KHARKIV GROUP FOR HUMAN RIGHTS PROTECTION. COMMENTARIES TO THE FOURTH PERIODIC REPORT ON THE MEASURES FOR REALISING THE OBLIGATIONS OF UKRAINE ACCORDING TO THE UNO CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMANE OR DEGRADING TREATMENT OR PUNISHMENT
In the second half of November 2001 the UNO Committee against torture will review the fourth periodic report of Ukraine on implementation of the UNO Convention against torture. The Kharkiv Group for Human Rights protection (KG) has attempted to deliver an independent report on this topic. This report has been prepared on the basis of available official documents, analysis of the Ukrainian legislation, the KG experience in legal aid to persons, whose rights were violated, reports of Ukrainian NGOs (the Sevastopol and Vinnitsa human rights protection groups, regional branches of the association ‘Zeleny svit, Donetsk and Lviv ‘Memorial, Lugansk public committee for protection of constitutional rights and freedoms of citizens, Lugansk branch of the committee of voters of Ukraine, committee ‘Helsinki-90, Ukrainian section of the International society of human rights, regional branches of the Union of soldiers mothers of Ukraine and other similar organisations) and publications in mass media on facts of torture and cruel treatment of the suspects, convicts, servicemen, refugees and other groups. The review of these information sources is presented in addition to the report, which was published as a separate book. The author of the report is Eugene Zakharov, a co-chairman of the KG.
Since April 1997, when the third periodic report was considered, a number of positive changes have occurred in Ukraine. The death penalty was acknowledged by the Constitutional Court as contradicting the Constitution, the incarceration for life was introduced instead. The Ukrainian Parliament signed and ratified Protocol No. 6 to the European Convention on human rights, Protocols Nos. 1 and 2 to the European Convention on preventing torture and inhumane or degrading treatment or punishment, the reservation was removed concerning Articles 20, 21 and 22 of the UNO Convention against torture, which meant the prohibition to consider by the UNO committee against torture of individual complaints of victims of torture and investigation such complaints by the committee. Torture is defined as a separate corpus delicti in the new Criminal Code of Ukraine (CC), which came into effect on 1 September 2001. The new CC extended the application of sanctions not connected with incarceration, which permits to hope that in future the number of the incarcerated will diminish. The Provisional statements of the Constitution were cancelled on 28 June 2001; this introduced some changes into the criminal and procedural legislation, which are very important for the prevention of torture. The Department in penitentiary matters was created on the basis of penitentiary directorate of the Ministry of Interior. Later the Department was transferred from the Ministry of Interior and became a separate organ of the executive power, penitentiary establishments became more open. Owing to the principal position of the Ministry of defence and the Main military prosecutors office, the extension of their co-operation with human rights protection organisations the notorious ‘dedovshchina in the armed forces has weakened. Due to efforts of human rights protection organisations the problem of torture and cruel treatment moved to a focus of attention of mass media.
At the same time, it is obvious that the cases of applying torture in Ukraine during inquiry and preliminary investigation become more often, and actions of militia become crueller. Some facts of death as a result of torture are known. As before, no system exists of independent investigation of complaints against cruel actions of militia. Service investigations are carried out by officers of another directorate of the Ministry of Interior and they are not fast and efficient. It is next to impossible to make prosecutors office start a criminal case. The court control over the activities of law-enforcing organs is not efficient, and the public control is rather fruitless. The efforts of the state organs to distribute the information about international mechanisms of preventing torture and cruel treatment are insufficient. Unfortunately, these problems are not even sketched in the fourth periodic report of Ukraine. Instead the report abounds in declarations that Ukraine steadily follows the policy of the priority of observing interests of individuals. That is why it is meaningless to comment the fourth periodic report, instead we have attempted to conduct an independent analysis how the UNO Convention against torture is observed.
Article 1-2: NATIONAL LEGISLATION MAKES TORTURE POSSIBLE
Art. 29 of the Constitution sets forth the standards of detention and arrest concordant with the requirements of relevant international treaties: grounds of keeping a person in custody as a preventive measure should be checked out with a competent court within 72 hours, and unless a detainee receives the well-grounded court warrant, within this term he or she must be released immediately. Moreover, everyone arrested or detained should be promptly informed on the cause of his or her arrest or detention, told his or her rights and given opportunity to defend personally or through a legal assistant. However, Sec. 13 of Additional Articles of the Constitution states that the former rules of arrest, detention and keeping in custody of suspects were to remain under provisions in force for five years. These provisions do violate human rights and make possible practising torture and degrading treatment.
Changing the criminal procedural laws essentially restricted these possibilities. On 8 February the Supreme Rada of Ukraine adopted the Law ‘On changes to be introduced into the Criminal Procedural Code (CPC) concerning the legal grounds, procedure and terms of keeping in captivity of persons suspected or accused of committing crimes.
During 24 hours after the moment of the detainment the militia authorities must hand to a court a motivated document on the application of the preventive measures to the person suspected or accused of committing a crime. The court has the duty, during 72 hours after the moment of the detainment, to take a motivated decision on the preventive measures; the consideration of the case must be carried out in the presence of a prosecutor or an investigation officer, the suspect and his advocate. According to the new Law, arrest is an exceptional measure. If, according to the operating CPC, the arrest is made, if there are sufficient grounds that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case, then, according to the newly adopted law, the sufficient proofs must be gathered for the arrest that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case. The suspect is freed from the arrest, if he agrees to fulfil the needed conditions required by other preventive measures. This norm may not be applied to persons, who are suspected or accused of committing a grave crime or of committing a crime in an organised criminal group. In addition, the maximum term of preliminary incarceration is halved.
Unfortunately, the President vetoed this law, and in the final from of the law on introducing changes in the Ukrainian CPC, adopted on 21 June 2001, the opportunities of applying arrest as a preventive measure and of cruel treatment are constrained to a lesser degree. The term of being under captivity during the preliminary investigation remained as before – up to 18 months. Any preventive measures are still applied if there are sufficient grounds to believe that being at large, the suspect, accused, defendant or convicted can dodge the investigation, court or executing court decisions, to impede finding the truth in the case, or to continue his/her criminal activities. If the organ of inquiry or the investigating officer believe that there are sufficient grounds for incarcerating, then the investigating officer, with the prosecutors agreement, hands the proposition to the court. A prosecutor has the right to hand a similar proposition. Deciding this question, the prosecutor must familiarise with all the documents needed for the detention, check the legality of obtaining the proofs and their sufficiency for the accusation. The court must consider the proposition within 72 hours since the moment of detention. If, for selecting a preventive measure, it is needed to additionally study some data on the detained person, then the judge has the right to prolong the detention up to 10 days, and up to 15 days on the request of the suspect (accused). The accusation must be presented not later than in 10 days since the moment of applying the preventive measure.
A detained person may complaint to the appeal court the court decision on selecting the preventive measure within three days since the day of the decision. The claim must be directed by the establishment administration not later than one day after the moment of its handing.
Thus, during three days before taking the decision about putting under custody and especially during the first day after the detention the suspect is ‘worked over by the organ of inquiry. As it is seen from numerous examples given in the second volume of the present edition, this ‘work often leads to the loss of health and, sometimes, of life.
An advocate could prevent torture and cruel treatment. Yet, advocates presence on the stage of inquire and preliminary investigation is obligatory only in cases envisaged by law (Article 45 of the CPC): in cases, where minors are involved – since the moment of acknowledgement of the minor as a suspect or since declaring the accusation; in cases connected with crimes committed by deaf, mute, blind and other persons, who cannot realise their right for defence – since the moment of detention or since declaring the accusation; in cases about the application of coercive reformation measures – from the first interrogation of the minor or from the moment of his placement to reception-distributing centre; in cases about the application of coercive medical measures – from the moment of finding mental disorder of the detainee; when the sanction of the article, according to which the crime is qualified, envisages the incarceration for life. An advocate may be present at the interrogations of the suspect (accused) with the permission of the inquiry (investigation) officer. We have much evidence that very often on the stage of inquiry advocate is hindered not only from his presence at interrogations, but even from his meetings with the client.
For example, the press release of the Crimean advocates collegium reads: ‘Since February of this year militia organs in the Crimea began mass operative and investigation activities aimed at several criminal gangs and individual criminals. This campaign is accompanied with multiple violations of citizens rights for defence and advocates professional rights. Chairman of the collegium V. Zubarev cited examples, when suspects were beaten with rubber clubs, suffocated by plastic bags and underwent other torture in militia precincts. Yet, G. Moskal, the head of the Crimean militia, said, being asked to comment the advocates release, that ‘an advocate is a person, who calls white what is black for money.
‘Such unbridled struggle with crime practically always turns into the struggle against advocates, said Ludmila Lubina. In practice for all their failures the militia blames advocates. That is why the advocates are prevented to fulfil their duties: the illegal searches are conducted, people are framed by putting false exhibits, in contrast to the existing laws, advocate are allowed to meet with their clients only after obtaining special one-time permissions issued by investigating officers. Cases are known where chiefs of precincts on purpose ordered their subordinates to violate laws and not to admit advocate to their clients. The militiamen openly and shamelessly confess to advocates that they violate the law obeying oral orders of their chiefs. Such cynicism must be inadmissible in law-enforcing organs.
(Zerkalo nedeli, No. 13, March 1998)
In our opinion, an effective measure against torture could be a legislative prohibition to conduct interrogation of the detained and accused without an advocate.
As before, some legal norms are operating, which, in our opinion, contradict international norms and are evidently repressive. So, Art. 11, Sec. 5 of Law on Militia allows militia to detain and keep in custody in special detention blocks ‘the persons, who have been warranted to preventive detention up to 10 days by a competent preliminary investigation body, prosecutor or court. That is a citizen may be detained without bringing any charges up to 10 days, and suspects in vagrancy — even up to 30 days, if prosecutor authorises.
As we have noticed above, the terms of keeping under custody during preliminary investigation have not been diminished, as recommended by the Committee against torture (see item 22 of the document ‘Conclusions and recommendations of the Committee against torture. Ukraine CAT/C/XVIII/CRP.1/Add.4). If the investigation cannot be completed within two months and there are no grounds for the change or cancellation of the preventive measure, then the term may be prolonged: up to 4 months with the agreement of a prosecutor and a judge of the court that took the decision about the preventive measure; up to 9 months according to the presentation agreed with a deputy of the General Prosecutor of Ukraine, the prosecutor of the Autonomous Republic of the Crimea, the prosecutor of the oblast, cities of Kyiv, Sevastopol or the same prosecutor in cases of grave and especially grave crimes, a judge of the appeal court; up to 18 months according to the presentation agreed with the General Prosecutor, his deputies or the same prosecutor in cases of grave and especially grave crimes, a judge of the Supreme Court of Ukraine. In every case, where the complete investigation is impossible in the given term, the case may be, with the agreement of the prosecutor, directed to the court in the part of the proved accusation, while the remaining part of the case is sent to the common investigation and is completed in the standard order. The time, when the accused and his advocate get familiar with the document of the criminal case after the completion of the investigation is not included into the total term of keeping under custody (Art. 156 of the CPC). As before, no limit is established for the total time of keeping under custody during preliminary investigation, familiarising with the case document and trial. And if one takes into account the ordinary practice of directing cases for the additional investigation (approximately each tenth case is directed for the additional investigation), then it becomes obvious that all these norms taken together enables the authorities to keep suspects under custody for a very long time. The conditions of upkeep in preliminary prisons are cruel and inhumane as such. It is not infrequent when innocent people are kept in preliminary prisons for years on end, since there no grounds to plead them guilty and judges do not risk to acquit them or, at least, to change the preventive measure.
There are some substantial drawbacks in the Law on Preventive Detention, because several its provisions do violate international standards of human rights:
a) the Law in question never mentions benefit of the doubt, even implicitly, i.e. no distinction is made among suspects, the accused and convicted offenders. Art. 9 on the rights of detainees makes it clear that restrictive regulations for the accused (who are not found guilty yet) hardly differ from those for the convicted offenders. How should we explain cash limitations for buying food up to size of one minimal salary, when these sums are the same for adults, children and women with kids?
b) Art. 8 prevents housing together adults and juveniles, although prosecutor may authorise putting a juvenile in one cell with two adults accused for less grave crimes for the first time. This is obvious violation of children rights.
c) Art. 15 on punishments of the detained states nothing about relevant appellation procedure, but secure punishments without delay. It makes everyone, who is not found guilty yet, fully dependent on law enforcement personnel. This article provides, inter alia, such punishment as putting into a punishment block, that is in itself very controversial for those, who are not convicted yet.
Art. 3. PROHIBITION TO EXTRADITE PERSONS TO THE COUNTRIES THAT APPLY TORTURE
Art. 26 of the Constitution guarantees to ‘aliens and apatrides, who are legal residents of Ukraine, the equal rights with natives. By July 1, 2001 1161 refugees lived in Ukraine from 47 countries, among them were 872 minors (16-year-old or younger). Most of these people are refugees from the areas of military conflicts like Afghanistan (54% from the total number of refugees), Upper Karabakh, Ossetia, Chechnya, etc. It is worth mentioning that legal and illegal immigration is large-scale. The number of officially registered migrants is about five times larger than the number of refugees.
Before 1999 the KG was unaware of deportations from Ukraine to the countries, where citizens might be tortured. On the contrary, it is Ukraine where emigres from the CIS countries are seeking asylum from extradition to their own countries. However, in March 199 some people were extradited to the country, where they practice torture. Three Uzbeks, who stayed in Kyiv, were arrested without any warrant, they were refused to have legal defence, and they were handed to the security service of Uzbekistan without any court procedure. The Ukrainian authorities referred to the fact that the detained were accused of the attempts at the life of Uzbekistan President I. Karimov, as well as to the obligations of Ukraine according to the Minks Convention. All the tree declared at the trial that they had been cruelly tortured and forced to give false evidence. Nonetheless, they were condemned to the prison terms from 8 to 15 years for insulting the President and anti-constitutional plot.
Art 4. REQUIREMENT TO QUALIFY TORTURE AS OFFENCE AND TO LEAVE IT NOT UNPUNISHED
The Constitution of Ukraine was adopted on June 28, 1996, and Art. 28 bans torture, cruel, inhuman or degrading treatment or punishment. Yet, these terms had not been defined in the Ukrainian legislation: the Ukrainian authorities considered that the introduction of such corpus delicti to the Ukrainian Criminal Code was unreasonable. Similar offences were added to the definition of abuse or misuse of power aggravated with ‘violence, use of weapons or inflicting painful suffering, degrading human dignity and intimidation of victims (Art. 166, Sec. 2 of Criminal Code, 1960), as well as coerced confessions ‘aggravated with violence or intimidation of the interrogated (Art. 175, Sec. 2). These offences were defined as grave ones in accordance with Art. 7-1 of Criminal Code, 1960.
It was only in 2001 when the special article qualifying torture as a crime was introduced into the new Criminal Code that came into effect on 1 September 2001. Article 127 of the Criminal Code reads:
‘1. Torture, that is a purposeful infliction of extreme pain or physical or moral suffering by way of beating, tormenting or other violent actions with the purpose to enforce a victim or another person to commit actions against their will, --
are punished by incarceration for the term from three to five years.
2. The same actions committed repeatedly or, with the collusion, by group of persons, -- are punished by incarceration for the term from five to ten years.
On the other hand, Ukraine participates in the International pact on civil and political rights and in the first facultative protocol to the pact, as well as in the UNO Convention against torture, and, according to Article 9 of the Constitution, the operating international agreements make a part of national legislation. This norm is also mentioned in the Law ‘On international agreements of Ukraine, Article 17 of which points out the higher priority of an international agreement over the corresponding norm of the national legislation, if there is a collision between them. Thus, the definition of torture given in Article 1 of the UNO Convention against torture must be operable in Ukraine. It is easy to notice that the definition of torture given in Article 1 of the Convention essentially differs from that given in Article 127 of the CC. The CC defines the features of a torture without pointing out, in contrast to the Convention, that pain or suffering is inflicted by state officer or other person having official powers, or on their instigation, or when they know it and silently approve. In our opinion, the article on torture should be also included in Sec. XVII ‘Service crimes it should be indicated that for inflicting suffering, or assistance in it, or passivity in preventing it those persons are punished, who are state officers. We believe that absence of clear and strict legislative definitions makes difficult to classify certain acts of state officers as torture or cruel treatment.
In the CC of 2001 articles similar to articles 166 and 175 of the CC of 1960 are retained: Article 365 ‘Misuse of power and Article 373 ‘Coercion to giving evidence. According to part 2 of Article 365, ‘misuse of power, if it is accompanied with violence, use of weapons or tormenting and degrading actions, is punished with the incarceration for the term from 3 to 8 years with the prohibition to occupy certain positions or to indulge in certain activities for the term up to 3 years. In accordance with part 2 Article 373, coercion to giving evidence during an interrogation by was of illegal actions on behalf of the person conducting inquiry or preliminary investigation, accompanied with application of violence or humiliation of the interrogated, is also punished with the incarceration for the term from 3 to 8 years. These crimes are regarded as grave, is the condemned got the term longer than 5 years, and as middle-grave, if the term is less than 5 years.
Unfortunately, alleged offenders often evade a punishment, and even worse, their acts are considered to be normal.
We think the following violations of the Convention against torture are systematic and large-scale:
- cruel, inhuman treatment of suspects under inquiry and preliminary investigation;
- conditions in detention blocks, preliminary investigation cells and some prisons;
- so called ‘dedovshchina in the army, i.e. torturing of younger soldiers by older servicemen.
In the appendix to the report (this is a rather thick book containing information in Russia and Ukrainian), we shall present data on 174 conflicts during inquiry or preliminary investigation in which, in our opinion, the actions of militiamen should be classified as torture, in 26 cases the torture resulted in the death of the suspects, and data on 27 conflicts, where the actions of militiamen may be classified as cruel and inhumane treatment. Judging by complaint of citizen about the actions of law-enforcing organs and judging by publications in mass media, the illegal methods of ‘getting evidence are applied most often on the stage of inquiry, before the accusation is presented. Here are some typical examples.
Valentin Khilia was detained on the suspicion of theft. He was brutally beaten in Sikhovskoye militia precinct. Later it became clear that Khilia was innocent of the theft. At home Valentin told that he was beaten very cruelly: with fists, feet and other objects. He was handcuffed, a heavy weight was thrown on his chest. In four hours the militiamen broke him 11 ribs, damaged his lungs and stomach. Some days later the 49-year-old victim of the beating died in the intense care ward of the town hospital.
When the mother of the deceased sent the complaint to the Galitskiy prosecutors office of Lviv, the officers of the precinct tried to defend themselves. The militiamen stated that Valentin got the traumas on his way home. Yet, nobody believed it.
Seven months passed, but the criminal case by Article 101 part 3 of the CC of Ukraine has not any progress. In the prosecutors office the mother was said that it was impossible to state, who namely beat her son.
(Turma i volia, No. 7, February 1999)
(Politika, No. 3, 24 March 1999)
An extract from the speech of Nikolay Dryga, the chairman of the Council of judges of Ukraine, at the joint sitting of the presidium of the Supreme Court of Ukraine and the Council of judges:
On 8 February 1998 officers of special battalion of road police of Simferopol stopped the car, which was driven by Roshchenko, a deputy chairman of Zaliznychny district court of the town. Although he produced his judges ID and explained the clauses of the law On judges status, he was forced to open the car, and the car was searched. Similar cases were repeated more than once, but the Ministry of Interior did not assess them principally.
On 22 December of the last year at 15:00 two officers of the road police squad Kobra stopped the car of the judge of one of district courts. Neither his ID nor his protests and explanations helped the judge. The militiamen declared that they obeyed not law, but the orders of the Ministry of Interior. Afterwards force was applied to the judge, his clothes were torn and militiamen tried to push him into their car. The same officers from Kobra squad on the same day attacked in the similar manner another judge of a district court of Kirovograd.
(Zerkalo nedeli, No. 3, January 1999)
3. On 15 November 1998 at 21:30 my brother Mikhail Antipov, born in 1961, ... was handcuffed and taken from home by militiamen from the district precinct. First he was beaten at home in the presence of two children. My brother was beaten on the way to the precinct: it was witnessed by passers-by. Brother was crying and calling for help. He was taken to the precinct in the boot of a car. What was done to him in the precinct is an object of guesses. In about one hour or a little more he was taken senseless to the district hospital, where he died at once.
The results of the forensic expertise were: died of shock, of inflicting grave body traumas and of overcooling.
A criminal case has been started according to Article 166 part 2.
Raisa Tkachuk, the Zhytomir oblast.
(Kievskie vedomosti, 12 January 1999)
4. The public committee for protecting constitutional rights and freedoms of citizen held a press conference in Lugansk. The experience of the committee in contacts with citizen enables them to conclude that torture is everyday routine practice in militia. At least two factors are the reasons of torture: low professional level of investigating officers and corruption in law-enforcing organs.
The following facts about victims of violence were made public at the press conference:
A) Anatoliy Zhovtan, Lugansk, 19/51, 16 liniya St.
On 27 November 1998 was detained being suspected of the participation in the murder of Yu. Zaskalko and was sent to the detention block of the Leninskiy district militia precinct.
On 27 and 28 November he underwent inquiry actions. During the inquiry militiamen R. Ushchepkovskiy, O. Serbin and K. Kiyanitskiy applied violence and degrading treatment: long-lasting beating, suspension in handcuffs in a tormenting position, suffocation with a gas mask, burning of intimate part body the body, penetration of a stick into anus, etc.
With numerous traumas, broken ribs and cerebral brain concussion A. Zhovtan spent 42 day in a hospital. A criminal case on a misuse of power was started against the militiamen. Now the case is in the Leninskiy district court. A typical feature of the case is that the investigating officer, in contrast to procedural laws (Article 147 of the CPC), did not suspended the militiamen from their duties, so they could influence the course and result of the investigation, intimidating the victim and witnesses.
B) Sergey Lazarenko, Krasny Luch, 17/16 micro-district 3.
On 9 June 1999 Lazarenko was detained at his home by detective Vasilenko from the town precinct. He was suspected of the theft in a private flat on 4 March 1999.
In the detention block of the town precinct militiamen Vasilenko, Popeta, Vasitskiy and Slobodeniuk, applying violence, kept Lazarenko for 37 days on end.
As a grave criminal, he is still under arrest. All this time Shvachko, the town prosecutor, did not accept numerous complaints from Lazarenko and his mother; he refused to start the criminal case. Meanwhile, the militia-bruisers, who were not brought to responsibility or dismissed, systematically applied threats and moral pressure to the victim and his family to make them refuse from their attempts to bring the militiamen to responsibility. Lazarenkos mothers complaints to the oblast prosecutors office, to the oblast militia directorate, to the General Prosecutor, to the Minister of Interior and to the ombudsperson were fruitless.
C) Taras Maslov, Krasny Luch, 10 Repin St.
24 July 1998 was detained in a street with his friend Maksim on a complaint (faked, as it turned out later) about an attempt to rape.
In the office of V. Kostiuk, the head of the crime investigation department, Taras and Maksim were third-degreed. In the evening of the same day they were released. It was Friday, the corresponding medical department was closed for the weekend, and Taras could not pass the medical expertise. On Saturday and Sunday Taras was at home and felt himself very badly. On Monday morning he died. All the attempts to draw the guilty to responsibility were unsuccessful. Town prosecutor Shvachko refused to start the criminal case because of ‘the absence of the event of crime (!). The post-mortem of Maslov showed that there were numerous injuries, internal haemorrhage in intestines and in the cerebral brain shell.
D) Vladimir Vodolazov, Krasny Luch, 22/46, micro-district 2.
On 2 April he was arrested at home and brought to the town precinct. There in the office No. 16 he died during the interrogation. The forensic expert Ovchinnikov determined the reason of death as cardiac deficiency. When the body was taken from the mortuary Vodolazovs relatives could not recognise it: all the body was black and blue, the flesh on hands was cut off to bones. There were numerous traces of brutal beating. Before the arrest he was healthy and never complained at his heart.
A criminal case has been started about the death. However, Vodolazovs relatives cannot get any information about the course of the investigation and its results.
E) Dmitry Zinchenko, Krasny Luch.
Was arrested at home on 2 June 1999 as an accomplice of the theft. On 5 June 1999 he was beaten during the interrogation by militiaman Vasilenko. As the result the motor ambulance was called, but the militiamen prohibited doctors to examine the victim concerning the beating.
The expertise was carried out only on 20 June. For the second time Zinchenko was interrogated in the precinct on 11 August. Again he was tortured, this time with the participation of Kovbasa, a deputy of the precinct commander.
About all the above-mentioned facts more than 20 complaints were directed to various surveillance instances. The result is null.
(Prava ludyny, December 1999)
5. On 24 November Yuri Zaskalko, the general manager of the enterprise ‘Ukrekologiya, was shot in the doorway of his house. At night of 26 November Anatoliy Zhovtan, who saw Zaskalko home, was taken by militia from his flat. Sergey Kurganskiy, an investigating officer of the Zhovtnevy district prosecutors office, detained Zhovtan not in the capacity of a witness, but as suspected of the murder. On 27 November Zhovtan was beaten in the detention block by two militiamen, while the third was observing the process and giving advice how to make him gain consciousness. On 28 November all the three took part in the beating.
‘They tormented me as fascists... They put a gas mask on me, they beat me on the back, head, ribs. They throttled me. After taking off the gas mask they pressed my eyeballs, inserted fingers into my mouth and pulled out the tongue. Took by the ears and beat me against the wall as strong as they could, took off my pants and beat my buttocks with a rubber club... During three days of my staying in the detention block I was not fed at all. Instead of it, after each interrogation, they made me sign a document that I have no claims against the law-enforcing organs... I was released, at night I felt myself badly... In the morning I was examined by a forensic medicine commission and was hospitalised at once with the diagnosis ‘cerebral brain concussion, two broken ribs, prolapsus of a kidney. Staying in the hospital I learned, who tormented me. They were Konstantin Kiyanskiy, Oleg Serbin and Roman Ushchepovskiy. I sent complaints to the ombudsperson, to the General Prosecutor, to the prosecutors of the oblast and town. In his response of 21 December 1998 S. Sorokin, the deputy prosecutor of the Lugansk oblast, informed that ‘the complaint directed to the General Prosecutor of Ukraine was considered by the prosecutors office of the Lugansk oblast and left without satisfaction, since there were no violations of criminal and procedural legislation in the course detention and release of A. Zhovtan. Yet, two days later V. Solodkiy, the oblast prosecutor, promised that my complaint would be checked in the course of the preliminary investigation. No I am waiting, when the justice will be restored...
(Zerkalo nedeli, No. 1, January 1999)
The three Lugansk militiamen were found guilty and condemned to three and a half years of strict regime incarceration each for the misuse of power (i.e. torture, in this case) applied to a detainee, who became an accidental witness of the murder of well-known Lugansk businessman Yu. Zaskalko.
Yet, all the three continue to work in militia instead of staying in a prison. The court decision, it seems, could not shake the belief of town militia chiefs that Lugansk militia... needs such strong and decisive people. Whereas, the prosecutor, as we have learned, was even surprised with the mildness of the verdict.
According to rumours, partly confirmed by militia representatives, one more criminal case is started against two of the trio.
(Segodnia, No. 41, 3 March 2000)
The collegium of the Lugansk oblast court confirmed the verdict issued by the Leninskiy district court against three militiamen: R. Ushchepkovskiy, O. Serbin and K. Kiyanitskiy, who were accused of applying forbidden investigation methods. Two of them were condemned to three years of strict regime incarceration each, and the third (who took part in beatings with less regularity) got three years conditionally with the postponement of the verdict.
All the accused were also condemned to money fines in the capacity of compensation of moral damage inflicted to victim A. Zhovtan. The compensation size is Hr 7000. Besides, they must pay more than Hr 1000 to the Lugansk oblast hospital, where the victim was treated.
The case was being considered for almost eighteen months.
A. Zhovrtan, the victim of the militiamen was detained on 27 November 1998 as a suspect in a complicity in the murder of well-known businessman Yu. Zaskalko.
The accused were dismissed from law-enforcing organs only in the beginning of March. But they are still at large.
(Kievskie vedomosti, 1 April 2000)
One and a half years ago ‘ZN was the first newspaper, which risked to describe how law-enforcers of the Lugansk oblast ‘beat out the evidence from a suspect, applying methods of the Spanish inquisition and of concentration camps. Now the tormentors have been condemned, but one cannot say yet that law has triumphed.
‘The criminal actions caused body injuries of the middle degree in the form of cerebral brain concussion, closed trauma of the rib-case, closed fracture of the sixth right rib, contusion of lungs, contusion of cervical and lumbar vertebra, contusion of the sacral region, contusion and concussion of kidneys, cracks of anus, haematomas of the crotch, multiple bruises on the body, lower extremities, right hand, left helix, tongue and face.
Lugansk public committee of constitutional rights and freedoms of citizens informed that the court verdict was issued as early as on 14 January 2000. On 30 March the district court directed the order on executing the verdict, which came into effect. But even now, two months later, Ushchepkovskiy and Serbin are still at large.
‘This case vividly testifies that the situation in our law-enforcing organs becomes more and more criminal, and this endangers safety of the society. This threat has already generated fear and apathy in the society, it undermined the trust to the state power and deprives the country of its main resource of development – social activity of citizens.
(Zerkalo nedeli, No. 24, 17 June 2000)
The list of examples can be prolonged, and the examples speak for themselves. Here what is written by Grigoriy Ginzburg, an advocate, a deserved lawyer of Ukraine:
‘... In any case, where the proofs are insufficient or absent at all, the law-enforcing organs begin with cooking an administrative arrest. Judges serve as accomplices in this matter. A judge permits the detention for as long time, as is needed for detectives...
I shall tell one instructive story. A young man resided in Olena Teliga street not far from the Shevchenkivskiy district precinct... Several months ago at 8 a.m. he was visited by two plain-clothed militiamen. Later he learned that three days before in the doorway of a neighbouring house a 45-year-old woman was robbed and raped, and he seemed to look alike the suspect. He was proposed to confess in this crime. He refused and was treated in the following way. He was handcuffed with the chain passing under his knees, then he was suspended on a crow-bar between two tables. They promised not to beat him, but said that they had 24 ways, remained from the times of Beria, to make him speak. He was tormented for a day and night, then he was moved to a cell, given of couple of hours to relax, and then repeated the torture. Neither a protocol of detention nor any other document was compiled, to say nothing about calling an advocate. After all the young man had to sign his confession in the above-mentioned crime.
At 5 p.m. next day he was brought to the court. The judge condemned him to seven days of arrest. Militiamen reported that he had just been detained being drunken. They added that they have already compiled the protocol. The judge, in fact putting not a single question to the detainee, gave him seven days of arrest. The arrested was taken away to the detention block and there he was ‘belaboured ‘ as a suspect in rape and robbery. After seven days he was taken away from the detention block and the protocol was compiled that he was detained as a suspect in rape after these seven days. This story finished for the victim in a very grievous way. Now he is being treated in a stationery hospital, it is still being decided, whether he got middle or grave body injuries...
Now the transitive period stipulated by the Constitution is finishing. In a year judges, who, knowing excellently what is going on in militia, sign such arrest warrants, will decide all questions. On the other hand, when complaints appear against arbitrary actions of militiamen, courts and prosecutors offices reject them and refuse to start criminal cases against the law-protecting offenders. Thus, the judges and prosecutors cover the law-enforcers and trample the right for freedom. Under native conditions any deprivation of freedom is connected with terrific humiliation. Any advocate will confirm that this practice is quite common.
(Zerkalo nedeli, No. 18, 6 May 2000)
It is next to impossible to manage law-enforcers to be punished. In the 202 cases described in the appendix the guilty were punished only in quite obvious and most scandalous situations, only 17 law-enforcers were incarcerated, practically all according to Article 166 of the CC ‘Misuse of power. Ombudsperson Nina Karpacheva stated that during 11 months of 2000 the Lviv oblast prosecutors office started 14 criminal cases concerning torturing of the detained. Yet, only seven such cases came to courts. On the other hand, 129 complaints against militiamen remained without response. Nina Karpacheva declared that the problem of torture is one of the most acute. The analysis of complaints addressed to the ombudsperson shows that the most abuses of human rights, connected with torture, happen during detention of citizens by law-enforcers and during investigation. N. Karpacheva asserts that that is a daily routine. According to her data, in 1998-1999 as many as 194 criminal cases were started in connection with misuse of power, applying violence and degrading treatment. 285 law-enforcers were brought to criminal responsibility after these cases. Approximately 200 cases on torture were started by the ombudsperson in 2000. The cases were started on torture that caused death in the towns of Antratsit, Krasny Lutch, Sukhodolsk of the Lugansk and the Sumy oblasts.
As ‘Zerkalo nedeli (2 December 2000) writes, the truth about what real punishment threatens to those few militiamen, whose atrocities brought them to the dock, impresses not less than the facts of tormenting the unfortunate, who were caught to the claws of law-enforcers. Two militiamen, trying to extract the confession from the suspect, beat him, broke his ribs and, having put handcuffs on him, several times partly drowned him in a river. By the way, as it appeared later that the victim had no relation to the theft, which became the reason of the third-degree interrogation. The militiamen were brought to criminal responsibility. They got the term of three years each, but conditionally. And this is far from being a rare case. It is not difficult to conclude that under such conditions torture will be applied in future. One of the reasons of torturing, in N. Karpachevas opinion, is the practice of not admitting advocates at the early stages of the investigation. Another reason is that law-enforcers, in order to obtain ‘positive results, try to unclose crimes applying illegal methods of investigation.
It should be noted that there exist facts of cruel treatment of refugees and migrants on the side of state officers. In 1999 the Directorate of the Supreme Commissar of the UNO in charge of refugees in Ukraine jointly with the Institute of sociology of the Ukrainian Academy Sciences carried out the study of interrelations of refugees and migrants with law-enforcing organs. 500 polled migrants consider misuse of power by militiamen to be the main cause of their problems. 36% of the respondents told that militia detains them practically every day. The question ‘When detained, how were you treated by militia? was answered: ‘They spoke rudely with me – 69.2%; ‘They extorted money from me – 61.3%; ‘I was insulted – 60.1%; ‘They took away my money and valuables – 41.1%; ‘Applied force, beat – 41.1%. More than 40 experts confirmed rudeness and abuse of the rights of foreigners by militia officers. The most frequent victims, who are groundlessly blamed for disorderly behaviour, are the blacks.
* * *
Why should we regard the jail conditions as torture? We base our statement on the conclusion of special co-reporter of the UNO Commission on Human Rights, Mr. Nigel S. Rodley, who was invited by the Russian Ministry of Foreign Affairs to visit Russia and analyse the fulfilment of the judicial reform and protection of human rights of the convicted offenders. Mr. Rodley wrote in ‘Conclusions and Recommendations of his report (Doc. E/CN. 4/1995/34/Add.1): ‘Prison conditions in Butyrki Prison and Detention Centre No. 1 ‘Matrosskaya Tishina are horrible, especially in so-called common cells. This seems to be not unique in Russian Federation... The senses of smell, touch, taste and sight are repulsively assailed. The conditions are cruel, inhuman and degrading; it is torture in itself. While suspects are kept there to promote investigation and to break their will in order to obtain confession and information, it would be quite sound to consider them as tortured. Alas, the conditions in Ukrainian prisons are like in Russian ones.
In the appendix to this report we present numerous examples, which illustrate overcrowdness and hard upkeep conditions in detention blocks, preliminary prisons and prisons. Here are some typical examples.
1. ‘I write you from a ‘concentration camp of strong regime, where I do my 10-year term for a grave crime.
... Here all suffer for one. I practically signed my verdict, having written this letter. And not only my verdict, but that for the whole detachment. The warden will be angry with all. Anybody, who wrote a complaint, automatically becomes a malicious infringer of the regime, and his way is to a punishment block or even to strict regime colony. And the complaint will certainly be intercepted by the administration.
The local surveillance prosecutor often drops here. Yet, instead of the truthful information on the real situation he obtains distorted information from specially appointed persons. He also obtains some valuable souvenirs made by convicts into the bargain, such as icons, candlesticks, caskets and alike. Having got all of this, he leaves our colony in a good mood and with the report convenient for our administration.
The warden can beat one with a club even for the unfriendly look or a T-shirt put on under the prison jacket. No one of the administration would never be punished either for misuse of power or for extracting riches from the convicts.
... I am not sure whether you will print this letter. If you do not, I will continue to write to all instances, not only Ukrainian, but Russian and even to the Council of Europe, anywhere. I have already earned one third of a verdict, since I told only one third of what I observe.
Our colony does not receive any magazines or newspapers... I pass you this message through a reliable man, who is released... If you need to call me, call me simply ‘Writer.
(Kievskie vedomosti, 19 February 1998)
2. Recently the ombudspersons office obtained some information on tormenting women convicts. Women under investigation in the Dnepropetrovsk oblast are kept in preliminary prison No. 4 in the town of Krivoy Rog, if needed, the women are transported to the oblast centre. Ten years ago there was a rebellion of convict in the Dnepropetrovsk preliminary prison and, as a result, the womens department was destroyed, that is why the women are kept in Krivoy Rog. So now they have to stand a 4-5 hour journey to the oblast centre in ‘Black Marias or special railway carriages without water and conveniences.
‘More than 560 arrested women were transported from Krivoy to Dnepropetrovsk during five months of the current year, told ombudsperson Nina Karpacheva. ‘Mostly they are transported in special railway carriages with grated windows. The journey lasts about 6 hours, some detainees must do the journey 14-15 times. In Dnepropetrovsk they are kept in detention blocks, which contradicts to the CPC and the Ukrainian Law ‘On preliminary incarceration. This torture is applied to women, whose guilt is not proved yet, and one must take into consideration that there are the ill, pregnant and minors among them.
N. Karpacheva turned to Vladimir Levochkin, the head of the State penitentiary department of Ukraine, with the demand to stop the transportation of women suspects.
V. Levochkin ensured that some needed finances were given for the arrangement of women cells in Dnepropetrovsk preliminary prison. Not later than 20 August the life of 15 thousand of Dnepropetrovsk women-detainees, who are suspected in committing crimes, will become easier. The exhausting journeys from Krivoy Rog to Dnepropetrovsk shall be stopped this month.
According to Aleksandr Ptashinskiy, the first deputy of the penitentiary department, preliminary prisons of Ukraine have the planned capacity of 32 thousand inmates, although actually they contain about 50 thousand. The number of the arrested grows faster than the number of places for them. Investigation and court organs arrest people, although they might confine to make the writ of non-leaving the place, or to punish them without incarceration. The number of those, who got the term of one year or less, is 3384 nowadays, up to two years – 13643.
Recently one of the three suspected of the theft of 15-meter long cable died in Zaporozhye. He was kept in the preliminary prison for about one year without any court decision.
‘His two accomplices are still staying in the prison. This case was considered at the collegium of the oblast prosecutors office as a scandalous example of court red tape, told Aleksandr Lomachenkov, the senior prosecutor of the Zaporozhye oblast prosecutors office.
Because of the usual red tape some citizens stay in a preliminary prison even longer than the further verdict orders, or the verdict prolonged is fit this preliminary term. The victims of such too long preliminary incarceration have no chances to get any compensation later.
In the Zaporozhye oblast two preliminary prisons are overcrowded by 500 inmates. Two months have passed after the amnesty, but more than 200 persons are still tormented in overcrowded cells. The oblast prosecutors office handed document about the acceleration of the process to the head of the oblast court.
As Aleksandr Ptashinskiy told, last year they managed to release about 16 thousand of less dangerous criminals, many of whom could be punished by fines or coercive labour.
(Kievskie vedomosti, 14 August 2000)
(Komsomolskaya Pravda v Ukraine, No. 141, 7 August 2001)
3. Valentina Polshakova, a deputy head of the general manager of Nikolayev aluminous plant, was arrested on 11 October 1994 being suspected of obtaining a bribe. The case is being investigated. By now 6 of 14 episodes of the accusation have collapsed. She spent 27 months in the preliminary prison and was released on bail of Hr 40 thousand.
‘There was no prison for women in Nikolayev. Recently the building for convicted to death was reconstructed for women. There I stayed for 18 months. The cell of about 14 square meters contains 10-12 women. The number of berths is insufficient, so some sleep on the floor. It is forbidden to ventilate the cell, a walk is permitted for one hour a day. Water is brought to the cell in basins. In winter frost reigns in the cell. Lice, syphilis, cholera, the AIDS – all this was in my cell. There was no hot water, we had shower once in 10 days.
What is happening now in women prisons is horrible. There are no isolation cells for newcomers – they are sent immediately to the common cells. And in a couple of months it becomes clear that the newcomer has the AIDS!
The women, whose guilt is not proved, stay together with tempered jailbirds: drag addicts, tramps, alcoholics, filicides and mere killers. The overcrowdness serves another purposes: to force women to give evidence needed for the investigation. The pressing is so strong that a normal woman cannot stay it. The reveille is at 6 a.m., the retreat is at 10 p.m. After the retreat one risks to be severely punished for reading, talking or laughing: as a punishment they will take you to the prison yard and keep there, under any weather, as long as the guard wants. Another trouble is searches, 2-3 times a week and quite unexpectedly to find something prohibited. A special team searches berths overturning everything and dumping it into one heap... But the most humiliating is the personal search. One is stripped completely, then they fumble in the clothes searching every seam... Some people say that now women are not beaten in our prisons. I disagree. They do beat us, with clubs, on the upper arms and below the waist. They beat for ‘violating the regime, younger women much more frequently. The younger ones are full of energy, they want to move, sing and giggle, and all this is regime violations.
A woman cannot stand this: full isolation, moral and psychological terror, absurd accusations, which no one even tries to prove. Women often went crazy, die. All this was happening before my eyes, I remember scores of names and facts. It is impossible to leave a prison and remain a normal person. People leave prison as moral or physical cripples. I passed three medical commissions before they directed me to a cardiologist. And they did it with convoy. It means that you must ware handcuffs even under a dropper, there are always guards in a medical ward.
I think that Ukrainian laws should be written by people, who already stayed in Ukrainian prisons. They know what is what.
(Vseukrainskie vedomosti, No. 39, February 1998)
4. Viktor Dupak, the main agronomist of the sovkhoz ‘Pervomayskiy of the Vasylevskiy district of the Zaporozhye oblast:
‘I had to stay in one cell with murderers and recidivists. The conditions were unbearable: a bucket instead of a toilet basin, ventilation did not work, columns of bedbugs. One wakes up in red high-boots -- traces of bedbug bites... One third of inmates sleeps, other two thirds stand, since there is no place to lie. During long eight months spent in the preliminary prison Dupak learned, how special militia troops ‘perfect their combat agility on convicts.
(Vasha sudba, No. 40(121), 4 October 2001)
In the last example the statement about the training of special militia troops on convict attracts a special attention. Ukrainian human rights protection organisations and Amnesty International wrote about this commenting the third periodic report of Ukraine four years ago, and the representative of Ukraine, deputy Minister of justice Lada Pavlikovskaya, neglected it, affirming that no training had been ever done on convicts. Nonetheless, information on such training now and then appeared in Ukrainian mass media in 1997-2001 (see, e.g. extracts from publications in newspapers ‘Tiurma i volia, ‘Zerkalo nedeli, bulletin ‘Prava ludyny appended to the report). The Kharkov Group for human rights protection received several complaints from convicts about such facts. Administrations of penitentiaries hotly deny it, and we have no opportunity to check. Nonetheless, it is suspicious that similar cases are described by people unknown to each other from different penitentiaries in different regions of Ukraine.
Ombudsperson Nina Karpacheva visited preliminary prisons and detention blocks in Kyiv and several regions and found out many violations. According to her, almost everywhere inmates of detention blocks do not get three hot meals a day for state expenses, as it should be by resolution No. 336 of the Cabinet of Ministers of 1992 and order No. 485 of the Ministry of Interior of the same year. Besides, the terms of keeping people in district preliminary are violated: instead of three hours stipulated by law, they spend there more than a day and sometimes up to three days.
Let us return to the problem of overcrowdness of preliminary prisons and penitentiaries of strong regime. The problem remains very acute, though new preliminary prisons are built and new cells are introduced. In mid 1994 we got the information from the Ministry of Interior that 38900 inmates were held in 30 Ukrainian penitentiaries on January 30, 1994; their capacity was only 11300, so overcrowding amounted to 344%, and the total number of the incarcerated in the country was 161 thousand. Aleksandr Ptashinskiy, the first deputy of the penitentiary department, cited statistical data: on February 1, 1997 43700 persons were held in 32 penitentiaries. He pointed out that 3 penitentiary for 1800 detainees had been built for the past five years ("Den", March 26, 1997). The data given by Ivan Shtanko, the then head of the penitentiary department, are the following on 1 January 2000: 222.3 thousand prisoners were kept in 180 penitentiary establishments of the department, among them 171 thousand stayed in 128 colonies, 3.3 thousand minors stayed in 11 colonies for minors, 46.2 thousand persons – in 32 preliminary prisons and 1.8 thousand – in anti-alcoholic correction colonies (magazine ‘Aspekt, No. 1, 2000). Since the number of convicts in 1991-97 increased by 11% per year, 35 penitentiaries with the capacity of 25.5 thousand were started in 1993-99. Since 1997 the number of the condemned have somewhat diminished, and the number of the condemned to imprisonment remained on the same level: in 1997 – condemned 257790, among them condemned to incarceration – 85396, that is 33.13%; in 1998 -- condemned 232598, among them condemned to incarceration – 86347, that is 37.16%; in 1999 -- condemned 222239, among them condemned to incarceration – 83399; in 2000 -- condemned 230903, among them condemned to incarceration – 82869, that is 35.89%. Nonetheless, now the input to penitentiaries much exceeds the output, in spite of the annual amnesties, in which about 35 thousand convicts are released on the average. Thus, for example, in 1999 83 399 people were incarcerated, while 60.2 thousand were released. The proportion of those, whose terms were three years and less was about 59% during all these years. These data enable us to hope that after introducing the new Criminal Code the penitentiary system by and by will be facilitated within several years. First of all, the sanctions for many articles of the CC are made milder (except the crimes against life and health of citizens, their freedom, honour and dignity), secondly, the list of punishments without incarceration is considerably prolonged. Correspondingly, the court practices must be changed. Yet, for the time being the repressive mode of the criminal-legal policy remains unchanged as a whole. That is the reason why the proportion of verdicts of ‘not guilty steady equals 0.33-0.35% all the recent years. As before the proportion of people imprisoned for three years and less staying in penitentiaries is about 30% of the total number of the incarcerated.
Comparing the data for different years about the number of places in preliminary prisons and the number of inmates, one may come to a shocking conclusion. The data on the capacity of preliminary prisons grows annually by 10-15%, actually the capacity remains the same. It can be explained by the fact that the administrations of preliminary prisons must keep convicts independently of the prison capacity, and they are financed according to the number of berths. Since the number of inmates grows steadily, the administrations are forced to increase the number of berths in their reports, otherwise they will be unable to feed the contingent. The more so the financing is scanty and irregular. That is, in our opinion, one of the main reasons of the terrific upkeep conditions.
We have just received the data from the penitentiary department, according to which the budget expenditures for penitentiary system were planned as follows: Hr 227.5 million for 1998, 216.6 million for 1999, 204.2 million for 2000 and 156.3 million for the first half of 2001. In fact, it was received 180.6 million, 203.2 million, 204.2 million and 154.7 million, respectively. This means that the average cost of the upkeep of one imprisoned was in 1998 – Hr 70 per month, in 1999 – 78, in 2000 – 77 and in 2001 – 115. If one takes into account the number of the prison personnel, according to the law, may not be less than one third of the total number of convicts, then it will be obvious that the financing of the penitentiary system is catastrophically insufficient. The violations of the rights of both the personnel and the convicts is caused by the budget, when only about 35% of the necessities are planned, and only 12% of the needed sum is planned for nutrition. Actually it led to expending 8-12 kopecks per day for nutrition and 4-7 per day for medical aid in 1998-2000. Convicts cannot earn their upkeep: finding jobs for them is the big headache of administrations. So, in 1998 about 67 thousand convicts did not work every month, that is 51.5% of the total number of the incarcerated, who had to work. The average wages of the imprisoned were Hr 1.01 per day.
Such scanty financing implies the high morbidity and mortality rate in preliminary prisons and prisons. According to the penitentiary department data, in 1998 2108 condemned and suspected died (about 10 per one thousand of the incarcerated), in 1999 – 2969 (about 13.4), in 2000 – 2222 (about 10) and during the first half of 2001 – 865 (about 7.8), among them 725, 1133, 715 and 300 convicts, respectively, died of the TB. The mortality rate in the country as a whole was 14 people per one thousand in these years. Thus, the mortality rate in penitentiaries is very high, if one takes into account that the prison population consists mostly of young people: almost half of the imprisoned are up to 30 years old.
The above-given data testify that many problems of the Ukrainian penitentiary system would be solved, if the punishments without incarceration were applied more often and the financing was sufficient. Up to better days the penitentiary department suffers from the existing repressive policy. It should be noted that the final separation of this agency from the Ministry of Interior in 1999 positively effected the existing practices. Penitentiaries became more open, the department administration co-operates with NGOs more actively. The NGOs render consultative and humanitarian aid to convicts, arrange concerts, create local amateur theatres. Schools for teaching those incarcerated, who did not get the secondary education, are re-opened. Another essential change is the de-militarization of the personnel. It changed very much, instead of soldiers the civilians working by contracts came to penitentiaries. Yet, the achieved level of openness is very far from the desirable one, if one compares our penitentiary system with those in other post-totalitarian countries (Poland, Estonia, etc).
* * *
The problem of cruel treatment of younger soldiers by older ones, so called ‘dedovshchina, remains acute. According to Vasiliy Kravchenko, a former head of the Main Directorate of military prosecutors offices, 287 cases of dedovshchina were registered in 1999. 143 cases of beating servicemen by their officers were fixed. 800 servicemen suffered from dedovshchina, among them 5 servicemen were killed and 44 became invalids. 450 servicemen were condemned in the connection with dedovshchina. Yet, according to our data dedovshchina becomes weaker. Mass media also frequently wrote about the phenomenon. So, for example, according to Aleksey Protsenko, the head of the main directorate of indoctrination work of the Ministry of Defence, the number of crimes connected with dedovshchina has diminished by 69% from 1995 to 2000. In our opinion, the improvement of the situation is due, first of all, to the principal position of the Ministry of Defence, which thoroughly investigates all complaints, actively and benevolently co-operates with human rights protection organisations, in particular, with regional branches of the Union of soldiers mothers. Consultants in charge of legal and social protection of servicemen have appeared in oblast recruiting commissions; almost everywhere this position was given to activists of the Union of soldiers mothers. Representatives of public organisations may now visit military units, meet with soldiers and their commanders, conduct polls, etc. To put it briefly, the commandment of the Ministry of Defence does not hush-hush the problems, but is open for their discussion. One could only dream about such a level of openness in the penitentiary system.
The military commandment tries to investigate the cases of dedovshchina that became known. In the appendix to the report we present the data about 40 conflicts connected with dedovshchina, in 12 cases such conflicts resulted in deaths. Only three cases say nothing about the punishment of the guilty, in other 37 cases the crimes were investigated and 57 people were duly condemned.
Art. 10. ON IGNORANCE OF PENITENTIARY PERSONNEL OF THE CONVENTION AGAINST TORTURE
The UNO committee against torture recommended to familiarise the population through mass media with the main clauses of the Convention against torture and to organise the study of rules and norms of the Convention by the personnel penitentiaries and of organs of inquiry and investigation (see item 21 of the document ‘Conclusions and recommendations of the Committee against torture. Ukraine, CAT/C/XVIII/CRP.1/Add.4). We believe that this recommendation was not fulfilled. Unfortunately, the separate course of human rights is not introduced in law schools and schools of the Ministry of Interior and the Ukrainian Security Service (USS). In particular the Convention against torture remains unknown to those who must know it. Problems of human rights are mentioned within courses of international right, constitutional right and the theory of state and right, but the number of hours devoted to human rights fully depends on the teacher.
Partly this gap is filled by Ukrainian human rights protecting NGOs. So, the Centre of information and documentation of the Council of Europe in Ukraine and the Kharkov Group for human rights protection, with the agreement of the Ministry of Interior and the USS, held 14 seminars for officers of regional directorates of interior, the USS and prosecutors offices. At this seminars they told about international tools of preventing torture and cruel treatment and handed to each participant a set of printed matter, in particular, the book ‘Against torture, including the most important documents on this topic and the Convention against torture. The Sevastopol human rights protection group, International society of human rights (Ukrainian section) and the Donetsk ‘Memorial also supported the project. In the course of these seminars it became clear that the personnel of the establishments, where torture and cruel treatment can be applied, is completely ignorant of the international standards. It is obvious that the efforts of NGOs only are quite insufficient.
Art. 11. SECRET REGULATIONS ON DETENTION, ARREST AND KEEPING IN CUSTODY
Unfortunately, the situation, when the rules are determined by the inaccessible service instructions, is still preserved. After the introduction of the unique register of all normative acts in the Ministry of Justice the appearance of new, not registered instructions is illegal. Yet, firstly, the number of old instructions, which were classified secret as early as in the Soviet times, are still operable, and secondly, the access to the new acts may be also restricted, if the information containing in them is a state or other secret stipulated by law (Article 30 of the Law ‘On information).
Changes in law ‘On state secrets, adopted by the Supreme Rada in September 1999, substantially broadened the quantity of secret information. New positions appeared in the sphere of state security and law-enforcement: in particular, the information ‘on the results of checks carried out by a prosecutor according to laws in order of surveillance over the observation of laws and on the contents of inquiries, preliminary investigations and court procedures in the questions of this sphere may be related to state secrets. We believe that making secret the results of prosecutors surveillance over the observation of laws is inadmissible, the more so that the quantity of information that may be related to state secrets is very large. Except such classified positions as ‘secret, ‘top secret and ‘of especially importance, which exist according to the law ‘On state secrets, bureaucrats generously provide document with the labels ‘for service use only, not for publishing, ‘service secret. This practice is illegal, since such labels are not defined by law. It is even difficult to determine which information is related to these categories of limited access, because there is no special open list of information items of this kind. There exist no instructions registered by the Ministry of Justice, which define the order of work with documents labelled ‘not for publishing and ‘service secret. Such instruction exists only for documents classified as ‘for service use only, which contain ‘confidential information that is the state property. This category is also not defined by any law. From the instruction one can conclude that appointing the label ‘for service use only completely depends on a whim of a bureaucrat. The instruction does not say, which kind of information must be regarded as confidential. We tried to get the answer to this question by tries and errors, requesting various state agencies for information. In particular, wanting to learn how efficient is the prosecutors surveillance over the observation of laws in the organs of inquiry and investigation, we have recently sent the requests to prosecutors office in different regions of the country. The prosecutors office of Sevastopol, answering the question on the number of complaints against the illegal actions of militiamen, the quantity of satisfied complaint and the number of militia officers condemned for illegal actions, answered that this information is confidential, and its distribution is forbidden, according to Section V of the Law ‘On state statistics. All other requests are still unanswered. We think that making such data secret is both illegal and immoral, and certainly it violates Article 11 of the Convention against torture.
The procedure of the detention of persons, who are suspected of crimes, is regulated not by the CPC, but by the document ‘Regulations on the procedure of brief detention of persons, who are suspected of crimes, which, as far as we know, was not published.
It should be noted that the Ukrainian Law ‘On security service does not envisage the direct right for detaining and keeping in custody of the suspected and accused. At the same time item 5 of Article 25 grants the security services the right to ‘have preliminary prisons for keeping persons taken under captivity or detained by the organs of state security of Ukraine without any references to laws regulating detaining and keeping in custody. It may lead and, judging by the notorious case of Mozola, does lead to the violations of norms, sometimes quite scandalous. As it became known in the course of the trial, keeping under custody in preliminary prisons of the security agencies is regulated by service instructions.
The laws ‘On organisational and legal ground of the struggle with organised crime and ‘On the struggle with corruption also do not contain any reference norms to the law ‘On militia or other related laws. To sum up, no documents describe the procedure of detention and arrest by the departments of the directorate of the struggle with organised crime. It is logical to suppose that here service instructions also determine the procedures.
Upon the whole, one can conclude that the legislation regulating the access to agencies acts is very contradictory and needs substantial changes.
Art. 12, 13. ON INSUFFICIENT RESPONSE TO COMPLAINTS
As we have remarked above, fast and unbiased investigation of the complaint against torture in militia are practically never carried out. It is convincingly confirmed by the numerous examples appended to the report. We have written that during 11 months of 2000 the Lviv oblast prosecutors office started 14 criminal cases concerning torturing of the detained, but only seven such cases came to courts. On the other hand, 129 complaints against the illegal actions of militiamen remained without response. Here are similar data for the Kharkov oblast: during the first seven months of 2001 the oblast militia directorate received more than 500 complaints against actions of militia. The oblast prosecutors office has stored 21 criminal case against militiamen. Three former militia officers have already been condemned (‘Rabochaya gazeta, No. 107, 31 July 2001). Thus the overwhelming majority of the complaints is not responded. It is confirmed also by the comparison of two kinds of data. The first kind are the data on the number of the complaints against illegal detentions, arrests and searches with applying physical violence and rude treatment of citizens. These data are presented in item 44 of the fourth periodic reports of Ukraine: 554 complaints in 1996-1999. The data of second kind are the data made public by Nikolay Anufriev, a deputy Minister of Interior: each week the Ministry of Interior receives about 40 complaints against violations of laws by its personnel. As N. Anufriev asserts, 2045 militiamen were brought to responsibility for violations of laws during inquiry, investigation and application of administrative laws in 1997, in 1998 – 1921. Criminal cases were started concerning 10 facts, two militia officers were condemned (‘Molod Ukrainy, No. 55, 25 May 1999).
In is noteworthy that in the infrequent cases, when the complaints are satisfied, the cases are investigated and the guilty militiamen are punished, it is very difficult to manage to make the court decision executed. Most frequently the decision prescribes the conditional punishment and the prohibition to work in militia in future. It is next to impossible to make the condemned militiamen to be fired, this is confirmed by the numerous examples given in the appendix. The KG came across the situation, when the two militia officers, who beat a minor and were condemned conditionally for it, continued to occupy their positions long after the verdict came into effect and were dismissed only after the personal interference of the head of the oblast militia directorate, to whom we turned for help.
Art. 14. ON COMPENSATION FOR VICTIMS OF TORTURE
Since, as it has been shown above, the investigation of complaints against torture is very inefficient, the decisions on compensation of material and moral damage are taken by courts exceedingly seldom, and one must demonstrate great doggedness to achieve such a decision. Although the Ukrainian legislation contains the norms about the recompensing the damage caused by illegal actions of law-enforcing organs, and in the end of 1994 a special law on the procedure of recompensing the damage caused by illegal actions of the organs of inquiry, preliminary investigation and court was adopted, the mechanism of paying the compensation was absent for a long time. It should be noted that, according to this law, the right for the compensation appeared only in the following cases: a) court verdict of ‘not guilty verdict; b) closure of the criminal case because of the absence the event of the crime or corpus delicti, or in case, where there are no proofs of the participation of the accused in the crime; c) refusal to start a criminal case or closure of the criminal case due to the reasons indicated in item b); closure of the case on administrative offence. Thus, this law does not stipulate recompensing of material and moral damage to a victim, when the victim was found guilty of a crime or an administrative offence.
As late as in summer 1999 the Cabinet of Ministers adopted the resolution, stipulating the unconditional charge-off from the bank accounts of law-enforcing organs, if there is a corresponding court decision that came into effect. Simultaneously, the Ministry of Finances marked out Hr 637.5 thousand for the compensations. This sum is infinitesimal even for the small number of court decisions on recompensing the damage. As the newspaper ‘Ukraina moloda (No. 136, 28 July 2000) wrote, the reserve fund of the Cabinet of Ministers gave additional Hr 485.8 thousand for paying the compensations for 1999. Thus, in order to get the compensation one must be patient for several years.
The adopted procedure of recompensing looks rather queer. In fact, the court must take a decision to pay from the money intended for the upkeep of courts. The expenses for recompensing the damage caused by the illegal actions of law-enforcing organs must be paid from a separate article of the budget. It caused the constitutional statement of the Supreme Court on the concordance to the Constitution of Article 32 of the law on the state budget of Ukraine for 2000 and Article 25 of the law on the state budget of Ukraine for 2001, which stipulate recompensing the damage in such a absurd manner. On 3 October the Constitutional Court of Ukraine acknowledged these articles as not constitutional and so cancelled them. This decision is just, but paying the compensations is suspended.
Art. 15. USING ILLEGALLY OBTAINED CONFESSIONS AS EVIDENCE
Article 62 of the Ukrainian Constitution reads ‘any accusation may not be based on evidence obtained in illegal way, as well as on suppositions. All the doubts concerning the guilt of a suspect must be interpreted in his/her favour. Yet, Ukrainian courts endorse the accusation mush more frequently and weakly react on the facts of applying illegal methods by militia and investigation organs.
Vitaliy Boyko, the chairman of the Supreme Court of Ukraine, tells about it in the following way:
‘... There are numerous cases, where accusation is based on the confession of the suspect or accused, obtained, as a rule, in the very beginning of the investigation. Later, at the trial, the suspect refuses from the confession...
Yes, sometimes local Femidas representatives manage to establish truth. But as a rule district courts assist their district precincts: they declare that they the same think – they fight with crime. As to the trivial cases, where judges disregard bruises all over the fact of an accused, are quite common.
One must also recollect the decision, which investigating officers like so much, about application to the suspect such preventive measure as keeping in custody. The main reason (and it is well grounded) that a judge will never dare to acquit the person, who had already fed bedbugs in a preliminary prison for several months. If even all the proofs in the case are the ‘confessions of the suspect...
(Kievskie vedomosti, 24 January 2001)
At best the judge will direct the case for the additional investigation, issuing the resolution about violation of the legal procedure. Alas, this happens very infrequently, as well as the exchange of the preventive detention to the promise of not to leave the place. For example, in 1998 courts issued more than 3000 resolutions on violations of the legal procedures during inquiry and preliminary investigation.
Yet, the change of evidence at the trial is treated more often against the suspect. Any advocate can describe many facts, when the court, without any analysis of proofs, resolved to base their decision ‘on the confession of the suspect given during the preliminary investigation, and to treat the suspects evidence at the trial as the attempt to dodge the responsibility. This is the routine, although it is often obvious that the confessions were extracted under duress. The methods, by which the confession was obtained, can be often seen even from the photos in the case documents, where the faces of the suspect look black and blue. Sometimes the black and blue suspects are shamelessly brought to court.
In our opinion, it would be reasonable to adopt a law, which would prohibit using as evidence the confessions obtained under duress. Then the reason to beat out confessions will disappear.
CONCLUSIONS AND RECOMMENDATIONS
Law enforcement practices show that violations of the UNO Convention against torture are abundant and unpunished. Some ill-trained officials use unlawful methods of treatment, and the probability of getting them punished or redressing material and moral damage is very low. Illegally obtained confessions are used as the best evidence at trials.
We think that the conditions in penitentiaries and so-called ‘dedovshchina in the army are permanent and large-scale violations of the Convention against torture. It should also be pointed out that dedovshchina is decreasing in the recent years thanks to the principal position of the Ministry of Defence, which actively struggles with this phenomena actively co-operating with NGOs.
We should point out the common facts of cruel treatment of refugees and migrants from the Caucasian countries by state officials.
Existing objective reasons of deteriorating the conditions in penitentiaries (lack of finances for prisoners maintenance and personnel wages because of the economic crisis) cannot excuse the current situation, as well as issues concerning crime growth and need to suppress it.
It is a most positive fact that NGOs are trying to monitor and examine facts of cruel treatment, to protect persons, whose individual rights have been violated by state officials, and to support law enforcement agencies in promoting information about human rights. Some 10 years ago such discourse was impossible. However, the public efforts only are not sufficient to change the situation radically.
In order to correct the situation it is necessary to change the operating laws and law-applying practices:
to make more exact the definition of torture in the CC of Ukraine agreeing it to the definition given in Article 1 of the Convention against torture;
to make sure that every detainee is informed promptly of his or her rights, especially the right to complain against cruel treatment;
to ensure that relatives of a detainee shall be informed of his or her detention immediately;
to establish legally that anyone may not be interrogated at any stage of investigation without an advocate;
to impose strict legal limitations on preventive detention;
to enact stern legal limitations on the terms of preliminary detention and trial, in particular, to diminish the maximum term of preliminary detention from 18 to 9 months and to limit the total time of keeping under custody during the investigation and trial down to two years, after which the incarceration must be exchanged for another preventive measure not connected with imprisonment;
to adopt a law, which would prohibit judges to use as evidence the confessions obtained under duress;
to adopt the new Criminal-Procedural Code, which would guarantee the right for defence at all stages of a criminal investigation and efficient court control over inquiry and investigation;
to ensure to everyone, who claims to have been tortured, the opportunity to get impartial medical inspection within a reasonable time;
to carry on independent legal expertise of internal rules in the field of inquiry, preliminary investigation and punishment;
to improve the court practices, making common alternative punishments;
to adopt the new Correctional Labour Code will be in compliance with the international standards for penitentiary establishments;
to remove the label ‘for service use only from the information about complaints against illegal actions of law-enforcing organs and about the results of consideration of such complaint, to publish such data every half a year;
to create a curriculum of professional training for law enforcement and military officers that should include a course on human rights with especial stress on documents against torture and cruel treatment;
to familiarise law enforcement personnel and military officers with the provisions of the UNO Convention against torture;
to ensure legal grounds for court and civic monitoring of the activities of law-enforcing organs.