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1. Right to life

 [1]

Public administration of protection of life of individuals under state control

The state is responsible for the life of controlled individual, for example, in places of imprisonment or interim detention, armed forces, public hospitals (especially in the places of compulsory medical treatment) and so on.

Numerous violations of the right to life in the places of imprisonment or interim detention of individuals (detention center, investigative isolation ward, institutions of execution of punishments and so on) cause a substantial problem. The terrible conditions of detention, often absent or ineffective medical treatment result in lethal end.

In establishments of the penitentiary system the prisoners are kept in overcrowded cells in insanitary conditions, with insufficient natural and artificial lighting, poor ventilation, heating and water-supply. In the cells there is excess moisture content, the walls are very often affected with fungi.

The consumptives (even with active disease) may be kept in the same cells with healthy prisoners.

Very often there exists improper provision of meals for prisoners, especially when escorting a suspect or an accused to a court.

The norms of useful area per prisoner in colonies and investigative isolation wards are not maintained. Moreover, the national norms of useful area per prisoner specified in the Ukrainian legislation do not meet the standards of the European committee for the prevention of torture and maltreatment.

The fixtures in cells are either in very poor condition or their term of service has expired.

In some establishments, the cells are made in basements unadjusted for long-term keeping of prisoners.

On the whole, many buildings and premises of the penitentiary system are past their term of service and need complex reconstruction and repair.

The problem of improper terms of keeping prisoners in Ukrainian establishments of the penitentiary system is a structural one and needs immediate solution as it leads, among other things, to spreading of various diseases and, as a result, to the deaths of the confined prisoners.

Unfortunately, we have to conclude that, although the situation in other establishments intended for holding of persons deprived of freedom (including the establishments of MIA) is somewhat better, the problems on the whole remain analogical to those of the institutions of the penitentiary system: failure to meet standards of useful area, insanitary conditions, ill-timed and poor nutrition, absence of permanent access to running, potable and hot water, insufficient lighting in the cells, poor ventilation, worn-out equipment, and so on.

The new CPC liberalized the choice of preventive measures. The number of persons preventively kept in punitive detention is much lower today. In Its turn it reduces the number of detainees in the investigative isolation wards.

During one year the number of detainees in investigatory isolation wards and detention centers dropped by eight thousand persons.

Speaking about the investigative isolation ward, Vasyl Kozhukhar, the deputy chief of the department of supervision of the observance of the laws in the case of the enforcement of coercive measures under the Prosecutor General's Office of Ukraine, said, "As of November 1, 2012 there were 30 000 such persons, as of November 1, 2013 their number makes 22 000.” The number of detention center detainees fell to 110 thousands against 160 thousands in November of the past year.

He noted that such decrease of the number of prior detainees is due to application of the norms of new CPC that envisage such alternative measures as the house arrest. He added that out of the total number of investigative isolation ward detainees at the point in time of implementation of the new CPC 1700 detainees had their preventive measures changed and they were released from these establishments.[2]

Unfortunately, some courts fail to properly interpret the norms of the CPC in the redaction of 2012 and they distort the implementation of preventive measures related to holding under guard.

Another key factor influencing the death rate among the persons deprived of freedom is an improper or the absence of medical aid in the places of deprivation of freedom. It is a result of improper organization of work of corresponding subdivisions of institutions of execution of punishments and lack of financial backing, and also refusal to admit detainees to the establishments of the Ministry of Healthcare of Ukraine.

We have but admit the low quality and insufficiency of medical care in the institutions of confinement that may lead to grave consequences for the detainees.

Often the equipment of medical units does not meet both national and international standards and the premises need repair.

The insufficient financing, substandard equipment of medical units and deterioration of buildings housing them results in low-quality or even absence of medical aid, improper nutrition, including specialized one, as well as overcrowding of wards, and so on.

Unfortunately, there is no system approach to tackling the above problems.

«It is worth bringing out the trends of morbidity and mortality. Organs six-month lethality data provided by the penitentiary service to “Donetsk Memorial”, 476 detainees died (against 537 dead during the same period in 2012), 77 of them died in the investigative isolation wards.

Mortality in 2013 remains pretty high, like in two previous years: 7.00 dead per 1,000 detainees (in 2012—6.94, in 2011—7.59). It is notably higher than in 2009-2010, when this index equaled 5.15—5.25, not to mention the year of 2003, when this index made 4.3.

Rather alarming is the steep rise of suicide incidents: 41 suicides during first six months of 2013 (32 incidents for the same period of 2012) which equals the total of such incidents for 2003. In terms of a year it means 0.60 incidents per 1 detainees, while in 2012 there were 0.42 incidents, in 2008-2010  0.27—0.30 annually, and in 2003 only 0.21). It means triple increase in a decade.

The number of patients with the active pulmonary consumption has been stabilized; as of 01.01.2013 their number made 4479 detainees, and although it means a yearly decrease of 528 patients, but this amount is proportional to the decrease of the total number of prisoners; therefore the index remains the same: 32.9 patients per 1,000 detainees.

The number of the HIV-positive prisoners continues going up slowly. Although their total number grew only by 56 prisoners during six months, the growth per 1,000 detainees made +8.9% for the six-month period and +23.5% in terms of a year.” [3]

In connection with the above it is necessary to pay attention to the case of Salakhov and Isliamova vs. Ukraine from March 14, 2013, in which the European court adjudged the violation of the article 2 of the Conventions as a result of failure to render assistance and improper medical aid, which resulted in the death of an individual.

On November 20, 2007 the applicant was detained by militia officers on suspicion of committing a burglary and taken into custody in the detention center of the Bakhchisarai Regional Department of the Chief Administration of MIA of Ukraine in the Autonomous Republic of Crimea (hereinafter referred to as the Bakhchisarai detention center).

Organs applicant, the applicant informed about his HIV-status on the same day and expressed his fears concerning possible deterioration of his condition during his detention, which was ignored by public organs.

During medical examinations of the applicant in Bakhchisarai detention center no bodily harms were found and he lodged no complaints in this relation.

On December 2, 2007 he was transferred to Simferopol investigative isolation ward, where he was examined by physicians and no diseases were found. Later he was again transferred to Bakhchisarai detention center.

On June 5, 2008 by results of medical examination conducted in Bakhchisarai detention center by the infectiologist of the Bakhchisarai central district hospital (hereinafter referred to as Bakhchisarai Central Regional Hospital) the official diagnosis listed a number of diseases including AIDS, stage 4. However, the medical report stated that there was no need in urgent hospitalization.

On June 6, 2008 the applicant’s lawyer filed a motion to the Bakhchisarai district court of Autonomous Republic of Crimea (hereinafter referred to as the Bakhchisarai district court) for the release of the applicant and rendering of urgent medical assistance taking into account serious diseases diagnosed at the Bakhchisarai Central Regional Hospital. The application noted that taking into account the applicant’s condition he presented no threat for the society.

The Bakhchisarai district court dismissed the above application.

On June 11, 2008 following the instruction of the office of public prosecutor of the Bakhchisarai region of the Autonomous Republic of Crimea (hereinafter referred to as an office of public prosecutor of the Bakhchisarai region) the applicant was sent to the Bakhchisarai Central Regional Hospital with the aim of finding out if his condition permits to apply such preventive measure as detention in custody. The consequent medical examination of the applicant diagnosed HIV infection, stage 2, that did not need urgent medical aid.

On June 16, 2008 the applicants appealed to the European Court of Human Rights (hereinafter referred to as the European Court) demanding that in accordance with the Rule 39 of the Regulations of the European Court that the latter oblige the Government to hospitalize the applicant. On June, 17, 2008 the European Court satisfied the above application and pointed to the urgency of such measure.

On June 18, 2008 the lawyer of the applicant petitioned to the Bakhchisarai district court for the second time for the release of the applicant making reference to the above instruction of the European Court. However, having conducted medical examination the Bakhchisarai district court dismissed the application.

As a result of appeal of the applicant to the head doctor of the Bakhchisarai Central Regional Hospital and repeated confirmation of the VHI infection, stage 4, the applicant was hospitalized under guard at the Bakhchisarai Central Regional Hospital. Organs applicant, the patient was handcuffed to the bed.

On June 20, 2008 the applicant submitted an “explanatory note” to the Bakhchisarai district department of militia that he did not inform the administration of the investigative isolation ward and detention center about his HIV-status “on respective grounds”. However, the applicant’s mother noted that previously the applicant underwent medical examination at the Bakhchisarai hospital, after which he was prescribed certain medications and the above message he wrote under duress.

On June 26, 2008 the applicant was transferred to hospital no. 7.

On July 2, 2008 the administration of Bakhchisarai detention center denied to the applicant prosecution concerning non-provision of the proper medical aid to the applicant. On the same day, the main doctor of hospital no. 7 reported to the Bakhchisarai district department of militia about the necessity of the long-term treatment of the applicant and that his motions cannot be restricted.

On July 4, 2008 the Bakhchisarai district court adjudged the applicant guilty of swindling and imposed a fine upon him. In addition, it ruled that until the moment of entry of this decision into force the applicant must remain under guard.

On July 18, 2008, the above decision entered into force and the applicant took the detainee home. However, the next day he was hospitalized again in connection with the aggravation of his condition.

On August 2, 2008 the applicant died. After his demise the applicant party appealed to the office of public prosecutor on the grounds of failure to render timely and proper medical aid to the applicant in custody that that led to the death of applicant.

The European court, among other things, established the violation of the article 2 Convention in the context of material aspect taking into account the failure by the state to observe its positive duty in relation to protection of health and life of the applicant, in particular, he was denied urgent hospitalization which he kept requesting for two weeks; he was kept in custody absolutely unfounded and in a critical condition; despite the recommendations of doctors he was continuously handcuffed in the hospital, which aggravated his condition. The European Court concluded that such behavior of public organs resulted in the death of the applicant.

Morbidity and mortality in the institutions of the Department [4]

 Indexes

1.1.2004

1.1.2010

1.1.2011

1.1.2012

1.7.2012

1.1.2013

1.7.2013

Number of prisoners in the places of confinement

191677

147 716

154 027

154 029

152 076

147 112

136 233

Died

824

761

808

1 169

440

1 021

476

 

 

Per 1,000 detainees

4.30

5.15

5.25

7.59

5.79

6.94

7.00

 

Cases of suicide

41

44

44

59

32

65

41

Per 1,000 detainees

0,21

0.30

0.29

0.383

0.42

0.442

0.60

Patients with active tuberculosis

9 080

5667

5486

4 822

5 007

no data

4 479

Per 1,000 detainees

47.37

38.36

35.,62

31.3

32.9

-------

32.88

 

HIV-positive

1 917

6069

6020

6 910

6 347

6 957

7 013

Per 1,000 detainees

10,0

41.1

39.1

44.9

41.7

47.3

51.5

 

Official violence by the agents of the state

There still exists a topical problem of official violence sometimes resulting in the death, including suicides.

In this aspect it should be noted that with the approval of the new CPC in 2012 the situation in this field somewhat improved.

This CPC, in comparison with the previous one, contains certain effective guarantees intended to prevent such disgraceful phenomenon in the law-enforcement system as torture.

With the adoption of the CPC the new system of investigative judges which are authorized to effectively control the investigation and promptly respond to abuses committed by investigators was implemented in Ukraine.

So, for example, in accordance with the article 206 of the CPC the investigative judge must carry out guarantees against illegal and groundless detention, as well as abuses by the authorized organs during pre-trial investigation.

According to the said article every investigative judge of the court within the limits of whose territorial jurisdiction an individual is held in custody is authorized to make a decision and oblige any public authority or officer to provide for fulfillment of rights of such individual.

Moreover, if an investigative judge gets from any sources information that may trigger reasonable suspicion that within the limits of territorial jurisdiction of the court there is an individual confined in the absence of effective court decision or who has not been released after payment of the bail specified by the CPC it must make a decision and oblige any public authority or officer responsible for detainment to immediately bring this individual to the investigative judge to establish the reasons for confinement.

This point entitles the lawyer or any other person (detainee, her/his relatives, family members, and any third parties in no way connected with her/him) to appeal to the investigative judge and require the release of the confined individual.

The investigative judge must release the confined person, if the public authority or officer responsible for the confinement of this person shows no effective court decision or does not prove the availability of other legal grounds for confinement of the said person.

This requirement of release of the individual is unconditional and such release must take place without delay.

Such guarantee is very important for an effective control of inhuman treatment resulting in death of suspects, because the majority of incidents of inhuman treatment of the suspects take place in the first days (or even hours) after detention and in many cases such detention is illegal.

The new system of admission of evidence in criminal cases needs particular attention.

According to the article 95 of the CPC, a court can base its conclusions only on testimonies obtained directly in court or under the specifications of the article 225 of the CPC (procedure of interrogation of witnesses and victims when they cannot be interrogated in court following the general rules due to objective reasons). The court cannot substantiate court decisions by testimonies given to an investigator, public prosecutor, or refer to them.

This prohibition along with the general prohibition to use any evidence obtained through inhuman treatment renders senseless all attempts to wrest an admission of guilt with the help of inhuman treatment.

Besides, the courts must rule out of order any evidence obtained due to the information obtained as a result of inhuman treatment or other substantial violation of the rights and freedoms of individual.

However, despite the indicated positive changes, there remains the problem of inhuman treatment of suspects by law enforcers intended to wrest information about evidence in the case, to force refusal from the lawyer, forge evidence (for example, falsification of investigatory actions for recreation of situation and circumstances of crime, and so on). As a result, it results in death of suspects and suicides.

The striking example is the case of Vasyl Vradiy.

In July 2013, in Smila, Cherkasy Oblast, militiaman B. was killed. During apprehension the militiaman was killed by a local resident Vasyl Vradiy. Later Vasyl was also found dead. He, according to law enforcers, accomplished suicide: he killed himself with a screwdriver.

This past spring the dead person demonstrated on the TSN TV channel the traces from electric shocks. In 2012, he commented, three militiamen tortured him during interrogation: they coiled the bare wire round his extremities. They required signing confession stating that Vradiy had beaten his former cohabitant.

He was tortured for several hours until at long last Vradiy signed the protocol about administrative violation. And then he was given seven days of administrative arrest.

Vasyl went out and complained to the office of public prosecutor. They initiated action against militiamen under two articles: torture and exceeding authority and abuse of power.

The trial had to begin in the late July. But a month before the trial the Smila militiamen summoned Vasyl to testify in in a case about beating a woman. However, the law enforcers maintain that he failed to come.

Yuri, his brother, says that he did not see Vasyl from the day of interrogation. He also did not try to establish contact. According to Yuri, there were threats to his address and he knew who exactly did it.

"Say, the militia gains if he does not exist so that he could not testify against them", admits Yuri.

The office of public prosecutor of the Cherkasy Oblast accepted the matter of his brother’s disappearance for processing. They guesstimate that the man could be scared by the pressure of militia and he simply holes up. Nevertheless the action was initiated because there was an appeal by Yuri Vradiy about possible involvement of militia in the disappearance.

Vasyl was found in the Friday evening. The militia drove out to perform the arraignment. However the man began to offer resistance and attacked them with a knife. One of militiamen was killed on the spot.

According to militia, then Vradiy killed itself. However his brother is sure that this was a murder, because among the militiamen there was allegedly the same law enforcer whom Vasyl accused of tortures. [5]

There is one more case: the case of Dmytro Pozdneyev.

Dmytro Pozdneyev was detained on September 25 being accused of robberies. On September 29, 20 minutes after his return to the regional department from the investigatory experiment he felt sick. Despite the efforts of physicians, two hours after arrival of the ambulance he died.

According to the first medicolegal investigation, the death of Pozdneyev was of non-violent nature and came as a result of heart trouble. However, the friends of Dmytro assert that he never complained of heart pains and actively indulged in sports. They told also that during the identification of the body they saw bruises on him.

The law enforcers failed to explain the origin of bruises on Pozdneyev’s body. [6]

Note should also be taken of the case of Yaroslav Muzychuk.

The tragedy with the youth happened on September 12. About 17.00 the mother found 18-years-old Yaroslav Muzychuk hanged in the kitchen.

According to his mother and sister, the law enforcers arrived, took the body down and inspected the premises and his personal belongings. They found his phone, checked SMS, phone logs and wiped out all info.

Yaroslav was questioned within the framework of criminal investigation of drug marketing. However, he had nothing to do with it, and interrogations were illegal, they were conducted under pressure, maintains the lawyer of the relatives of the hanged youth. In opinion of the relatives of the dead think that such behavior of the law enforcers led to his suicide. [7]

The important guarantees against inhuman treatment introduced by the new CPC include instant informing of kin and relatives (other prisoners of suspect’s choice) of the suspect (accused) about the detention and also early access of the lawyer to the detention procedure.

It is worthwhile to make mention of positive changes related to introduction of the system of free legal aid, the lawyers of which are promptly informed and respond to the detention of suspects in criminal cases, which also brings significantly down the possibility of application of inhuman treatment.

Unfortunately, the law enforcement authorities not always inform in due course or sometimes fail to inform the offices of free legal aid about detention of the prisoners suspected of crimes.

The making in 2012 of national preventive mechanism, an organ which freely visits and monitors the places of confinement with the aim of non-admission of tortures became an important step in control of inhuman treatment in Ukraine. Since 2013 the said mechanism began working double tides.

It is worthwhile to make mention of the system of monitoring by the state of its representatives, especially in the law enforcement authorities.

However, the control by the state of the storage and use of weapons by the law enforcers and military is still at low enough level.

In addition, the system of monitoring of the psychological state of law enforcement authorities arouses concern, when they do not carry out the periodic analysis of psychological state of the law enforcers or do it for appearances' sake only, or if they do conduct such analysis they do not register in a proper way the existing insanities of law enforcers. Moreover, even if they do register such facts, the chiefs of the bodies of internal affairs or their subdivisions not always adequately and in good time manage such disorders, as well as not always properly evaluate the personality of their subordinates (problems with abuse of alcohol, unjustified cruelty, groundless displays of aggression, and so on), which may result in lethal incidents.

Public package intended to protect life

Prosecutor General's Office: statistics of victims of crimes and dead persons (Jan.—Oct., 2013) [8]

 

 

 

victims of criminal violations

out of them

 

dead

female

children

 

underage

minors (below 14 yrs of age)

 

Total of victims of criminal violations

430114

7775

178806

8033

4063

 

of grave and gravest crimes

120189

6968

49423

1734

1047

 

Intentional homicide (and attempts)

3432

2416

1121

41

77

 

out of them

Two or more persons

157

157

88

6

9

 

rape (and attempts)

484

6

390

77

35

 

Intentional grave bodily harm

2479

698

482

25

5

 

incl.

Causing the death of the victim

690

690

202

1

2

 

traffic accident

12747

3147

5956

870

911

 

as a result of family violence

2001

114

1430

113

183

 

deputies of all levels

152

3

30

X

X

 

Mass media personnel

205

4

86

X

X

 

doctors

2558

9

1773

X

X

 

seniors and invalids, group 1 and 2

32667

778

19127

X

X

 

foreigners

3785

108

1496

33

32

 

business managers

2803

4

386

X

X

 

finance and credit system personnel

2078

20

1410

X

X

 

 

 

 

8

9

10

11

 

personnel

public prosecutor's office

75

2

25

X

X

 

body of MIA

880

21

92

X

X

 

courts

164

1

73

X

X

 

the Bar

344

3

91

X

X

 

security service

29

1

3

X

X

 

organs of public internal revenue service

16

0

3

X

X

 

customs

88

1

33

X

X

 

border service

32

0

5

X

X

 

servicemen

582

9

51

X

X

 

                

In this aspect it should be noted that in 2013 the number of victims of crimes increased comparatively with the same period last year by, approximately, 29 % [9].

Especially alarming is the sharp increase of the number of dead victims of crimes in 2013: by 27 %. 7775 persons perished from January to October 2013.

In this relation it is necessary to mark a great number of dead from grave and gravest crimes, as well as the traffic accidents.

To our mind, the subdivisions responsible for the detection of crimes and crime prevention have long needed reformation to improve their efficiency and increase their professionalism.

However, there remains a major problem of duplication of functions in various subdivisions in the structure of some law enforcement agencies and among various law enforcement agencies. For example, there is a global problem of duplication between operational units whose main function is to search for evidence or information about evidence and investigation, the function of which in practice boils down to fixing of found evidence. Unfortunately, specified problem is not resolved in the CPC 2012.

Another important problem is the overwork of individual units, when there remains virtually no time for the core functions. For example, the departments of district militia officers, whose main task is to maintain an ongoing dialogue with the residents in their district and through this dialogue prevention of crimes, in practice, because of the incredible overwork with minor social functions, they have little time for their key task.

Serious concerns are also related to the cases when the militia officers are required to work during their time-off without adequate compensation and extra days off.

In this respect, there remains a separate problem of improper technical equipment of the units of law enforcement agencies, as well as superficial and low-quality expert investigations in criminal cases.

Taken together these problems substantially degrade the system of crime prevention and impede their investigation which in its turn increases the number of crimes committed, including those resulting in fatalities.

The big number of deaths in road accidents also needs separate attention.

This situation is not acceptable and requires immediate intervention by the public authorities.

We believe that this situation, among other causes, is a result of poor quality of roads, including the lack of installed safety features, and problems related to the operation of road patrol units, when in some cases for some reason the offenders are not brought to book by road patrol officers, which in turn leads to distortion of public opinion about the need to follow the rules of road safety.

In general, there is a situation when it is necessary to enhance traffic safety and improve technical standards to create a system of inevitable administrative and criminal liability, including for the regulatory authorities.

In addition, there is a serious problem of numerous cases of contract killing.

In this respect it should be noted that there exist numerous cases of illegal arms trade.

It is necessary to pay special attention to a letter of the MIA to the Prime Minister of Ukraine dated September 11, 2013, which reveals a number of structural problems concerning the control of the illicit trafficking of weapons.

”The analysis of the crime situation in the country indicates the increase in the number of crimes committed using firearms. First of all, this is due to the adjustment of a large number of firearms made of mock-ups (hereinafter mock-ups) illicitly possessed by people.

It should be noted that the State Concern “Ukroboronprom” was created under Decrees of the President of Ukraine of December 9, 2010 no. 1085/ 2010 and of December 28, 2010 no.  1245/ 2010 and regulations of the Cabinet of Ministers of Ukraine of December 29, 2010 no. 1221 and of August 31, 2011 no. 993. The main purpose of its activities is the effective governance of the defense-industrial complex of Ukraine and increase of efficiency of the enterprises of the Concern with the help of the State Company “Ukrspetsexport”, which is an intermediary authorized by the state in foreign trade activity in the export and import of products and services for military and special purposes. Its main activities are as follows:

export and import of goods and services for military and special purpose, including weapons and ammunition, military and special equipment, components, explosives and other items that can be used to create and manufacture weapons, military and special-purpose machinery;

repair, maintenance and modernization of armament and military equipment of foreign customers, export of advanced technologies, design documentation, and other scientific and technical military and special- purpose production;

design and construction of special-purpose productions and objects;

providing marketing, consulting and investment services in the field of foreign trade in arms and military equipment, which is sold in Ukraine, the so-called "complete military sets without barrels”, stub-barreled firearms without barrels and mock-ups.

Military sets of weapons (MP pistols, Nagant M1895 Revolvers) without barrels are sold to the licensed enterprises specializing in the manufacturing and trade in special means, which are later supplied with barrels designed to fire cartridges equipped with traumatic rubber bullets and sell them as special devices in retail stores for about ₴4,000 apiece, which is hundreds of times greater than the original purchase price of military weapons sets (the average price of ₴30-50 per piece).

The lack of legislative responsibility for the illegal traffic of main parts of firearms allows open marketing opportunity in the country of firearms' mock-ups, which later can be remade over and used in the commission of grave and gravest crimes resulting in worsening of crime situation.

 In addition, the state company “Ukrspetsexport” sells at public sales to private companies for a song the mock-ups PM, TT, APS, R- 38 ( Luger) pistols, Nagant M1895 Revolvers, Kalashnikov submachine and machine guns, sniper rifles and other military firearms, which are deactivated according to the national recycling program for weapons at military facilities (troop units) in Nizhyn, Chernihiv Oblast, Shostka, Sumy Oblast, Balakliya, Kharkiv Oblast, Shepetivka, Khmelnitsky Oblast. In their turn, the private companies sell to people mock-ups that that need no permits and licenses as mock-ups under the laws of Ukraine are not subject to the licensing regulations. At the same time there increases the number of clever hands who in the cottage-craft conditions turn the mock-ups into rifled firearms and sell them out. In many cases, the deactivation of weapons (cutting) at these military premises is carried out without complying with technical standards (no control whatsoever) which permits the clever hands to bring them up to scratch. In addition, they have special equipment (lathe, milling machine, etc.) and tools and in the cottage-craft conditions they manufacture essential parts of any firearms, such as barrels (rifled), locks and bolts, cylinders, bodies, shot gun receivers and sell them to the population of Ukraine and abroad. Thus, anyone can purchase a firearm through the Internet or in shops trading in mock-up weapons. In particular, through the Internet and in places where craftsmen sell main parts of firearms people buy needed parts of weapons even without necessary skills for assembly works; according to the methodological recommendations of the sellers of such parts the amateurs make up the mock-ups with necessary parts turning them into combat rifled firearms.” [10].

The high mortality rate remains [11], including child mortality [12]. In this regard it should be noted that the health care system needs urgent quality reform because the current reform, according to experts, has some significant drawbacks, namely the lack of clearly marked objectives, constant revision of the strategies of reform, lack of clear policy providing for implementation of decisions, ignoring the scientifically proven and tested practical approaches, forms and methods of transformation, significant impact on decision-making of lobby groups (pharmaceutical companies), low rates of implementation, inconsistent and contradictory actions.

 

Duty of the state to guarantee effective investigation of deprivation of life

 

The duty of the State to protect the right to life implies that in cases when a person has been deprived of life there should be a formal investigation. Such an investigation should be carried out immediately by an independent and impartial body; this investigation should include all reasonable steps to secure the evidence concerning the relevant incident and so on.

However, the investigation was not always carried out properly, especially in cases in which government representatives were crime suspects.

It should be noted that in 2012 adopted a new PDA, which changed the approach to register allegations of crimes and their subsequent investigation.

Now, in order to initiate an investigation and be able to collect evidence in the case, you only need to enter information about a crime in the Unified Register of Pretrial Investigation (hereinafter URPI).

Thus, there are no obstacles for starting an investigation without delay. Moreover, the CPC does not contain the grounds for refusal of entering information about the crime into the URPI and inaction of the investigatory body concerning its failure to enter the information or delays in entering the information about the crime into the URPI may be appealed to the investigating judge who considers the complaint within 72 hours.

The specified procedure is efficient and allows you to immediately initiate an investigation, which, in turn, prevents the loss of important evidence in the case.

Moreover, according to the CPC in the edition of 2012, in contrast to the CPC in the edition of 1960, any evidence collected is valuable and can be used in the future.

It should be noted that the new CPC puts in claims to creation in 2017 of a new investigating agency, the National Bureau of Investigation (NBI), which will assume responsibility for investigation and will specialize in investigating crimes committed by officials and law enforcement officers.

The creation of such a body is designed to overcome the conflict of interests in the procuracy, which currently is at the same time supervising the investigation and representing the prosecution in the investigation (inquest) of the offense in which a person is suspected who had been subjected to ill-treatment (caused death, driven to suicide, etc.) and directly investigating the death as a result of ill-treatment, which significantly affects the quality of the investigation.

Moreover, today the procuracy has no operating unit and while conducting investigation of crimes it has to use the services of the units of other law enforcement agencies, including the Ministry of Internal Affairs, which in many cases casts a shadow over the independence and impartiality of the investigation.

With the creation of NBI, a full-blown investigating body, this problem should disappear.

Also, today, the draft Law of Ukraine “On Prosecutor's Office” is under consideration; it contains additional guarantees of the independence of prosecutors. Unfortunately, it is impossible to predict whether these guarantees will be effective in practice.

There is still a problem of informing the public and interested parties about the process of investigation. Unfortunately, all too often the informing takes place in the form of generalized formulation and with significant delays; the interested parties often and without any reasons are not given an opportunity to receive copies of the investigation materials.

Also common is the practice when the families of the dead are not granted the status of the victim in proper time, which in turn prevents their timely access to the records.

One should point out that currently the national legislation does not provide for the victim to get free legal aid. The Law “On Free Legal Aid” provides such assistance to vulnerable groups in stages, starting on January 1, 2014. In its entirety such assistance will be available as of January 1, 2017.

The quality of investigations of deaths is still a separate problem. This problem is complex and related to both the technical equipment and competence of the direct representatives of the investigation bodies and their interest in the investigation.

Despite the fact that in order to improve the quality of investigation they take certain measures, there is no effective respective comprehensive program, which would include the development of national registers (fingerprints, DNA, etc.), improvement of expert research, quality of investigation, periodic advanced training of the law enforcers and others.

Moreover, the quality of investigations is also affected by the corruption in law enforcement system. Although there is an acting state program of corruption control in 2011 - 2015, we note that this program is not effective enough to tackle this problem.

Therefore common is the situation when the investigatory body refuses to carry out an effective investigation. This is especially true in cases of deprivation of life by a law enforcement agency, deaths in hospitals, deaths in road accidents, deaths in detention, and so on.

Later the decisions to close a criminal case may be abolished by the courts, but often it does not affect the effectiveness of the investigation.

It should be noted that in 2013 (as of November 1, 2013) the European Court passed six judgments finding violations of Article 2 of the Convention on Human Rights which confirm inadequate investigation of deaths.

These are the judgments in the following cases: Zubkova vs. Ukraine, no. 36660 /08, 17 October 2013; Pozhyvotko vs. Ukraine, no. 42752 /08, 17 October 2013; Yuriy Illarionovich Shchokin vs. Ukraine, no. 4299 / 03, 3 October 2013; Salakhov and Islyamova vs. Ukraine, no. 28005 /08, 14 March 2013; Mosendz vs. Ukraine, no. 52013 /08, 17 January 2013; and Slyusar vs. Ukraine, no. 39797 /05, 17 January 2013. [13]

In these judgments, among others, the European Court found that:

- The investigations were too protracted and did not lead to any final judgment that, according to the European Court, considerably undermined public confidence in the justice system;

- The investigations contained many shortcomings, which riveted attention of the national authorities, but they were not corrected in a timely manner;

- Many investigatory actions were either not performed, or were performed as an afterthought and were not timely;

- During the investigation, there were long periods when no investigation was conducted;

- And so on.

Thus, in view of the judgment of the European Court, it can be concluded that the tendency of ineffective investigation of deaths is still there. Thus the public authorities are not working effectively to improve the situation.

Disappearance of persons

Ukraine has not signed the UN International Convention for the Protection of All Persons from Enforced Disappearance. The said Convention entered into force on December 23, 2010, 30 days after the number of member states reached twenty. As of November 18, 2013 already 40 countries have ratified the Convention. [14]

Recommendations

1) To implement effective mechanisms for investigation of deaths, particularly those caused by the actions of law enforcement officers, namely:

- To develop detailed guidelines, which are intended to determine a minimum set of investigatory actions to be conducted in every case of death in order that the investigatory body could bring up a question of closing the criminal case. In the event of unjustified refusal to abide by these instructions the investigators should be taken off the job and should be imposed disciplinary sanctions;

- To regularly organize training (retraining) of the personnel of investigatory bodies to improve the quality of their investigatory actions;

- To carry out structural reform of the law enforcement agencies, during which minimize the functions and tasks that may be duplicated by various departments and agencies to reduce the burden on law enforcers by reducing the number of minor roles and responsibilities (it is important to implement it in practice), to end the practice of getting the law enforcers to work after hours without extra weekend and to introduce an effective system of remuneration;

- To improve the material and technical equipment of law enforcement subunits;

- To improve the quality of expert research;

- To create the national register of information about persons accused or convicted of committing crimes (registers of fingerprints, DNA, etc.).

2) To establish the effective system of prevention of crime. In this respect, among others, there is a need to increase the effectiveness of interaction of district militia officers with the public.

3) To create a practical system of inevitable responsibility for all cases of unjustified violence by the law enforcers.

4) To establish an effective system of control over the use and storage of weapons by militia officers. To grant permits on the use of weapons on the basis of a comprehensive analysis of each individual militia officer. To create an effective system of responsibility of the chiefs of the law enforcement departments for permission to use arms by the subordinate without analyzing their person or in the case of a formal approach to this analysis.

5) To establish an effective monitoring of the psychological state of the law enforcement officials and to suspend them following the decision of the psychologist.

6) To conduct systematic training and instruction of law enforcement officers involved in special operations to detain persons suspected of crimes.

7) To create a new system of investigative isolation wards outside the city. To improve the material and technical conditions in detention in accordance with the recommendations of the CPT.

8) To establish an effective system of medical care in the institutions of confinement.

9) To carry out reforms in health care according to the recommendations of experts in order to prevent increasing mortality, including infant and child mortality.

10) To strengthen the technical standards of road safety and establish a system of inevitable responsibility, including regulatory authorities.

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

 

[1] Prepared by lawyer Mykhailo Tarakhkalo.

[2] During one year the number of detainees in investigative isolation wards diminished by 8 thousand: Prosecutor General’s Office/http://www.novostimira.com.ua/novyny 76456.html

[3] The criminal-executive system for the first six months of 2013: statistics by Olexandr Bukalov, “Donetsk Memorial” /http://ukrprison.org.ua/statistics/1376062438

[4] The criminal-executive system for the first six months of 2013: statistics by Olexandr Bukalov, “Donetsk Memorial” /http://ukrprison.org.ua/statistics/1376062438

[5] http://kp.ua/daily/130713/403665/

[6] www.bbc.co.uk in brief/2013/10/131008 or.shtml

[7] http://www.0352.com.ua/news/395747

[8] #

[9] http://mvs.gov.ua/mvs/control/main/uk/publish/article/813157

[10] http://zn.ua/static/file/20131108/MVD.pdf

[11] http://www.ukrstat.gov.ua/ Express issues / Mortality in Ukraine from external daily causes

[12] http://www.ukrstat.gov.ua/ Express issues / Demographic situation in Ukraine

[13] See more on the above decisions on the official site of the European Court.

[14] http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg no=IV-16&chapter=4&lang=en