Human rights in Ukraine – 2006. I. The Right to Life

[1]

1. Legal regulation

Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms affirms the right to life and binds member states to protect it. This Article in the Convention occupies a particular place as was noted by the European Court of Human Rights (hereafter the European Court) in the Case of McCann v. the United Kingdom[2]:

147. It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention – indeed one which, in peacetime admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. … As such, its provisions must be strictly construed».

Article 2 of the Convention indicates that it is the duty of the State to not only refrain from unlawfully taking a life, but to also ensure that the national legal system guarantees the right to life. This requires the existence of a law prohibiting the deprivation of life and establishing criminal liability for the taking of a life. However, in addition, an effective system is needed of laws and public order, appropriate behaviour by the police, prosecutor, courts, as well as a system of punishments for crimes against life. The State’s duties also include training the police and other enforcement bodies responsible for public safety in the reasonable use of force in compliance with domestic and international law.

Thus, in accordance with international standards, the State is responsible for the behaviour and omissions of its representatives, for example, law enforcement agencies, military servicemen, and prison personnel. However the State does not bear responsibility for the actions of private individuals who have taken another life. In all cases, though, the State is obliged to carry out an independent, swift and effective investigation into cases involving deprivation of life (positive duty). The State must also apply measures to protect life in the case of a real and urgent danger which it knew about or should have known about, for example, in cases involving manmade catastrophes or industrial incidents.

At the same time Protocol 6[3] to this Convention establishes the abolition of the death penalty, however «a state may make provision for the death penalty in respect of acts committed in times of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.»

On 28 November 2002 Ukraine ratified Protocol No. 13 to the European Convention on Human Rights[4] which prohibits the use of the death penalty under any circumstances.

On 16 March 2007 Ukraine ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights concerning the abolition of the death penalty.

It must be noted that the Convention does not define any framework for this right. Nothing is said, for example, about the moment when life begins and ends. The Convention does not accordingly clearly protect an unborn child. In contrast to Article 4 of the American Convention on Human Rights which envisages protection of the right to life as beginning from the moment of conception, in Article 2 nothing is said about time restrictions on the right to life, and there is no definition of «everyone» protected by the Convention. This issue has emerged at the present time in the context of laws on abortion, and there has not yet been any clear response as to whether the Convention protects the life of the unborn child. The European Court has stated that it cannot answer the question as to when the right to life begins, and therefore this question is up to domestic courts.[5]

It should also be noted that international standards do not define protection of the right to life in the context of minimum standards necessary for life. On 9 November 2006, in the Case of «Voron v. Ukraine» (№ 44372/02), the European Court rejected the claim that Article 2 of the Convention had been violated as the result of a low standard of living. It pointed out that according to its practice the Convention does not protect rights connected with standards of living (the Case of Wasilewski v. Poland, No. 32734/96, 20 April 1999). Furthermore, in this case the applicant did not prove how his circumstances endangered his life and that part of the application was rejected as manifestly unfounded.[6]

2. Ukraine’s implementation of its obligations with regard to the protection of life

We can consider first information about the causes of death in Ukraine

Causes of death in 2005 and 2006[7]

It is also worth analyzing the situation with regard to protection from unlawful deprivation of life, which can be seen from the following statistics on crimes against life..

The rate and types of general crimes[8]

According to these figures the numbers of homicides has remained even, as have the number of such crimes solved. It is worth noting here that there are not just isolated cases where the police, in order to maintain such figures, do all that they can to reduce the number of criminal investigations initiated over cases involving the taking of a life, and use any means to ensure that somebody confesses to such crimes.

It is also worth making a regional analysis of the statistics for this kind of crime. One sees that in some regions there is a significant increase in the number of crimes linked with the taking of a life, for example, in the Zhytomyr, Rivne and Mykolaiv regions, which shows the generally unsatisfactory work of the law enforcement agencies in those regions as well as the need for consistent work on improving the work of the police at regional level.

The number of crimes linked with deliberate murder, broken down by regions[9]

According to international standards, in cases of acute need, law enforcement officers can take life without prior planning in order to prevent the escape of an offender or to protect any person from violence.[10]

The Ministry of Internal Affairs [MIA] report that firearms were uses by police officers in 61 cases in 2005, of which prosecutor’s offices found 3 cases to have been unwarranted. Over the first 6 months of 2006 there were 21 cases, with 2 found unwarranted.[11]

It should be noted that in 2006 there were no recorded cases where the authorities or its representatives were guilty of politically motivated killings. During the year there were a number of killings of politically active businessmen or journalists, however given the way business, government and criminal interests are intertwined, it would be difficult to view these crimes as politically motivated.[12]

In this context, one would first mention the murder on 26 July 2006 of MIA colonel Roman Yrokhin. To this day the motives for this crime have not been established since the main role may have been played by business, political or criminal interests. Two versions are being considered: one of them works on the basic supposition of complicity by National Deputies who didn’t want Yerokhin to delve into serious matters since he was involved in solving crimes connected with unlawful conversion centres laundering money in particular large proportions. The other version suggests business and criminal motives since Yerokhin could have possibly been connected with groups influencing the apportioning of land in the Kyiv region. The crime remains unsolved in the first instance as a result of the inaction of the Prosecutor in this matter.[13]

We would note that in 2006 not one of the most prominent murder cases was brought to a conclusion. There was no real progress in the case of the 2005 killing by police officers in Zhytomyr of a 36-year-old man whose identity has not been ascertained, who had been detained on a charge of petty hooliganism. The mass media inform that the Zhytomyr Regional Prosecutor has launched a criminal investigation against several (the exact number has not been indicated) police officers over «deliberately inflicting of bodily injuries» and «exceeding authority», however the case has reached no conclusion. The case involving the death of a person suspected of theft in Kherson also saw no progress in 2006.

There is still no conclusion to the Georgy Gongadze Case with numerous court hearings continuing since January 2006 and continuing in 2007. At these hearings a huge number of witnesses are questioned, with only around half the official witnesses having been heard by January 2007. Countless items of material evidence are investigated and various scenarios for the course of events are considered. It all appears however, more like a trial for the sake of a trial, than a real attempt to solve the case. It was not for want of a reason that the Secretary General of the Council of Europe Terry Davis said that the CE’s greatest disappointment had been over the lack of real progress in solving Gongadze’s murder and that this would adversely affect Ukraine’s reputation abroad.

There has been no significant progress into the investigation of the killing of Volodymyr Yefremov[14]. Procrastination in the criminal investigation has led to delays in submitting the case before the court. A considerable delay was caused in 2006 due to the carrying out of yet another forensic examination.

.Nor was the case concluded in 2006 of the beating to death in a Kharkiv SIZO [pre-trial detention centre] of 21-year-old Armen Melkonyan. There were no sentences in the case involving the officers of the Ministry of Internal Affairs accused of carrying out killings, abductions, etc. According to information from the Institute of Mass Information, one of the respondents in this case was found during 2006 to be linked with the murder of an employee of the SBU [Security Service].

The single high-profile case which resulted in a court verdict was that into the death of Ihor Aleksandrov[15]. After more than six months of court hearings, on 7 July 2006, the Luhansk Regional Court of Appeal convicted 5 men of involvement in the killing of the journalist and sentenced them to periods of between 2 and 15 years imprisonment. Ihor Aleksandrov’s family was also awarded compensation of 400 thousand UAH.

One must also mention the situation regarding the right to life in the Armed Forces. Despite the fact that there is an adequate legislative base for protecting this right, civic organizations receive information about cases of «didivschyna» [bullying or hazing of the new conscripts] including incidents with a fatal outcome. The military command and government provide somewhat different information about such cases According to a statement from Armed Forces General Serhiy Kirychenko 148 criminal investigations were launched over cases of «didivschyna» in 2006, and 18 soldiers were recognized to have been victims. At the same time, the Minister of Defence A. Hryshchenko in September 2006 stated that there had been 83 criminal investigations initiated, noting that not all such crimes are registered.

The Prosecutor General in August appointed a special check on adherence to laws protecting the life and health of military servicemen, preventing violence and violations involving «didivschyna». An analysis of the rate and type of crime in the Ministry of Defence over the last 7 months had revealed a negative trend with an increase in the number of crimes involving deaths, and an increase in the number of victims of crimes. From January to July 2006 41 people had died against 29 in the previous year, while 12 people had died as the result of a crime, as against 8 in 2005. In just three days in August 2006 another two conscripts (in the Poltava and Kyiv regions) died.[16]

 An example of «didivshchyna» was seen in the beating to death of young conscript Oleksandr Rybka, by two more senior conscripts in the No 169 Infantry Training Centre «Desna» in the Chernihiv region. The autopsy showed that the cause of death was a ruptured liver caused by serious beating According to information from Oleksandr’s relatives the two corporals had demanded money from him a day before the beating[17]. The Prosecutor General launched a criminal investigation. The «Desna» Training Centre gained notoriety the year before when during shooting practice the crew of one of the tanks aimed by mistake at a training corps. Two soldiers were killed and another had to have his legs amputated. The head of the centre and his deputy were dismissed over the tragedy.

The Minister of Defence acknowledges the existence of «didivshchyna», however believes that the problem is one inherited from the Soviet army «where it was almost always hushed up».[18]

No less important an aspect of protection of the right to life is investigations into disappearances. In 2006 there was one case involving a journalist who disappeared[19]

Statistics show that abductions still do occur in Ukraine.

Table 3.

The number of registered crimes lined with deprivation of liberty of abductions. A regional analysis..[20]

As already stated, in order to ensure the right to life, it is important not only to carry out investigations into crimes against life, but also to investigate deaths.

From time to time stories come out about medical mistakes and those who suffered as a result. Some of them have a fatal outcome. It should be noted that there is no law defending the interests of victims of medical blunders. However the main problem is not even in the fact that any specific article of the Criminal Code is difficult to apply because of the unclear or excessively narrow formulation of the provisions. A greater problem is that the Ministry of Health at one stage lobbied to have prerogative in carrying out expert assessments of medical activities whereas this should have been under the jurisdiction of the Ministry of Justice. Any expert assessment is carried out by the Ministry of Justice with only medical ones for some reason left to the Ministry of Health. After all those accused or suspected of an offence cannot check themselves. If you then add the closing of ranks, it is easy enough to predict the court prospects of such cases.

The problem of infant mortality (in the first year of life) and child mortality (up to the age of 18) remains serious. The Deputy Minister of Health, Viktor Veselsky, has himself stated that these mortality rates are continuing to rise.[21] The importance of this problem was indicated by the special meeting held at the Ministry of Health. The increase in infant mortality was confirmed and broken down into different regions for the first six months of 2006. With an average for the country of 10.12 deaths per one thousand babies born, in the Zhytomyr region the figure was 14.79, in the Kirovohrad region – 13.98, the Chernivtsi region – 13.26 and Luhansk region – 12.87.[22]

Infant mortality in Ukraine[23]

The number of infants up to the age of one dying 

Causes of death of infants up to the age of one[24]

In order to understand the magnitude of the problem, we can take the Zhytomyr region where in 2006 a check was carried out of infant and maternal mortality rates by a special commission set up by the Ministry of Health. The conclusions were not cheering. Over 5 months of 2006, the mortality rate of infants under a year old had risen by 25.7% in the region as compared with the previous year. This level is double that of the average around the country. Among the causes of death were breathing difficulties, injuries and accidents with the latter highlighting considerable problems in the organization of medical care for mothers and their babies. The overwhelming majority of cases where infants died between 28 days and one year were registered in rural areas (70%). This indicates inadequate work in medical and social preventive care and regular medical check-ups of young children in rural areas. In the first month of life, the main cause of death is congenital defects which were not detected by a scan. In maternity wards in the region there were 5 deaths in the second and third weeks of life, which suggests that the stages for organization of medical care for newborn babies were not being observed properly. There are also problems with equipment in maternity wards in the districts and cities of the region. Only 8 of the 23 wards have respiratory equipment for newborns babies; there were no well rooms in three maternity wards with between 150 and 170 births a year; only 8 hospitals had foetal monitoring equipment. There were problems in the region with finding neonatal specialists and paediatricians, particularly in small and far-off districts. Overall in the region the following posts were vacant: 153 paediatrician jobs; 49 – midwife-gynaecologists; 15 – neonatal specialists and 21 child anaesthetists. In district treatment and preventive medicine institutions there were shortcomings in the system for monitoring pregnancies these concerning the comprehensiveness and quality of examination, consultation, treatment, timely hospitalization according to the protocols and levels for medical assistance.[25]

Another indicator is also showing an increase each year, this being the number of women dying during childbirth. For example, in the Luhansk region where another special committee from the Ministry of Health worked, it was found that in 5 months of 2006 the indicator for maternal mortality was 50.7% (4 women died, as against one death in 2005). This suggests serious failings in the organization and quality of medical care provided to pregnant women, women who are giving birth or who have done so recently, both in-patients and those treated on an outpatient basis.

There are virtually identical problems in every Ukrainian region, indicating the scale of the problems which Ukraine must address. Statistical data indirectly shows also that at the local level there is concealment of actual data or manipulation of the figures (for example, by «slipping» infants into a different weight group, weighing them incorrectly, etc). There are also such obvious problems as inadequate professional training of staff on health care for mothers and their babies, staff shortages, especially in rural areas, a lack of a systematic approach to resolving the problems in the field and providing for its material and technical needs. Instead of real plans, vague programmes are put forward, general methods instead of a specific analysis of the shortcomings in order to immediately address them, and abstract noises on the subject of why it is all bad. The instalment of new technology is limping along painfully, while the heads of health care bodies cannot find time to cooperate with the local authorities and bodies of local self-government, or with the law enforcement agencies. It needs to be recognized that the problem of child mortality has already ceased to be a merely medical problem and become an issue of the protection of the right to life.

3. Recommendations

1) Introduce effective independent mechanisms for investigating deaths, especially those caused by the actions of law enforcement officers

2) Change criminal procedure legislation in order to provide more rights to victims, including to the families of those killed, and to increase their impact on the course of the investigation

3) Publish an annual report on investigations into crimes against life, with specific regional features identified

4) Pass a Law «On patients’ rights» providing safeguards for the observance of patients’ right to life.

5) Ensure the availability of independent forensic medical examinations for assessing causes of death

6) Introduce proper mechanisms for ensuring adherence to legislation in the work of the law enforcement agencies, as well as appropriate government and public control;

7) Carry out reforms into health care aimed at reducing infant and child mortality.

[1] Prepared by Volodymyr Yavorsky and Maksim Shcherbatyuk, UHHRU.

[2] Judgment of the European Court of Human Rights in the Case of McCann v. the United Kingdom, 27 March 1995

[3] Ratified by Ukraine through Law N 1484-III from 22 February 2000.

[4] Ratified by Ukraine through Law N 318-IV from 28 November 2002

[5] The Right to life, prohibition against torture and inhuman or degrading treatment or punishment: European standards, Russian legislation and legal practice // General Editor: S.I. Belyaeva – Yekaterinburg, publishing company «Ural». 2005.

[6] The claim was similarly rejected in the cases of Pronin v. Ukraine (N 63566/00), Judgment from 18 July 2006

[7] The Demographic situation in Ukraine in 2006 Express-information from the State Committee of Statistics from 15 February 2007. Available at: www.ukrstat.gov.ua.

[8] Statistics from the Ministry of Internal Affairs http://mvs.gov.ua/ It should be noted that the figures for crimes solved are the numbers of criminal prosecutions reaching the court and resulting in a conviction, not the number of prosecutions ending with a verdict. If this figure is calculated with the latter, the overall number will be lower.

[9] Statistics from the Ministry of Internal Affairs (MIA) . http://mvs.gov.ua/

[10] Cf. Judgment of the European Court of Human Rights in the Case of Egri v.Turkey (1998).

[11] Letter from the MIA №34/С-46 from 03.01.06 in response to an information request: http://maidan.org.ua/static/news/2007/1168181350.html.

[12] Country Reports on Human Rights Practices – 2005 Released by the US State Department’s Bureau of Democracy, Human Rights, and Labor, March 8, 2006.

[13] Material from the producers’ centre «Zakryta zona. Sim Kul» [Closed zone. Seven bullets»]. http://zakrytazona.tv/ua/programs/zakrita-zona/teksti/service/sim-kul/

[14] The Dnipropetrovsk journalist died in 2003 in an extremely suspicious car accident. ( translator )

[15] Ihor Aleksandrov had written a lot of hard-hitting articles about Donetsk politicians and about corruption in the law enforcement agencies. He was murdered in 2001. (translator)

[16] A check has been called into adherence to laws protecting the life and health of military servicemen // http://helsinki.org.ua/index.php?id=1156158688.

[17] The two corporals received heavy sentences when this case came to trial. More details can be found at http://khpg.org.ua/en/index.php?id=1187036175&w=Rybka and following the links at the bottom of the page [translator]

[18] http://khpg.org.ua/en/index.php?id=1164934219&w=didivshchyna

[19] On 20 February 2006 journalist from Anatoly Kachurynets from the Striy newspaper «Homin Voli» («Sound of Freedom») left home and never returned. Although the journalist ran the newspaper section on criminal activities, the police say that there is no evidence that the disappearance was linked with his professional activities. The Western Information Corporation (an Internet publication) wrote that according to some reports, Mr Kachuryents had left a note for his wife. The latter has refused to discuss the disappearance [here and in the section on Freedom of Expression the text has been adapted in order to incorporate the information from the reports cited [translator]

[20] Statistics from the Ministry of Internal Affairs (MIA) . http://mvs.gov.ua/

[21] V.V. Chornomorska: Rising infant and child mortality in Ukraine: the Ukrainian Medical website Hypocrites www.hippocrat.com.ua/publicism/death-rate/

[22] M. Bernyk, S. Ternova: Last place can prove shameful // Your health № 28 (855) from 22-28 July 2006 http://vz.kiev.ua/med/28-06/2.shtml

[23] The Demographic situation in Ukraine in 2006 Express-information from the State Committee of Statistics from 15 February 2007. Available at: www.ukrstat.gov.ua

[24] Ibid

[25] M. Bernyk, S. Ternova: Last place can prove shameful // Your health № 28 (855) from 22-28 July 2006 http://vz.kiev.ua/med/28-06/2.shtml