2020: There was no worse year in the realm of human rights after the Revolution of Dignity
I came to such regrettable conclusion analyzing the course of events of the year that has just passed. In my opinion, starting with 2015, the situation with human rights worsened year after year. It was the main reason (not yet realized!) for the devastating defeat of the ruling political forces in 2019. However, it turned out for worse – due to the winners' complete lack of understanding of the need to observe and respect human rights.
“Highest social value”
According to Article 3 of the Constitution, “The human being, his or her life and health, … are recognized in Ukraine as the highest social value”, and “To affirm and ensure human rights and freedoms is the main duty of the State”. In 2020 all non-viability, hypocrisy and emptiness of these basic norms manifested itself the most, in comparison with other years of almost 25 years of existence of the Constitution. The treatment of people was brutal and cruel, and the people accepted that as a norm, they did not even imagine that it could be different!
On the 29th of May, more than 800 Ukrainians appealed to the government and ombudsman with a petition to finally solve their problem – it had already been two and a half months since they were unable to return home due to the quarantine. Almost all of them had only winter clothes, many had nowhere to live, many had run out of their livelihood, among them were many sick, including people suffering from cancer, who were in need of urgent care, almost all had been separated from their families, in a word, each of them had their own special circumstances. Some came to care for their sick elderly relatives, some were undergoing treatment, some came for the burial of a close person that had passed away, some were on vacation, and some had come for other important reasons. And got stuck. On the 15th of March at 15:30 it was announced that by the 16th of March, the pass through KPVV on the contact line will be carried out at the place of registration; at the same time, providing help for IDPs was not at all taken into consideration. There are those who have already lived in the controlled territory for a long time, had jobs, housing, and so on, who cannot return home. And although the government has already brought home, as is reported, 120,000 Ukrainians from abroad, within the country they have created horrible conditions for internally displaced peoples!
The situation with data concerning infection rates of COVID-19 in Ukraine appears to be strange. No, I am not supporting the opinion that the statistics have been falsified, I think that the data from the Ministry of Health, which I follow every day, correspond to reality. The problem, in my view, lies in something else – the tests do not cover everyone who should be covered, and at the same time, the number of those infected is significantly greater than the number of laboratory confirmed cases, and, therefore, the scope of the epidemic is significantly greater. There can only be one explanation: the ill are purposefully not being tested. If there are no confirmed diagnoses, then there are no people with COVID-19! And those who are in hospital are suffering from … pneumonia! And are dying of pneumonia, but we don’t have coronavirus! Moreover, how many times have we heard that creating tests is very difficult! At a private laboratory at your own expenses – please, you’re welcome to come; but not at public expense. An ambulance driver, a 38-year-old man, got sick, and instead of testing, everyone told him it was a common cold and that he must continue working. He worked another week while ill, and then he was diagnosed with COVID. Now he is lying in hospital, attached to a ventilator, and it is not known whether or not he will survive. Just as it is not known how many people he infected throughout the week.
All prisoners were left without tests and treatment; the regulations directed at prevention of the spread of the pandemic do not even provide them with personal protective equipment. The availability of such equipment fully depends on the wish and ability of the management of the penitentiary institutions to find the costs for their procurement. The scarce numbers of confirmed COVID-19 diagnoses should not be misleading. The position is very comfortable: no testing – no disease! The life and health of the prisoners does not interest anybody. Thus, they are also discriminated against comparing to the free persons.
The widest possible release of the prisoners as a mean of prevention of COVID-19 pandemic is a general recommendation of all international organizations and is essentially the only mean of mitigation of the disease, since no prison system in the world could deal with the challenges of the pandemic. The prisoners were released through various means – amnesty, pardon or parole, by at least 26 countries of the world, including the ones with strict political regimes (for example, Iran). In Europe this policy was supported by Germany, France, Italy, Austria, Portugal, Cyprus, Belgium, Norway, United Kingdom (especially Northern Ireland and Scotland), Ireland, Slovenia, Albania, Belarus, Azerbaijan and Turkey. More than 143 thousand prisoners were released in Europe between March and September. More than 40 thousand convicts were released in United States.
The relevant draft laws were developed in Ukraine, the Government introduced them for consideration in Parliament on 27 April. However, the President seems to be against the adoption of those laws, because it is an unpopular measure that would adversely affect his and the ruling party’s political rating, and Verkhovna Rada believes that because of that the chances of their adoption are non-existent. Apparently, the life and health of the prisoners are fiction for the leadership of the state.
If Article 3 is to be understood literally (the norms of the Constitution should not be taken in any other way), the Government had to immediately procure the COVID-19 vaccine for all residents of the country that had to be vaccinated. And it is not such a big sum for the budget – around UAH 17-18 billion. But no! It is out of the question.
“The spring comes – we will imprison!”
This main motto of the election campaign of the future President of Ukraine, Volodymyr Zelensky, is a tribute to the same rating, taking into account the great demand of the society for repressive methods of fighting corruption.
Regrettably, the corruption had long become a cornerstone of Ukrainian statehood. On the eve of 2005 I wrote the following in the article «…Plus dekuchmization of the whole country»: “new laws alone will not work if the repugnant semi-feudal social system, where only proximity to those wielding power guarantees privileges and benefits remains intact. If fiscal pressure continues to make it impossible to work without stealing, then everyone will remain vulnerable before the full power of the State edifice and will be forced to continue paying dues”.
That system only further developed and reigned again a year after the Revolution of Dignity. The funds are still laundered from the budget through various means – the withdrawal of costs and property of the state monopolists, misuse of funds etc; the criminal business is protected mainly by the law-enforcement bodies; the smuggling, state racketeering and tax evasion are blooming; the offices are being sold etc. Against the background of the military aggression in the east of the country with all its consequences it is extremely disgusting. All the while many people hope that it would be enough to imprison as many corrupt people as possible for as long as possible, and the corruption would be defeated.
In my opinion, such views are erroneous, they are based on the understanding of corruption as a moral problem in the first place. However, in reality it is a political and economic problem. The corruption is the greatest in the highest offices of power. Corrupt relations are a substitute for market relations, and without the introduction of a real market, without the separation of business and power, the fight against corruption with the use of punitive means only cannot be successful. It is also necessary to implement various administrative means aimed at introducing new information technologies in the system of public administration, decrease of the state control over the business, introduction of anti-corruption barriers etc. However, neither the new laws nor the creation of the new institutions (National Anti-Corruption Bureau and National Agency for the Prevention of Corruption) would help if the system of relations between the business and the state is not changed drastically. However, it remains the same. Therefore, the persecution of the corrupt persons turns into selective criminal prosecution that sometimes has obvious political motives.
The new anti-corruption bodies, which act seemingly without any kind of control, have quickly started abusing their powers and violating the law. This was even noted by the Plenum of the European Court of Human Rights. Its decision of 6 July 2020 on the lifting of immunity from Georgy Logvinsky, the husband of Ganna Yudkivska, a judge of the European Court from Ukraine, notes that “some investigative actions, in particular, the secret surveillance that was carried out by the National Anti-Corruption Bureau of Ukraine, in practice also covered Mr. Logvinsky”, and “there is evidence that shows that during those investigative actions the National Anti-Corruption Bureau of Ukraine managed to put pressure on the participants in the process”.
So what are those investigative actions of NABU known to the judges of the European Court of Human Rights? Within the pre-trial investigation the detectives from NABU systematically and consistently applied pressure on the witnesses with the aim of coercing them to give the false testimony against Georgy Logvinsky, unlawfully and in violation of all principles of advocacy, they wiretapped the assistants of a People’s Deputy who are lawyers, trying to obtain any “proofs of his guilt”, allowed other gross violations of applicable law and human rights, namely: unlawful searches under fictitious pretexts, without the approval of the court, unlawful seizing of personal belongings, unlawful wiretapping, pressure on the witnesses, artificial creation of evidence for the prosecution, violation of the right to defense through unlawful investigative actions against the lawyers.
If one is to take any high-profile criminal proceedings conducted by NABU, it is always accompanied by accusatory propaganda campaign and throwing of data from covert investigative actions into the public space. This is because, they say, the domestic corruption cannot be overcome otherwise, because this octopus resists madly. It is believed that the society is mostly inclined to believe all reports about illegal enrichment and other corrupt actions. And so it is. Currently in Ukraine any reputation can be destroyed if one makes it his goal. It is an incredibly bad tendency. It increases the level of general mistrust in the society, in particular – the mistrust to the authorities. This makes any positive activity aimed at change impossible.
NABU propagandists are especially overwhelmed when the corruption in the courts is discussed. The story of corruption deals turns into general corruption at this moment, and there is an impression that we could see the conviction and sentencing without trial, for example, concerning District Administrative Court of Kyiv that is now called “notorious” by everyone. The situation with the Constitutional Court is similar. Although the issues with it were mostly created by the politics who want to have their “pet” courts and mostly assign judges according to the principle of personal loyalty, not looking at the qualification. Such attitude to the institution of court destroys the foundations of power.
In reality, some of our scandals are groundless. In my opinion, it would be good if several dozens of people protected their honor and dignity in the courts, demanding the refutation of accusations made against them. We need such processes. The society must understand that the honor, dignity and reputation of a person are as important for the democratic society as access to information and disclosing of abuse.
The success of fight against the corruption is measured by the quantity of costs pulled from the shadow turnover and the number of destroyed corrupt schemes that were closed due to the activity of the law-enforcement bodies, rather than the number of imprisoned people. Carrying out the order for the “imprisonments” with the investigation bodies grossly violating the human rights will only lead to another disgrace – the state losing a great number of cases in the European Court. See the report on the communication with the Court in 19 cases and you will see many familiar names. And this is only the beginning.
It is only possible to fight against the corruption using the lawful means, observing the human rights! But whatever new law-enforcement body is created in Ukraine, it turns into KGB!
“The bodies do not make mistakes”…
In 2020 Security Service of Ukraine (SSU) confirmed its reputation of the biggest violator of human rights among all state authorities – in the part of the law enforcement. All of the following only concerns that part.
It should be noted that SSU far exceeds its powers investigating the criminal offences which are not within its jurisdiction under Article 216 of the CCP. In 2020 such proceedings constituted about a third of the general amount. Draft Law No. 4196, which was declared as a deep and radical reform of the SSU, provided for a norm according to which SSU could take for investigation any criminal proceedings that threaten national security. This norm was removed from the revised draft law No. 4196Е after it was criticized, but the SSU insists on it, and it is unknown how the Parliament would react to such demand.
SSU officials have used the practice of detaining the suspects without the approval of the investigating judge in the cases not envisaged by the Article 208 of the CCP of Ukraine. For example, the arrested persons were suspected of crimes committed by them several months, or even several years before their arrest. In other words, according to the current CCP of Ukraine, in such cases their arrest should have been carried out in the general procedure, meaning the previous approval of the investigating judge, and not according to the procedure provided for by the Article 208 of the CCP of Ukraine. The arrest of persons suspected of committing crimes, without the registration of such arrest, detention under a fictitious pretext in the zone of JFO became essentially the standard of SSU divisions. Among the cases concerning which the people addressed Kharkiv Human Rights Protection Group (KHPG) for legal assistance there were no cases in which the arrested persons did not undergo unlawful detention or kidnapping related to the violation of all procedural rights of the arrested person before the official registration of the detention, combined with torture. Not to mention the right to inform the family about the detention.
The officials of SSU systemically and massively violate the right to legal defense guaranteed by Article 59 of the Constitution and regulated by Article 213 of the CCP. Under pt. 4 of this Article the detaining official must immediately notify about that the body or institution authorized by law to provide the free legal defense. The notification is postponed in the best case. If a lawyer for the provision of legal defense was requested from an institution other than the Center of Free Legal Aid, he or she would not be allowed to see the detained person, the lawyers from KHPG constantly face that.
Detainees and remand prisoners are tortured in the SSU with the aim of obtaining the confession in a crime and cooperation with the investigation. We almost never observed such phenomena in SSU practice in independent Ukraine. Now in each application to KHPG for legal aid the victims state about unlawful use of force. In most cases the victims of tortures, fearing the revenge and worrying about the safety of their relatives, refuse to testify about the circumstances of the arrest and subsequent ill-treatment and detention. Neither do they risk to initiate the investigation of those events. Accordingly, the cases in which the unlawful actions of the SSU officials are investigated are scarce.
The SSU denies all allegations of torture and ill-treatment, using the following rhetoric: “the criminals state about the torture to avoid the liability for the crimes they committed”. However, the international organizations numerously reported receiving the information about torture carried out by the SSU officers. Literally each report of the UN High Commissioner for Human Rights Monitoring Mission in Ukraine contains the information about the cases of torture in SSU.
Fighting separatism the SSU resorts to criminal prosecution for distribution of newspapers, leaflets, and articles in the Internet and social networks even in those cases when they are not calling for violence. The Analysis of more than 500 convictions under Article 110 of the CC in the registry of court decisions, adopted in 2014-2020, shows that almost always by request of the investigation detention is applied as a preventive measure, although the actions of the accused had no influence, and they were not socially dangerous. There is every reason to speak about violation of freedom rights and security of person, which is protected under article 5 of the European Convention. In general, the judicial practice under article 110 of the CC can be considered as humane, as there were only three sentences with a real deprivation of liberty, unless the released convicts were arrested again for exchange. Nevertheless, the consideration of several cases gives grounds to assert that the disproportionate interference with freedom of expression (Article 10 of the European Convention) took place. Certainly, such a view during our war with Russia is unpopular, particularly among the patriotic community, but it is exactly to the very point where these ardent fighters against separatism will be chased for their own views.
Analysis of the cases under the Article 111 of the Criminal Code of Ukraine shows that between 2014-2020 the indictment was sent to court only in a third of the proceedings in which the notice of suspicion was handed. It is much smaller than the number under Article 109 (67.3% of the bills of indictment from the number of proceedings in which the notice of suspicion was handed) and Article 110 (73.6%). In our view, it indicates the weakness of the legal position of the prosecution and possible errors in the qualification of the crimes as high treason and unwillingness to admit this (because “the state bodies do not make mistakes”), and thus the investigations drag on for years, and the accused stay in SIZO. And when such case is transferred to a court for trial, the accusation turns out to be unfounded, however, according to the general tradition of Ukrainian jurisprudence, the courts rarely dare to acquit the accused. In the relevant example concerning a war prisoner, a Colonel of the Armed Forces of Ukraine, Ivan Bezyazykov, in one opinion, one could see a complete injustice and unreasonable accusations of state treason.
In 2020 the problems of providing asylum and additional protection to the foreigners were still acute. The State Border Service tried to not let the asylum seekers into our territory, and the State Migration Service often refused to process the documents for the acquisition of the refugee status, and when it accepted the documents, in most cases it refused to provide the status.
When the SSU hears the criticism concerning those refusals, it always replies that those issues are outside its jurisdiction. In reality, the border service often consults with SSU on unclear questions concerning crossing the border, and the migration service is obliged to give the documents of each applicant to SSU for special verification and receive a conclusion that is usually negative.
The same is the situation with extradition, the decisions on which are approved by the Prosecutor General’s Office or the Ministry of Justice, forced expulsion and forced return. The decisions are always accompanied by the conclusions of the SSU, and all actions are carried out by the SSU’s officers. SSU performs extradition arrests, it commits such unlawful acts concerning migrants as kidnapping, torture, unlawful return or extradition. Meanwhile, carrying out special inspections, SSU does not verify the risks of danger to life or the risks of tortures in the country of origin, nor the possibility of political persecution. Especially striking is its reluctance to see those dangers for people from Chechnya, Ingushetia and Dagestan who are clearly at risk of political persecution and torture in connection with anti-extremist legislation and the persecution of Salafists.
Especially worrying is the attitude of SSU and other state authorities to people from the CIS countries (in particular, Russia) who participated in the Revolution of Dignity and hostilities in the east of Ukraine as members of voluntary battalions or helped Ukrainian military units as volunteers. SSU seemingly does not understand the threats of political persecution of the Russian citizens in RF and does not take into account the principle of non-return. Although, it would seem, the Service should understand the impossibility to return any escapees from Putin’s regime to RF: the very attempt to receive asylum in Ukraine would entail the political repercussions in case of return to Russia.
It seems that the Security Service of Ukraine received carte blanche for any means of protection of the territorial integrity and state sovereignty of Ukraine. We3 have to state that, unfortunately, the SSU officials brutally violate human rights, carrying out the actions that are qualified as international crimes – unlawful arrests, kidnapping, forced disappearances, detention in illegal places of deprivation of liberty without a court decision, tortures and other kinds of ill-treatment.
When I say that, the opponents deny it. They state that everything is going on lawfully and everything is all right. I am constantly told that we are not patriotic, that the enemy uses the publications of KHPG. However, I am sure that the actual use of those old Soviet rudimentary practices that are the practices of the “Russian World”, drags the country back to it, and delays our victory in this duel with Russia. Only truly free democratic Ukraine can win this war. Remaining the paternalist authoritarian state, we will not be able to defeat the same Russian state, which is much bigger in all parameters.
Unlawful use of force by the police increased
Kharkiv Institute of Social Research carried on a research in the project of Kharkiv Human Rights Protection Group, supported by the EC, in order to provide a comparative analysis of opinions of ordinary citizens and police officers on the scale of spread of unlawful violence in police activity. It was the eighth sociologic research of this nature (previous researches conducted in 2004, 2009, 2010, 2011, 2015, 2017, 2018). Results of the sociological research have been published in the book National monitoring of unlawful violence in police in Ukraine in 2020 in Ukrainian and in English.
A survey was conducted of the population of five regions of Ukraine (3 000 persons in Kyiv, Kharkiv, Lviv, Vinnitsya and Odesa regions) by the method of structured interview at the place of residence of the respondent and a survey of 2 120 police officers by the method of questionnaires using original tools.
Key conclusions are as follows.
Most of the respondents assessed the police as inefficient – it was indicated by 56,2 %. It should be noted that in comparison with 2018 national research the number of people dissatisfied with the police increased by 3,5 %.
Among the police officers the police reform is considered successful only by every third patrol policeman (32 %) and 13,9 % of the representatives of other police units. The number of people who believe the reform to be a failure is greater among the police in general (58,5 %), and among patrol officers (37,7 %). Almost every fourth said that the reform is not finished yet.
The research demonstrated the total spread of overwork of the police officers and the lack of compensation for it. Most of all interviewed police officers in one way or another do not believe their wages to be sufficient for support of normal level of living (patrol officers – 93,8 %, other police officers – 93,9 %). Most police officers do not have their own residence (patrol officers – 62,6 %, other police officers – 54,9 %).
In 2020 once again no systemic measures were taken to improve the situation – neither the changes in law enforcement activity, nor the changes in the system of indicators. The system of investigation of cases of unlawful violence in the police was not changed, neither was the system of professional selection and training of the police officers.
Assessing the general tendencies of unlawful violence (beatings, tortures, intimidation) in the police, most of the respondents (51,8 %) indicated that they believed such cases spread. After a small decrease in the number of such cases in 2018 the scale of this phenomenon returned to the indicators of past years and constituted over 698 000 a year. The estimated number of cases of beating and infliction of bodily injuries during the arrest has also increased and constituted, accordingly, 559 140, and the number of cases of use of unlawful violence during the investigation doubled and constituted 419 355 cases a year. At the same time almost 100 000 people are subjected to various kinds of tortures (ranging from hurting and torture with thirst or non-provision of medical assistance) every year.
Dozens of police officers from among those who got in the sample said that in recent 12 months they witnessed the cases of beatings, infliction of suffering ad torture many times, and 78 – that those happened once. The police officers who witnessed the ill-treatment said that most often the victims are subjected to beatings, bodily injuries, insults and degrading treatment. However, at the same time the opinion of the police officers about the spread of unlawful violence is significantly different from the opinion of the population. Thus, it is considered “very widespread” by less than one percent of the police officers, and the number of those who believe that the violence is rather spread does not exceed 5 %. Over a half of the police workers believe that unlawful violence in the police is not a spread phenomenon.
The most important factor that influences the spread of unlawful violence in the police is the lack of system of effective investigation of such cases, as well as the lack of full and objective statistical data about that phenomenon. The current system of data collection is locked on the state authorities that work in the conditions of the conflict of interests. Most of the persons whose rights were violated by the police (72,9 %) never filed official complaints. Thus, the system of investigation and collection of complaints about the police is not trusted and used. Therefore, the work of the State Bureau of Investigations and Prosecutor General’s Office cannot be called efficient – they work with a small number of cases of violence and do not even know the full picture.
A significant part of society (59,7 %) believes that practically any person on the territory of Ukraine regardless of their past and personal characteristics is at risk of becoming a victim of torture or ill-treatment in the police. The police officers themselves have a completely different opinion on this. In total around a half of interviewed police officers believe that nobody risks tortures and ill-treatment by the police, this opinion is more popular among the police officers (55,5 %), than patrol officers (44,9 %).
Comparative analysis of the researches of 2004–2020 shows that after resonant events in Kaharlyk the intolerance of the population to the cases of torture or other ill-treatment in Ukrainian police increased greatly and constitutes 79,1 %. This is the highest indicator for the entire period of research. At the same time, it should be noted that 14,9 % of the respondents accept the use of unlawful violence in extreme cases, 5,4 % – against particular persons (terrorists and persons suspected of crimes against children). A small number of people (1,1 %) believe that the work of the police is impossible without it.
Most of the interviewed police officers believe that the use of beatings, bullying or torture by the police officers with the aim of solving and investigating the crimes is unacceptable under any circumstances. There are somewhat more patrol officers with such position (79,1 %) than other police officers (71,4 %). At the same time, every ninth patrol officer believes that unlawful violence is acceptable “in extreme cases”; this indicator is higher among the police officers – every fifth officer believes so.
The indicators that contribute the most to the spread of the practice of unlawful violence in the activity of Ukrainian police, according to the respondents, are: 1) impunity of the police officers who use unlawful methods in their work; 2) poor selection of the candidates; 3) low professional and cultural level of police officers.
To prevent the unlawful violence in the police the respondents suggest: 1) a stricter punishment of the police officers for the facts of unjustified violence, cruelty, torture; 2) improvement of the selection of candidates for police work; 3) improvement of the training of police officers and improvement of efficiency of management control over the activity of the subordinates. Among the main ways of overcoming the unlawful violence the police officers themselves indicated the observance of rights of the police officers (28,4 %) and a complete change of the system of indicators and reporting in the police activity (21,2 %), and the latter was mostly emphasized by police officers and not patrol officers.
There are significant additional risks of police violence against women, in particular it concerns those who contact the police as a suspect or witness, as well as female police officers. During the survey of the population, we have detected 110 cases (6,8 %), when the police officers subjected women to gender-based violence in one form or another. Selective survey of men and women working in the police allowed to detect over two hundred cases of women becoming the victims of gender-based violence by the police officers. But it is apparent that the scale of this phenomenon is much wider.
Conditions of detention: chronic problems
On April 27, 2020 the Minister of Justice of Ukraine, Denis Maliuska, announced the creation of special paid cells with improved conditions of detention in pre-trial detention centers of Ukraine. He noted that he hoped for a prompt implementation of the relevant resolution. According to the Minister, such step is necessary, since the pre-trial detention centers are in much worse condition than the penitentiaries in which the people are held after they receive their sentences. The Minister of Justice said that the pre-trial detention centers receive less funds than the penitentiaries of Ukraine. The funding is not even sufficient to buy the bed linen, not to mention repairs and normal nutrition. If the repairs are carried out, they are often performed at the expense of the detained persons. The Minister reported that the paid cells provide for improved living conditions: for example, a cell would contain a refrigerator and a TV set, the freshest repairs, there will be more space for one person etc. A bit later there will be additional, improved nutrition, as budget funding covers only a minimal set of products. He also noted that currently the possibility of introducing several tariffs is considered: for a day, a week or a month. The Minister of Justice also reported the plans to build several new prisons with exemplary conditions of detention, like the prisons in Norway. To that end it is planned to involve additional funding, including the funding from international donor organizations.
Such statements of the Minister of Justice are probably connected to the fact that in January 2020 ECtHR adopted a pilot judgment in the case Sukachov v Ukraine, in which it stressed the existence of a structural problem concerning the inadequate detention conditions in the penitentiaries of Ukraine. The Court noted that that case concerned the repeated issue underlying the frequent violations of Art. 3 of the Convention by Ukraine. In particular, since the adoption of its first judgment concerning the detention conditions in Ukraine (Nevmerzhitsky v. Ukraine, № 54825/00, ECtHR 2005‑II), ECtHR delivered 55 judgments (some of the cases had multiple applicants) in which it found the violations of Article 3 related to the poor conditions of detention in pre-trial detention centers. In a number of those decisions ECtHR also reached a conclusion that there were violations of Article 13 of the Convention because of the lack of effective domestic remedies for complaints under Article 3.
Most of the cases against Ukraine in which ECtHR found the violations of Article 3 of the Convention concerned the issues of overcrowding and other repeated problems related to the material conditions of the detention: inadequate sanitary and hygiene conditions, improper lighting and ventilation, the presence of insects and mould in the cells, limited access to shower, limited daily walks, the lack of privacy for the use of toilet, poor food quality etc. The violations were found in a great number of institutions in various regions of Ukraine. So, it really seems that the violations were not the results of an isolated accident or specific actions in each separate case. They were the consequences of a widespread structural problem that was a result of the bad functioning of their penitentiary system of Ukraine and insufficient guarantees against the treatment in breach of Article 3.
Despite these findings expressed by ECtHR concerning Ukraine almost yearly since 2005, the structural problem still remains unsolved on the domestic level. Indeed, according to the database of ECtHR case management, around 120 prima facie winning applications against Ukraine connected to the complaints about the conditions of detention are currently pending in ECtHR. This number taken alone indicates the existence of a repeated structural problem.
The Committee of Ministers also found the structural nature of the problem of detention conditions in Ukraine. It controlled the implementation of the Court judgments concerning the detention conditions since 2005. In December 2018 it adopted an interim Resolution in which it again stressed the structural nature of this problem. It observed that in the previous decisions it has already called for state authorities of Ukraine to take decisive measures in order to create preventive and compensation remedies in order to resolve that issue. Although some steps were taken, no concrete progress has been made, which also imposed an unnecessary burden on Convention system. Therefore, the Committee of the Ministers stressed the urgent need of authorities to continue working on adoption of a long-term complex strategy capable of solving these structural problems, with clear and binding terms for the relevant measures and provision of the required resources.
Taking into account the current considerations and the current problem which existed for many years, a significant number of people affected or which can be affected by that problem and the urgent need to provide them with the necessary and appropriate redress on the domestic level, ECtHR applied the procedure of pilot decision in that case and obliged Ukraine, supervised by the Committee of Ministers, to take a number of actions directed at decreasing the overcrowding of the cells in the penitentiary institutions and at improvement of the detention conditions, as well as at development of the efficient remedies for the potential applicants (Sukachov v. Ukraine, № 14057/17, ECHR, 2020-I).
On January 3, 2020 during the monitoring visits of the representatives of KHPG to Oleksiivska penal colony No. 25 (hereafter – OPC-25) 21 convicts complained about the use of unlawful violence by the colony officers or under their orders – by the so-called “assistants” of the administration. Some of them provided the information about their torture in such a cruel way (the burning of paper on the victim’s body, immobilization with adhesive tape for several days), that it led to a great public resonance.
Many more convicts could not achieve a meeting with human rights activists and awaited their next arrival in the first day after the Christmas holidays (January 8). The convicts named the extortion of money for parole, transfer for less strict detention regime, phone calls to the relatives as well as for the guards to not use violence (!!!) etc as reasons for such actions. The convicts also complained about the lack of medical treatment, that they were forced to work much more than the norm etc. In such conditions some of them attempted suicide.
In the night of January 8, 2020 the masked RRG officers dragged the sleeping convicts from their beds, fixed their arms behind their back and dragged them undressed to the administration building. Some of them were forced to lie on the asphalt in the cold for more than an hour. In the administrative building the convicts were forced to crawl (with their hands tied behind their back) on their stomach upstairs, to the upper floors – the second, third and fourth, those who could not do that were beaten violently. After that the convicts were placed on the three floors of the building, lying on the floor. All convicts had abrasions on their elbows, knees and stomachs. They were held in such condition for several hours, those who tried to change their body position were beaten by special forces. Among the people to whom such measures were applied there were all those who complained to human rights activists on January 3, as well as others who expressed dissatisfaction with the interruption of their night sleep. and all convicts who were beaten were forced to write that they were obstructing the search and that they had no complaints about the measures applied to them. After that some of the convicts who were forced to write the explanations were transferred to other Kharkiv prisons. However, many beaten persons remained in the medical unit of OPC No. 25.
According to the official version of SPSU those actions were called “a general search”, that was performed with the aim of prevention of the group illegal actions of the convicts (“a riot”). After the RRG fighters entered the OPC-25 it announced the introduction of the “special conditions regime”, thus prohibiting the access of the civilian monitors to the convicts. Because of that the lawyers who represented the convicts who became the victims were not allowed to visit their clients, the assistants of the people’s deputies of Ukraine were not allowed to enter, it was impossible to bring the doctors from “outside” to the colony and even the representatives of the Ombudsman’s office who did not find any signs of a “riot” in the colony, were obstructed. In such a way the administration of the colony made it impossible for other convicts to complain about the actions of the employees.
There were numerous applications concerning the torture, the obstruction of lawful activity of the lawyers, as well as obstruction of activity of the assistants of people’s deputies of Ukraine, sent to the prosecution authorities and SBI, the criminal proceedings were initiated after them. Since the very beginning of the investigation there were signs of its inefficiency, the main one of which was the failure of the authorities to protect the victims who complained about the torture and were left under the full control of the employees who committed the crimes complained of. The victims who complained about the administration were repressed, often with the use of physical measures, as a result a significant part of the victims waived their complaints, including the people who underwent the most cruel torture. Some convicts injured themselves to be transferred from the colony to a hospital. The lawyers’ petitions to apply security measures to such convicts were satisfied only in separate cases, with a significant delay.
The questioning of the victims was performed in the first period of the investigation in the facilities of OPC-25, without their lawyers, in the atmosphere of constant psychological pressure on them by the administration of OPC-25 and senior management. In this case there were also organizational shortcomings in the work of SBI, as due to the location of territorial department of SBI in another region the communication (correspondence) during the investigation is greatly slowed down, including the procedural communication between the victims’ lawyers and investigators. Also noticeable is the lack of special training of the investigators for the investigation of tortures, which is a direct consequence of the lack of a special methods of investigation of such crimes. The forensic experts examined the convicts in the institution without conducting any instrumental research (except one case of complaint about the cruelest violence), photographing the injuries with the help of mobile phones.
Concerning the requests of lawyers to the President of Ukraine and other representatives of the state authorities of Ukraine to change the situation with the problem of torture in the work of law-enforcement bodies. Concerning this, the administration of SPSU and the Ministry of Justice of Ukraine issued the replies the essence of which is that the use of physical force and special means to the convicts by the officers of special subdivisions was lawful, the violations of the lawyers’ rights were not found etc.
At the same time, during the official investigation of the events in OPC-25 it turned out that not a single surveillance camera was functioning in the institution during the use of RRG, and nothing was recorded by portable video recorders of the subdivision fighters, which is a direct violation of the legislative norms. Currently the investigation of the events in OPC-25 still continues, there is no information about the notification of any of the officials from the penitentiary system.
In no case did penitentiary authorities provide video recordings of the use of special forces as a proof of a lawful manner of actions of their officers.
Those phenomena – violence against those who complain against the actions of the administration, poor detention conditions, the lack of adequate medical assistance – constantly manifested throughout 2020 in various institutions, and the description of those events goes outside this text. What is the most worrying is the futility of state efforts. SBI with its staff of around 400 detectives cannot perform the whole scale of the work concerning the crimes committed by the state officials, it is simply unreal. State Criminal Executive Service cannot radically change the conditions of detention due to extremely insufficient budget funding provided. The prison medicine system requires a radical reform and subordination to the Ministry of Health, without this, there can be no talk about any improvement in medical services in penitentiary institutions.
It was all noted by the experts from the European Committee for the prevention of Torture and ill-treatment that carried out ad hoc visit between 4 and 13 August To colonies Nos. 25, 100 and 77, Kharkiv and Zaporizhya SIZO. The report on the visit is already published.
In December 2020 another important event took place. On 4 December the Committee of Ministers of the Council of Europe examined the question on implementation of decisions of Nevmerzhitsky vs Ukraine group – concerning the detention conditions in Ukrainian penitentiary institutions, and adopted an important decision. First of all, it “urged the authorities to take measures for improvement of material conditions and catering, not relying on financial contributions of the prisoners”, essentially recognizing the attempts of the Ministry of Justice with the paid cells inappropriate. Secondly, it decided to perform a separate monitoring of the measures taken by the Government concerning access of the prisoners to the medical assistance, which could lead to the increase in pressure on the authorities in this area. Exactly that was suggested by Kharkiv Human Rights Protection Group with European Prison Litigation Network in their communication with the Committee of Ministers on the implementation of this group of cases.
Conclusion
I have only examined several important problems in the area of human rights and I hope that I proved the fairness of what was described in the title of the article at least in these problems. A natural question emerges: was there really nothing good, and what to hope for then?
Since we have the leadership that does not want to listen to us, we should focus on the work in the courts and win as many cases as possible, apply to international institutions more often. The experience of 2020 shows that our authorities pay attention to the propositions of the international organizations. In addition, we have to oppose the government on fundamental legal issues – the observance of the principles of the right, protect the courts from harassment, prove that ignoring the right in favor of political appropriateness is a way towards defeat.
Of course, there were individual positive moments, but most of them concerned the work of the human rights activists – cases won in the domestic courts and European Court, advocacy of the decisions and findings of the international organizations. But there were no systemic changes for better in any area, no general progress.
Sadly, gentlemen! Yet again we have a power that ignores rights, the rights of the people, its political and legal duties, and which, by and large, just spits on the people.
And again I am forced to make the warning, like in 2010-2013, that either the President and his party decisively change their internal politics, or everyone will face a crushing fiasco.