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2. Protection from torture and other brutal treatment

[1]

   According to sociologists, the militia and prosecutors have a negative balance of trust in Ukraine: militia--47%, public prosecutor’s office--43%. The survey was conducted from 17 to 22 May 2013; 2,010 respondents aged 18 years and more in all regions of Ukraine. The sample error was 2.3%. The survey was conducted by the fund Ilko Kucheriv Democratic Initiatives and social service Razumkov Center[2].

   Brutal treatment of suspects and detainees is considered a key negative trait of the activities of militia by over a third of respondents in Dnipropetrovsk (35.3%), Donetsk (39.2%), and Kirovohrad (35.0%) oblasts. Most respondents indicate the impunity of militia officers in Dnipropetrovsk (37.5%), Lviv (38.3%), and Luhansk (36.7%) oblasts. The inactivity of militia as a want is noted by more than a third of respondents in almost all oblasts of Ukraine[3].

   During the meeting of the board of the Prosecutor General’s Office of Ukraine (PGO) dedicated to the public prosecutor’s supervision of the observance of the constitutional rights of detainees, arrested and convicted prisoners the Prosecutor General said that “the outrageous facts of daring use of unlawful methods of investigation are rather widespread among militia officers” and that “the issue of violence and other kinds of brutal treatment concerns the whole law enforcement system. However, the analysis shows that the vast majority of these facts take place among the employees of the militia.” According to the Prosecutor General, the arrangements made by the Ministry of Internal Affairs of Ukraine for prevention, timely response and elimination of the causes of this negative phenomenon “yielded no proper results”. The Prosecutor General also acknowledged that in most regions of the country the steps are not taken to timely prosecute law enforcers who tortured suspects and detainees[4].

   At the same time, according to Ombudsman Valeriya Lutkovska, the number of complaints of torture by the militia has decreased. “With the entry into force of the new Criminal Procedure Code the situation with resorting to torture, in my opinion, has much improved. Also improved the different situation with human rights violations during the pre-trial investigation,” said Lutkovska. She said: “Lately we’ve received no complaints against the militia actions in the case of illegal searches. For some time past we’ve got almost no complaints against militia officers doing task purchases; we have received almost no complaints relating to torture for a month now…” "There are practically no complaints like we had against torture by the militia in connection with wringing out of giving oneself up,” added Lutkovska[5].

   The Ministry of Justice of Ukraine on its official website posted the draft sixth periodic report of the Government[6] prepared as part of the report of the UN Committee against Torture. Accordingly, this project represents the Government's report on the situation of torture in Ukraine.

  On November 6, 2013 the European Committee for the Prevention of Torture (ECPT) published its annual report, which noted also ad hoc visit to Ukraine in 2012 indicating that the information collected by it in Ukrainian colonies nos. 25 and 81 points to the fact that the brutal treatment has become common practice to maintain order and control the prison subculture in these institutions.

   The ECPT also maintained that the measures taken by the staff at these institutions with the help of specially selected group of prisoners were apparently aimed at achieving their submissive behavior from the beginning of their enduring the punishment.

   Regarding statistics of the UHHRU network offices, they show that although in comparison with 2011 this year the number of complaints of ill-treatment has gone down, last year there were less such complaints than in 2013. Thus, the UHHRU network offices for 11 months in 2013 registered 198 complaints of torture and other forms of abuse, in 2012 – 178 complaints and in 2011 – 241 complaints.

   Cases of brutal treatment in 2013

   The use of force against peaceful demonstrators    

    The events on the night of November 30 to December 1, 2013 at the Maidan Nezalezhnosti

The most striking case of the use of violence by law enforcers became the night crackdown by Berkut[7] units[8] on peaceful protest on Maidan Nezalezhnosti in Kyiv on the night of November 30 to December 1, 2013, participants of which expressed dissatisfaction with the refusal of the President of Ukraine Viktor Yanukovych to sign the association agreement with the EU at the summit in Vilnius.

   According to eyewitnesses, around 4:00 am a man in civilian clothes appeared on the square, probably a municipal official, who asked the protesters to disperse, so that the workers would be able to install a Christmas tree. After that, the protesters stood in a chain around the monument in the center of the square. In response, a riot militia attacked them suddenly without warning: they beat protesters with batons, pushed them away from the monument and dragged away. The entire operation lasted about 20 minutes[9].

   Igor, who, according to him, spent all night among the protesters on the square, said: “They mostly thrashed our hands and feet.” He added that militia also pummeled and booted the fallen and pursued those who fled from them. One militiaman hit Igor on the back with a stick when he tried to screen the girl, who stood nearby[10].

   63-year-old participant of the events Liubomyra said that a special squad soldier hit her on the right wrist with his baton when she tried to screen the youth. The doctor diagnosed fractured wrist[11].

   According to 49 -year-old man, a medical person told him that he had three ribs broken as a result of being hit by a militia baton in the chest. He said the security forces, having struck him, dragged him into a bus and took him to the district station. There he spent three hours, and only then he could seek medical aid[12].

As one of the Yevromaidan activists Zorian Shkiriak informed, “The brutal mopping-up on the Maidan took place at 4.10 hrs. More than 2000 armed shock troopers against several hundred peaceful demonstrators. They beat everyone indiscriminately. They used batons, booted people, threw noise grenades, and gassed everybody. The communication gap lasted over an hour. Dozens of detainees. Even after mopping-up they dispersed people if over three persons came together. “Another Yevromaydan activist Yevhen posted on his page in Facebook: “The Berkut and buses with militia are patrolling the night center. They are searching for escapers or survivals. They fix them and pack into paddy wagons. During the assault, they thrashed mercilessly. Girls, women. Everybody.” According to witnesses, 20 to 30 victims were hospitalized[13].

   On November 30, the official release of the Ministry of Internal Affairs stated that the city administration had asked the riot militia to intervene as the protesters obstructed the activities of public utility workers intending to prepare the square for the New Year holidays. According to the Ministry of Internal Affairs, when the militia units reached the square, the protesters began to behave aggressively: they began throwing trash, water bottles, burning sticks and other things at the shock troopers[14].

   On November 30, 2013 MIA Minister Vitaly Zaharchenko apologized for the use of excessive force by the militia and promised to launch an investigation. On December 3, Prime Minister Mykola Azarov apologized for the actions of the militia in the parliament.

     Events of December 1, 2013 in front of the Presidential Administration

   Around 16:00 on December 1, a series of clashes between militia and protesters near the presidential administration building on Bankova Street took place. Dozens of people were injured. The media reported that a group of activists drove up a bulldozer and tried to break through militia cordon and ranks of soldiers of internal troops holding a post in front of the building of the Administration; several militia officers were injured. Then a group of activists tried to break through the militia cordon with sections of metal fences. Some activists also pulled at militia shields and threw cobblestones at militiamen. At this very moment the Berkut units started mopping-up actions using tear gas and smoke grenades and began advancing against the protesters and beating people with batons. Witnesses told that militia beat many people, including those who behaved themselves peacefully and tried to hide in the adjacent streets[15].

   As a result of clashes many people were injured. In particular, there were reports on hundreds of injured militia officers and soldiers of internal troops. Also, two dozen people received chemical burns. In the Internet there appeared the video of brutal beating by Berkut troopers of detained rioters near the Presidential Administration on December 1. The video shows how the Berkut troopers boot and beat with batons people; these people offered no resistance, they just lay on granite[16].

   According to information made ​​public by the Ministry of Health, for the period from 30 November to 2 December in Kyiv 248 people turned for emergency medical aid, including 190 between 12:00 on December 1 to 6:00 on December 2. 139 people were hospitalized, including 76 law enforcement officers and 3 journalists[17].

    Beating of detainees

On September 4, 2013 the militia officers arrested Andriy Ivashchyshchyn from Lviv. Six men in plain clothes grabbed him at the entrance of his house, overmastered him using punches, handcuffed and pushed into a car and only then announced that he was detained. They didn’t allow him to call his relatives and inform them about his detention. Andriy was shown a photo of an unknown girl and told that she was raped and murdered. They paid no attention to his explanations that he did not know the girl on the photo and instead drove him to the Shevchenko district militia department in Lviv.

In the district militia station they brought him to the office, where all sorts of people entered both in uniform and in plain clothes. Each entrant abused the detainee with dirty insults and found it necessary to hit him. They pummeled his body and punched on the head. Then they started pulling a plastic bag on his head demanding to own up to the crime. His attempts to explain that on the day, when the crime was committed, he was not even in Lviv was not taken into account. Despite the hot weather Andriy was not given water to drink. Late in the evening he was transferred to another office, made him sit down on a chair and chained him to this chair with three pairs handcuffs.

   In the morning he was beaten again and then taken to the forensic medical examination; they forewarned him to hold in abeyance about “physical oppression” for he would make it only worse. However, the detainee informed the experts that the law enforcers beat him black and blue.

   Nearly three days Andriy Ivashchyshchyn was kept in handcuffs and beaten: they wanted him to confess to rape. The torture stopped only when they found the true criminal, and released only after the intervention of the lawyer[18].

  The Lviv procuracy commenced criminal proceedings on the subject of beating Andriy Ivashchyshchyn at the district militia station. However, the case of this Lviv resident who was tortured for three days without allowing him to contact his family and lawyer, without formal registration of his status as a detainee shows that after the adoption of the new Criminal Procedure Code, where there is no such rule as “giving oneself up”, the crime detection practice of law enforcement officers has undergone no changes. Often the militiamen make a person to admit a crime keeping her/him in militia stations for a long time, through physical abuse and psychological pressure.

    Beating a person in custody in an investigative isolation ward[19]

   Andriy Luniov was in custody since January 2012 on suspicion of committing crimes under art. 307 and 311 of the Criminal Code. In the investigative isolation ward he was placed in a medical unit for medical care as a patient suffering from a number of infectious diseases. On the night of January 9, 2013 he lost consciousness. He was hardly brought round. The doctor diagnosed “acute disturbed cerebral circulation (stroke). Critical condition. Needs urgent hospitalization in the intensive care unit at Starobilska CRH.”

   After Andriy received the necessary medical care at the Starobilska CRH of the Ministry of Health, he was again placed in the investigative isolation ward, while he was in the soporose state and verbal contact was unattainable.

   On January 17, the lawyer of Andriy appealed to the European Court of Human Rights with a request to provide urgent medical examination and treatment of Andriy.

The next hearing in the criminal case of Luniov in the Town of Brianka was appointed for January 31. On his way from the investigative isolation ward to the court, on January 30, Andriy was in the Alchevsk detention center (a few kilometers from the Town of Brianka). At about 17:25 in the detention center two militia officers began pressing L. to sign a waiver of appeal to the ECHR concerning failure to provide proper treatment and state that he had been properly treated in the investigative isolation ward. Trying to be persuasive the law enforcers beat him. They stopped beating only after he had signed the needed statement.

   Andriy and his lawyer filed a statement to the Brianka prosecutor’s office about brutal treatment by the militiamen in the Alchevsk detention center. The investigation into the complaint is still ongoing.

   In addition, Andriy filed a complaint to the European Court about violation of Article 3 of the Convention on Human Rights in relation to him. At present, the case has passed the stage of communication with the Government of Ukraine and Andriy is waiting for the decision of the European Court in his case[20].

    Beating of detainees and prisoners in penal institutions

   Beating detainees and prisoners in the institutions of the penal system continues. Ukrainian prisoners complain of mass beatings and poor conditions of detention. According to human rights organizations, only from the beginning of 2013 about two hundred prisoners formally turned for help.

   It is impossible to find out how many episodes of beating and abuse take place in the colonies because there is no relevant statistics. Their number pops up in the European Court rulings in favor of prisoners and millions of compensatory payments from the budget. The Prosecutor General’s Office reports only on individual inspection: from the early 2013 they have conducted nearly a hundred inspections by now. However, for employees who are guilty of abuse, these checks usually come to nothing[21].

   The colony no. 99 (Bilenke Village, Zaporizhzhia Oblast). Early in the year the human rights organization “Association of Bohdan Khmelnitsky” received information from the prisoners of the colony no. 99 about regular tortures and beatings. The personnel of the colony continuously beat prisoners, especially the first-timers. The same “measures of influence” are applied to those who refuse to work, even if the refusal is motivated. As a means of pressure the guards threaten disobedient prisoners to pour urine from bottles on them which guards always carry with them. The colony no. 99 is intended for first-timers and is considered a determined for of those convicted for the first time and is considered an exemplary institution[22].

   Shyriayevsky Correctional Center of the Department of the State Penitentiary Service of Ukraine, Odesa Oblast. The public prosecutor’s office initiated three criminal proceedings against personnel of the  Shyriayevsky Correctional Center of the Oblast Department of the State Penitentiary Service of Ukraine under part 3 of art. 364, under part 2 of art. 365 and under part 1 of art. 127 of the CC of Ukraine respectively (abuse of power and abuse of office; transgression of authority or misuse of power; torture).

   During the morning exercise of inmates the chief of penal institution, against the will of one of them, forced him to carry out gymnastic exercises. After the convict’s refusal to make exercises due to the deteriorating health the law enforcer decided to punish the prisoner and threaten the rest of inmates and inflicted a series of blows with rubber baton on the convict’s legs, back and head causing bodily injuries.

   In addition, it was found that during the period from February to April 2013 one of the chiefs Shyriayevsky Correctional Center deliberately kept prisoners in disciplinary detention facility at an air temperature of 10°C causing suffering of convict’s as a long-term (7 to 14 days) deprivation of heat in unhealthy conditions and other violent actions[23].

   The human rights advocates have compiled the anti-rating of Ukrainian “problem” colonies[24]:

   Oleksiyivska colony no. 25 (Kharkiv Oblast): beatings, suicides, tortures.

   Zamkova colony no. 58 (Town of Iziaslav, Khmelnytsk Oblast): terrible upkeep conditions.

   Penal colony number 89 (Dnipropetrovsk): inadequate medical care.

   Kamyanska penal colony no. 101 (Zaporizhzhia Oblast): humiliation and beatings.

    Beating of journalists

   The whole country has witnessed the episode with beating of the journalists of the 5th Channel and Kommersant publication during mass events on May 18, 2013.

   The assault on journalist of 5th Channel Olga Snitsarchuk and photographer of the publication Kommersant-Ukrayina Vladyslav Sodel took place on May 18, 2013 near the headquarters of the Ministry of Internal Affairs in Kyiv on Velyka Zhytomyrska Street where they carried out their professional activities. The journalists were attacked by about ten people in sportswear. According to Sodel, the militia did not intervene in the incident, although the journalists repeatedly asked militia officers to protect them.

   He said that the men beat them till they bled, particularly Snitsarchuk had a split lip and smashed hands, her phone was also broken. Sodel, who tried to protect her, also received minor injuries. He remained at the scene to make an official report on crime, while Snitsarchuk was taken to the emergency hospital to show by document the marks of blows[25].

   The statement of the Independent Media Trade Union of Ukraine (IMTUU) maintained that the public prosecutor’s office commenced criminal proceedings in the case of inaction of law enforcement officers during the assault on Olga Snitsarchuk and Vdad Sodel only due to the sharp reaction of journalistic community. When the dust had settled, the case was closed. The officials of the media trade union insist: “The public prosecutor’s office is covering the militia, which regularly closes its eyes on the very fact of beating journalists. Moreover, it turned out that the attackers on journalists operate under the shield of the militia. The public prosecutor’s office does not want to put an end to it”[26].

The journalistic ethics committee noted with regret that this outrage became another evidence of the dangerous trend. The bureaucracy, law enforcers, private bodies or individuals ignore the current legislation on the information space.

  The endeavor of honest journalists to do their job more often end now in beatings, damaged equipment, and abuses[27].

    LEGISLATION

   On November 20, 2012 the new CPC of Ukraine came into force. The provisional report mentioned a number of novels intended to increase guarantees of protection against torture and promote effective investigation.

   In this report, we try and analyze whether the expectations that relied in this context on the new CPC made successful headway.

   In particular, the provisions of the new CPC of Ukraine, which include mandatory commencement of criminal proceedings in all cases of existence of circumstances which may indicate criminal offense (article 214 of the CPC) had to solve the repeatedly stated in the decisions of the European Court issue of numerous failures to commence criminal proceedings on complaints of individuals and conduct all necessary investigative steps that should solve the problem of failure to take all necessary investigatory actions intended to gather evidence during the investigation.

   However, the Chairman of the Committee on Legislative Support of Law Enforcement A.Kozhemyakin at the meeting with the experts of the Council of Europe on February 19, 2013 drew attention to significant distortions in the application of the new CPC and “the main problem of its application consists in open sabotage of the bodies conducting pre-trial investigation”[28].

   The experts suggested that the stage of commencing a criminal case and any check before entering the application in the Unified Register of Pretrial Investigation (URPI) is a “gray area”, not controlled by the law, in which the main falsifications take place. That is the international experts supported such procedure for registering applications (without preverification) as a safety measure against tortures and mass falsifications that earlier were made before the stage of criminal proceedings.

   As a result, the first part of article 214 of the CPC requires to register the application immediately, but not later than 24 hours after its submission. Part four clearly prohibits refusal and registration of application.

   But nine days before the new CPC was enacted the Prosecutor General ordered to amend the instructions on the accepted procedure of registration. In fact, these changes empower the law enforcement authorities to carry out unspecified by law and not regulated by law verification of the application before entering it into the registry in the course of seven days. Actually, the instruction distorts one of the main ideas of the code: the elimination of the human factor from the decision to start an investigation. In fact, this instruction substitutes the law and stands above the norms of the CPC. As a matter of fact, this instruction brings back the old order of receiving applications about crimes, but in a more distorted variant.

   According to A.Kozhemyakin, the committee every day gets current information from the Ministry of Internal Affairs of Ukraine; it clearly shows that now the militia determines to register an application for a criminal offense or not at its own discretion. As a result, it is unknown what has become of one half of the applications of citizens. On February 9, 2013 they refused the registration of 2615 applications and reports. On February 15, in violation of article 214 of the CPC, they refused the registration of 2550 applications and reports.

   A subtle distinction in this case is in the fact who determines whether the message has signs of a criminal offense or not. As far as these criteria are not specified in the Code, the presence or absence of such criteria is determined by militia officers on their own discretion[29].

   As a result of amendments to the above provision in 2013, the regulation specifying the seven-day verification was removed. However, taking into account the statistics according to A. Kozhemyakin, it is obvious that during its effective period the idea of ​​an immediate early investigation suffered an irreparable damage, because thousands of applications about crimes were not entered into the Unified Register of Pretrial Investigation.

   On the whole the New Code of Ukraine regulates in detail the admissibility of evidence in criminal proceedings. Thus, the CPC in part 1 of article 87 consistently establishes the doctrine of the “fruits of the poisoned tree”, when not only the evidence obtained directly as a result of violation are recognized inadmissible, as well as the evidence that would not been obtained if the former ones were not obtained in the first place. In this way, the evidence, admissible by itself, obtained using information originating from inadmissible evidence becomes inadmissible, too. This design of the law of evidence has to force the investigating authorities to behave very cautiously because any doubt about the voluntariness of obtaining certain evidence could have fatal consequences for the evidentiary material collected during the investigation. However, these provisions will have practical effect only if the courts will interpret the relevant provisions of the Code in good faith[30].

   Moreover, the significant violations of human rights and fundamental freedoms due to allowance of which the evidence is recognized inadmissible mean, in particular, violations of human rights of defense, testimony or explanation from a person, who was not notified of her/his right to refuse to testify and not to respond to questions, or their obtainment in violation of the this law, obtainment of evidence from a witness who later will be recognized a suspect or accused in the criminal proceedings.

   Under the new Code of Ukraine, the participation of a lawyer in the proceedings on charges of committing heinous crimes is a must. The suspect and an accused may waive counsel. In this case such waiver must occur only in the presence of defense counsel after the opportunity for confidential communication. The waiver of defense counsel is recorded in the minutes of legal proceedings. The waiver of defense counsel is not approved if the counsel’s participation is required. In this case, if the suspect or the accused waives counsel and does not admit another counsel, a defense counsel must be admitted in the prescribed manner to defend the accused.

   On June 2, 2011, the Law of Ukraine “On Free Legal Aid” was adopted; tis law specifies the content of the right to free legal assistance, procedure for exercising this right, the grounds and procedure for the provision of legal aid, and state guarantees to provide free legal aid.

   Since the beginning of 2013 the centers providing free legal aid (FLA) started their activity; according to the law “On Free Legal Aid”, they should ensure participation of a lawyer as a protector of persons prosecuted under criminal proceedings who cannot hire a lawyer on their own, or when the interests of justice require such procedure. To ensure the right to the protection of individuals from the first moment of detention the procedure for informing FLA centers cases about detention was adopted, which covers both the apprehension of a suspect of a crime and administrative detention[31]. Immediately after the actual apprehension the apprehender (and if this officer fails to do it, this should be done by an officer in charge of apprehended persons) should inform the appropriate FLA center, which provides for the arrival of a lawyer to the detention station, usually one hour from the moment of commissioning the lawyer. In point of fact, the investigating authorities violate the duty of immediate notification about the detention, and do it at their own discretion, usually after the official registration of detention.

There is also the problem of lawyer’s reaching the detainee in rural areas, where the centers are not staffed with the FLA lawyers. Therefore, in such cases they make the detainee to write a waiver of counsel, although the above Procedure provides that the waiver of counsel must be made in his presence. There is one more way to circumvent the requirement to call a lawyer from the FLA center when the detainee allegedly intends to hire a lawyer herself/himself, but in fact no lawyer comes there. It should be noted that the remuneration of the lawyers who come to pre-trial investigation institution to provide legal assistance to the detainee is so low that they motivate the lawyers to leave the custody as soon as possible. We can say that the introduction of the system of FLA failed to become a factor changing the situation with the use of unlawful violence during the preliminary investigation.

   The new CPC contains provisions for the establishment of the State Bureau of Investigation to investigate crimes of law enforcers. In connection with the establishment of the State Bureau of Investigation the office of a public prosecutor will be responsible for the investigation of complaints of ill-treatment.

   Almost always the brutal treatment was used to obtain an avowal of guilt from a detainee because the admissibility of evidence in criminal proceedings is crucial to ensure the legality of the latter. In this context it should be stressed that, unlike the Code in force until November 20, 2012, the new Criminal Procedure Code of Ukraine contains no provisions that allow the use in criminal proceedings of confessions obtained during preliminary investigation. Thus, in accordance with article 95 (“Evidence”) of the Criminal Code of Ukraine, the court can base its conclusions only on the testimony that he immediately perceived during the trial or received in accordance with the procedure specified in article 225 (“The examination of a witness aggrieved during the preliminary investigation during the judicial session”) of this Code. The court has no right to justify its judgments with evidence given to an investigator or prosecutor, or refer to it.

   Unfortunately, it should be noted that the practice of torture in the district stations continues. However, as reported above, according to the statistics available to the Ombudsman, the number of complaints of torture at the militia bodies has decreased considerably[32].

    The “anti-terrorist” unit

   The previous annual reports informed about the set-up in 2005 special unit allegedly designed for anti-terrorist purposes[33], which was used for mass beatings in the institutions of the penal system to intimidate prisoners and persons under investigation.

   The mass beatings of prisoners by this special unit was described in detail in the decisions of the European Court of Human Rights in cases Davydov and Others vs. Ukraine[34] and Karabet and Others vs. Ukraine[35]. In these cases, the Court found violations by Ukraine of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms in connection with mass beating of prisoners.

   Taking into account the findings of the European Court on the inadmissibility of the use of military units for intimidation and beating, the annual reports repeatedly recommended disbanding the special anti-terrorist unit and stopping the practice of mass beatings in penal institutions and detention facilities.

   However, the Government, having made ​​a first step towards disbanding of this anti-terrorist unit (the decision on state registration of the aforesaid order of the State Department of Ukraine for Enforcement of Sentences on the establishment of this special unit was canceled on the advice of the Ministry of Justice no. 15/ 88 dated 24.12.2007[36] and on January 14, 2008 it was excluded from the State Register of Legal Acts) later clearly demonstrated disregard for the rulings of the European court in the cases of Karabet and Davydov.

   Then on July 3, 2013 the Ministry of Justice of Ukraine issued a new order approving the Regulation on the territorial (inter-regional) paramilitary unit of the State Penitentiary Service of Ukraine[37]. Thus the "anti-terrorist unit" continues to exist.

   Investigations by the bodies of procuracy

According to the statistics of the Prosecutor General’s Office of Ukraine[38] and its response to the request sent by KHPG, with the coming into effect of the new CPC the number of reported criminal offenses under article “Torture” in comparison with the previous years remained virtually unchanged confirming the view that such legal qualification of unlawful coercion by law enforcement officers is almost never used. The number of registered allegations of a criminal offense “excess of power or authority” increased slightly short of 80 times if we compare the first quarter of 2013 with the same for 2012. Obviously, the adoption of the new Criminal Procedure Code should have solved the problem with the opening of criminal proceedings on complaints (applications) of torture. But by and large it has not changed the situation with bringing the perpetrators to justice, as the number of cases (proceedings) taken with accusatory acts to court remained almost at the same level and is just over 1% of the total number of applications for such crimes.

   On April 9, 2013 carrying out the pilot decision in the case of Kaverzin the Ukrainian Government submitted to the Committee of Ministers of the Council of Europe the Global Action Plan (DH-DD (2013) 411)[39], which included a number of measures both to ensure the effectiveness of the investigation and prevention of ill-treatment by the militia.

   Thus, the measures to prevent brutal treatment by the militia include as follows:

   * Establishment of a national preventive mechanism (NPM) as required by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Kinds of Treatment and Punishment;

   * Advanced training of government agents;

   * Novels of the new CPC particularly regarding legal representation of suspects / accused in a criminal case, issues associated with obtaining evidence and its admissibility in criminal proceedings, introduction of the post of the investigating judge ;

   * Use of video devices in places of detention.

Regarding measures intended to ensure effective investigation of complaints of brutal treatment by the militia, the Government of Ukraine globally informed the Committee of Ministers of the Council of Europe as follows:

   · According to the new CPC, a full-scale investigation begins as soon as notice of a criminal offense is entered into the Unified Register of pre-trial investigations, i.e. the stage of pre-checking that existed under the old CPC in 1960, and was repeatedly criticized by the European Court has been abolished;

   · Under the new CPC the status of victim has been formalized and includes now a number of procedural rights;

   · State Bureau of Investigation, which will take care, in particular, of the investigation of complaints of brutal treatment by the militia, will be created in 2017 at latest[40].

   Creation of the State Bureau of Investigation, as an independent body (without any hierarchical or institutional relations between the Bureau and the Ministry of Internal Affairs or the Prosecutor General’s Office) authorized to investigate allegations of brutal treatment by militia officers can actually solve the systemic problem of ineffective investigation, which is usually carried out by the bodies of procuracy.

   Indeed, the failure of prosecution to conduct an effective investigation of such complaints is largely caused by the fact that it is essentially an independent body. Thus, the procuracy has functions that lead to “conflict of interests” in its activities: on the one hand, it is the public prosecutor’s office that is responsible for checking the legality of the activity of militia, and, on the other hand, the procuracy backs a charge in court and therefore has strong professional relationships with the militia.

   Thus, the creation of the State Bureau of Investigation is one of the main tasks envisaged in the global plan of the Government to ensure the effective investigation of complaints of torture by the militia.

   However, up to now the Bureau has not been set up. Therefore, the Ukrainian government has yet to get through a big chunk of work to overcome the problem of inefficient investigation of complaints of torture.

   Practice of national courts

   Judicial practice of bringing law enforcers to book

   In previous reports we have repeatedly referred to the existing judicial system in Ukraine responsible for taking to book the law enforcers for torture not under article 127 of the Criminal Code of Ukraine, which is about the responsibility for torture and other articles, but rather under articles 364 ("Abuse of power or abuse of office”) or 365 (“Excess of power or authority”) of the Criminal Code of Ukraine.

   The convictions of militiamen under articles other than article 127 of the Criminal Code of Ukraine and the discharge of law enforcement officers from law enforcement bodies making the former civilian persons at the time of sentencing distorts judicial statistics of bringing to book militia officers for torture.

   For six months of 2013 38 criminal proceedings were brought to trial concerning 65 militia officers for offenses attributed to torture or other brutal treatment[41].

   Unfortunately, quite often the courts pronounce too lenient sentences in relation to “butchers in uniform” that creates a sense of impunity among law enforcement officers who resort to tortures during the execution of their functions. Below there are several examples of cases concerning the militia officers who were accused of abuse in applying brutal treatment in the course of performance of their duties.

    About the case of two Feodosiya militiamen

   In March 2013 the Feodosiya City Court considered the criminal case against the personnel of Feodosiya Criminal Investigation Department. The law enforcement officers were accused of wanton infliction of physical sufferings to the detained on suspicion of stealing. The militiamen detained a taxi driver who did his night shift, and his wife and submitted them to 24-hr beating to get a confession of crime out of them. The taxi driver was continuously beaten from 10 till 12 a.m. on the following day and strangled him with a rope; they also threatened his wife with physical violence and gang rape.

   They were motivated by their desire to improve the statistics of crime detection. The court established that the law enforcers used torture to beat out a detainee’s confession; nevertheless the court freed them from the real term for serving their punishment.

   The verdict published in the Unified State Register of Court Judgments read that pursuant to article 365 of the Criminal Code of Ukraine (abuse of power or authority) the court sentenced two Feodosiya law enforcers to five years of imprisonment with deprivation of the right to work in law enforcement bodies for up to three years. However, under article 75 of the Criminal Code of Ukraine, the court dismissed militiamen from the main sentence with probation for two years[42].

    About the case of ex-militiaman Olexandr Fartushny

   In May this year, Olexandr Fartushny, former assistant detective of the Koreabel District Militia Station of Mykolayiv, was sacked.

   On January 9, 2013 the Central Court of Mykolayiv sentenced the ex-militiaman for beating three students to four years of deprivation of freedom and a fine of ₴8,700.

   However, a former militia officer appealed the verdict of the court of first appearance and the Court of Appeal of Mykolayiv Oblast abolished the sentence[43].

    About the case of former militia officer Dmytro Karadzha

   The Ovidiopol Regional Court of Odesa Oblast absolved from all blame former deputy chief of the local regional militia station of VIA Dmytro Karadzha[44].

   This officer was often at the center of scandals because of his questionable methods of “combating crime”. In court, he was charged with two criminal episodes when the personnel of regional department of internal affairs derided and beat a detained local resident, who was doped and drove the moped, and they beat another detainee during fingerprinting.

These facts became known because the law enforcers shot their “diversions” on a mobile phone and showed clips to their relatives and friends. When the prosecution opened on these facts a criminal case, all the militia officers involved and deputy chief of the regional militia station Karadzha were immediately dismissed on grounds of “discrediting militia bodies”.

   However, usually the militiamen who have committed violations of the law are discharged with the softer phrasing. More often than not it means simply quitting one’s job. And then they are tried not as law enforcement officials, but as civilians.

   THE EUROPEAN COURT PRACTICE

   In the case of “Samoylovich vs. Ukraine” (application no. 28969 /04, judgment of 16.08.2013) the applicant during the entire period of his detention (from August 1999 to August 2006) complained about the lack of physical exercise in the fresh air and poor nutrition, poor sanitation, and therefore the Court found a violation of article 3 of the Convention.

   In the case of “Barilo vs. Ukraine” (application no. 9607 /06, judgment of August 16, 2013) the European Court found that the applicant was not provided with appropriate medical care during her detention and the conditions of her detention in Saki detention center fell under article about inhuman and degrading treatment. Although the applicant stayed in the above circumstances only 10 days, she experienced suffering which aggravated her sickliness.

   In the case of “Gavula vs. Ukraine” (application no. 52652 /07, judgment of October 7, 2013), the Court noted that a set of factors such as overcrowding and poor hygienic conditions from which the applicant suffered for a considerable period of time is sufficient to conclude that the conditions of detention of the applicant in the Kyiv investigative isolation ward amounted to inhuman and degrading treatment.

   In the case of Kobernik vs. Ukraine (application no. 45947 /06, judgment of July 25, 2013), the Court decided that the material conditions of detention of the applicant in the investigative isolation ward, including: 1.5 m2 of cell space per detainee, inadequate ventilation, poor sanitary conditions and non-isolated toilet, amounted to abasement of human dignity.

   In the case of “Vasylchuk vs. Ukraine” (application no 24402 /07, judgment of September 13, 2013) the applicant alleged that one of the militia officers intentionally pushed her down, and she, unable to get up, had to crawl into the barrack, and thus underwent treatment contrary to art. 3 of the Convention. Having regard to the evidence, the Court could not conclude beyond a reasonable doubt as to whether the applicant did undergo treatment contrary to art. 3 of the Convention. The Court concluded that the investigation into the applicant's case was not effective, that does not meet the requirements of art. 3 of the Convention.

   In the case of “Vitkovskiy vs. Ukraine” (application no. 24938 /06, judgment of September 26, 2013) the European Court, having regard to the applicant's injuries documented in the medical expert opinion, has no doubt that the applicant underwent treatment contrary to art. 3 of the Convention even in the absence of any evidence to prove the applicant's allegations about the fact that electric current was applied to his fingers and testicles. The Court also notes that the conditions the applicant refers to, namely: poor hygiene bedding, irruption of insect parasites exceeded the allowable threshold under art. 3 of the Convention. The Court states that the applicant did not receive proper medical care during his detention. The Court concluded that the applicant was deprived of a thorough and effective investigation into his statement about the fact that he had been brutally treated by the militia.

   In the case of “Yuriy Illarionovich Shchokin vs. Ukraine” (application no 4299 /03, judgment of October 3, 2013) the Court noted that the state has violated its duty to protect the life of the applicant's son, who came under its control and was in a particularly vulnerable situation due to his detention because of the threat of reprisals against him after the attempt of the applicant's son to escape. The Court concluded that there had been torture within the meaning of art. 3 of the Convention and ineffective investigation of this incident.

   In the case of “Voloshyn vs. Ukraine” (application no. 15853 /08, judgment of October 10, 2013) the applicant complained of two searches daily during the entire period of his detention (from June 10 to 18, 2004), during which the applicant was ordered to undress completely, he was placed in an iron cage, pushed him with sticks and forced to part buttocks. The applicant also complained about the poor sanitary conditions of detention, in particular the lack of bed linen, insect pests, non-isolated toilet, and lack of hygienic means. The European Court found that the conditions of detention amounted to degrading the dignity.

   In the case of “Taran vs. Ukraine” (application no. 31898 /06, judgment of October 17, 2013) the European Court found a violation of guarantees under art. 3 of the Convention, as the applicant's complaints about the conditions of his detention and transportation are detailed and consistent. These complaints relate to specific allegations concerning the transportation of the applicant in a metal cage. The Court finds that the notice of the applicant, which the Government has failed to deny, are confirmed by international and domestic reports considered by the court in cases of Yakovenko and Koktysh and the findings of the Court in cases concerning the conditions of detention in the Sevastopol detention center and mode of transportation between the Simferopol detention center and Sevastopol investigative isolation ward.

In the case of “Sergey Savenko vs. Ukraine” (application no. 59731 /09, decision of October 24, 2013) the European Court considered that the authorities failed to take adequate measures to establish the attending circumstances of occurrence of applicant’s injuries. In particular, the testimonies of the applicant and his cellmate do not fully coincide, it was not established, whether the applicant used salt to increase the pain from his injuries, as his cellmate maintained, and if so the how the applicant could obtain salt in the punishment cell. In light of the foregoing, the Court finds that the government has failed to provide a plausible explanation for the etiology of injuries of the applicant and has failed to rebut the applicant's allegations of brutal treatment by the personnel of correctional institution. For this reason, the Court finds that there has been inhuman and degrading treatment and there was no effective investigation.

   In the case of “Tarasov vs. Ukraine” (application no. 17416 /03, judgment of October 31, 2013) the applicant has received numerous injuries, the origin of which had not been fully established. The Government did not deny the applicant's reference to the findings of the Forensic Medical Expert Examination Bureau of Donetsk, as proof that he had been brutally treated. Also from the case materials it is not clear whether the national authorities fully explored the possible causal relationship between the alleged brutal treatment and disability of the applicant, which developed during his detention, which made the applicant to attend hearing on a stretcher. The European Court found such treatment of the applicant a torture.

   In the case of “Sizarev vs. Ukraine” (application no. 17116 /04, judgment of April 17, 2013) the applicant complained, in particular, of overcrowding of the cell, lack of natural light, terrible sanitary conditions (lack of furniture in the cell, isolated toilet, no drinking water), inability to perform daily outdoor exercise including. Taking into account that the applicant was placed in such conditions immediately after discharge from the hospital, the European Court found incompatible with art. 3 of the Convention the detention of the applicant for more than two weeks in these conditions. The Court also finds violation of art. 3 of the Convention in the fact that the State failed to guarantee the safety of the applicant's detention in the Yevpatoriya detention center and therefore is responsible for the brutal treatment which he suffered from his cellmate. Furthermore, the Court decided that the national authorities had failed to conduct an effective investigation. With regard to the handcuffing the applicant in the hospital, the Court concluded that the measure was inconsistent with the requirements of safety and unnecessary humiliation, given that the windows of his ward were barred, the doors were locked, and he himself was always watched by three guards. Consequently, there has been inhuman and degrading treatment with respect to the applicant in the present case.

   In the case of “Gerashchenko vs. Ukraine” (application no. 20602 /05, judgment of November 7, 2013) the European Court noted that the lack of information in the medical report issued by a neurosurgeon about the damages the applicant received, according to him, due to beatings by the militiamen, cannot serve the proof that the applicant did not suffer these injuries, because the volume of neurosurgical examination was rather limited and the neurosurgeon looked for neurological injuries only, without assessing the overall health of the applicant and establishing the presence or absence of physical injuries. The Court finds a violation of art. 3 of the Convention, because the Government has not provided any plausible version of the origin of the applicant's injuries (injury of the right kidney); therefore there is reason to believe that the applicant received these injuries during or after his arrest by the militia.

   In the case of “Belousov vs. Ukraine” (application no. 4494 /07 decision of November 7, 2013) the European Court found implausible the version of the militia personnel regarding the fact that the applicant after being summoned for questioning voluntarily pleaded guilty of a crime, and then inflicted himself numerous injuries, which only the militia personnel managed to stop. In the context of the above and given that the brutal treatment of the applicant was performed by several militia officers behind the closed doors, which cruel treatment the applicant was unable to resist, and the fact that the applicant's physical pain associated with the inflicted injuries was intensified due to the feeling of helplessness, acute stress and anxiety, which may be ascribed to severe brutal treatment suffered by the applicant that was deliberate in its essence, continued several hours and was aimed at getting him to confess to a crime, the Court found the brutal treatment of the applicant a torture.

   ON NATIONAL PREVENTIVE MECHANISM

   According to the amendments to the law “On Ombudsman” approved by the parliamentarians on October 2, 2012, the ombudsman can without notice visit places of detention of people: isolators, rooms for detainees, military units, pre-trial custodies, disciplinary battalions, guardhouse, and more. The rights of Ombudsman and persons delegated by her/him are considerably extended: the number of visits to places of imprisonment is unlimited; the inspectors can question detainees to obtain information. In her/his work on prevention of torture, the Ombudsman may involve non-governmental organizations empowered by a separate written instruction, for example, for monitoring of penitentiary facilities[45].

The monitoring has shown that a significant obstacle to the establishment of a national preventive mechanism became the lack of funds. On the one hand, the previous Ombudsman has left his post, almost exhausting the next year budget. On the other hand, the financing of the national preventive mechanism is not provided for in the budget due to the absence of such direction of the activity of Ombudsman in the past. The way out was found in the fundraising. For example, all office equipment to complete the work of the structural unit was provided in the form of irrevocable charitable assistance by the UNDP Office in Ukraine. If needed, the Department personnel is sent for specialized training at the expense of grants obtained by non-governmental organizations involved in this activity[46].

   In 2013 a law "On Amending the Law of Ukraine “On the Ombudsman of the Verkhovna Rada of Ukraine” concerning the national preventive mechanism” was adopted, which includes the state budgeting of the national preventive mechanism. But there still remain problems associated with the procedures regulating the activities of public authorities. The Ombudsman is not able to finance the monitoring visits of public figures. That is why the question of adequate material support of regular monitoring activities within the national preventive mechanism remains open[47].

   Also it should be noted that in the case of an appeal to the Ombudsman of the Verkhovna Rada of Ukraine in most cases appeals and complaints are forwarded to the public prosecution bodies, which with rare exception find no violations of the law by the personnel of law enforcement agencies. An example of this would be the case of Luniov mentioned above, who was beaten in Alchevsk detention center for his appeal to the European Court of Human Rights about the application to him of the Rule 39 of the Court Regulations. Presenting the facts the victim filed an appeal to the Ombudsman of the Verkhovna Rada of Ukraine, which, in her turn, simply forwarded his appeal to the public prosecutor’s office. The more effective response is the practice of the Ombudsman of filing the act of responding with the bodies of state power, because this practice requires measures to be taken by public authorities, and thus it is more likely to improve conditions of detention in places of captivity than the investigation conducted by the Public prosecutor’s office following the Ombudsman appeals.

   In addition, according to the instructions issued by the Ombudsman to the NGO representatives, such persons can monitor places of imprisonment only with the participation of the Secretariat of the Ombudsman. Therefore, the nature of such instructions and purpose of their issuance remain obscure, as far as the monitor is not entitled to visit the place of imprisonment without Ombudsman’s secretariat staff. At the same time, in our view, there is no need in such instructions if the monitor visited a colony or other place of imprisonment with the Ombudsman's office employee.

 RECOMMENDATIONS

   1. Establish an independent body for effective investigation into the allegations of torture by law enforcement officers and employees of the penitentiary system.

   2. Disband special “anti-terrorist unit” created by the order of the Ministry of Justice of Ukraine on July 3, 2013.

   3. Public authorities should disclose the true scale of torture. To do this, the law enforcement bodies, institutions of penal system and courts should carry out statistical assessment of the cases of torture and publish their data.

   4. Law enforcement officers against whom criminal law suits were filed on their use of torture should be suspended from their duties at the time of the investigation, but not released until passing of sentence by the national court.

   5. Law enforcement agencies should take steps to form among their employees a “zero tolerance” toward brutal treatment.

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

   7. Continue to work together with the Ombudsman and NGOs to monitor places of imprisonment. Improve the NPM model by allowing monitors from the NGO sector to visit places of imprisonment by an employee on behalf of the NGO without a staffer of the Office of Ombudsman.

   8. Provide funds in the state budget to finance the regular monitoring activities as part of the national preventive mechanism.

   9. Ombudsman should extend the practice of filing the act of responding with government agencies, because such practice requires measures to be taken by public authorities, and thus is more likely to improve conditions of detention in places of imprisonment than the investigation conducted by the Public prosecutor’s office on the appeal of the Ombudsman.

   10. Doctors of the medical institutions of the MIA and State Penitentiary Service of Ukraine are servicepersons, have military ranks, are on the staff list of an institution under the State Penitentiary Service of Ukraine and obey the orders of the command. In this regard, it is necessary to reattach the medical services of the Ministry of Internal Affairs and State Penitentiary Service of Ukraine to the Ministry of Health.

   11. The law enforcement personnel need regular retraining, including the personnel of special purpose units, in order to prevent the use of brutal treatment in the future.

   12. GPO shall conduct an effective investigation into allegations of the use of violence by law enforcement officers to the civilian population during the events of November 30 and December 1, 2013 and report on the results of the investigation to the public.

   13. The State Penitentiary Service of Ukraine in the implementation of measures intended to prevent brutal treatment in penal facilities, shall pay special attention to the colonies included into anti-rating by the human rights activists.

 

[1] Prepared by Yana Zayikina, lawyer, KHRG.

[2] http://www.unian.net/news/584061-ukraintsyi-ne-doveryayut-vlasti-i-pravoohranitelyam-opros.html

[3] http://khpg.org/index.php?id=1367864828

[4] http://www.komitet-k.org.ua/node/5550

[5] http://www.pravda.com.ua/news/2013/08/22/6996472/

[6] http://www.minjust.gov.ua/41050

[7] Special armed units under the MIA of Ukraine (translator’s note).

[8] http://news.liga.net/articles/politics/932334-evromaydan_v_kieve_den_devyatyy_obnovlyaetsya.htm

[9] http://www.hrw.org/ru/news/2013/12/04/ukraina-izbytochnaya-sila-protiv-demonstrantov

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] http://www.pravda.com.ua/news/2013/11/30/7003683/

[14] http://www.hrw.org/ru/news/2013/12/04/ukraina-izbytochnaya-sila-protiv-demonstrantov

[15] Ibid.

[16] http://tsn.ua/politika/berkut-po-zviryachomu-biv-zatrimanih-pid-ap-na-kolina-merzota-revolyuciya-s-ka-video-323166.html

[17]  http://www.hrw.org/ru/news/2013/12/04/ukraina-izbytochnaya-sila-protiv-demonstrantov

[18] http://fakty.ua/169388-tri-dnya-menya-derzhali-v-rajotdele-milicii-v-naruchnikah-pytkami-zastavlyaya-soznatsya-v-iznasilovanii-i-ubijstve-devushki

[19] http://www.khpg.org/ru/index.php?id=1360239927

[20] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122154

[21] http://maidanua.org/special/pk/?p=5542

[22] http://obx.org.ua/%D0%B2-%D0%BA%D0%BE%D0%BB%D0%BE%D0%BD%D0%B8%D0%B8-%D0%B7%D0%B0%D0%BF%D0%BE%D1%80%D0%BE%D0%B6%D1%81%D0%BA%D0%BE%D0%B9-%D0%BE%D0%B1%D0%BB%D0%B0%D1%81%D1%82%D0%B8-%D0%BF%D0%B5%D1%80%D1%81%D0%BE%D0%BD/

[23] http://maidanua.org/special/pk/?p=6402

[24] maidanua.org / special / pk /? P = 5542

[25] http://www.pravda.com.ua/news/2013/05/18/6990166/

[26] http://sprotiv.org/2013/07/27/prokuratura-pokrivaye-miliciyu-u-spravi-pobittya-zhurnalistiv/

[27] http://www.cje.org.ua/statements/117/

[28] Ibid.

[29] http://copwatch.fri.com.ua/?p=280

[30] http://helsinki.org.ua/index.php?id=1362642458

[31] http :/ / zakon4.rada.gov.ua/laws/show/1172-2012-% D0% BF.

[32] http://www.pravda.com.ua/news/2013/08/22/6996472/

[33] http://zakon2.rada.gov.ua/laws/show/z0138-06

[34]  http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99750

[35] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115886

[36] http://zakon4.rada.gov.ua/laws/show/v0015323-07

[37] http://zakon4.rada.gov.ua/laws/show/z1133-13

[38] http://www.gp.gov.ua/ua/stat.html

[39] https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2297998&SecMode=1&DocId=2004126&Usage=2

[40] Ibid.

[41] http://eng-new.kafanews.com/novosti/70083/65-militsionerov-v-ukraine-poschitali-vinovnymi-v-pytkakh_2013-08-22

[42] http://kafanews.com/novosti/60850/sud-dal-otsrochku-feodosiyskim-militsioneram_2013-03-07

[43] http://news.pn/ru/criminal/87769

[44] http://dumskaya.net/news/v-odesskoj-oblasti-razvalilos-esche-odno-pytochn-029283/

[45] "The Ombudsman has been vested with a function to control torture in prisons" Internet Publication "Europe"; 06.11.2012 - http://europe.newsru.ua/article/16358398

[46] "National Preventive Mechanism based on the model "Ombudsman +", activity of the Ombudsman of the Verkhovna Rada of Ukraine - Report of human rights organizations "Human Rights in Ukraine - 2012", Ukrainian Helsinki Human Rights Union , 2013

[47] Ibid.