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Guide on the investigation of tortures

18.01.2022
Tamila Bespala

Photo: Rommel Canlas, Shutterstock

In the Soviet period the law-enforcement bodieswidely used the tortures as meansof obtaining the necessary testimonyfrom the suspects, witnesses and victims for the needs of criminal proceedings. The same was happening in the post-Soviet times – despite the fact that one of the state’s most important tasks  is the fulfilment of the requirements of Article 3 of the Constitution of Ukraine regarding the protection of human life and health, honour and dignity, inviolability and security. And according to Article 28 of the Constitution, no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. However, the phenomenon of torture still exists today. The crime of “torture” is undoubtedly one of the most heinous crimes, as it does not even have an exhaustive list of actions that the executioner can commit against the victim, causing him or her physical and psychological pain and suffering.

Compliance with these constitutional requirements is the main responsibility of the law enforcement bodies of Ukraine, in particular the National Police, which must take measures to eliminate threats to life and health of individuals and public safety arising from the commission of a criminal offence (Article 23 of the Law of Ukraine“On National Police”). Paradoxically, according to statistics, torture is most often committed by those who are supposed to protect citizens from this crime – police officers.

According to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter - the UN Convention against Torture), the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

In this guide on the investigation of torture, I would like to draw the attention of investigators to the objectives of effective investigation and documentation of torture in accordance with the provisions of the Istanbul Protocol, namely: 

- finding out the facts and establishing and recognizing individual and state responsibility to the victims and their families; 

- identification of necessary measures to prevent recurrence; 

- facilitation of the prosecution and/or, where appropriate, disciplinary punishment of persons found guilty during the investigation, and indication of the need for full redress and compensation from the State, including fair and adequate financial compensation and the provision of means for treatment and rehabilitation.

Legislation

The article “torture” (Article 127), partly corresponding to the definition of torture from Article 1 of the UN Convention Against Torture, was introduced in the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) of 2001. The wording of Article 127 of the CC established by Law No. 2322-IV of January 12, 2005 contained a special purpose of torture and a special subject – law enforcement officers, after which the special subject was expanded to “official”, and the Law No. 1707-VI of November 5,.2009,excluded the “ special subject” from the disposition of Article 127 of the Criminal Code of Ukraine.

The factors preventing the investigation of tortures

It should be noted that this wording of the article significantly complicates the investigation of torture committed by law enforcement officers. Firstly, the article itself does not provide for this, and secondly, such tortures are qualified under Article 365 of the CC of Ukraine – excess of power or official authority by a law enforcement officer.

Despite the wording of Article 127 of the CC of Ukraine, the phenomenon is most often committed by law enforcement officers. In addition, such actions are often committed by employees of places of detention, such as pre-trial detention centers, correctional colonies, psychoneurological dispensaries, orphanages, etc., against people in their custody.

Statistics on the investigation of the crime of torture are disappointing for a number of reasons. One of them is the inability or fear of complaining because the victim is under the authority of a person with special powers over the victim, i.e. under the authority of the “torturer”. 

Another equally important reason for the existence of such a phenomenon as torture is the ineffective investigation of this crime, which almost always goes hand in hand with the crime under Article 365 of the CC of Ukraine, which clearly does not meet the requirements of effective investigation of the European Convention on Human Rights (hereinafter – the ECHR).

In cases where the European Court of Human Rights (hereinafter - the ECtHR) finds violations of procedural requirements under Articles 2 (right to life) and/or 3 (prohibition of torture) of the ECHR, due to lack of proper investigation into identified or alleged violations of the specified fundamental rightsas a result of the actions or inaction of law enforcement officers, the authorities are obliged to conduct an immediate and exofficio investigation, i.e., without any additional applications from the relevant persons to reconsider the case file to prevent the expiration of the statute of limitations, and, where the investigation remains possible, reopen or renew it.

The ECtHR in the case of Kaverzin v. Ukraine of 15 May 2012 expresses its remarks on the ineffective investigation of torture by law enforcement officers in Ukraine. According to the ECtHR, ineffective investigations and lenient punishments for perpetrators of torture contribute to police officers' “feelings of impunity”, they “do not have a deterrent effect that can effectively prevent wrongdoing” and do not indicate an “adequate judicial response to police violations of Art. 3 of the European Convention for the Protection of Human Rights on key convention rights”. 

Effective investigation of tortures

At the same time, the criteria for effective investigation, which are provided by the case law of the European Court of Human Rights, are the following: competence, impartiality, independence, promptness and diligence. Because without following these principles and criteria, the investigation of torture will not have any results.

Promptness of the investigation. Investigative bodies must be prepared to respond immediately and launch a prompt investigation into torture, which is essential to preserve evidence. In case of an investigation into torture, the greatest risk posed by delays is the disappearance of its consequences.

As torture can be physical and psychological, the consequences will be corresponding.

Physical violence as a manifestation of torture causes often severe and irreparable physical consequences for the victim of torture. The physical consequences of torture vary depending on the methods of violence used.

Survivors of torture can suffer from a number of symptoms, the most common of which are: chronic pain; headache; back pain; problems with walking and other daily movements; neurological problems; problems with teeth, genitals, etc.

There are many forms of torture in the form of physical violence that do not leave marks on the human body, and therefore, it is very difficult to obtain evidence that can be used in court.It is therefore important that health workers and human rights monitors are aware of the symptoms of possible violence in order to find and record them. When torture is suspected, a complete external examination of the human body should be performed and the following signs documented in detail: weight loss due to poor nutrition; fresh scars, abrasions, tears and damage to the anus and tissues of the large intestine (in the case of sexual violence, which often occurs in places of detention); bruises; fractures; burns, haemorrhages, bleeding; dental problems; neurological problems; problems with the musculoskeletal system; psychological and mental disorders.

Recording the traces of tortures

Thus, the first thing to do in case of appearance of information about torture is to record the physical signs of torture. Recording traces of torture is a very responsible and time-consuming step in investigating torture.

A victim of tortures in Berdiansk colony No.77, Mykola Molokov

First, the entire process of investigating victims of torture should be recorded on video camera, so as not to miss any external traces, or peculiarities of behaviour (for psychological and psychiatric examination), or information provided by the victim, witnesses or suspects during interrogation. Investigative teams should be provided with special equipment that can produce high-quality video and photo images. For recording, the person performing the recording must have knowledge on using the appropriate techniques, or a specialist must participate in these processes. The quality of the images can play an important role both in the pre-trial investigation and in court.

During any investigative action, it is necessary to record the data of absolutely all persons present in the room where the procedural actions are conducted.

Studies by some researchers show that 90% of survivors of torture complained of pain in the musculoskeletal system. As practice shows, in cases of serious crimes, victims of torture are beaten with rubber truncheons, plastic water bottles, which strike the head, heels, liver and kidneys - the parts of the body where that leaves no traces, electric current together with wet rags, injections, which also causes great suffering and damage to health, but does not leave marks on the victim’s body.

In our opinion, torture that does not leave traces or leaves the traces that disappear quickly, requires special promptness on the part of investigators and experts in their investigation. Thus, the investigative team must arrive immediately at the crime scene to inspect it to find traces of the crime – instruments of torture, traces of blood, saliva, etc.

For example, victims of torture at the Moscowsky District Police Department in Kharkiv reported the application of electric current to their ears or genitals through a disk telephone and a so-called “pin of truth”. According to some clients of the CO “KHPG”, these “tools for interrogation” still exist today.

Meaning that, in order to work effectively with a person, a group consisting of a psychologist, a lawyer, an investigator and an expert, and if necessary a doctor, must work at the same time. If the need for medical assistance to the victim is not urgent, it should be provided after the person is taken to another institution (if the alleged crime was committed in a place of detention), or immediately after the work of an expert and an investigator.

Another important condition for preventing torture and at the same time investigating the crime is the availability of videos from places of detention. In order to fulfil this condition, the mandatory continuous functioning of video cameras in places of detention and in the premises of law enforcement bodies must be enshrined in law.

In addition, we believe that detention and arrest procedures should be recorded from the outset with the help of chest cameras, videos of which must be attached to the materials of the pre-trial investigation. Usually, in cases of torture, all cameras, the recordings of which should be one of the key pieces of evidence, do not work or are turned off for unknown reasons (as in the case of mass torture of convicts in SI “Oleksiyivska PC-25” on January 8, 2020), and the only type of liability for their malfunction is disciplinary.

Removal of video footage from cameras, including chest cameras, should be done in parallel with the arrival of a team of specialists to the place of detention.

At the stage of both the pre-trial investigation and the trial, video recordings must be a strong evidence, as well as the absence of such recordings.

In addition, in places of detention and necessarily in law enforcement bodies, the journals, in which the persons visiting the institution, both employees and other persons, are recorded, should be checked and seized.

Here it is necessary to check the time of arrival and departure of persons, as well as to compare data from video cameras, journals and testimonies of victims, witnesses and suspects. In case of discrepancies between data in journals and on video from surveillance cameras, it is advisable to schedule the video examinations, request data on the whereabouts of persons at the time in question based on the data from mobile phones (such an investigative action is more appropriate in cases where crimes of torture are committed outside the place of detention or outside the premises of a law enforcement body) and to conduct mandatory interrogation of duty officers and other persons who record visits to the institution.

In addition, in the absence of mandatory video recordings and journals, criminal proceedings must be instituted under Article 361 of the Criminal Code of Ukraine - unauthorized interference in the operation of computers, automated systems, computer networks or electricity networks, and the responsible persons must be questioned.

Interviewing of the victims and witnesses of torture

The interview should start with asking the respondent,the investigator of which sex would be easier for him/her to communicate with. Investigators of both sexes should be trained in groups working in such cases.

During the interview, the investigator may ask the victim questions, but they should be asked clearly and without sarcasm, irony or mistrust, and the questions should not be suggestive or contain assumptions. It is better to try to find contact and gain trust of the victim before the interview, to invite him/her to present the information independently, and the investigator should note the questions that arise and ask them after the victim’s story. Sometimes it is difficult for a person to tell on their own about the torture they have been subjected to, so the investigator must ask questions logically and chronologically.

State institution “Berdiansk correctional colony No.77”

It is desirable that the investigator who interviewed the probable victim interviews the probable perpetrators and witnesses. We draw special attention to the simultaneous interviewing of two already interviewed persons and the identification of persons and things (tools of torture). These investigative actions should be carried out with extreme caution, especially if the victims are minors. In this case, the participation of not only a psychologist and parents/guardians, but also a health worker is mandatory. Also, the investigative action must be recorded on video.

Inspection and examination of victims of torture

In the case of physical torture, the symptoms must be detected by a special medical examination.

In addition, a commission forensic and psychological and psychiatric examination of the victim and suspect should be conducted.

When communicating with the applicant (potential victim), the investigator and the expert should take into account that the person may conceal some of the injuries, such as those left over from sexual violence. Therefore, it is desirable to explain to the person that it is in his/her best interest to report all forms of violence used against him/her to provide him/her with medical and psychological assistance, as well as to conduct an objective investigation.

Informing the victim of tortures

The alleged victim of torture should be constantly informed about the course of the investigation.

The alleged victim of torture should also be informed of all key hearings held during the investigation and follow-up of the case. Investigators must report to the alleged victim that the notice of suspicion has been served and that an indictment has been submitted to the court regarding the suspected perpetrators. The victim of torture should be informed about how to contact human rights and medical organizations that can help him/her.

Features of investigation of tortures in the places of detention

In the case of investigations into torture in places of detention (orphanages, psychoneurological boarding schools and hospitals, correctional colonies, etc.), it is important to remember that torture is usually not an isolated case but a systemic phenomenon. That is, the victim in most cases is not alone, it is important to identify all victims. To do this, it should be understood that in any team there are always people with strong leadership qualities. It is necessary to find and establish contact with these leaders, convince them of the effectiveness of the investigation and, most importantly, ensure their safety. They are the ones who can provide the necessary information and point out the victims of torture.

Sometimes, on the contrary, it is necessary to find people who behave most quietly, compared to others, as is usually the case in children’s or adolescent groups. Such persons are most often victims of systematic torture in institutions where torture is used.

In any case, in cases of even the suspicion of torture of wards of orphanages, taking into account their age, social and psychological characteristics, we strongly recommend that all staff be suspended immediately.

At the same time it is necessary to pay attention to such external signs:

– any obvious bodily injury, such as tumours, bruises, cuts, torn skin or burns;

– any difficulty in movement, such as walking, climbing stairs, sitting, standing, leaning or raising arms;

– any deviations in the shape or position of the back, arms or legs.

Particular attention should be paid to tortures that were committed in the presence of doctors or health professionals, or with their advice and knowledge. In almost all places of detention, except for correctional centres, there are medical workers and doctors. There are cases of using medical knowledge in torture, such as injections of psychotropic substances that affect the mental and physical condition of a person. Victims of such torture may not report torture immediately, but the consequences of such torture remain in the victim’s body for a very long time, in which case appropriate examinations should be performed and the medical documentation should be analyzed. In such cases, the participation of doctors and experts is mandatory, both to provide advice and to formulate conclusions.

In cases of investigation of torture that led to death, the algorithm of investigation differs, it includes the forensic examination of the corpse with mandatory video recording of the body and the entire autopsy procedure. Sometimes it is necessary to exhume a corpse if the information in the expert’s report on the presence of damage and fractures of bones, broken teeth, etc. is insufficient.

Psychological violence is characterized by cases of intentional moral torture, such as solitary confinement, sexual humiliation, death threats or threats of harm to family members, and so on. Such people often have impaired self-awareness. They experience mental trauma over and over again, trying to avoid situations reminiscent of torture, they often have a strong feeling of fear.

As practice indicates, victims of torture have negative emotions during the interviews, especially with the use of a technical device – a polygraph, psychological and forensic examinations. However, such emotions are quite predictable. It is important that the above-mentioned specialists act within the framework of the Istanbul Protocol recommendations, as failure of investigators and doctors to comply with its requirements in dealing with victims of torture provokes their negativity and unwillingness to cooperate with the investigation. Victims must be confident in the objectivity of specialists and at least not hear ironic or sarcastic statements about victims of torture.

Analysis of the personality of a victim

In our opinion, investigators and experts, psychologists and psychiatrists, should pay attention to the identity of the suspect, check in detail whether there were similar incidents in his biography related to violence against others.

Term of investigation

Within the criterion of promptness, special attention should be paid to the deliberate delay of pre-trial investigation and trial in cases of torture committed by law enforcement officers,for the release from liability for a crime under Article 49 of the Criminal Code of Ukraine.

Thus, it is necessary to speak about the establishment of clear deadlines for prosecution for the crime of torture and amendments to Part 5 of Article 49 of the CC.

Bodies and specialists conducting the investigations

In parallel with the group of specialists working with the victim, another group should function to work with law enforcement officers or places of detention (potential defendants), which should have the necessary number of investigators to interview the witnesses.

Doctors and experts must also examine the persons referred to by the applicant, taking of nail washes, body examinations to detect abrasions and other traces of beatings by the perpetrator, immediately upon arrival at the crime scene.

As these are civil servants, all investigative actions against them should be carried out immediately, in order to prevent concealment of the crime. Including their interviewing, taking physiological samples from them for examination.

In fact, many specialists have to come to the crime scene at the same time to carry out such work, the exact number of them must be calculated according to the number of victims and employees of the institution. All witnesses mentioned by the victims in the interviews must be interviewed, taking into account the testimonies of the victims and the accused.

According to the ECtHR, the investigation of torture must a priori be carried out by independent bodies. That is, the body directly conducting the investigation must be sufficiently independent in all respects from the body under investigation, in particular in the organization and conduct of the investigation.

During the investigation of torture, of course, the most important evidence is the results of forensic examination.

In addition, in accordance with the provisions of the Istanbul Protocol, a psychological examination of the victim must be carried out, but we consider it necessary to conduct a psychological and psychiatric examination of the suspect of torture.

In order to prevent corruption on the part of experts, it would be logical to involve experts and investigators of the SBI from other regions in the investigation.

Investigations should be conducted in accordance with the principle of competence. That is, the investigative bodies must have the necessary knowledge and powers to establish all the facts and bring the persons accused of torture to justice.

Here the proper organization of the investigation of the crime of torture. Proper organization should be understood as the immediate and simplified application of security measures to victims and, in some cases, their family members, as well as the balance of investigative procedures, the consistency of investigations, taking into account the investigative situation, the optimal set of investigative actions and the use of scientific papers and international documents, primarily the Istanbul Protocol.

In addition to independent oversight of torture investigations, direct investigations should be conducted by specially trained personnel. That is, given the specifics of working with victims of torture, investigators, experts and psychologists must undergo special psychological and other training to investigate torture and work with victims of torture.

With regard to the independent oversight of the investigation of torture, I would like to say that in addition to giving the instructions on the investigative actions, the oversight body should monitor two other important aspects. The first one is the timing of the pre-trial investigation, and the second is compensation for the victims. The first aspect has already been mentioned above, the problem of delays exists, it needs to be addressed. As for the second aspect, it is a separate area of work in general, as there is a tendency in Ukraine not to provide compensation or to provide insufficient compensation to victims.

We believe that in order to improve the investigation of tortures, the costs of treatment and rehabilitation of victims of torture should be allocated from the state budget immediately after the detection of such torture, and after the relevant judicial decisions they should be returned to the budget at the personal expense of perpetrators.

As the current tendency to investigate torture in Ukraine creates not only a negative practice for Ukraine’s budget, a person almost never receives compensation in Ukraine, so he or she turns to the ECtHR, which in turn usually decides on compensation, but it happens too late.

Investigating authorities should cooperate with human rights organizations located within the relevant jurisdiction, which will ensure the exchange of information and instructing the personnel on the prevention of torture. The general public should also be informed. For example, the Istanbul Protocol recommends to cover the information on the investigation of torture through newspapers, magazines, radio, television, leaflets and even posters. At the same time, the results of the investigation should be reported to the public at regular intervals, for example, every two months, indicating the specific procedural steps that have been taken. We believe that such reporting is a prerequisite for a successful investigation into torture.

In our opinion, a real effective investigation of torture cases will have positive results not only in eradicating the phenomenon of torture, increasing confidence in the SBI, police, other law enforcement bodies and the state as a whole, but will also positively affect the state of the budget and the Ukraine’s authority among the civilized European community.

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