war crimes in Ukraine

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Yevhen Zakharov: The Prosecutor’s office is not carrying out its oversight duties in penitentiary institutions

The third anniversary is approaching of the entry into force of the new version of the Criminal Procedure Code [CPC]. However some experts say that officials working on crimes have still not adapted to the demands of the document, and there remain numerous infringements of the rights of parties to the proceedings in their actions. Is this the case?

The third anniversary is approaching of the entry into force of the new version of the Criminal Procedure Code [CPC]. However some experts say that officials working on crimes have still not adapted to the demands of the document, and there remain numerous infringements of the rights of parties to the proceedings in their actions. Is this the case?  Why, when assessing the effectiveness of the CPC, should we not use cases of unlawful force by members of the law enforcement bodies?  What categories “were forgotten” by those who drew up the Code and how are those people to defend their rights. Why are human rights groups unable to provide high-quality help to prisoners?

-   Mr Zakharov, do you know what place Ukraine holds among European countries with respect to the number of rights violations?

-   It depends how you measure this. If from the point of view of the number of applications to the European Court of Human Rights, which you probably meant, then one of the first.  However this figure is not a reliable indicator since such applications include those that are inadmissible, that do not reflect real violations, etc. It would clearly be more sensible on this issue to go by the number of judgements passed, or by applications deemed admissible.

However those applications concern violations which took place several years ago, not today. Furthermore, a considerable percentage of the applications pertain to non-implementation of rulings from national courts in accordance with Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms.  This undoubtedly creates a negative image of the country since the international community is shown that tens and hundreds of thousands of Ukrainian citizens are unable to defend their rights.

This problem is systemic. It has not been solved for years since it arose due to the failings of legislative practice.  However this is only one segment which does not characterise the entire picture. Thus a definitive indicator cannot be linked to ECHR practice. 

In my opinion a lot more attention should be given at the present time to violations of human rights which are taking place in connection with the military conflict in the east of the country.

-    Yet problems with human rights occurred before the conflict began.  Specialists traditionally viewed them within the framework of criminal process which by its nature imposes certain limits on people who for one reason or another are drawn into its orbit.

-    Infringements within the framework of criminal proceedings are also one many components of the overall problem. For example, infringements of human rights caused by the adoption of this or that decision by officials in the administrative sphere are no less numerous, and perhaps more, than in the criminal sphere. Yet, in speaking about infringements which a person can face when interacting with the law enforcement bodies, we understand this to refer to encroachments on fundamental inalienable human rights and the consequences can be irreversible.

-   Did the human rights situation in Ukraine improve with the adoption of the 2012 version of the Criminal Procedure Code?

-    As a result of the new CPC, according to which a person’s detention is possible, as a rule, only with the permission of an investigative judge, the number of detentions fell significantly, and the number of cases of unlawful force by employees of the law enforcement bodies when detaining people accordingly dropped.

Furthermore, since the CPC clearly stipulates the grounds for the use of detention as restraint measure – suspicion of committing serious or particularly serious crimes, as well as crimes committed by repeat offenders, the number of such detainees has fallen significantly. For example, before the Code came into force there were around 40 thousand people held in detention, now there are no more  than 16, 500. 

-    What about other problems? For example, one specialist told our publication about a recent study carried out by the International Renaissance Foundation in 5 Ukrainian regions. It found that when being detained people were not having their right to remain silent explained, that there was delay in calling a lawyer, and that the person could not be provided with a translator or with medical care. Why does this happen when the said details are clearly prescribed in legislation?

-   Such infringements do indeed take place. And when they say that the number of them has fallen, it should be noted that the reason for this, I repeat, is the decrease in the number of detentions. In other things the situation is practically unchanged.

-   Specific professional associations are endeavouring to resolve the above-mentioned problems. For example, the attorney society adopted a Declaration on Human Rights in Criminal Proceedings. Have you read this document and how much can it be an effective tool in defending human rights?

-   This document can scarcely be deemed effective since it does not have any legal force. These calls from the attorney community are not backed by any obligations. That means that neither the court nor other parties to the proceedings mentioned in the document have to listen to it.

-   What about the system of free legal aid?  Has realization of the fact that each person drawn into criminal proceedings can expect to have a lawyer changed police psychology?

-   Ukrainian human rights organizations, together with the Kharkiv Institute for Social Research, studied this question in 5 regions of Ukraine not affected by the military conflict. Unfortunately, it is presently impossible to carry out such monitoring either in Crimea or in the south-east of the country although in my opinion it is precisely there that one sees the greatest number of human rights violations.

However the results received from peaceful areas showed that the presence of a free lawyer is the second most important factor (after the reduction in the number of detentions) for the fall in the number of cases of the use of unlawful force by police officers. For example, at the end of the project we found that the number of such violations, as compared with 2011, when the last analogous study had been carried out, had halved. The number of people who have suffered torture had also halved, from 120 thousand to 57 thousand.  The figure is however excessively high. 

-    Incidentally, what is the algorithm in general for how a person whose rights have been violated in places of confinement should act?  Who can they turn to if their legal representative does not, for one reason or another, carry out their functions properly?

-   When a convicted prisoner ends up in places of confinement, he can forget any hopes for legal aid. Most lawyers consider their work to be finished when a sentence comes into effect. At best the lawyer might write a cassation appeal.

If the high court hands down a ruling against the prisoner, it is considered that he no longer needs legal aid.  However this is not entirely the case.

At present, unfortunately, the system of free legal aid does not cover people who are imprisoned. Those convicted prisoners who have money can, via their relatives or friends, turn to lawyers who, for a fee, will defend their rights in places of confinement.  However, bearing in mind the nature of the criminal process, one can say that the majority of prisoners are from poorer groups in society and do not have the possibility of paying for a lawyer.

Of course, such people can approach human rights organizations, and in fact do. However such organizations should not be viewed as a panacea. After all, the most that human rights workers can do in such a situation is to call on the management of the penitentiary institution or the prosecutor’s office.  Which, in fact, the prisoners themselves can do.

Most regrettably, such appeals have virtually no effect and penitentiary staff are pretty passive in reacting. The prosecutor’s office carries out its function of overseeing adherence to the law in penitentiary institutions very badly. People held in such places can testify to this, and so can human rights workers.

We can thus state that people in places of imprisonment are not provided with legal aid, and this is one of the most serious problems of the penitentiary service.

-    How can you prove a rights violation. How effective can a person’s efforts to uphold his or her rights be?

-   I think the situation could be significantly improved if the system of free legal aid covered convicted prisoners also. They need to be given the chance to have a free lawyer to defend their rights and legitimate interests in places of confinement.

We also need to work on the transparency of penitentiary institutions.  The first steps for this have already been taken with the adoption of amendments to the Penal Code in April of last year.  According to those, deputies, their assistants, journalists and doctors are now able to visit penitentiary institutions. At their own initiative, a group which can contain a deputy or assistance, no more than 2 journalists and no more than 3 doctors can visit a prisoner. This is largely done where there has been an allegation of a rights violation which needs to be checked immediately.

Using such innovations, our organization has taken part in many such visits. Unfortunately, it is physically impossible for one or several human rights groups to cover all penitentiary institutions in Ukraine and visit all people requiring legal aid. There should be far more mobile monitoring communities.

— What about other categories of people whose rights have been violated but not within the framework of criminal proceedings.? For example, we know that in children’s homes, school-orphanages, psychiatric institutions for the elderly, centres for illegal migrations, and other people deprived of the possibility of taking decisions for themselves as to where they live?  Is anybody dealing with this issue? Is the appropriate monitoring being carried out?

-   Unfortunately it has to be said that these groups are just as unprotected as convicted prisoners.  Because of the circumstances of living in such institutions, they do not have any possibility of seeking a free (or paid) specialist providing legal services where their rights or legitimate interests are violated. The situation would change radically is these categories also had access to free legal aid.

Maximum openness of the systems used in such institutions needs to be provided. At present a huge number of obstructions are put in the way of civic organizations carrying out monitoring in this sphere when they try to obtain access to people needing defence.  Given the small number and limited opportunities of such organizations, the majority of obstructions are not overcome.

-    What about people whose indefensible position never before aroused doubts? Who would have thought that judges or law enforcement officials would be faced with mass dismissals? The European Court of Human Rights has pointed to the unlawfulness of such a position, as well as the Venice Commission. What is your opinion on this subject?

-   Human rights organizations have repeatedly said that one cannot pass laws that run counter to the Constitution and violate the principle of rule of law. How can one deal with a situation where a judge appeals against his dismissal to the High Administrative Court and that decides in favour of the application, and then the Supreme Court, reviewing the case, adopts the opposite verdict? This lack of clarity will undoubtedly be grounds for an application to the European Court of Human Rights, and the consequences of the case will be far more serious than the case of Volkov vs. Ukraine.  There could be many such cases.

As a human rights activist and citizen I cannot accept the idea of mass dismissal of judges, of whom there are at present around 9 thousand. Whom will replace them? Who will consider the millions of cases when one lot of judges relinquish their powers, and the other has not yet assumed them? How will the continuity of court examinations be ensured?  The initiators of this idea have no answers to such questions, and the suggestion therefore seems extremely dubious.

I totally agree that there are judges who need to be dismissed. Those who passed wrongful rulings, examined ‘commissioned’ cases; infringed their judges’ oath, etc. However those facts need to be proven according to legally established procedure. The same applies to decisions regarding their dismissal, otherwise the consequences of implementing such ideas will be very negative.

The interview was given to the journal Law and Business, with the interviewer Kateryna Belyaeva



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