war crimes in Ukraine

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Ukraine found in violation of the prohibition of torture over treatment of life prisoners

Halya Coynash
The European Court of Human Rights has issued a crucial judgement slamming Ukraine’s treatment of people sentenced to life imprisonment and ordering the Ukrainian government to reform a system that gives life prisoners no hope of release

The European Court of Human Rights has issued a crucial judgement slamming Ukraine’s treatment of people sentenced to life imprisonment and ordering the Ukrainian government to reform a system that gives life prisoners no hope of release.  It was of poignant significance that the judgement on 12 March 2019 coincided with the 60th birthday of Volodymyr Panasenko, a Lviv businessman sentenced over 10 years ago to life imprisonment for a crime nobody believed he had committed.  Panasenko is one of many life prisoners whose sentences have aroused grave concern.  For them, the possibility of a judicial review directly pertains to their right to a fair trial.

The Court in Strasbourg has earlier made it clear that it does not dispute that a life sentence may mean, in the case of particularly heinous crimes, that a person will never be released.  A country’s judicial system must, however, at least provide the prospect, in principle, of release for life prisoners and the possibility of a review of their sentence.

In Ukraine, a life sentence is for life, with the only possibilities for release being a terminal illness or a Presidential pardon.  The Court did not accept that being freed to die at home constituted the prospect of release in its understanding of the term.  As for pardons, there has up till now only been one such pardon of a life prisoner, and, even if one ignores the argument over how the length of time a person has served is calculated, there is no clarity on what is meant by ‘exceptional circumstances’ nor any way for a life prisoner to know what they need to do, how they need to prove that they have reformed, etc. in order to be considered for release.  

In the case of Petukhov v. Ukraine, life prisoner Volodymyr Petukhov was represented by Mykhailo Tarakhkalo (and, earlier, other lawyers) from the Ukrainian Helsinki Human Rights Union. Petukhov complained of the conditions of his imprisonment, failings regarding provision of medical treatment and that his life sentence could not, either legally (de jure) or de facto be reduced. 

The judgement in its entirety is a fairly damning indictment of Ukraine’s penal system which is very far removed from the prison systems encouraging rehabilitation that Council of Europe member states are committed to try to achieve. The Court noted, for example, that “life prisoners in Ukraine are segregated from other prisoners and spend up to twenty-three hours per day in their cells, which are usually double or triple occupancy, with little in terms of organised activities and association <>  The Government have failed to explain how a prisoner can progress towards rehabilitation in such conditions.  <>  Consequently, the Court cannot but conclude that the existing regime for life prisoners in Ukraine is incompatible with the aim of rehabilitation  (82, 84).

The Court concluded, inter alles, that there had been a violation of Article 3, prohibiting torture and ill-treatment of the European Convention on Human Rights “on on account of the applicant’s irreducible life sentence”.  It did not award damages over this as six of the seven judges felt that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant in relation to his complaint concerning his irreducible life sentence,”

If Ukraine complies with this judgement, then the finding of the violation should indeed be of the most critical importance, since the Court has made it quite clear that its role cannot be in merely awarding damages. 

The Court stresses that “the violation of Article 3 of the Convention, which the Court has found in the present case on account of the irreducibility of the applicant’s life sentence, affects many people. There are already over sixty similar applications pending before the Court and many others might follow.”

While not disputing a country’s right to impose the sentences deemed necessary, the “Court observes that the present case, in so far as it concerns the irreducibility of a life sentence, discloses a systemic problem calling for the implementation of measures of a general character.

The nature of the violation found under Article 3 of the Convention suggests that for the proper execution of the present judgment the respondent State would be required to put in place a reform of the system of review of whole-life sentences. The mechanism of such a review should guarantee the examination in every particular case of whether continued detention is justified on legitimate penological grounds and should enable whole-life prisoners to foresee, with some degree of precision, what they must do to be considered for release and under what conditions, in accordance with the standards developed in the Court’s case-law.”

Member-states are always supposed to draw conclusions from cases where they have been found in violation of the Convention, but this is a clear and quite unequivocal directive. 

It is one that is urgently needed to extricate Ukraine from a legal impasse that is causing immense suffering and injustice.  At present, there is no mechanism, short of the few and far-between Presidential pardons, for a reduction in a life sentence. There is, in general, no mechanism at all for judicial review even where there seem strong grounds for fearing a miscarriage of justice.

Ukraine’s parliament has now been sitting on a draft bill that could rectify the latter situation for three years. Draft law No. 2033a even passed through a first reading in November 2015, but moved no further. If passed, there could be a judicial review of life sentences in cases where there were, for example, strong grounds for believing that any confessions were obtained through torture and where there was no other evidence to suggest the person’s guilt. 

Although the Court’s ruling is not about potentially releasing innocent men, but about establishing mechanisms to provide hope of release, and such mechanisms will be a vital step forward, one that could hopefully put an end to the blocking of reform in general aimed at righting grievous miscarriages of justice.



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