against her/him or application for her/his admission to the initiated proceedings as a victim. These provisions should improve the situation, when victims for a long time were not recognized as victims in a criminal case.

   Article 221 of the new Criminal Procedure Code of Ukraine provides for familiarization with the materials of pre-trial investigation before its conclusion. This provision together with the norms of Article 55 of the CPC of Ukraine mentioned above should fix the situation regarding the impossibility for parties to criminal proceedings to familiarize with the materials of the case (or preprosecutorial check) before the end of preliminary investigation.

   The CPC contains a number of other safeguards against torture and ill-treatment. However, there still exists the concern about the distorted application of the Code in practice. For example, according to Article 240 of the new CPC the result of the investigative experiment is a separate form of evidence, so nothing can stop forcing the suspect to demonstrate the mechanism of the offense (even if the person committed no illegal acts) during the investigative experiment, and this evidence will be admissible from the formal point of view. There is still a possibility just plant some evidence on the suspect, and no code is able to prevent such a practice of criminal investigations. Therefore the role of courts is very important which should take a tougher stance in the analysis of evidence in the case and reject all of them which were obtained under questionable circumstances.  

   Practice of national courts  

   The court practice of making militia officers accountable

   This year, one with the Odesa court found five former militia officers guilty of torture. The ex-militia officers were sentenced to 5 years imprisonment with three-year probation period.

   The investigation found that in January 2010, the employees of the District Militia Station detained and took to the station two locals allegedly suspected of involvement in the theft. During the "conversation" the militiamen used rubber batons to obtain testimony from detainees. Having failed, the militiamen began to apply electric current to the body of the victims and strangled them by putting plastic bags on their heads. Due to torture the citizens were forced to plead guilty to an offense which they did not commit[21].

   It should be noted that this is a rare case when the militia officers were prosecuted for torture just under that article, which provides for liability for torture. In most cases, the national investigative bodies and courts use the keyhole in the legislation of Ukraine, as described in the previous section, and bring to book the torturers with shoulder straps to liability under Articles 364 ("misuse of authority or abuse of office") or 365 ("excess of authority or transgression of authority") of the Criminal Code of Ukraine.

   Another trick, to which usually resort Ukrainian law enforcement bodies and courts to reduce indexes in statistics of prosecution of militia officers for torture committed by them, consists in the twist of sacking the law enforcers under investigation making them civilians at the time of sentencing. Hence, such cases of torture are not included in the statistics of MIA of Ukraine and courts concerning criminal prosecution of militia officers for torture.  

   PRACTICE OF THE EUROPEAN COURT

     In 2012, the European Court found violations of Article 3 of the Convention in fourteen cases against Ukraine. Two cases, in which the European Court made decision on the violation of Article 3 of the Convention, should be emphasized.

   Thus, in the case Kaverzin vs. Ukraine (application no. 23893/03, judgment of 15.05.2012) the European Court stated that the ineffective investigating of complaints of torture is a systemic problem in Ukraine (see details below).

   In the case of Savitskyy vs. Ukraine (application no. 38773/05, judgment of 26.07.2012) the European Court ruled to pay the largest amount of compensation that had been ever imposed for the benefit of a citizen of Ukraine. The court ordered the state to pay €154,000 to Bohdan Savitskyy, who had complained of ill-treatment by militia and ineffective investigation.

   According to Government Agent for the European Court of Human Rights Nazar Kulchytsky, such a record compensation is due to the fact that the person became disabled, group I. Savitskyy was not suspected of a crime; therefore the European Court decided that it indicates a higher level of militia brutality. The too long trial in Ukraine, which has caused a lot of mental suffering to the complainant, became an ggravating circumstance[22].  

   Regarding the statement by the European Court of systemic problems of torture by militia and ineffective investigation of complaints of torture

   In the aforementioned case of Kaverzin the applicant complained that he was tortured by the militia after his arrest. The government failed to refute these allegations by providing reasonable arguments. The European Court concluded that the ill-treatment to which the applicant had submitted while in custody at the militia station should be classified as torture, given the severity of the applicant’s injuries and intentional nature of inflicting injuries.

   The European Court also found that handcuffing the applicant every time the applicant was leaving his cell, while at the Dnipropetrovsk colony, contains an element of inhuman and degrading treatment, and, accordingly, Article 3 had been violated.

   In addition, the Court concluded that the investigation of the complaints of torture was ineffective and stated that the ineffective investigation of complaints of torture is a systemic problem in Ukraine.

   Specifically, the Court noted that in about 40 of its decisions it found that the authorities of Ukraine were responsible for ill-treatment, while in militia custody, and that no proper investigation was carried out on the applications of such abuse. More than 100 other cases pertaining to these issues are currently under examination of the Court. The above violations were the result of shortcomings of the legal settlement and administrative activities of national authorities regarding their obligations under Article 3 of the Convention.

   The European Court noted that the alleged offenders belong to the most vulnerable groups among the victims of ill-treatment by the militia. The cruel treatment often occurred during the first days of detention of the victims, when they had no access to their lawyers, and their injuries could not be fixed properly or documented. Despite the fact that in each such case it is impossible to establish that the abuse was used to obtain confessions to the crime, the relationship between the prison abuse and the desire of the authorities to obtain incriminating evidence cannot be excluded. As noted in several reports and observations concerning the issue of brutal treatment in Ukraine, the evaluation of militia’s work by the number of crimes solved has become one of the factors influencing the use of torture on criminal suspects.

   Another common factor that leads to a violation of Article 3 of the Convention in the present case and in cases considered by the European Court in the past is the reluctance of prosecutor’s office to take all reasonably necessary steps to immediate and urgent detection of the facts and circumstances relating to complaints of abuse, as well as providing relevant evidence. During the investigation the prosecutors often do with explanations from the militia. The militia’s version of events is usually given preference, and no attempts are made to verify it with other methods of investigation.

   The European Court maintains that such reluctance of prosecutors to take action in situations, where suspects were mistreated in order to obtain a confession, explain conflicting objectives of prosecution in a criminal trial: the prosecution on behalf of the state and control of legality of preliminary investigation.

   Due to the fact that confessionary statements are often the gist of evidence in criminal proceedings, it is possible that prosecutors are not interested in conducting detailed investigations that could potentially be able to question the reliability of such evidence.

   The appeals of prosecutors’ decisions to evade criminal proceedings as a separate procedure under article 236-1 of the Criminal Procedure Code and in the course of trial the admissible evidence does not lead to needed improvements in legality control by procuracy. The judges rarely give an independent assessment of the reliability of evidence allegedly obtained under duress, if such claims were rejected by prosecutors.

   This case, along with similar previous cases against Ukraine, in which the European Court found a procedural violation of Article 3, also shows that, despite the general prohibition of torture and inhuman and degrading treatment in Ukraine, in practice the government officials responsible for this cruel treatment often go unpunished. The absence of any meaningful effort by the authorities in connection with this situation strengthens the almost total impunity for the commission of such acts.

   The European Court considers that Ukraine should immediately implement specific reforms in its legal system to ensure eradication of the practice of ill-treatment during detention, conducting an effective investigation under Article 3 of the Convention in each case, when the appeal is filed, which raised questions about abuse and that such investigations have effectively eliminated any imperfections at the national level.

      Other decisions of the European Court in which the violation of Article 3 were found in connection with the use of torture and lack of an effective investigation into allegations of ill-treatment

   In the case of Klishyn vs. Ukraine (application no. 30671/04, judgment of 23.02.2012) the European Court concluded that given the fact of applicant’s being under the control of the militia (the applicant was detained in district militia stations), the medical evidence (injuries were found on his body), consistent applicant’s allegations of torture, and lack of government alternative version of events, all the injuries he did receive as a result of ill-treatment, which violates Article 3 of the Convention. The European Court also stated that investigation conducted by the state agencies of the allegations of torture did not meet the requirements of Article 3 of the Convention.

   In the case of Grigoryev vs. Ukraine (application no. 51671/07, judgment of 15.05.2012) the European Court noted that the absence of plausible version of the Government’s causes of bodily harm inflicted to the applicant during his being under the control of law enforcers, there existed a fact of torture to obtain confessions to the crime. The European Court also found a violation of Article 3 of the Convention concerning the ineffective investigation into allegations of torture. The Court noted that, although the fact of causing bodily harm to the applicant was prosecuted, it was closed 5 times by the resolutions of prosecution. In this regard, the European Court noted that four of these resolutions (except the last one) were canceled on grounds of incompleteness of the investigation conducted. Moreover, closing the criminal case, the investigator clearly pointed out that despite the instructions of superior courts and prosecutors, he sees no need to carry out these instructions. The Court specifically noted that such behavior clearly demonstrated the bias of the investigator. In this case the court of appeal, considering complaint against the decision to terminate the case, pointed to the need for an investigation of the complaint by the Office of the Prosecutor General of Ukraine, but no investigation was conducted. On these grounds, the Court came to the conclusion about the inefficiency of investigation carried out.

   In the case of Savin vs. Ukraine (application no. 34725/08, judgment of 16.02.2012) the European Court held that the applicant had been subjected to torture in breach of Article 3 of the Convention. The Government did not dispute in this case the applicant’s torture, because the national authorities had established that he had been beaten by a militia officer K. and the aim of the above cruelty had been to compel the applicant to admit to the crime.

   The European Court noted that the investigation into allegations of torture lasted for more than ten years, during which the investigators six times refused to initiate criminal proceedings against militia officers; all of these decisions were later quashed by higher prosecutors as premature, illegal and taken from the depthless investigation. Taking into account all these transfers of cases and neglect of investigative guidelines by superior prosecutors which seem a normal practice, the Court considers that such transfers reveal serious flaws in the investigation which pertain to structural problems in Ukraine.

   The European Court also noted that the case against militia officer K. was closed on March 2, 2010 in connection with the end of the period of limitation. As a result, he was brought neither to court, nor nor penalized. Moreover, for ten years during the investigation he was suspended from duty once since January 2009 to March 2010; that is the investigation in no way impeded his career in law enforcement. In connection with the foregoing, the European Court found a violation of the procedural aspect of Article 3 of the Convention in this case and noted that the state has not met its obligation to conduct an effective investigation into allegations of torture.

   In the case of Yatsenko vs. Ukraine (application no. 75345/01, judgment of 16.02.2012) the European Court noted that the investigation was started with a delay, forensic medical examination of the victim was conducted too late, investigation repeatedly started from the beginning due to the refusal of investigators to adequately establish the facts of the case, in the course of the investigation significant blunders were made, which were revealed by the authorities themselves. In this regard, the Court concluded that there had been a breach of procedural obligations under Article 3 of the Convention regarding the fact that allegations of ill-treatment had not been investigated quickly and efficiently.

   In the case of Muta vs. Ukraine (application no. 37246/06, judgment of 31.07.2012) the European Court noted that the criminal proceedings against the attacker of the applicant lasted for eight and a half years up to the closing of the case in connection with the end of the arraignment period of limitation. The Court noted that the case was not complex, its circumstances were clear, they concerned only one episode, the number of witnesses was small; however, it took the national authorities more than eight years to investigate the matter. The excessive duration of the investigation and court proceedings were recognized by the national authorities. In light of the foregoing, the Court found that in this case the government had not carried out an effective investigation into the applicant’s allegations of ill-treatment.

   In the case of Vasiliy Ivashchenko vs. Ukraine (application number 760/03, judgment of 26.07.2012) the applicant complained that he had been tortured by the militia during his arrest. The European Court rejected the Government’s arguments that the use of physical force by militia was caused by the applicant’s own behavior as unfounded. Furthermore, the Court noted that the applicant’s explanation of the origin of injuries on his fingers was completely ignored by the Government. The government also did not attempt to challenge the applicant’s arguments about the ill-treatment by the militia. Taking into account the relevant medical evidence and the arguments of the parties in the present case, the Court concluded that the applicant had suffered inhuman and degrading treatment by the militia on the day of his arrest.

   In the aforementioned case Savitskiy the European Court noted that the Government was very far from providing a satisfactory and convincing explanation for the origin of the applicant’s injuries. The Court considered that the applicant’s injuries were the result of exceptional severity and led to serious and irreparable consequences for his health (he received disability group one). The Court concluded that the applicant had been ill-treated by the militia for intimidation and humiliation. In such circumstances, the brutal treatment, to which the applicant was submitted, the Court described as torture and found a violation of Article 3 of the Convention.

   The European Court concluded that the investigation of allegations of ill-treatment by the militia were ineffective: because it lacked impartiality, objectivity and thoroughness, the total duration was excessive, it did not ensure effective participation of the victim. Accordingly, there had been a violation of Article 3 of the Convention.

   In the case of Aleksakhin vs. Ukraine (application no. 31939/06, judgment of 19.07.2012) the national courts found that the militia had caused grievous bodily harm to the applicant, life-threatening at the time of injury. Cruelty consisted in the use of tear gas spray and beating resulting in the applicant’s suffering from severe pain and invalidism. The European Court noted that there was no evidence that the applicant’s conduct necessitated the use of force. Under these circumstances, the Court concluded that the applicant had been subjected to torture in breach of Article 3 of the Convention.

   Although in this case the militia officer was convicted, the Court noted that imposing punishment on him, not connected with imprisonment for more than eight years after his wrongful conduct, the state actually contributed to the emergence of militiaman’s "sense of impunity" instead of demonstration that the use of torture in any way was not allowed. In such circumstances the punishment of the militiaman was not adequate. In view of the foregoing, the Court concluded that the government did not conduct an effective investigation into the applicant’s allegations of ill-treatment.  

   Conditions of detention

   In the case of Belyaev and Digtyar vs. Ukraine (applications nos. 16984/04 and 9947/05, judgment of 16.02.2012), the Court concluded that there had been a violation of Article 3 of the Convention of substandard living conditions at the investigatory isolation ward no. 25, Sumy, from 2001 to 2004, namely keeping applicants in overcrowded cells in unsanitary conditions with inadequate lighting, heating and water supply, as well as inadequate support of applicants with clothing and linens. In this regard, the Court noted that the official documents about the arrangements for the custody prepared by the prison administration and quoted by the government couldn’t objectively reflect the real situation in the investigatory isolation ward because they were prepared by the party in interest.

   In the case of Todorov vs. Ukraine (application no. 16717/05, judgment of 12.01.2012) the European Court found a violation of Article 3 of the Convention concerning the applicant’s lack of necessary medical care for his serious vision problems. The Court noted that the domestic authorities had failed to take all necessary measures to prevent the loss of vision by the applicant. In this regard, the Court stated that the failure to provide adequate medical aid to those who are in the penitentiary system was a structural problem in Ukraine.

   In the case of Ustyantsev vs. Ukraine (application no. 3299/05, judgment of 12.01.2012) the European Court found a violation of Article 3 of the Convention regarding inappropriate conditions of detention in investigatory isolation ward of Odesa, namely keeping in overcrowded cells without sufficient lighting.

   In the case of Iglin vs. Ukraine (application no. 39908/05, judgment of 12.01.2012), taking into account the fact that the government had failed to refute with detailed and accurate data the applicant’s statement about poor lighting, ventilation, food, toiletries and quality of medical care provided to him in Dnipropetrovsk investigatory isolation ward no. 3, the Court concluded that the conditions of the applicant’s detention were inhuman and degrading in violation of Article 3 of the Convention.

   In the case of Titarenko vs. Ukraine (application no. 31720/02, judgment of 20.09.2012) the applicant’s statement about the overcrowded cell, lack of exercise, problems with ventilation and absence of daylight in the cell, which had not been refuted by the Government, were sufficient to warrant a finding of the European Court that the conditions of detention in the period from July 8 to July 15, 2002 in Debaltsevo temporary detention facility humiliated the dignity of the applicant that was a violation of Article 3 of the Convention.  

   GOVERNMENT POSITION  

   The Government National Report prepared in the framework the second cycle of the Universal Periodic Survey of Ukraine[23]

   As noted above, the Ukrainian government recognized in its National Report on the State of Human Rights that the problem of torture and ill-treatment of people in law enforcement agencies remains one of the most acute[24].

   According to the Government, the public prosecutions department permanently conducted inquiries into the detection of torture and other ill-treatment of detainees and prisoners. The results of the inspections showed that in the penal institutions the facts of torture and other ill-treatment were not common and were usually allowed only in rare cases.

   In its National Report the Government noted, in particular, that the statistics of inspections in the bodies of internal affairs was not optimistic. During the first quarter of 2012 the units of the Ministry of Internal Affairs received 975 appeals of citizens on violations of their constitutional rights and freedoms, including 211 appeals about torture and bodily harm. During the inspections in 86 cases the information was confirmed. The nonpunitive measures were taken against 99 militia officers, 32 criminal cases were initiated on violations by militia officers of constitutional rights and freedoms of the citizens.

   In order to monitor human rights in militia the special department of the Ministry of Internal Affairs of Ukraine monitors human rights in the units of militia, which is responsible for departmental and public control of protection of human rights in the law enforcement bodies and agencies under the Constitution, Laws of Ukraine, Ukraine’s international obligations in the field of human rights and international standards of law enforcement.

   The government acknowledged in its national report that initiated in September 2011 in pursuance of Ukraine’s commitments under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Commission on the Prevention of Torture under the President of Ukraine was not a full-fledged national preventive mechanism in the sense of the Optional Protocol. In this regard, the Government informed about the steps taken for the implementation of the national preventive mechanism under the institution of Ombudsman by model “Ombudsman +” (see more details: section "National Preventive Mechanism" below).

  The government claims that the conditions of detention of suspects in detention facilities have improved: in most temporary detention facilities the law enforcement agencies the prison conditions envisage 4 sq m per person; all cells are equipped with individual berths and bathroom units. As of June 1, 2012 the internal affairs bodies operate 1,438 rooms for detainees and conveyed people. Of the total number of rooms 588 (or nearly 41%) are in line with international standards and requirements of departmental building codes. The conveyed people are provided with linens, cutlery, detergents and medical implements, including medical kits of two types (universal and prevention of HIV / AIDS).

   To solve the problem of accommodation of persons taken into custody in 2011 in 42 correctional facilities they created district pre-trial detention centers for 2466 beds, in Kyiv investigatory isolation ward they opened a new building for regime detention of women for up to 180 beds, complete overhaul was carried out in 23 centers of bodies and institutions of the penitentiary system. In addition, in 39 correctional colonies they created houses of arrest for 1057 beds where to persons sentenced to detention, whose sentences had entered into force, were brought.

   According to the Government, the number of women prisoners in penal institutions was brought down. In September 2010, they opened children’s home in Chernihiv penal colony (no. 44) in the framework of the Ukrainian-Swiss Project "Support to Penitentiary Reform in Ukraine." Thus they realized the requirement of the European Court of Human Rights concerning the joint detention of incarcerated women with children up to three years, which promotes stability and continuity of family relationships, improves communication of mothers with their children.

   As health care provisions for persons held in custody, the government in its national report said the following.

   In order to respect the constitutional rights of citizens during their stay in special institutions of the agencies of internal affairs in 2008 they worked out internal regulations for temporary detention facilities. According to these rules, in order to provide necessary medical care to persons in temporary detention facilities the doctors of territorial health care centers carry out mandatory medical examination of detainees intended to detect injury or other diseases. All records are analyzed and all doctor’s recommendations are immediately carried out to grant hospitalization of indicated persons.

   During 5 months of this year 557 detainees and arrested persons were treated in the medical institutions of the Ministry of Health of Ukraine (MOH).

   Thirty-two medical wings are responsible for medical protection of prisoners in detention centers. Moreover, medical services are rendered to prisoners and persons detained in hospitals of MOH. 147 medical units are open in penal institutions, detention centers, correctional facilities, and organized activities. Each medical unit and hospital has a dental office. In addition, there are 59 narcotics treatment and 21 infective offices. To provide skilled medical care or treatment of patients the regional (city) hospitals reserve 612 special rooms designed for 1347 beds; in 2012 more than 1.5 million patients received treatment there.

   In 2012 they settled the procedure of interaction of health care and state penal system, including the legal framework for the free choice of doctor by person under arrest, examination and treatment in health care institutions both in urgent and routine medical situations, as well as invitation of foreign experts.

   In 2011, for the first time the budgetary funds allocations permitted to renovate 30% of equipment in the institutions and agencies of the State Penitentiary Service of Ukraine (SPSU). The new 830 units of medical equipment and instruments (X-ray and reanimation equipment, laboratory and clinical examinations, diagnostic, surgical, dental, etc.) cost about UAH79.2.

   The Government reports that TB prophylaxis is carried out on a regular basis. It includes a set of sanitary and anti-epidemic measures with obligatory current and final disinfection in hotbed, as well as full treatment of TB patients, continuous monitoring of medication therapy with follow-up control of symptomatic relapses and chemotherapy treatment. During 2011 and the first five months of 2012 preventive x-ray examination covered 100% of persons taken into custody.

   The free voluntary testing is available for detection and prevention of HIV infection in penal institutions and detention centers. Every organization has a doctor responsible for providing medical care to HIV-infected. The additional infectiologists may be hired soon. An additional HIV-ward was opened at a hospital in Donetsk penal colony no. 124 in 2012 to improve the treatment of infected detainees.

   The financial assistance from international organizations is actively attracted to address issues related to the timely diagnosis and treatment of HIV. As part of the World Bank project "Tuberculosis and HIV / AIDS in Ukraine" the equipment for 85 bacteriological laboratories, level I (investigatory isolation wards, institutions) and 10 laboratories, level III (TB hospitals) and expendable materials were purchased for $2,400,000.

   After hearing the national report during the session the UN member states advised Ukraine to improve the prevention of torture. The majority of recommendations related to ensuring effective investigation into allegations of torture, creation of an independent body to investigate such complaints and prosecution reform.  

   VIEWPOINT OF INTERNATIONAL BODIES AND ORGANIZATIONS  

   The Parliamentary Assembly of the Council of Europe

   In its resolution 1862 (2012) the Parliamentary Assembly of the Council of Europe (hereinafter––PACE) noted that it regretted the fact that Ukraine had not reformed public prosecution in compliance with the standards of the Council of Europe, while this reform had been one of the commitments made during its entry. Consequently, the prosecutor’s office is an institution very much centralized and with excessive empowerment[25].  

   European Committee for the Prevention of Torture (CPT)

   On November 6, 2012 the CPT published its annual report on human rights in institutions of confinement[26]. The report contains references to previous observations made by the CPT based on the CPT delegation’s official visit to Ukraine from November 29 to December 6, 2011 focused on the conditions of detention of persons deprived of their freedom.

   During its visit to Ukraine the CPT delegation visited Kyiv and Kharkiv investigatory isolation wards, temporary detention facilities in Irpin, Kyiv, Chuguyev, district militia stations of Kyiv, Kharkiv, Vyshhorod (Kyiv Oblast) and a special ward of the Kyiv City Clinical Emergency Hospital.

   According to the CPT, the information collected during the visit demonstrates that the phenomenon of ill-treatment by law enforcement bodies of Ukraine remains widespread. The delegation of the Committee received many applications from prisoners, including from women and adolescents, that they were ill-treated during detention and interrogation. In some cases the delegation ascertained special cruelty, which can be considered torture, namely the use of electroshock, attempted suffocation with a plastic bag or gas masks, hanging in a stretched position, threat of death with a pistol aimed at the head. The report also stated that the situation in the penitentiary system of Ukraine was not improved.

   The CPT delegation noted a number of administrative practices that might impede efforts to combat abuse and help create a climate of impunity. For example, the medical examinations of prisoners, detainees are conducted in the presence of militia officers. The detainees are often held in temporary detention facilities for over the legal 72-hour period. The cases of people, who complain about outrageous treatment by law enforcers, are sent for investigation to the same law enforcers. The lawyers are not allowed to to assist detainees at the beginning of the actual deprivation of liberty during informal interviews with law enforcers.

   The report of the CPT delegation noted that the conditions of detention in militia stations were generally satisfactory. The delegation was also satisfied with the conditions of detention of minors in Kyiv and Kharkiv investigatory isolation wards unlike the conditions of detention for all others: many cells were in poor condition, and access to daylight was very limited or did not exist. The delegation expressed concern about the overcrowding in cells, which it observed in both institutions. For example, in the Kharkiv investigatory isolation ward the delegation found the cell having an area of 45 square meters accommodating 44 people. There are only 28 beds in the cell, so people were forced to sleep in turns.

   In addition, the CPT delegation drew attention to the issue of medical support for Valery Ivashchenko, Yuriy Lutsenko and Yulia Tymoshenko, who are held in custody in an investigatory isolation ward in Kyiv. The delegation expressed concern that for each of these three individuals there had been significant delays of specialized medical examination outside the investigatory isolation ward[27].  

   AMNESTY INTERNATIONAL

   The Amnesty International has been carrying out a campaign "Stop the torture in Ukraine" in Ukraine for a year now. On October 19, 2012 the Amnesty International referred to the Presidential Administration a petition against the impunity of the militia, which contained over 25,000 signatures. Along with the signatures they delivered to the President of Ukraine an open letter asking for an independent mechanism for investigating crimes committed by militia officers. The letter was also supported by leading Ukrainian human rights organizations.

   The open letter, in particular, maintains that local and international human rights groups continue to document cases of torture by militia in Ukraine, and notes the existence of culture of impunity through which complaints of torture are ignored. The complaints containing substantiated allegations receive from the prosecutor’s office replies that the actions of law enforcers have no "elements of a crime".

   Since the local prosecutors work closely with the militia in the investigation of ordinary crimes, they have no desire to investigate crimes committed by their colleagues in the militia.

   To fulfill these requirements, Ukraine should establish a fully independent and provided with adequate resources authority to investigate all allegations of human rights violations by law enforcers, including militia[28].  

   On national preventive mechanism  

   Having ratified in 2006 the Optional Protocol to the Convention against Torture (hereinafter––the Optional Protocol), Ukraine pledged to establish a national preventive mechanism, i.e. body (or bodies), which would make unimpeded visits to place of detention and monitor them in order to prevent torture.

   Last year, to promote the implementation of Ukraine’s commitments under the Optional Protocol there was created the Commission on the Prevention of Torture (hereinafter––the Commission)[29] as a permanent advisory body to the President of Ukraine. However, due to financial and structural dependence of Commission on public bodies, it failed to meet the basic requirements of the Optional Protocol.

   On October 31, 2012 the President of Ukraine abolished the Commission by his Decree no. 619/2012. This decree was issued in connection with the fact that on October 2, 2012 the Verkhovna Rada of Ukraine adopted the Law of Ukraine no. 5409-VI "On Amendments to the Law of Ukraine “On the human rights commissioner of the Verkhovna Rada of Ukraine” concerning national preventive mechanism.”

   This law provides that now the Ombudsperson has the right: to make proposals for the improvement of legislation of Ukraine in the sphere of protection of the rights and freedoms of people and citizens, familiarize her/himself with documents, including those containing restricted information, and to obtain copies of them in public agencies , local authorities, public associations, enterprises, institutions and organizations regardless of ownership, prosecutor’s offices, including cases in progress.

   The list of places of imprisonment, which the Ombudsperson may visit without notice, is now much longer. This list includes places where people are forcibly held by a court decision or a decision of an administrative authority under the law, including temporary detention rooms for detainees and suspects delivered to the on-duty units of the law enforcement agencies, temporary custodies for foreigners and stateless persons who illegally stay in Ukraine, temporary custodies for servicepersons, penal homes, penal institutions, homeless placement centers for children, comprehensive schools and professional schools of social rehabilitation, medical and social rehabilitation centers for children, special educational institutions, military units, detention quarters, disciplinary battalions, special care centers for suspects subject to administrative detention, city, district offices and departments and so on.

   To perform the functions of the national preventive mechanism the Ombudsperson in particular makes regular visits to places of imprisonment without prior notice of the time and purpose of visits and without limitation of their number; interviews persons to obtain information about their treatment and conditions of detention and interviews other persons, who can provide such information; puts forward proposals to public authorities, public bodies, enterprises, institutions and organizations regardless of ownership concerning the prevention of torture and other cruel, inhuman or degrading treatment or punishment; gets involved on a contractual basis ( for a fee or free of charge) in regular visits to places of confinement the representatives of NGOs, experts, scientists and specialists, including foreign ones.

   At the request of the Ombudsperson the state authorities, government agencies, enterprises, institutions and organizations regardless of ownership should provide information on the number of people in places of confinement, number of places and their location, as well as any other information concerning the treatment of persons and their living conditions.

   To implement the document signed by the President "On Amendments to the Law of Ukraine “On the human rights commissioner of the Verkhovna Rada of Ukraine” concerning national preventive mechanism” the Secretariat of the human rights commissioner now includes a separate department for the prevention of torture and other cruel, inhuman or degrading treatment or punishment: Department for implementation of the national preventive mechanism[30].

   As of November 1, 2012 the employees of the department made monitoring visits to 136 institutions that are subordinate to the Ministry of Internal Affairs (sixty-two institutions), Security Service (one institution), State Penitentiary (twenty-three institutions) and Border Services (three institutions), Ministry of Defense (two institutions), Ministry of Health Care (sixteen institutions), Ministry of Social Policy (twenty five institutions) and Ministry of Education, Science, Youth and Sports (four institutions) in order to strengthen the protection of persons they hold against torture and other cruel, inhuman or degrading treatment or punishment.

   According to the results of monitoring visits to the aforementioned public institutions the employees of the department found such common human rights violations in their activities as non-normal living space, absence or insufficient presence of ventilation on the premises, heating and lighting are in worn condition. In general the following rights of detainees are violated: right to privacy, honor and dignity, safe environment, access to fresh air[31].  

   RECOMMENDATIONS

     1. The MIA of Ukraine should work out new criteria for evaluation of the performance of militia, non-quantitative indicators of clearance of crimes, but those that are based on the assessment of the quality of activities of law enforcement bodies by the population of Ukraine.

   2. Liquidate the special anti-terrorist unit created by order SDP of Ukraine in 2005 and stop the practice of mass beatings in penal institutions and detention centers.

   3. Establish an independent body to conduct effective investigations into the allegations of torture by law enforcers and employees of the penitentiary system.

   4. The government bodies should recognize the actual scale of torture. To attain this, the law enforcement agencies, penitentiary system and courts should keep statistical records of torture and publish their statistics.

   5. The law enforcers, against whom complaints were lodged for their use of torture, should be suspended from their duties during an investigation or inspection, but not released until adjudgement by national courts.

   6. 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.

   7. To continue working together with the Ombudsperson and human rights NGOs to establish a preventive mechanism to keep out torture by model of "Ombudsman +".

   8. Create effective mechanisms of public control over the activities of employees of the Ministry of Internal Affairs of Ukraine.

   9. The courts should scrutinize the existence of "reasonable suspicion" when considering applications for a preventive measure in the form of detention as required by the new Criminal Procedure Code of Ukraine, which will help "relieving" overcrowded detention centers and ultimately bringing detention conditions in line with European standards .

 

[1] Prepared by Zhanna Zaikina, lawyer of the HHRG.

[2] # _ftn1

[3] The survey was conducted by Kharkiv Institute for Social Research in July/September 2011. They interviewed residents of Ukraine over 16 years old for four-stage probability sampling in five regions of Ukraine (Kyiv, Kharkiv, Lviv, Poltava oblasts and Crimea) using the method of structured interview according to place of residence of the respondent. The total of pollees made 3,000 people in 63 locations.

[4] # _ftn1

[5] http://www.minjust.gov.ua/upr/upr_project_dopovid.html

[6] http://www.khisr.Kharkiv.ua/index.php?id=1324389395

[7] http://crimea.comments.ua/news/2012/11/06/085634.html

[8] http://crimea.comments.ua/news/2012/11/06/142755.html

[9] Militiaman from Nikopol city department protests against the cruelty of his colleagues / http://umdpl.info/index.php?id=1340286186

[10] http://maidan.org.ua/special/pk/?p=4569

[11] http://blogs.pravda.com.ua/authors/usov/4f7b6f67ec61a/

[12] http://www.pravda.com.ua/rus/news/2012/04/12/6962640/

[13] http://www.unian.net/

[14] http://khpg.org/index.php?id=1347976852

[15] http://khpg.org/ru/index.php?id=1331367285

[16] http://khpg.org/index.php?id=1338368067

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

[18] http://www.radiosvoboda.org/content/article/24736816.html

[19] http://www.radiosvoboda.org/content/article/24736816.html

[20] http://www.gp.gov.ua/

[21]  http://newsru.ua/ukraine/14jul2012/abnormal.html

[22] http://kp.ua/daily/270712/348849/

[23] Universal Periodic Review is a new mechanism to monitor human rights, in which each of the 193 countries that are members of the United Nations reports to other countries on human rights every four years.

[24] http://www.minjust.gov.ua/upr/upr_project_dopovid.html

[25]  http://zakon3.rada.gov.ua/laws/show/994_a57

[26] http://www.kommersant.ua/

[27] http://www.cpt.coe.int/en/annual/rep-22.pdf 22 summary CEPT report (01.08.2011–31.07.2012)

[28] http://www.amnesty.org.ua/node/309

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

[30] http://www.ombudsman.gov.ua/

[31] http://www.ombudsman.gov.ua/

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