Ukrainians’ tolerance towards unlawful violence is increasing – human rights protectors
The International Day in Support of Victims of Torture is celebrated annually on June 26, proclaimed by the UN General Assembly (Resolution A/RES/52/149) in 1997 “with the aim of full eradication of torture and provision of effective functioning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment that came into force on 26 June 1987“.
On the occasion of this day the representatives of the Coalition of Public Human Rights Organizations «Against Tortures» held press conferences in two cities at once – Kyiv and Kharkiv.
At the Ukrainian Crisis Media Center in Kyiv the journalists have met with Yevhen Zakharov, the Director of Kharkiv Human Rights Protection Group, Oleksandr Pavlichenko, Chairman of the Board of the Ukrainian Helsinki Human Rights Union (UHHRU), UHHRU Executive Director Oleksiy Sydorenko, editor-in-chief of Magnolia TV and Hugues De Suremain, European Prison Litigation Network (EPLN) Legal Coordinator. At the same time at Kharkiv Press Center «Kharkiv Today» there was the conference involving Head of the Strategic Litigations Center of the Kharkiv Human Rights Protection Group (KHPG) Gennadiy Tokarev, a lawyer, and the lawyers from that Center, Tamila Bespala and Anna Ovdiyenko, as well as Denys Kobzin, the director of the Kharkiv Institute for Social Research. The human rights activists considered the issue of torture in police, SSU, penitentiary system and during armed conflict in eastern Ukraine, told about the activities of the Coalition of Public Human Rights Organizations "Against Torture", represented the main findings and recommendations of alternative Report by KHPG to the Seventh Periodic Report of the State on the Implementation of the UN Convention against Torture and Ill-Treatment and the activity of EPLN
Since June 2019 the members of the Coalition “Against Tortures”, KHPG, UHHRU, Dnipro Human Rights Protection Group “Sich” made monitoring visits to more than 40 penitentiary institutions. They stated a significant increase in illegal violence towards the prisoners by the administration of some institutions. In particular, that concerns Oleksiivska PC No.25 (Kharkiv), Berdyansk PC No. 77, Zhovtovodsk PC No. 26, Kropyvnytskiy SIZO and others. The Coalition has a task to cover all correctional facilities with monitoring visits and to increase the protection of the convicts’ rights, putting forward this issue as the key one in the reform of those institutions. Besides, during the last year, such members of the Coalition as KHPG, UHHRU and “Sich” conducted proceedings in more than 400 cases in national courts and the European Court of Human Rights. One member of the coalition, the Dnipro organization “Forpost”, provided psychological assistance and general rehabilitation to 50 torture victims. Another member of the Coalition, “Magnolia”, has already distributed 30 video bulletins “Against Tortures” and 60 related videos.
– We have such problem as inadequate definition of torture in Article 127 of CC of Ukraine which does not meet the definition of torture according to the international law provided in the first Article of UN Convention Against Torture – stated Yevhen Zakharov, the Director of Kharkiv Human Rights Protection Group, Chairman of the Board of the Ukrainian Helsinki Human Rights Union. – Because of that there are almost no criminal proceedings under Article 127. This is related to the fact that the article does not contain the definition of a special subject. According to international law, the torturer is either a public servant or a law-enforcement officer, mostly. Or the torture was carried out under their orders, or their tacit consent. It is necessary to amend Article 127, bring it into full compliance with the first Article of the UN Convention.
Comparison of the number of recorded facts of torture and ill-treatment with the number of state agents convicted of these crimes indicates almost complete impunity of the persons illegally applying force, sometimes even lethal. This is one of the main challenges for the Coalition. The persons guilty of the death of a student called Indyl, of the murder of a man on Kryve Ozero in Mykolaiv region and others are not punished yet and are still working in the police. It is necessary to create an independent system of investigation of the complaints about illegal actions of the police and the officers of other law-enforcement bodies.
– When the people find themselves in the conditions in which they simply need to survive, on the edge, when only survival instinct inherent in any living being works, they usually sign everything. After that for some time the employees of the so-called law-enforcement body put pressure on health workers, courts, lawyers, and usually there aren’t even any proofs, all the bruises pass, all the proofs of the events that happened in those facilities of the so-called pre-trial detention, – said Gennadiy Tokarev.
This year’s events in Oleksiivska colony No. 25 in Kharkiv drew the attention of the entire Ukrainian society – the prisoners underwent horrible torture, probably inherited from NKVD, and then they were forced to waive their complaints because of the same torture or psychological pressure. The events in the colony showed the extent of the problem. There were open appeals to the President, Prime Minister, Minister of Justice, Prosecutor General and law-enforcement bodies demanding to intervene in the situation and stop the lawlessness.
Despite the fact that there is a mechanism allowing to address the law-enforcement bodies concerning the torture (there is a crime and there should be an investigation), not only ordinary citizens, but even lawyers working in this direction face the fact that there are certain difficulties even on the stage of application, – says Tamila Bespala, a lawyer from Strategic Litigations Center of KHPG. Even if there are such applications they get nowhere and do not have any result.
– Working with the tortures in the colony No. 25,, we have moved a little further, however, currently the investigation occurs at the level of correspondence with law enforcement agencies, and speaking frankly, according to the responses to our petitions and applications, we can’t see any particular enthusiasm to really conduct the required investigation in the full meaning of that word, – says the lawyer.
In general the detention conditions in Ukrainian SIZOs and penitentiaries are quite bad. The paid VIP-cells only increase the discrimination of the prisoners and would not solve the problem, because they cover no more than 1–2 % of the persons held in SIZO. Currently there are 55 decisions of the ECtHR concerning the conditions of detention. This is a huge amount of money paid from the state budget, those would be enough to repair the facilities in which the persons who received the money were held, – says Anna Ovdiyenko, a lawyer from Strategic Litigations Center of KHPG.
In late January 2020 the European Court adopted a pilot judgment in Sukachov vs Ukraine case, which established that detention conditions are a systematic problem. From there on the decisions will be made automatically and the state will pay.
The medical assistance to the convicts in most penitentiary institutions remains unsatisfactory, somewhere this situation is catastrophic because of lack of medicines, required equipment and doctors. UHHRU Executive Director Oleksandr Pavlichenko noted:
– Currently the situation with provision of medical assistance in the places of deprivation of freedom has decreased almost catastrophically, since the process which is difficult to be called a reform broke the existing, probably less than positive system, and caused the situation when the licenses for the necessary medical intervention were lost, the possibilities to have anesthetics that should accompany the surgery were lost, the staff which could carry out the surgery was lost. The system that had existed before was broken and the new one was not created.
Removing the administrations of the penitentiaries and pre-trial detention centers from liability for the health of the prisoners combined with a complete lack of information in the public space concerning the activities of the Health Center and its structural subdivisions made it significantly more difficult to appeal against the inactivity of prison medical staff. There is no public official information on the illnesses of persons held in penitentiaries, nor the statistics concerning lethality. The convicts’ right to be treated in the civil hospitals of their choice is illusory for most such diseased because of the lack of money. In particular, the Ministry of Health denied this in cases of COVID-19.
The situation with the provision of psychiatric care and the conditions of keeping patients in psychiatric institutions of the Ministry of Health is painful.
– The number of patients held in specialized institutions is decreasing, – said Oleksandr Pavlichenko. – accordingly, such people who are not entirely healthy and even have a certain status, who are disabled, end up in the street.
In addition, the problem of non-investigation of ill-treatment and torture in the army and in the area of the armed conflict is acute. Those killed in unconstitutional military service are usually simply "recorded" as suicides. The cases concerning the torture of civilians in the area of JFO in most occasions are not investigated because of inadequate legislation. There is no single methodology for accounting for civilian victims of armed conflict, therefore the compensation to victims or rehabilitation is out of the question.
According to the legal coordinator of European Prison Litigation Network (EPLN) Hugues de Suremain, the data provided n the alternative Report of KHPG to the Seventh Periodical state Report on the implementation of the UN Convention against Torture and Ill-Treatment is horrible, it indicates the weakness of the reform process in Ukraine.
EPLN is an international public organization with consultative status in the Council of Europe (CoE). It was founded in 2013 according to the French legislation with the aim of increasing of the court protection of detainees in Europe. It unites 18 NGOs from 13 countries of CoE. It developed partnership with leading universities of Europe: CNRS, the universities of Florence, Paris (Sorbonne-1), Strasbourg, Dortmund, Madrid Complutense, Comillas, Utrecht, Leuven, Ghent.
EPLN works in three areas: 1) initiating research to support litigation and/or measuring the real impact of the reforms; 2) litigations on European level (in domestic courts and ECtHR) concerning the cases with high potential for prison reform; 3) capacity building activities for NGOs and practitioners.
– The tolerance towards torture in prisons undermines the court and executive institutions and ruins the very idea of the rule of law, – stated Hugues de Suremain.
He noted that penitentiary issues could not be considered as secondary, as the ones that do not pose interest for the public in general.
– It is obvious that the reform and modernization of prisons is impossible if there is a culture of violence in the system, – believes Hugues de Suremain. – Fighting torture is a difficult process that requires the simultaneous adoption of various measures, such as the training of administrative staff, the fight with corruption, observance of decent working conditions of the convicts, the system of prison monitoring, etc.
Despite significant steps forward in some years to prevent torture and ill-treatment, all changes that were adopted turned out to be unstable, and the system actually rolled back, – says Denys Kobzin, the director of the Kharkiv Institute of Social Research. For example, in 2012–13 changes were adopted in CCP, a national preventive mechanism to combat torture and ill-treatment was established under the Ombudsman, the system of free legal aid was reformed, which significantly improved the respect for human rights.
– But over time, as usually happens here, none of the measures taken was supported and other elements of the system were not reformed and they, let’s say, become covered with dust and stop working. For example, they have learned to violate the Code of Criminal Procedure, to masterfully manipulate the existing norms, – says Denys Kobzin. – The key safeguards against torture and ill-treatment remain unrealized: the access to a lawyer, the ability to inform a third party about detention, access to a doctor. Those key safeguards are in fact not being followed today.
The human rights protectors are concerned that compared to 2013–14 the tolerance of regular citizens towards unlawful violence is increasing. Before 2013, according to the results of the sociological research, there was a steady increase in the number of people for whom unlawful violence against detainees was unacceptable, but since 2014 there started a decrease, and now the number of people which under certain circumstances are ready to tolerate and approve it is 32 % – in fact, every third (according to the results of 2018 research).
EU project “Resisting Torture, Ill-Treatment and Impunity in Ukraine”