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I. Right to life, protection from torture

[1]

1. Use of violence by government agents

1.1. Human rights violations by Ukrainian Ministry of Internal Affairs employees

2014 was marked with massive and shocking violations by government agents of human rights to life and defence from violent treatment, which Ukraine has never suffered over the years of independence.

18–20 February 2014 appeared to be the most dramatic days of “Dignity Revolution”, because the security forces used weapons against the unarmed EuroMaidan protesters.[2] To that point flash bang grenades, non-lethal pump-action rifles, tear gas and water cannons had been used[3]. But on 18 February special task group “Berkut” appeared to be armed with assault rifles and supported with two BTRs,[4] and on 20 February 2014 snipers, positioned on the roofs of hotels “Kozatskyi” and “Ukraine”, opened fire for effect.[5] The House of Trade Unions was set on fire and destroyed, which took lives of 50 people.[6]

According to the report of the Maidan Medical Service coordinator Olha Bohomolets, hundreds of people were badly wounded,[7] 15 people were killed on Instytutska Street, 22 people — on M. Hrushevskyi Street. 5 more people died during Maidan barricade assault. The Ministry of Internal Affairs, on his part, reported, that seven soldiers died and more than 270 were wounded.[8] The scale of such unreasonable, disproportional force application in complicated conditions of social conflict raises a natural question regarding the need of qualifying the authority actions as a crime against humanity with no limitation period.

One more unprecedented human rights abuse took place in Odessa on 2 May 2014 during the conflict between FC “Chornomorets” and FC “Metalist” fans on the one side and pro-Russian activists on another side. Considering that it was a pre-planned provocation of pro-Russian separatists, armed with sticks, non-lethal weapons and firearms, it resulted in mutual violence and setting House of Trade Unions on fire, where 38 people died. And the policemen, in fact, supported extremist abusers. Eyewitness testimonies and video materials point undeniably at facts of such a criminal cooperation, when provokers were hiding behind the police shields, firing at the crowd from behind the policemen backs. So, the Internal Affairs employees, instead of keeping public order, were directly supporting the slaughter, and the top echelon of Odessa Police Department is under full responsibility for the bloody results of those events — 46 people dead, 214 wounded, 88 of them hospitalised and 3 died in the hospital.[9]

The problem of Internal Affairs employees’ violence against the apprehended, suspected and other persons under their control is still urgent.

Thus, V. Horanin, the EuroMaidan activist, apprehended on 21 March 2014 in Kyiv on suspicion of organising murder of three SAI officials (State Automobile Inspection), was put to torture in presence of the investigator. “...They were trying to bring me down to my knees. But, as I had been refusing to kneel down, they began beating me again. I lost my consciousness again. When later I asked for some medical aid — there had been blood running from my ear for several hours — they brought in a woman, who just wiped out the blood and said it was the medical aid”, — he remembers. In the court sessions hall Vladislav demonstrated the beating traces on his body. He was conveyed to the court from the hospital, since he had been determined to have a closed craniocerebral injury. Besides the knocked out teeth, there is a need for ear operation.[10]

The problem is also deepened by imperfection of the court practices, as the facts of violent treatment gain no objective assessment. Thus, the judicial board of Kharkiv Court of Appeal has generally pardoned the Kharkiv policemen, convicted for 6 years of imprisonment for creating a criminal formation, fraud activities and torture. Moreover, they were allowed to return to their law enforcement work. The judgement was based on the fact, that their crimes had never involved life and health threatening violence. However, the very judges admitted the fact of tortures, which seemingly are not considered as health threatening actions[11].

Such a judgement of the Court of Appeal contradicts the international law standards, particularly the European Court of Human Rights practice, stating in the case of Savin v. Ukraine (2012), that if a state representative is accused of crimes, involving torture or ill-treatment, the criminal cases and sentences must have no limitation period, and amnesty or pardon are not permitted[12].

Let us recall, that in 2014 the European Court of Human Rights ascertained the breach of Article 2 of the European Convention in two cases against Ukraine and Article 3 — in 11 cases.

One of those is the case of Dzhulai v. Ukraine (2014), in which the applicant complained he had been ill-treated by police officers and claimed that his admission of guilt in a crime had been made under the physical pressure. The applicant described the police treatment in details: severe beating during his arrest in Kyiv and later in the police department in Pyriatyn, where he had been hit on his head with a book, put on a gas mask with cigarette smoke puffing inside of it, and all of that while continuous severe beating. After some time the applicant, not being able to bear such a treatment, had to confess to the crime. The European Court has admitted in this case the breach of Article 3 of Convention in its procedural aspect, as well as the presence of ill-treatment in relation to provisions of the Article, stating, that government authorities must not treat the arrested in abusive way in order to obtain confessions[13].

1.2. Human rights violation in the penitentiary service facilities of Ukraine

Human rights organisations continue receiving information about human rights violations in the system of the State Penitentiary Service facility of Ukraine (SPSU). Particularly, there are incidents of beating prisoners in the penitentiary facilities by employees of those facilities. Thus, on November 25, during the regular monitoring visit of the group, consisting of Ihor Klus, the assistant of the member of parliament Oleh Lukashuk, and also Vasyl Melnytchuk and Andrii Didenko, the journalists of the News Bulletin “Prava Liudyny” (“Human Rights”) of Kharkiv Human Rights Group to Zamkova Corrective Colony No. 58 mass complaints from the convicted were put on record. The main claim, present in all of the complaints, is the appeal against the actions of the facility executives, causing the abuse of basic human rights and becoming apparent in beating, psychological torture, honour and dignity humiliation. The convicted told that their complaints on personnel actions (or inaction) had never been sent further, so they had been bound to resort to such an extreme protest action as hunger strike. Some of the convicted had crippled themselves as a mark of the protest, which was put on record as well.[14]

On 12 November 2014 at Berdychiv Corrective Colony No. 70 the similar conflict situation — protests of convicted, discontented with personnel actions — resulted in mass beating of convicted by soldiers of the special SPSU unit and associate detachments of personnel from different facilities[15]. On 13 November the Commissioner of the Verkhovna Rada of Ukraine on Human Rights had already launched a proceeding in response to that, and also sent an appeal to the Prosecutor General of Ukraine with a request to take any necessary actions in order to conduct an unbiased investigation in response to cases of causing physical injuries to the convicted.

At the same time the Commissioner directed the attention of the Prosecutor General to the fact, that the European Court had already passed several resolutions regarding Ukraine in the cases with actual circumstances, similar to the situation, which had occurred at Berdychiv Corrective Colony No. 70 (Davydov and others v. Ukraine, Karabet and others v. Ukraine)[16]. According to the mentioned ECHR resolutions, in case if the investigation of an incident of convicted being beaten is not conducted properly, the guilty are not identified and brought to responsibility, there will be the ground for new conviction of Ukraine as the abuser of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[17]

1.3. Human rights violation in ATO (Antiterrorist operation) area

There are incidents of disappearance and death of the civilians, their torture both by the militants and by Ukrainian enforcements in ATO area. During the research mission in September-October 2014 Amnesty International experts has recorded deaths of more than 20 civilians in result of firing and bombardments in eastern cities of Ukraine: Donetsk, Avdiivka, Debaltseve. Most of the deaths in residential districts were results of indiscriminate fire by offenders using weapons with low accuracy, which didn’t allow to differentiate between civilian and military targets. The research of the Organisation presents convincing proofs that in those districts the separatist forces had been firing and the Ukrainian governmental forces, in their turn, fired back. At least once the governmental forces had placed the artillery station in the residential district. Both sides of the conflict bear the responsibility for the established practice of conducting indiscriminate fire attacks in densely populated settlements[18].

Amnesty International has also recorded dozens of cases of abuse, committed, probably, by the Aidar Battalion members in Novoaidar Rayon, Starobelsk, Severodonetsk, Lysychansk and Shchastia at the end of July — end of August. As a rule, the soldiers abducted local men, often businessmen or farmers, accusing them of collaboration with the separatists and holding them in improvised prisons to let them later go or be conveyed to the Security Service (SSU). Almost in all cases, recorded by Amnesty International, victims were beaten at the moment of abduction and/or during the inquiries. They had either to pay some ransom for their freedom or their property, including money, cars, mobile phones and other valuables, was taken by the soldiers of the battalion.

Thus, on 25 August, at about 16:00 near the TV tower not far from Starobilsk, Aidar soldiers abducted Yevhen (the name is changed), a 31-year old local businessman. Yevhen told the Amnesty International, that the three men in masks, which had arrived in a black VAZ, approached him, when he stopped near the abandoned petrol station. They searched his car, confiscated UAH 30,000, that had been found there, and accused Yevhen of separatism. He told: “They put a mask onto my head and had been driving for about 20 minutes. They brought me to a place looking like a garage, and begun interrogating me, demanding to confess in separatism. They interrogated me three times. Every time they used to hit me on my kidneys with gunstocks and other blunt objects, maybe with a blunt end of an axe. They threatened me to take me to the fields and execute me there. In 24 hours they came again and told me, that I was arrested by the Aidar Battalion, but from now I would be in the hands of Alfa (SSU special task group), but I saw, that they were the same people. Yevhen said, that finally the abductors asked him, how much he was ready to pay for his freedom. When Yevhen told, that they had taken everything he had, then released him. He went to the police, but was not able to recover his taken property — the car, the money, two mobile phones and golden accessories.

The evidence, received from the Amnesty International, indicates that the soldiers of the Aidar Battalion, who are de jure acting under command of ATO regional united headquarters, are de facto acting without supervision and control, and local police departments are either not willing or not capable of responding to their abusive actions. Some of the abuses, committed by the Aidar Battalion soldiers, may be considered as war crimes, and those guilty must be brought to responsibility according to the national and international law[19].

1.4. Human rights violation in AR Crimea

According to the report of the Crimean Human Rights Field Mission, since March 2014 incidents of disappearance have been regularly recorded in the Crimea. There is evidence of enforced nature of disappearance of at least 5 persons.

One of the high profile cases is the abduction and later murder of Reshat Ametov, a Crimean Tatar, apprehended by unidentified people in camouflage in the central square of Simferopol on 3 March 2014. In 10 days his body with traces of violence was found in Sunychne village of Bilohirskyi Rayon. The cause of death was the penetrating knife stab into the eye. At the beginning of April the Investigative Department of the Investigative Committee of the Russian Federation in “Republic of Crimea” initiated a criminal case under the article 105, section 1 of the Criminal Code — “homicide”. Besides that, on 22 October 2014, according to the demands of sections 1 and 4 of article 214 of CPC of Ukraine (Criminal Procedural Code), “the records of the criminal offence” were registered in the Unified Register of Pre-Trial Investigations with prior legal assessment under article 115, section 1 of CC of Ukraine (intentional homicide). Up to date both investigations are still in process.

The serious problem of this range of incidents could be the possible participation of so called “Crimean Local Defence”, which has gained the status of “citizens at arms/people’s guard”. Since the reports of their involvement in abductions are quite widespread, and the guilty still haven’t been found and brought to responsibility, an opinion is spreading among the Crimean population, that the government is either directly involved in those crimes or covering them up.

The situation is complicated by the Crimean government, suggesting the relief of criminal and administrative liability for “citizens at arms” of the Crimea, recognizing their actions as “committed in the state of extreme necessity”, and in addition to that, the extension of the relief up to 1 January 2015, including actions, yet uncommitted. The appropriate proposed law has been introduced in the State Duma of the Russian Federation by the State Council of the Crimea[20].

2. Protection of individuals, placed under the state control

The government is responsible for life and health of people, placed under the state control, e. g. in institutions of confinement or temporary detention, armed forces, public hospitals, compulsory medical treatment facilities, etc.

One of the biggest problems of penitentiary system establishments is keeping prisoners in overcrowded cells with unsanitary conditions. Very often natural and artificial light is inadequate, the ventilation is poor or absent, the cells are cold, too damp, the walls are moulded, there are problems with water supply, especially with hot water.

The buildings of the penitentiary system establishments and the interior of the cells have already reached their operation limits long time ago, and now are in very bad conditions and needing complex repairs.

While keeping individuals in colonies and remand prisons (SIZO) the standards of usable area per person are breached. Besides, the national standards of usable area, determined by Ukrainian law, are not corresponding to minimal standards of the European Committee on the Prevention of Torture and Cruel Treatment (CPT).

However, it should be noted, that in result of the vast amnesty in 2014 the number of prisoners has considerably decreased. According to the data, that Donetsk Memorial received from SPSU, the number of convicted, who has come within the purview of this law, reached 34791 people, including 22315 people, convicted to confinement. Among convicted to confinement there were 16624 people released under the amnesty. As a result of the amnesty, the quantity index of prisoners per 100,000 persons in Ukraine in September has decreased to 217, though at the beginning of 2014 it was represented by 279. The amnesty 2014 came to an end on 19 July 2014. The attempts of applying amnesty to the convicted, residing on the territory of the Crimea (roughly estimated, that is at least 500 people), have been unsuccessful.[21]

The major problem is the violation of human right to life at institutions of confinement or temporary detention (TCC — Temporary Containment Cells, remand prisons, custodial facilities, etc.). Terrible life conditions, almost absent or inefficient medical treatment both cause death of prisoners.

There are incidents of keeping together consumptive and healthy people in the same cell.

Another problem is improper food supply, especially during convoying of suspected (accused) to the court.

Employees of the Secretariat of the Commissioner on Human Rights and representatives of social organizations the Association of Ukrainian Human Rights Monitors on Law Enforcement (Association UMDPL) and the Association of Independent Monitors inspected in November 2014 the conditions of transportation of the convicted and prisoners in special Ukrzaliznytsia carriages and came to a conclusion, that, considering the transport conditions, any convoy of people in special carriages may be qualified as cruel and humiliating treatment.[22]

As for medical treatment in institutions of confinement, it is insufficient and of low quality. Sometimes it isn’t delivered at all. That leads to the grave consequences for those residing in institutions of confinement.

Equipment of medical wings is out of date, not to the national and international standards, the buildings need repairs. The penitentiary system establishments are ill-provided with medical supplies and specialists.

Such current situation is caused by improper workflow arrangement of corresponding subsections of the custodial facilities, lack of funding and also by the fact, that it is rarely possible for prisoners to receive treatment in facilities of the Ministry of Healthcare of Ukraine.

Absent or insufficient medical treatment in institutions of confinement affects the death rate in the institutions of confinement.

According to the information of human rights organization Donetsk Memorial, at the beginning of July there were 5813 HIV-positive people on dispensary control in the institutions of confinement, including 832 in remand prisons. 3620 people were treated from tuberculosis, including 362 in remand prisons. Within half a year 456 people died in the penitentiary system establishments (10.3 deaths per 1,000 prisoners if calculated per year, in 2013 the index was 7.2, in 2003 — 4.3), including 69 people, who died in remand prisons. During this period there were 30 suicides (0.68 incidents per 1,000 prisoners if calculated per year, in 2013 it was 0.66, in 2003 — 0.21), including 5 suicides in remand prisons[23].

According to the data of the State Penitentiary Service of Ukraine, as of 1 November 2014, 681 convicted and placed in detention died in the SPSU facilities, including 106 people — in remand prisons. 4118 people are registered as HIV-positive, 2001 — received antiretroviral therapy (ART), 2970 — were on dispensary control with tuberculosis, among them 336 people — in remand prisons.[24]

The current situation in colonies of Donetsk Oblast and Luhansk Oblast is complicated. Establishments, situated on the territory not under the control of Ukrainian forces, are greatly difficult, though possible, to supply with food. However, the situation may change because of the adoption of the decree of the President on 15 November, ordering the withdrawal of all budget-funded entities from the non-controlled territory[25].

Unfortunately, the situation in MIS facilities (the Ministry of Internal Affairs of Ukraine) is of the same sort: breach of usable area standards, unsanitary conditions, untimely and low-quality feeding, lack of constant access to running, fresh and hot water, insufficient cells lighting, low-quality ventilation, out of date equipment, inadequate medical treatment, etc.

The problem of improper confinement conditions in the penitentiary system establishments is a complex one, needing the fastest solution, as it leads, among other things, to spreading of various diseases and, as a result, to the death of the confined.

2.1. Concerning the situation in ATO area

There are 28 facilities, subordinate to the SPSU, keeping 15,000 prisoners, on the territory of Donetsk Oblast and Luhansk Oblast. Most of those facilities, including Donets and Luhansk remand prisons, are situated on the territories under the terrorist control. But for some reason neither the Ministry of Justice nor SPSU brings up the question of prisoners evacuation. We constantly receive the information from the prisoners about awful conditions. The bread stocks are over. Prisoners have water gruel once a day. Militants do not let them out from the colonies and do not let government representatives pass onto colony territories. The colonies are exposed to firing. Thus, on 06/09/14 several missiles hit he territory of colony No. 23 in Donetsk Oblast. For the present, it is unknown if there are any injured there, though some of the bombardments have already resulted in the death of prisoners. And the longer the prisoners will be located in the area of combat operations, the higher are the chances for endangering their lives. The government just has no right to stay aside of those events.[26]

2.2. The European Court practice

The European Court has already passed several resolutions regarding Ukraine in cases, in which the appellants complained about bad confinement conditions in institutions of confinement. Thus, in the cases of Andrii Yakovenko v. Ukraine (application No. 63727/11, decision on 13 March 2014), Danylov v. Ukraine (application No. 2585/06. decision on 13 March 2014) and Zinchenko v. Ukraine (application No. 63763/11, decision on 13 March 2014) The European Court identified the breach of Article 3 of the Convention, particularly in relation to bad confinement conditions in remand prisons, and noted in its decisions, that the government was obliged to provide the proper conditions of prisoners confinement in remand prisons[27].

In Yakovenko’s case the European Court has also noted, that the government was obliged to provide proper transportation conditions for the convicted. The applicant of this case was transported as a convicted from Sokyrnianska (Chernivtsi Oblast) to Torezka Corrective Colony (Donetsk Oblast) by train: the prison compartments were suited for 4–6 people, but actually contained more than 11 people, there was lack of fresh air, the temperature in summer exceeded 30 °C, it was difficult to breathe, the guards convoyed the convicted to the toilet once in 4 hours and stayed there with them, etc. The transportations of the applicant took two month in total. The European Court came to the conclusion, that it is necessary to admit the applicant transportation conditions inhumane and degrading according to Article 3 of the Convention.

In the case of Oleksandr Volodymyrovych Smyrnov v. Ukraine (application No. 69350/11, decision on 13 March 2014) the European Court has ascertained the abuse of Article 3 of the Convention in relation to bad confinement conditions in Slovyanoserbska Corrective Colony No. 60 (Luhansk Oblast) and has noted, that the government was obliged to provide the proper conditions of prisoners confinement in the colony[28].

Besides, there are problems with the delivery of adequate medical treatment in public hospitals. On 16 January 2014 the European Court of Human Rights adopted the judgement in the case of Fuklev v. Ukraine (application No. 6318/03).

The case concerns to the death of a woman, who had been admitted to the gynaecology ward of Kherson Regional Clinical Hospital with a diagnosed metrofibroma. She underwent the operation, but her condition rapidly deteriorated because of post-operative peritonitis. She died in the hospital. The autopsy confirmed that the death was caused by post-operative peritonitis, complicated by sepsis. The Regional Healthcare Department Commission studied the circumstances of the incident and found that the medical staff of the hospital had not been guilty in the death of the applicant’s wife. The hospital commission also came to the conclusion, that the death of the applicant’s wife had been inevitable. The Ministry of Healthcare Commission for investigation of treatment circumstances of applicant’s wife, created following his complaint, revealed, that the patient had not been properly prepared for the operation, had been operated on urgently, and also the diagnostics and the treatment had been improper. This conclusion was taken into consideration by the Health Department of the Kherson Region State Administration and resulted in directing the medical stuff to special advanced training courses to evaluate their qualifications, and head of the ward had been reprimanded, which was insufficient in appellant’s opinion. On 30 November, 2001 the Health Department informed the applicant that improper treatment of his wife was revealed during the investigation. A criminal case was initiated over the fact of death. It was repeatedly suspended, but the decisions of the investigation authority were cancelled by the higher authorities. The final case judgement has never been made.

The European Court has noted in judgement, adopted on this case, that there is a need of creation of such a legal system that will allow proper investigation of incidents, concerning the death of patients during their treatments both in public and private medical institutions. And, upon the existence of the guilty in death of the patient, the government must find and punish them. This principle concerns not only to the criminal prosecution, but also to the administrative and disciplinary law areas. Person offended or relatives of the dead should feel protected by the governmental legal safeguards, such as an opportunity to file a civil action for damages payment. The European Court has noted, that the provisions of Article 2 of the Convention are not possible to implement, until the protection, provided by the national law, exists only on paper, as it has to function effectively in practice, what has not been achieved in the case in question.

The European Court also has noted, that the demand of effective investigation includes, in particular, the “thoroughness”, which means, that the authorities must always make serious attempts to reveal, what happened, and should not rely on hasty or ill-founded conclusions to close their investigation as soon as possible. They must take all reasonable steps available to them to secure the evidence concerning the incident. In this case the decisions of refusal to institute criminal proceedings were twice dismissed by the higher authorities. In total, the investigation of the death of applicant’s wife had been in process for 6 years and 2 months. Such a long-standing investigation, according to the Court, is groundless in relation to Article 13 of the Convention[29].

2.3. The duty of the State to provide the effective investigation

2.3.1. General situation

The duty of the State to conduct the effective investigation provides the official investigation in the cases, when the person was put to death or makes not an unfounded claim of undergoing the torture or other kinds of abusive treatment, especially on the part of government agents. Such an investigation must be conducted by independent and unprejudiced authority, taking all reasonable steps to secure the evidence concerning the incident.

But, not always the investigations are conducted properly, especially in those cases, when government authorities are suspected in committing the crime.

It should be noted, that according to the provisions of CPC, it is possible to launch an investigation and start collecting evidence concerning the incident with only entering the information on the crime into the Unified Register of Pre-Trial Investigations (further — URPTI).

Thus, there are no obstacles for launching the investigation without a delay. Moreover, CPC contains no grounds for refusal of entering the information into URPTI, and lack of action by investigation authority or untimely entering of the information on the crime into URPTI may be appealed against, examined by the investigation judge within 72 hours.

This procedure is effective and allows launching the investigation without a delay, which, in its turn, prevents the loss of important evidence concerning the incident.

However, despite this provision, there are certain cases of refusal of registering information in URPTI.

Indeed, there are plenty obviously groundless crime applications, which bare no need of being entered into URPTI[30], still in the court practice there are multiple examples of refusal of registering crime applications, if they need additional examination by the investigating authorities. The refusal of registering applications on abusive actions of law enforcement agents are of the most concern in this context[31].

It should be noted separately, that CPC contains a demand to create a new investigation authority by 2017 — the State Bureau of Investigation, which will take away the investigation function from the prosecution office and specialize in investigating crimes, committed by high officials and law enforcement agents.

Creation of such an institution aims at overcoming the conflict of interests of the prosecution office, which nowadays supervises the investigation and represents the prosecution during crime proceeding, in which the person undergone violent treatment (causing death, leading to suicide) is suspected, and at the same time directly investigates the lethal incidents caused be violent treatment, which significantly affects the quality of such investigation.

Moreover, up to date, the prosecution office has no own operating team and during the crime investigation is forced to use services of operating teams of other law enforcement institutions, including MIA, which in many cases puts the independence and neutrality of the investigation in question.

And with creation of SBI — the proper investigation authority — this problem will disappear.

Still there is an issue of sharing the information on the course of investigation with the public and interested persons. Unfortunately, sharing the information is often held in generalized statements and with great delays, interested persons are often groundlessly deprived of the opportunity to receive copies of investigation materials.

It is a common practice, when victims of violent treatment and relatives of the dead are not conferred a victim status in proper time, which in turn prevents their timely access to the investigation materials.

It should be noted separately, that up to date the national law does not provide the opportunity for the offended to receive the gratuitous legal aid. Gratuitous Legal Aid Act prescribes step-by-step provision of such aid for disadvantaged social groups. Full value provision of the aid is prescribed only starting from 1 January 2015.

One more problem is still the quality of investigations both of lethal incidents and violent treatment. This problem is complex and connected both with technical equipment and direct competence of investigation institution agents, as well as with their interest in conducting the investigation.

Though some steps are taken to increase the quality of investigations, there is no effective complex programme, that includes formation of national registers (fingerprints, DNA, etc.), increase of expertise quality, quality of investigative procedures, recurrent advanced training of law enforcement system employees, etc.

The positive move in this area is the governmental approval of the Concept and the Strategy of Reformation of MIA. But there is still serious concern about the efficiency of fulfilment of that concept.

Also, the quality of investigations is affected by corruption within the law enforcement system. And although there is an active national anti-corruption programme for 2011 — 2015, it may be noted, that such a programme is not effective enough for overcoming the corruption.

So, that is a common situation, when the investigation authority refuses to conduct effective investigation. Especially often it happens in cases of violent treatment and homicide by law enforcement employee, abusive treatment and lethal outcomes at hospitals, in the result of traffic accidents, at institutions of confinement, etc.

Later the decisions on the discontinuation of the case are cancelled by the courts, but more often it has no influence on the investigation effectiveness.

It should be noted separately, that the National Anti-corruption Bureau of Ukraine Act, adopted on 14 October 2014, provides the formation of special investigation authority in area of anti-corruption effort.

In 2014 (as of 1 January 2014) the European Court adopted six judgements in total on violation of Articles 2 and 3 of the European Convention for the Protection of Human Rights, ascertaining improper investigations of lethal cases and violent treatment.

These are the following: Danilov v. Ukraine on 13 June 2014; Velerii Fuklev v. Ukraine on 16 January 2014; Dzhulai v. Ukraine on 3 July 2013; Rudiak v. Ukraine on 4 September 2014, Hordiienko v. Ukraine on 16 October 2014, Adnaralov v. Ukraine on 27 November 2013.[32]

In those judgements, among other things, the European Court has noted, that:

— The decision to refuse to conduct the investigation had been based mostly on the testimonies of the involved officers. The investigation authorities had made no efforts to verify those testimonies and version of the offended;

— The investigation had not met criteria of independence, as the prosecutor, when adopting the judgement, had based his position on the conclusions of internal investigation, conducted by the police authority, whose officials had been accused by the offended;

— Many of the necessary actions had either never been taken or conducted with a considerable delay, thus had been untimely;

— There had been a great number of flaws in the investigation, pointed out by the national authority, but they had not been emended in time;

— During the investigation there had been lasting periods of complete absence of investigative procedures;

— The inquiries had been too long and had led to no final decision on this case;

— Other.

Thus, considering the judgement of the European Court, it is possible to come to the conclusion, that there is a steady tendency of ineffective investigation of lethal incidents and violent treatment. At that, the government authorities do not carry out any effective activities for the improvement of the situation.

2.3.2. ATO area

The separate issue to point out is ineffective investigation of lethal incidents and violent treatment in ATO area.

Those are the incidents concerning deaths of civilians during the military conflict, prisoners and apprehended treatment both by the self-proclaimed LPR (Lugansk People’s Republic) and DPR (Donetsk People’s Republic) and by the Ukrainian government, enforced disappearance of individuals in the ATO area, etc.

Unfortunately, it is necessary to state, that though the interested persons appeal to the law enforcement institutions on the mentioned categories of incidents, the criminal proceedings are launched and conducted, some investigative procedures are held, but any effective system of organisation and conduction of such investigations is not present.

And though from the start of ATO the situation has improved a little, today the coordination of different operating teams, conducting the investigation (MIA, SSU, the Prosecution Office, etc.), is still too low. It is frequent, that for a long time such teams cannot decide, who is in charge of conducting the investigation, and as a result the investigation is either not conducted at all or launched with a considerable delay.

Lack of effective workflow with applications on crimes in ATO area leads to overload of some investigation teams, created in the peaceful period considering they would work with far less case load.

There is no an effective system of investigation quality control that would allow the necessary minimum of investigative and operative procedures to be conducted under specific categories of incidents and their conduction control.

The operating teams, conducting investigations, are not receiving necessary training concerning the specific character of work under the circumstances of military operations, since in such circumstances the immediate evidence fixation is the guarantee of the success of further investigation, and such fixation is conducted during the bombardments and other military operations.

The negative factor in this situation is also the nationwide problem of the function duplication between the operating an investigating teams, when there is a need to involve both operative agent and the investigator in evidence fixation process.

The mentioned flaws result in frequent impossibility to reveal actions of which side caused the death of people, who is involved in cruel treatment of captives, who is to blame for the forced disappearances, etc.

And even if the suspected in those crimes are revealed, often there are no operative actions taken in order to find them and arrest.

As the examples of such incidents may be the cases of Irma Crat, Pavlo Yurov, Denys Gryshchuk, Ihor Opria and others, who were delivered from captivity in Slovyansk. Where, up to date, the list of suspected in cruel treatment is still not full, and most of those suspected are not put on the national and international wanted lists.

The similar situation persists in cases of prisoners of war, who are delivered from captivity; in most cases the law enforcement authorities question them within the criminal proceedings only formally, without any attempts to reveal the causes and the guilty of their imprisonment, as well as the responsible for cruel treatment and illegal detention. Those persons are not put on the wanted list in context of the criminal proceedings, etc.

It should be noted separately, that there is no effective investigation system of crimes, of which Ukrainian military are accused. Similar applications, in some cases, are investigated formally, not by the special investigating authorities, but by ordinary local police units, who even have no possibility to conduct a proper interrogation of the involved.

The positive move in this aspect was the adoption of Alteration of Prosecutor’s Offices Act Concerning the Formation of Military Prosecutor’s Offices Act on 14 August 2014, according to which within the system of prosecution institutions, specialised prosecutor’s offices are formed, aimed to investigate military crimes.

As the examples of such cases may be the case of Oleksandr Minchenok, who disappeared on 21 July 2014 in Starobelsk, Luhansk Oblast. The Starobelsk local police department launched the investigation over the fact of disappearance. Later on, during the MDU inspection it was revealed, the Mr. Minchenok was apprehended by servicemen of the MIA National Guard and one of MDU military units. In their explanations the servicemen indicated, that they had let Mr. Minchenok go not far from Starobelsk without documents and money. Since then he has never been seen.

But, in spite of the fact, that the National Guard is MIA unit and that there are special military prosecutor’s offices acting in Ukraine, the investigation on the incident is still conducted by the local MIA department.

The major issue of the ATO area cases is almost absolute lack of informing public and offended on the course of investigation and efforts made by the government to find the guilty and bring them to responsibility.

2.3.3. ARC

The situation of investigation of lethal incidents and violent treatment in ARC needs separate description.

Since the mentioned territory is in fact under the RF jurisdiction, the applications on mentioned crimes are investigated by corresponding law enforcement authorities of RF. In such a way, all the problems and flaws of investigation system of RF are also present in the investigations, conducted in ARC.

Without paying much attention to those flaws, it still should be noted, that after the institution of actual control over ARC territory by RF, the enforced disappearances and murders of Crimean Tatars by unidentified persons became the common thing.[33]

In most cases the mentioned crimes are investigated formally and law enforcement authorities of RF almost never reveal and bring the guilty to responsibility. As the examples of such incidents may be the cases of Reshat Ametov, the Ukrainian Naval Forces major Stanislav Karachevskyi, 16-years old Marko Ivaniuk.[34]

In this context it is necessary to state, that the Ukrainian law enforcement authorities conduct hardly any systematic investigations on the mentioned crimes. And though the applications on those crimes are registered, the investigations are conducted formally.

2.3.4. Euromaidan

Also there is still a problem of investigating incidents of mass beatings and murders, that took place at the end of 2013 — beginning of 2014 at Euromaidan in Kyiv and regional Euromaidans, as well as of further events in Odessa, Kharkiv, Luhansk, Donetsk and other.

It should be noted, that in the mentioned cases there were serious delays at the very beginning of investigative procedures, and this considerably lowered the chances to reveal the guilty and bring them to responsibility. Actually, in many cases there were no investigative procedures at all.

Since in most cases the suspected turned out to be government agents, including law enforcement agents of various ranks, who were acting, according to the most common version, on instructions of the highest authority of the state, the investigation institutions were not interested in bringing guilty to responsibility, especially on the primary stage of the investigation.

Moreover, considering the massive and unprecedented character of the events, law enforcement authorities were not ready to work with such a big amount of cases simultaneously, which in some sense led to paralysis of crime investigation system.

In this context it is necessary to note, that no organisational changes were made in time in order to manage the situation.

However, even after the shift of power in the state and repeated declarations of the highest authorities, proclaiming, that the mentioned cases will be investigated in time and in a qualitative manner, there are still no systematic steps made in those directions.

Most of those cases have not been proceeded to the court yet, the investigation is facing the problem with the suspect identification, etc.

Until today a great number of witnesses have not been questioned yet, the government authorities have actually stopped any actions aimed at search and questioning of witnesses and victims, having declared the necessity of witnesses and victims to come to the investigator and give testimonies.

Many of the offended are not informed on the course of investigation in any way. There are single cases of claims applied in proper time, regarding the beating by the law enforcement agents, such claims had been registered, but the investigative procedures were launched only after the second application with a request to inform on the course of investigation, etc.

2.3.5. Disappearance of persons

Ukraine has not signed the UNO International Convention for the Protection of All Persons from Enforced Disappearance. The convention entered into force on 23 January 2010, 30 days after the number of participants had reached twenty. As of 5 December 2014 there are 43 countries, that have validated the Convention.[35]

3. Recommendations

1. To establish effective mechanisms of investigation of lethal incidents and violent treatment, especially those caused by actions of law enforcement agents, specifically:

— To develop detailed instructions with fixed range of investigative procedures, which have to be conducted in every case in order to enable investigation authority to put the discontinuation of the case in question. If the investigators refuse groundlessly to keep to those instructions, they should be removed from their duties and brought to disciplinary responsibility;

— To train (retrain) employees of investigation institutions regularly in order to increase the quality of their investigative actions;

— To reform the structure of law enforcement, minimizing the amount of tasks and functions, that are duplicated by different teams and institutions, decreasing the work load of specific agents by means of the reduction of their secondary functions and duties (it is important to achieve that in practice), finishing off the practice of overtime assignments without granting additional days off, establishing the effective system of wages;

— To improve the material and technical equipment of law enforcement institutions;

— To increase the expertise quality;

— To form the national registers of information on suspected persons or convicted for crimes (fingerprints registers, DNA, etc.).

2. To create the effective system of crime prevention. In this context, among other things, it is necessary to increase effectiveness of cooperation between beat officers and local inhabitants.

3. To apply in practise the system of inevitable responsibility for every incident of groundless violence on the part of the law enforcement agents.

4. To create the effective system of control of weapons use and storage by the law enforcement agents. The decision to permit the use of weapons should be based on thorough analysis of agent’s personality. To create the effective system of responsibility of heads of the law enforcement departments, who permit their subordinates to use weapons without the analysis of their personalities or if the approach to the analysis was simply formal.

5. To create the effective system of control over the psychological condition of the agents, and remove them from their duties basing on the decision of the psychologist.

6. To hold the systematic trainings and instruction for the law enforcement agents, who are engaged in special operations on crime suspected apprehension.

7. To create a new system of remand prisons outside the cities. To improve the material and technical conditions in institutions of confinement according to recommendations of the European Committee on the Prevention of Torture.

8. To create the effective system of delivery of adequate medical treatment in institutions of confinement.

9. To implement reforms in the healthcare sphere according to recommendations of the specialists in order to prevent increase of death rates of population, including child and infant death.

10. To increase the technical standards of road safety and to create the system of inevitable responsibility, including the responsibility of the controlling authorities.

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

12. To create special department for investigation of mass and resonance incidents, and also specially trained teams for evidence fixation and further investigation under the circumstances of military operations.

13. To simplify the procedure of collection and fixation evidence that will be further taken to the court (decrease the amount of formal documentation that person conducting the investigation has to fill in, and that are of no use in further revealing the guilt of the suspected).

[1] Prepared by lawyer Mykhailo Tarakhkalo, .

[2] https://www.youtube.com/watch?v=T6IbEIBhb8o&list=TLaPoqGHaZCTGIqfKlXunblu6owEQZrkUz;

 https://www.youtube.com/watch?v=yBNwwKGlibA and https://www.youtube.com/watch?v=yCzIIFAsGk4

[3] http://www.radiosvoboda.org/content/article/25267612.html;

 http://www.pravda.com.ua/news/2014/02/18/7014190/?attempt=1;

 http://ua.interfax.com.ua/news/general/190555.html;

 http://zik.ua/ua/news/2014/02/18/proty_aktyvistiv_zastosuvaly_vodomety_461837

[4] http://espreso.tv/new/2014/02/18/bilya_banku_khreschatyk_dva_btr_y_kulemet_na_trynozi_berkut_ozbro yuyetsya_kalashnykovymy

[5] http://espreso.tv/new/2014/02/18/khronika_myrnoho_nastupu_maydanu_na_verkhovnu_radu

[6] http://fakty.ictv.ua/ua/index/read-news/id/1504619

[7] http://www.radiosvoboda.org/content/article/25268723.html

[8] Ibid.

[9] http://helsinki.org.ua/index.php?id=1399274764

[10] http://tyzhden.ua/Society/106111

[11] http://helsinki.org.ua/index.php?id=1408623207

[12] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109130

[13] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-142076

[14] http://www.khpg.org/index.php?id=1417179591

[15] http://www.khpg.org/index.php?id=1417179591; http://khpg.org/index.php?id=1416571036

[16] www.ombudsman.gov.ua

[17] http://khpg.org/index.php?id=1416571036

[18] http://amnesty.org.ua/nws/obidvi-storoni-konfliktu-vidpovidalni-za-napadi-nevibirkovogo-harakteru-u-shidnij-ukrayini/

[19] http://amnesty.org.ua/materiali/human-rights-in-ukraine/zlovzhivannya-ta-voyenni-zlochini-z-boku-d/

[20] http://www.ombudsman.gov.ua/images/stories/11_kpm.pdf

[21] http://ukrprison.org.ua/news/1410599793

[22] www.ombudsman.gov.ua

[23] http://ukrprison.org.ua/statistics/1409938063

[24] http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/753486

[25] http://ukrprison.org.ua/news/1417070408

[26] http://khpg.org/index.php?id=1414747927

[27] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-82987;

 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-141625;

 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-141633

[28] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-141635

[29] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140009

[30] http://www.reyestr.court.gov.ua/Review/37049845

[31] http://www.reyestr.court.gov.ua/Review/37812578

[32] More details of the mentioned judgements can be found on the official web site of the European Court.

[33] http://ru.krymr.com/content/article/26622879.html;

 http://www.newsru.com/russia/14oct2014/tatary.html;

 http://news.liga.net/news/politics/3752837-sovet_es_osuzhdaet_presledovaniya_krymskikh_tatar_v_krymu.htm;

 http://www.bbc.co.uk/russian/international/2014/08/140807_crimea_tatars_disappeared

[34] See Crimean Human Rights Field Mission “Overview of Current Situation in the Crimea” for October 2014.

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