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Human Rights in Ukraine - 2005: II. Protection against Torture

04.07.2006

2005 brought no significant improvement in the state of affairs with access to official information regarding the number of complaints of police ill-treatment, including allegations of torture and unwarranted violence when being detained or while remanded in custody.

The number of reports alleging torture and ill-treatment within law enforcement agencies has not abated, however it is virtually impossible to get official information in order to assess the prevalence of torture, or the reaction to allegations of such treatment.

The main source, therefore, in drawing any conclusions about the scale of the problem, remains information reaching nongovernmental organizations, the press, as well as sociological studies, from which one may extrapolate some provisional data.

Of reports from the network of human rights organizations which have combined efforts to carry out the program “Campaign against torture and ill-treatment in Ukraine”, in 2005 approximately 400 reports related to cases of possible use of torture or alleged ill-treatment from officers of law enforcement agencies. During 2005 122 people approached the public reception office of the Kharkiv Human Rights Protection Group (hereafter KHPG) with allegations of torture and ill-treatment. On the basis of press monitoring carried out by KHPG, in the press during 2005 there were reports of 200 alleged incidents of torture. Of these five had ended in the death of the victim.

According to statistics from the State Court Administration, in 2005 criminal charges under Article 127 of the Criminal Code of Ukraine – “Torture” were brought against:

-  9 individuals under paragraph 1 which establishes liability for “torture, that is, the intentional infliction of severe physical pain and physical or mental suffering through beating, torment or other violent acts with the purpose of forcing the victim to commit acts against his or her will, including extracting from him/her or another person information, evidence or a confession, punishing him/her for deeds committed or which s/he is suspected of having committed, or intimidating him/her or other individuals”.

-  24 individuals under paragraph 2 where liability is for the same actions when repeated, or through the prior conspiracy of a group of people.

However since the given crime is in the section on general crimes, and not in that of crimes committed by officials in the course of their work, it is difficult to gauge whether those convicted were employees of law enforcement agencies, or ordinary individuals.  In fact such actions committed by private individuals do not fall within the category of “torture” in the understanding of the UN Convention against Torture and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

At the same time, 72 individuals were convicted under Article 365 § 2 of the Criminal Code of Ukraine which sets down liability for "Excess of authority or official powers if it was accompanied by violence, the use of weapons or actions causing pain or degrading the victim”.

The overall figure for the number of those convicted under Article 365 with the sentence coming into force in 2003 was 314 individuals, in 2004 – 320, and in the first half of 2005 – 154 individuals.  It is not, however, possible to say how many officers of law enforcement agencies were among those convicted, since these figures are not separated.

There were no convictions for “coercion to give testimony” which is an indictable offence under Article 373 of the Criminal Code of Ukraine.

The following are a few typical examples.

CASE OF T., A MINOR (FROM THE CITY OF SEVERODONETSK, LUHANSK REGION)

T. was detained at around 15.00 on 1 February 2005 by an investigator from the Severodonetsk Central Department of Internal Affairs, Sharapov, who took T. to the police station and interrogated him on suspicion of having committed a crime. His mother found out that he had been detained from neighbours and at approximately 17.00 arrived at the city police station. She was not allowed to see the investigator at first, and waited 40 minutes before they took her to his office. Seeing her son in a terrible state, she asked “Did they beat you?”  To which T. replied, in Sharapov’s presence that the latter had beaten him around the head with the palms of his hands, and around the kidneys, and had kicked his legs. He said that Sharapov had demanded that he confess to having tried to get money from a teenager he knew.  When T’s mother asked why he’d done this, Sharapov replied that he hadn’t beaten her son, but had only “given him a couple of cuffs”.  After this, Sharapov continued the interrogation with T’s mother present.

After the interrogation was over, mother and son went home, from where T’s mother immediately called an ambulance which took the young man to an injuries unit.   The neuropathologist’s diagnosis was that T. had concussion.

The police claim that T.’s mother slandered Shapapov in order to protect her son. However, if Sharapov had followed the law and questioned T. in the presence of his mother or a teacher, no problems would have arisen.

CASE OF VADIM NOVOSAD (TOWN OF CHOP, IN THE TRANSCARPATHIAN REGION)

Border guard Vadim Novosad was suspected of having stolen six crates of oil from train carriages en route from Hungary to Ukraine. He was interrogated by three police officers. At first, over a period of several hours they demanded that he confess to having stolen the oil, and after that resorted to torture. The victim recounts: “They hit me twice around the head with the palm of the hand, and then with a book that was on the table, I think it was the Criminal Code. They forced me to take off my shoes. I took my shoes off, Shalenyk  sat on my legs, and Captain Rusyn began beating me with a baton on the heels of my feet.” -  “Did you scream?”   “Yes, I did.  Their colleagues were there, later some girls walked in and said, get him to stop, to not scream. However they didn’t pay any attention”.

The law enforcement officials are prepared to discuss the theft, but categorically deny any torture, despite the forensic medical examination report and the testimony of the victim himself. Although the theft investigation was closed after it transpired that a mistake had occurred when the goods were being loaded.

The victim – border guard Vadim Novosad was kept in the hospital unit for a week. His medical history states “brain concussion and wounds from blows to his feet”. This was confirmed by the forensic medical examination.  Yury Yakymenko, medical attendant at the medical unit of the Chop Border Guard Detachment states: “Praporshchik Novosad was taken to the forensic medical examination unit in an Uzhhorod micro-district where he was examined and a report issued stating that he had light physical injuries, a closed head injury, brain concussion and also beating of the soft tissue on both feet.”

Novosad asserts that he spent more than seven hours with the criminal investigation team. The law enforcement officers emphatically deny this and produce their register of visits where Praporshchik Novosad personally signed that he had spent 40 minutes in the unit and that he had no complaints.

Mykola Lyakhovych, Deputy Head of the Chop Police Department says: “In taking evidence from various people, explanations were given. After that they signed in the book that they had no complaints. So I don’t think there can be any questions. I think it was like this. So as to protect himself from his bosses and claim that he wasn’t involved in anything and make out he was the way the defence is claiming, he approached you”.

Meanwhile the law enforcement officers themselves insist that right is on their side. After all they have launched and got to the court more than one case against the illegal actions of border guard officials.  The latter, therefore, they claim, try through slander to protect their position. Instead, however, the border guard officials are prepared to defend themselves through legal means – in the Uzhhorod Military Prosecutor’s office and other bodies. The investigation into the case is continuing.

CASE OF MYKHAILO DEMYAN (SETTLEMENT OF MELNYTSA-PODILSKE, BORSHCHIVSK DISTRICT, TERNOPIL REGION)

A resident of the settlement Melnytsa-Podilske I. Polivchak reported that an amount of money, large by local standards (several thousand UH), had gone missing. He suspected his neighbour, Mykhailo Demyan, of having stolen the money, and although the latter categorically denied any involvement, in the morning of 26 April 2005 Polivchak made the relevant report of the theft to the police.  Officers of the Borshchivsk District Department for Internal Affairs Vitaly Chelesyuk and Vasyl Kutasevych did not bother with procedural formalities and searching for proof of the crime. On the same day, without any kind of warrant or notification of his relatives, Mykhailo Demyan was detained, taken to the district police station, where they began beating a confession out of him. … All that day the two solidly built sadists held the elderly man in handcuffs, without any water or food, mercilessly beat him with their fists, with a rubber pipe and stick, kicked him, blackmailed, humiliated and intimidated him … Who can say how this “investigation” would have ended had I. Polivchak’s wife not telephoned the district police station in the evening, apologized politely and explained that the wretched money had been found.

Releasing M. Demyan, the “investigators” warned him that he better keep quiet about the beatings and what the consequences would be if he didn’t take this advice. Nonetheless the next day Mykhailo Demyan underwent a forensic medical examination and lodged a complaint against the police thugs with the Borshchivsk District Prosecutor’s Office. At first the district prosecutor, Shavarivsky signed a refusal to launch a criminal investigation “on the grounds that there was no evidence in the actions of the police officers that an offence had been committed”.  M. Demyan then appealed this to the regional prosecutor’s office, and received a second refusal to begin a criminal investigation from the first deputy prosecutor. Only in June 2005, after several applications by the victim to the prosecutor’s office of the Ternopil region, was a criminal case opened, and only in July did it reach Judge of the Chortkiv District Court, V. I. Parfenyuk.

The court consideration of the case took almost two months. It is known that throughout that period on several occasions attempts were made using different means to persuade M. Demyan to reach a compromise with those who had wronged him however he refused to be cowered.  As a result the Chortkiv District Court found the police officers V. Chelesyuk and V. Kutasevych guilty of “excess of authority or official powers” under Article 365 § 2 of the Criminal Code of Ukraine. The Appeal Court of the Ternopil region upheld this sentence on 21 October 2005.  Both epaulet-bearing offenders were sentenced to 4 years deprivation of liberty. According to the Judge V. Parfenyuk, this was the first case in his court experience when officers of the Ministry of Internal Affairs of Ukraine had been imprisoned for unlawful acts of coercion during a criminal investigation. However, it proved impossible to receive a clear answer as to why in the given case the actions of the police officers had not in fact been classified as torture.

THE CASE OF OLEH DUNICH (KHARKIV)

This is what the reference note from 11 December 2005, signed by the deputy head of the Kharkiv City Department of Internal Affairs for the Kharkiv region, Police Colonel S.A. Onopriyenko, says:

“On 7.12.2005 between 23.00 and 24.00 operational officers of the Chervonozavodsky District Station of the Department of the Ministry of Internal Affairs of Ukraine for the Kharkiv region, Police Captain K.H. Mykhailov, Senior Police Lieutenant A.V. Padalka and Police Lieutenant S.M. Kolyadin were in the club “E-2” on S. Hrytsevets Street in Kharkiv.  At 24.00 S.M. Kolyadin walked out onto the street to hail a taxi, while K.H. Mykhailov and A.V. Padalka remained inside the café. After leaving the café, S.M. Kolyadin was approached by two men unknown to him who began to demand that he hand over anything valuable which S.M. Kolyadin refused to do, after which one of the men, tall and with long hair, punched him in the region of the thorax.  S.M. Kolyadin told the men that he was a police officer, however one of the men took out an air pistol and aimed several shots at him , then proceeding to hit him with the handle of the pistol on his head, as a result of which S.M. Kolyadin fell to the ground and began calling for help. At that moment,  K.H. Mykhailov and A.V. Padalka ran up to him, and the unidentified individuals began running, however one of the assailants fell. After this, two men walked up and said that they had witnessed S.M. Kolyadin being beaten, and offered their assistance. It was later established that their names were S.V. Zhyla and S.V. Morsky.  S.V. Zhyla drove S.M. Kolyadin, K.H. Mykhailov and A.V. Padalka, as well S.V. Morsky, in his car to the Chervonozavodsky District Station, from where S.M. Kolyadin was hospitalized by an ambulance team in the 4th Hospital with an injury to the parietal region …K.H. Mykhailov, together with A.V. Padalka and S.V. Zhyla, returned to the place of the incident to carry out operational investigation measures, in the course of which at the market on S. Hrytsevets Street they detained O.M. Dunich, whom S.V. Zhyla identified as the man who had delivered blows to the head with his pistol to S.M. Kolyadin.   O.M. Dunich was taken to the Chervonozavodsky District Station, and entered into the visitors’ book of the station on 08.12.2005 at 04.00.  During a body search of O.M. Dunich, an air pistol was discovered and removed. An operational officer of the Chervonozavodsky District Station, Senior Police Lieutenant H.S. Snurnikov prepared a protocol on confiscation of the pistol which O.M. Dunich, in the presence of witnesses S.V. Zhyla and S.V. Morsky, categorically refused to sign. O.M. Dunich also refused to give any explanation.

Due to the fact that O.M. Dunich complained of his state of health, on 08.12.2005 in the premises of the district station, a forensic medical examination was carried out which found numerous haemotomas and haemorrhaging  which were classified as minor bodily injuries and which had been incurred at least three days before the examination (act № 4414С from 09.12.2005). Since O.M. Dunich’s health deteriorated, an ambulance was called which took him to the 4th Hospital, where at 12.00 on 09.12.2005 he died.

K.H. Mykhailov, A.V. Padalka and S.M. Kolyadin categorically deny having applied force or any measures of physical influence on O.M. Dunich.  Nor during the medical examination did O.M. Dunich make any complaints about the actions of the police officers.”

If we look at act № 4414С from the forensic medical examination on Oleh Mykhailovych Dunich, born 1975, who was “delivered on 08.12.2005 to the Chervonozavodsky District Station with bodily injuries due to a crime”, the medical expert Y.O.Danylenko presents the circumstances of the case and the conclusions from the forensic medical examination as follows:

„The individual under examination refused to say where his bodily injuries were from. However he stated that he had previously had surgical intervention in connection with trepanation of the skull. He mentioned headaches, giddiness, seeing spots.  Psychological or physiological methods were not applied.

It should be noted that when in contact with the individual under examination, there was a smell of alcohol, and he also mentioned that he had previously fallen more than once.

The individual under examination stated that he had been brought to the Chervonozavodsky District Station at around 04.00 by police officers on suspicion of having committed a crime.

...I have reached the following conclusion that he has suffered bruising on the face, body and limbs”.

 Only on 12 December did the Head of Branch No. 1 of the Kharkiv Regional Office for Forensic Medical Examinations write to the head of the Department of Internal Security in the Kharkiv region, Police Colonel A. Barkov. :

“In response to your verbal request I can state that on 08.12. 2005, at 8:40 a.m., Mr. Oleg

Mykhailovych Dunich was taken by ambulance MSP-315 from the Chervonozavodsky District Station on Gagarin Avenue to the emergency care hospital with the diagnosis: closed brain injury, brain haemorrhage, cerebral oedema, coma, blunt thoracic trauma, fracture of ribs on the left, blunt stomach injury, asphyxiation and blockage of the respiratory tract due to vomiting. Despite the measures taken, the patient’s condition remained extremely serious and at 11.30 his pulse effectively stopped. Attempts to resuscitate him were not successful. At 12.00 he was pronounced dead with a diagnosis of severe brain injury, subdural haematoma of the left hemisphere, contusion and fracture of the basiliar areas of the left temporal lobe, cerebral oedemic dislocation, as well as multiple injuries to the head, face, thorax and limbs.  No alcohol was found in O.M. Dunich’s organism on his admission to the emergency hospital.

The preliminary results of the autopsy on O.M. Dunich showed severe brain injury causing death, multiple bruising on the trunk and limbs, fracture of the thyroid cartilage, direct fractures of several ribs on the left, and pulmonary contusion.

The cause of O.M. Dunich’s death was a severe closed brain injury”.

So where and when did Dunich receive a severe closed brain injury incompatible with life?  Clearly the two forensic medical examination reports do not match up. There are plainly two alternatives: either the first examination result was falsified (we would note that the forensic expert, Danylenko, writes that “there was a smell of alcohol ” while in the post-mortem report it is stated that no alcohol was found in Dunich’s organism), or Dunich received this injury after the first forensic examination. The details here look vary strange: why was Dunich apprehended during the night at a market; when was the first forensic examination in the premises of the district police station carried out if he was taken there at 4.00 and at 8.40 he was already taken to the emergency hospital?  To get from the Chervonozavodsky District Station to the hospital would take at least half an hour. So was the examination in the district police undertaken in the night or early in the morning?  How did the forensic medical expert, Danylenko, get there so early in the morning? In any case, it would appear that the injury which Dunich died from was inflicted by police officers. To assert that with such an injury, received three days prior to these events, he could have attacked a police officer and hit him on the head with a pistol, run away, etc, is totally absurd.

The three police officers named were immediately dismissed, and a criminal investigation initiated into the death, which is still continuing.

The third report of the Human Rights Ombudsperson states:

“Torture of citizens by the police continues to be on a mass scale and of a systemic nature.  This is demonstrated by the numerous appeals to the Human Rights Ombudsperson and incidents reported in the mass media. The main aim in inflicting torture remains to extract a confession from the detained person to a crime which has not been solved.  Public officials use violence to attempt to solve crimes since they are professionally incapable of achieving this in any other manner”. 

According to sociological surveys carried out in May 2004, 7% of those asked had personally experienced violence from police officers, with 3.3% having suffered from unlawful violence in the last year (i.e. from May 2003 to May 2004).  Every tenth person knew at least one person from those most immediately around them who had been subjected to violence. The same survey showed that 61% of those asked believed the use of torture and unlawful violence to be common or extremely common, 14% - uncommon or very rare, while one fourth could not give a clear-cut response. 

“More than half of the respondents had personal experience of being beaten or kicked. A significant percentage of those surveyed said that such unlawful actions had been applied more than once. 29% mentioned several incidents, while 8% spoke of regular occasions of being beaten or kicked.  Such behaviour at the level of pre-trial investigation are considered everyday and do not surprise anyone. One should also add here types of beating using special equipment (rubber batons, bottles with water, thick books of the size of the Criminal Code, etc) which 36% of the respondents had themselves experienced. These means serve a double purpose: they facilitate the actual process, while avoiding leaving obvious marks. Their “plus” (from the point of view of those who favour coercive means of “beating out” a confession) are that the presence of such items in the rooms of operational officers or investigators are not in themselves criminal, and can be easily explained as being needed in the course of their work. Sometimes beatings are organized, so to speak, “through third parties” – they set other cellmates on an individual. Around 9% of those surveyed mentioned this form of brutality (with approximately 5% having experienced such several time or even systematically).  

Long-term restriction of a prisoner’s movement with handcuffs which, as a means of torture, are used to bind both hands and feet are a typical form of torture since the purpose of handcuffs is quite different. This form of physical torment can go on for many hours and is intended to wear down a person’s resistance. According to our figures, this type of torture is also fairly widespread, with at least 37% of the people surveyed asserting that it had been used against them (20% of the respondents saying that it had been applied many times), with around 8% talking of handcuffs having been used at the same time on both hands and feet.

Real torture, that is through the use of particular techniques which guarantee severe physical suffering, often simply unendurable torment (in the slang of law enforcement officers these are “lastivka” [“swallow”], “slonik” [“little elephant”][1] and “zhabka”  or “frog”]  in the general range of illegal violence, occupies a relatively modest place  –  no more than 13% of those surveyed mention having personally experienced such forms.  However that percentage is not so small given that hundreds of thousands of Ukrainians go through the “purgatory” of pre-trial imprisonment. It is precisely as a result of such torture that those under investigation have not infrequently forfeited their health, and it is this which leads to the bureaucratic nightmare of complaints to the prosecutor’s office, appeals to the courts and other bodies.”[2]

“In general over the entire number of respondents, 7.3% spoke of cases of intentional infliction by police officers of beatings, torment or torture in order to solve a crime under investigation; 3.3% of the respondents mention incidents of unlawful violence by police officers that had taken place over the last 12 months.  If one imagines that a survey was taken of the entire adult population of Ukraine (i.e. that these percentages were taken from the entire adult population of Ukraine), then one could estimate that among citizens of our country, not deprived of liberty, there would be 2 million 750 thousand individuals who had suffered unlawful violence from police officers, with 1 million 241 thousand such cases having taken place within the last 12 months”[3]

According to the sociologists’ estimates in absolute numbers throughout the year which preceded the study, 355,293 individuals had suffered beatings and bodily injuries during a criminal investigation, while in the same circumstances 93,498 people had been subjected to torture with the use of special equipment, and 56,099 individuals had been beaten up by cellmates at the instigation of police officers.[4]

In response to the publication of the sociological study, a letter from the Department on work with personnel of the MIA of Ukraine was placed on the website “Ukraina kriminalnaya”.  It asserts:

“In order to prevent violations by police officers of discipline and legality, the MIA of Ukraine has begun introducing the standards for the activities of law enforcement agencies of developed countries in Europe, particularly with regard to efficient protection of the legitimate rights and freedoms of each citizen. Definitive here is the principle: “The police are with the people, the police are for the people!”

The first steps in this direction have already been taken by the MIA. For example, in order to improve relations in the area of law enforcement activities, and to raise the level of authority of the police, as well as to develop a tolerant attitude among police officers towards people from different parts of society, through the assistance of the British Council and participation of UK teachers, training seminars have been run for police officers under the title “Police work with marginalized groups of the population”.  In European countries this is a normal form of work in preventing conflict over language, ethnic, cultural, worldview, religious and gender differences.

With the Donetsk Law institute as basis, a Centre has been organized for inculcating psychological training techniques.  Specialists from the Centre train officers of law enforcement agencies according to the program of training “Communication – Stress – Safety”, which was drawn up with the benefit of experience of training police officers in Germany.

The given training course is a new form of work with staff, aimed at increasing resistance to stress and building physical and psychological resilience in situations of danger linked with work duties, as well as at developing communication skills, constructive interaction between officers of agencies and subdivisions of internal affairs and departmental educational institutions.

The top management of the MIA will continue to use all necessary measures to prevent violations of legality in law enforcement agencies, and to eradicate instances of unlawful violence”.

This letter has been one of the signs of change in the position taken on the problem of torture observed in recent times. State bodies which over many years refused to acknowledge that such a problem existed, or tried to give the impression that incidents involving torture and ill-treatment were isolated excesses of certain police officers, have finally recognized the systemic nature of this problem.

Such an indicator of positive change in the attitude of the MIA to the protection of human rights, and in particular to the problem of torture within the police force was provided by the creation at the end of 2005 of a Public Council under the auspices of the Ministry of Internal Affairs and of public councils under regional departments of the Ministry on the observance of human rights.  However it is still too early to be able to speak of these councils having an impact on the policy and practice of the Ministry, since the process of forming the makeup of regional councils is not yet complete, and the Council under the Ministry itself is still at the stage of forming and preparing its approach.

Another step towards introducing public control over the work of the police was the extension of an experiment with “mobile groups” to include all of Ukraine. The activities of these mobile groups began in 2004 in three regions – the Kharkiv, Poltava and Sumy regions. Such mobile groups were created through an Order of the MIA of Ukraine from 17 March 2004 on the basis of the National University of Internal Affairs and also included representatives of human rights organizations.  In order to ascertain the situation with regard to the observance of the rights of detained individuals, the groups were given the right to visit district police stations, temporary holding facilities (ITT); and to talk with people being held there. Despite certain restrictions in the activities of these mobile groups, they proved effective in the three regions, and the visits provided a lot of information about the real practices of the police. In July 2005 a new Order from the Minster was issued extending the activities of such mobile groups to cover the entire territory of Ukraine. However this stage in the development of mobile groups has created new problems which have to some extent reduced their effectiveness. It is therefore not yet possible to say that the mobile groups have turned into a truly effective system.

.In September 2005 the optional Protocol to the UN Convention on Torture was signed with this envisaging, among other things, the implementation of a national preventive mechanism aimed at preventing torture and ill-treatment.

The above-mentioned moves all suggest that the political will is there as far as changes to the attitude regarding the issue of torture are concerned, and the desire to change the situation for the better.

In September 2005 Amnesty International published a report on the problem of torture in Ukraine. The report expressed concern “that, despite promising words, allegations of torture and ill-treatment in police detention persist and Amnesty International and local human rights organizations have continued to receive such allegations since the new government came to power in January 2005. If the fundamental principles of the Council of Europe are to prevail in Ukraine, President Yushchenko’s words will need to be matched with concrete actions. The police will need to be equipped and trained so that they are not just "relentless pursuers of suspects" who frequently beat confessions out of people, but "people who investigate in a neutral manner and are there to expose the truth”.[5]

In October 2005 the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment made one of its regular visits to Ukraine (its fifth, with the previous visits having taken place in 1998, 1999, 2000, 2002), however the Committee’s report has not yet been published.

Unfortunately, little has changed in the practice of using confessions in legal proceedings. The Verkhovna Rada of Ukraine has not adopted any explanatory notes with regard to this. The practice of using confessions not made voluntarily in criminal proceedings remains widespread.  This is indirectly demonstrated by the use of violence in the police force, since with significant change in the approach of the courts, the number of such instances would be considerably reduced.

Particular court rulings which excluded confessions from the evidence have been quashed by higher courts. For example, in May 2005 the Khmelnytsky City Court acquitted N. who was being charged with having committed a serious crime. However one of the grounds for the acquittal was that the court did not accept as evident the confession of the accused made during the pre-trial investigation. The verdict was appealed in the Khmelnytsky Regional Appeal Court. Before the beginning of the appeal hearing, a program was shown on the television channel “Inter” aimed at arousing emotions over the acquittal.  It would be difficult to determine how much this program influenced the appeal court however the acquittal was quashed, with the case being sent for a new court review, which is presently continuing in the city court in Ternopil.  A ruling which could make a significant contribution to developing the approach of the courts to confessions not made voluntarily did thus not come into effect. One awaits the resolution of this case in which the question of whether the confession was made without duress is a central legal point.

The methods for checking whether or not a confession was made voluntarily in the court remain primitive. The maximum which the defence can hope to achieve as response to a statement regarding the involuntary nature of the confession made is an instruction to the prosecutor to check out the statement, or at best for the case to be sent back for further examination. In the vast majority of cases such a check ends in a refusal to launch a criminal investigation. Having received a resolution from the prosecutor’s officer turning down an application to undertake a criminal investigation, or where appropriate, to suspend such a criminal investigation, the courts do not usually look further into statements by the defendant alleging torture, or view these statements as an attempt to avoid punishment.

The belief remains common among judges that only a conviction against the individuals who applied torture gives the court the right to exclude from the evidence a confession extracted through the use of this torture. 

On the other hand, courts uphold 46-47% of the complaints lodged against the actions of the investigation agencies (in 2003 5,991 such complaints were considered by the courts, in 2004 – 7,494 and in 2005 – 10,020, with the numbers in 2003 – 2,805, in 2004 – 3,495 and in 2005 – 4,616). Courts in 2003 issued 2,473 separate judgments regarding violations of the law in carrying out detective inquiry or pre-trial criminal investigations, with 3,495 such judgments issued in 2004, and 1,512 in the first six months of 2005. However it is not possible to establish how many judgments were issued as a result of review of cases of torture or ill-treatment.

Act  № 2322-IV from 12 January 2005 introduced amendments to Article 127 of the Criminal Code. These changed the definition of the crime set down in paragraph 1 of this article, with it now reading: “torture, that is, the intentional infliction of severe physical pain and physical or mental suffering through beating, torment or other violent acts with the purpose of forcing the victim to commit acts against his or her will, including extracting from him/her or another person information, evidence or a confession, punishing him/her for deeds committed or which s/he is suspected of having committed, or intimidating him/her or other individuals”.  The article was also supplemented by paragraph 3 which defines as a special party «law enforcement officer» and paragraph 4 which categorizes causing death as a result of the use of torture as an aggravated circumstance.. Paragraph 3 envisages punishment of from 10 to 15 years deprivation of liberty, paragraph 4 – from 12 to 15 years deprivation of liberty or life imprisonment.

However, there are still certain gaps in the criminalization of torture.

Firstly Article 127 still retains «violent act» as part of the definition of “torture”. This narrows the sphere of application of the article in contrast to Article 1 of the UN Convention against Torture which understands torture to be “any act by which severe pain or suffering … is intentionally inflicted”.

Secondly, certain terms, for example, “to obtain a confession” or “to punish for actions”, through the formulation of the features of the crime to cover general subjects, lose their clear meaning.

Finally, Article 127 lacks one of the elements of “torture” mentioned in Article 1 of the UN Convention against Torture, this being “for any reason based on discrimination of any kind”.

Up till now there has been no mechanism created in Ukraine for the effective investigation into allegations of torture. This makes it impossible in practice to feel the change in the attitude of the state to resolving the problem of torture in the police force, declared in many statements by high-ranking state officials.  For this reason ill-treatment of suspects remains a routine element in the fight against crime, and the police continue to be viewed by the population as a significant risk factor.

Human rights organizations, combining their efforts in the “Campaign against torture and cruel treatment in Ukraine”, for over two and a half years (from July 2003 to December 2005) monitored the investigations into allegations of torture. Over this period the Campaign partners attempted to have criminal investigations initiated into more than 50 cases.

The problems which a person encounters when making an allegation of torture remain to a large extent the same as those outlined in the previous annual report, these being:

-  bureaucratic red tape and artificial obstacles when launching an investigation, these being especially felt by those individuals who continue to be remanded in custody;

-  the assumption that allegations of torture are not well-founded;

-  an unjustifiably drawn-out procedure for court appeals against decisions to refused to initiate a criminal investigation or against decisions to suspend a criminal investigation;

-  the dismissive attitude of officials, in particular, judges before whom individuals detained are brought, to allegations of violence against them, or to signs of such violence having been applied, and the lack of adequate mechanisms for court intervention in the case of an allegation of violence at the pre-trial stages of a criminal prosecution;

-  the inadequate level of functional independence of the prosecutor’s office from the agency whose officers are accused by the claimant of having used torture due to the need later to support the prosecution in the case investigated by this agency;

-  bureaucratic red tape in investigating allegations of torture which can mean that the investigation into some cases drags on for years;

-  the lack of possibility for claimants to take part in their case due to the lack of clarity as to their status until they are acknowledged victims, and the inadequate level of safeguards for the victim in the criminal process;

-  the lack of access to “their own” doctor, and current practice where doctors who work in institutions for holding detainees, or called out at the initiative of police officers, refuse to record bodily injuries or do this extremely inadequately, thus depriving the victim of torture of the proper evidence;.

-  the lack of a system of independent forensic medical expert opinions and of access to an independent expert.

It should be noted that the position of the prosecutor’s office on investigations into torture is well illustrated by the fact that in the overwhelming number of files of material on official checks carried out by the relevant services of the MIA, the prosecutor’s office has refused to launch a criminal investigation.

One should add that the very fact of procrastination in launching a criminal investigation in most cases deprives such investigations of any effectiveness and as a rule leads to their lack of success.

In its Judgment from 5 April 2005 on the Case of Afanasyev v. Ukraine, the European Court of Human Rights found that there had been a violation of Article 13 of the Convention since “following the applicant’s complaint, the State authorities conducted a perfunctory investigation and only questioned the alleged offenders.  They took the negation of the police officers at face-value and refused to institute criminal proceedings against them, despite the applicant’s statements and his undisputed bodily injuries. The criminal proceedings and the investigation into the applicant’s allegations commenced more than a year after the alleged events. The Court agrees with the applicant that the omissions at the initial stage of consideration of his complaint substantially affected the subsequent course of the overall investigation. Many of the witnesses were only questioned after a significant lapse of time (May-November 2001) and could not testify clearly about events in March 2000.  The Court further notes that on two occasions the domestic courts established that there had been serious omissions on the part of the authorities during the investigation: most of the witnesses were interrogated only after a lengthy delay, whereas several others were not interrogated at all. In the Court’s opinion those omissions, taken alone, provide a sufficient basis for the conclusion that the State authorities fell short of their obligations under Article 13 of the Convention”.[6]  One can hope that the Judgment of the European Court on the Afanasyev case and other similar cases will in the future have an impact on the practice of investigating allegations of torture. At present it remains extremely difficult to achieve such an investigation.

Despite the fact that victims of torture are in a very vulnerable situation which deters many of them from trying to uphold their rights, from time to time discussions arise in lawyers’ circles suggesting that it might be worth applying certain sanctions against people who make insufficiently well-founded allegations of torture. The opinion is expressed that such individuals should face criminal charges for false reports of a crime, or pay damages in civil suits claiming defamation of honour and dignity.

An important court judgment was passed on this issue in 2005. It was based on the civil suit brought by the Head of the Chernihiv City Police Department Eduard Alyokhin against Mykhailo Koval, whose case was mentioned in “Human Rights in Ukraine – 2004”. The suit concerned statements made by Mykhailo Koval regarding violence used against him and the drawn-out investigation of the case involving this.  Since Koval’s case had received huge publicity, these remarks were broadcast by a number of channels. The Court, referring to Article 1 of the UN Convention against Torture, ruled that the respondent had sufficient grounds for considering himself to be a victim of torture. The Court also referred to case law of the European Court of Human Rights regarding freedom of expression. The Court’s judgment rejected the civil suit.

The issue of observing international norms prohibiting the return of an individual to a country where he or she could face torture or cruel treatment gained certain prominence.

Decisions regarding extradition are within the exclusive jurisdiction of the Prosecutor General of Ukraine who resolves such issues without any procedure. The law does not even stipulate the duty to inform the individual whose extradition is demanded by another state of the decision taken and the grounds for the decision.

The individual does not have the right to appeal the decision on his or her extradition to the court. Furthermore in Ukraine there is no court procedure for resolving issues involving extradition which would make it possible to protect the right of the individuals facing extradition enshrined in Article 3 of the European Convention on Human Rights and Article 4 of the UN Convention against Torture.

Attempts in certain cases to appeal decisions on extradition of the Prosecutor General have proved futile since even in cases where a district court decided in favour of the claimant, the rulings were quashed by an appeal court.

In one of these judgments, the Appeal Court in Kyiv stated, referring to the Resolution of the Plenary Session of the Verkhovna Rada of Ukraine from 8 October 2004 that “the issue of extraditing offenders lies within the exclusive jurisdiction of the Prosecutor General of Ukraine. In accordance with current international, as well as Ukrainian domestic legislation on extradition, the courts have the right (and are obliged) to consider only submissions from the Prosecutor General of Ukraine and the prosecutor’s offices so authorized by the former on issuing a detention order (temporary arrest, repeat arrest, remand in custody) of the offenders in order to ensure their extradition”.

The decisions on extradition of the Prosecutor General were thus, through court case law, excluded from judicial control. Usually in taking such decisions, the Prosecutor General does not consider those factors which, based on the demands of Article 3 of the European Convention on Human Rights could constitute grounds for turning down a request for extradition.

The most glaring example of the lack of court procedure providing the necessary guarantees for an individual, as well as the lack of conformity of court practice with standards of protection from torture and ill-treatment within the context of extradition or department was seen in the case of the deportation to Uzbekistan of 10 Uzbek nationals who were seeking asylum in Ukraine.  The hasty and brazen extradition, rather ineptly masked as deportation, demonstrated the lack of clear understanding among high-ranking officials of universally recognized principles of international law.

 

Recommendations

1  to ratify the Optional Protocol to the UN Convention against Torture and to set about creating the national preventive mechanisms envisaged by the Protocol;

2  to adopt at legislative level a concept for creating a system of prevention and protection from torture and ill-treatment, as well as an action plan, based on the said concept, with clearly defined directions and stages of activity;

3  to bring the elements specified of the crime of “torture” into line with Article 1 of the UN Convention against Torture;

4  to institute the gathering of statistical data in courts and law enforcement agencies on crimes which contain elements of “torture” in the understanding of Article 1 of the UN Convention against Torture;

5  to make it impossible to apply amnesty and parole for people who have committed actions, which have elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;

6  to promote the creation of effective mechanisms of public control over investigations into allegations of torture and ill-treatment;

7  to provide by legislative means for the activities of non-state experts and expert bureaux;

8  to ensure access by victims to medical documents which are of importance in proving torture or ill-treatment;

9  to assign the same validity as evidence to conclusions provided by independent medical and other experts, who conduct studies at the request of the alleged victim of torture or their legal representative, as that of conclusions made by experts assigned by an investigator or court;

10  to provide individuals who initiate an investigation or other legal procedure regarding allegations of torture or ill-treatment access to free legal aid should they be unable to pay for the services of a lawyer;

11  to provide provisions in Ukrainian legislation on the inadmissibility of any testimony of the accused (suspect) received at the pre-trial stage of the criminal investigation;

12  to provide the appropriate guidelines to prosecutor’s offices and judges for using measures to ensure the safety of individuals who have made an allegation of torture, in particular, if such an individual is held in custody, then to move him or her to another remand centre;

13  to eliminate the practice whereby judges «extend detention» of suspects held in police custody, or, at least, to introduce necessary amendments in order to transfer people whose detention is extended by a judge to a pre-trial detention centre, and not leave them held in police custody;

14  to introduce into legislation the right of access and the appropriate procedure for gaining access  to an independent doctor and independent expert of the person detained’s own choosing, especially for persons, who are held in custody;

15  to review provisions of current legislation in order to provide the right to legal representation to people who make allegations of torture, regardless of whether or not criminal proceedings are initiated;

16  to provide clear guidelines to prosecutor’s offices and judges concerning immediate consideration of claims and complaints related to investigations into torture.;

17  to give individuals facing deportation to another country the right to court review of an appeal against the relevant decision of executive bodies, and appropriate court procedure capable of investigating the circumstances which could significantly influence the decision on deporting (extraditing) the individual to the other state.



[1]  The names are, as could be expected, deceptive. The “swallow” technique involves binding a suspect’s hands and feet, then applying, for example, electric shocks to the person’s genitals. In the case of  slonik” , the suspect has a gas mark placed over his mouth so that he can hardly breathe.  (translator’s note)

[2] “Unlawful violence in internal affairs agencies: a sociological and historical – legal analysis”. Kharkiv: Folio, 2005, p. 69 (in Ukrainian) .

[3] Ibid, p. 81.

[4] Ibid, p.  93.

[5] Time for Action: Torture and ill-treatment in police detention, Amnesty International September 2005, AI Index: EUR50/004/2005.

[6] Judgment of the European Court of Human Rights in the Case of Afanasyev v. Ukraine, 5 April 2005.

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