Brief lesson in the law for the Prosecutor General
Oleksandr Bukalov from Donetsk Memorial, an organization particularly active in upholding prisoners’ rights has responded to the Prosecutor General’s recent public statement about the bruises on imprisoned opposition leader Yulia Tymoshenko.
The Prosecutor General (Viktor Pshonka – translator) stated that a check had been carried out, dozens of witnesses questioned who said that nobody had beaten Tymoshenko. And that means there was no beating. The logic, of course, is devastating. The Prosecutor’s. So where did the bruises seen by the whole world come from? Nobody knows. She probably inflicted them on herself.
The Prosecutor General forgot – or maybe simply doesn’t know – that since 1997 the European Convention on Human Rights has been In force in Ukraine, and that means in force for the Prosecutor General’s Office. Judgements handed down by the European Court of Human Rights in respect to any country on any violation of human rights falling under the Convention have force for Ukraine also.
In the classic case of Ribitsch v. Austria (1995), the Court indicated that the state bears moral responsibility for any person held in custody since the person is totally under the power of the police. If any injuries are received during this period it is the government which must provide proof refuting the description of events given by those who suffered the injuries especially in cases where their evidence is substantiated by medical documents.
In the case of Yulia Tymoshenko, that means that the non-involvement of the authorities in the appearance of any injuries (bruises, etc) can only be proven when plausible explanations have been provided for the source of such injuries. Specifically explanations, not suppositions, and it is to be stressed, they must be plausible. The Court considers that a person held in custody by an authority is totally dependent on that authority and they therefore bear responsibility for the health and safety of the person in custody.
It is also immaterial whether the authorities find among them the person who inflicted the injuries. They answer for those injuries.
The Court stresses that with respect to persons deprived of their liberty any use of physical force not based on urgent need provoked by the latter’s behaviour, is degrading and in principle a violation of Article 3 of the Convention (prohibition of torture and ill-treatment).
The Prosecutor General should be aware of this standard if only because the Council of Europe about three years ago spent a huge amount of money on teaching Prosecutor s about these standards. Dozens of seminars for hundreds of prosecutors were held. The result, as we can see, is not cheering. The money would seem to have been wasted. This gloomy conclusion is backed up by a small survey carried out by Donetsk Memorial in February-March 2011 in the Donetsk oblast. 10 regional prosecutor’s officers were sent a request for information about the number of complaints they had received in 2010-2011 about unlawful methods of investigation and the number found to be warranted. According to the responses from 8, 515 complaints were received (on average 22 per year per prosecutor’s office). Five were found to be warranted, leaving 510 deemed to be wrongful by the prosecutor’s office.
With respect to the check of possible use of force against Tymoshenko, the Prosecutor General demonstrated the Ukrainian standard for checking such reports. It doesn’t matter what you see on the photo, it’s a “lie”. And it doesn’t matter that such an approach is a violation of the European Convention on Human Rights, and Ukraine from time to time pays people compensation for cases which it loses in the Court. And, according to her lawyer, the alleged victim was not even questioned during this check.
With the check into the likely use of force against Tymoshenko the public have yet again received a clear signal – if anybody is beaten by the police or in prison, they can complain to the Prosecutor’s Office. But the likelihood of the complaint being properly examined are less than one percent. And that is if they didn’t approach the Prosecutor’s Office of the Kalininsky District of Donetsk which said that it hadn’t received one complaint in 2010-2011.
Of course you can hold training courses for Prosecutor’s Office staff but will it help? The Council of Europe tried and the result is here for all to see.
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