Does the State Criminal Executive Service of Ukraine have the right to investigate crimes that occurred on its territory?
Valeria Lutkovska, the Parliament Commissioner for Human Rights, believes – no. Therefore, she appealed to the Constitutional Court on this matter. She asked the judges to determine whether the provisions of Article 216 of the Criminal Procedure Code of Ukraine correspond to the Constitution.
It is about the following provision: “Investigators of the State Criminal Executive Service of Ukraine carry out pre-trial investigation of crimes committed on its territory or in the premises of the State Criminal Executive Service of Ukraine.”
We recall that the State Criminal Executive Service of Ukraine is in a sense a successor to the Penitentiary Service, which was decided to be closed down in May 2016, and its functions were transferred to the Ministry of Justice.
Valeria Lutkovska said in her statement at the Constitutional Court that in some cases, state representatives could violate the rights of those, who are under their control, without any punishment. It seems doubtful that investigators of a particular organization objectively and impartially investigate crimes committed by its members.
It must be said that the Ombudswoman’s doubts are not unfounded since such cases have already been considered by the European Court of Human Rights. This is the case, for example, of “Karabet and Others v. Ukraine“; the decision in the case was adopted by ECHR on January 17, 2013. The court ruled that there had been a violation of Article 3 of the European Convention in the absence of an effective investigation of the applicants’ complaints of torture.
Eighteen applicants in the case complained that they had been subjected to ill-treatment during and after the search and security operations involving special units that took place in the Iziaslav Prison on January 22, 2007. They also argued that this incident was left without proper investigation, and, moreover, they complained about the loss of some of their possessions by the prison administration.
This story began with the fact that on January 14, 2007, almost all the prisoners of the Iziaslav Prison (1121 people) declared a hunger strike in the protest against the conditions of detention, poor quality of food, water, poor medical care, arbitrary punishment, impunity of the administration, and also lack of remuneration for their work. They also demanded the release of some prison leaders. The hunger strike and negotiations with the administration lasted three days. After that, the deputy head of the State Department of Ukraine for the Execution of Sentences ordered to send special forces and rapid response units to the Iziaslav Prison to “stabilize operational circumstances and carry out searches”.
Here is a fragment from the complaint of one of the applicants: “The prison van was round, using ammonia. The convoy had only one two-litter bottle of water for all the prisoners. Thirsty prisoners could only get one or two gutters through the grid. The trip lasted more than three hours. After arriving at the Rivne Pre-detention Center, the prisoners were beaten again: first near the wagon, and then in the office where they were brought to. When the handcuffs were removed, the first applicant saw that his arms swelled up and became blue. He was beaten by about six or eight employees. After they got tired to beat him with his hands and feet, these people put his face on the floor, fixed and began to beat using sticks. The strikes were so powerful that the applicant’s skin on the legs and buttocks were bursting. A paramedic who was in the room, watered his wounds. ”
The European Court ruled that the Ukrainian state should pay EUR 25,000 to each of the seventeen applicants plus any taxes that may be chargeable on that amount in the form of non-pecuniary damage. One applicant received EUR 10,000 with taxes.
This is far from the only case of violations of the rights of prisoners and detainees on the territory of the State Criminal Executive Service, which was not properly investigated. Due to a large number of victims and the extraordinary audacity and cynicism of the prison administration, the case received widespread publicity. It is also very important that the Ukrainian budget has lost EUR 435000 due to incompetent actions of the Criminal Executive Service.
“The problem of inappropriate investigation lies in the fact that there are certain indicators of the effectiveness of law enforcement agencies, which are based on the number of detected crimes. And on the other hand, there is a conflict of interest between the prosecutor’s office to support the prosecution and oversee the legality of the pre-trial investigation. The body that is responsible for complying with the law in the State Criminal Executive Service must disclose and investigate crimes committed on its territory. The purpose of the impugned provisions was not to increase the effectiveness of the investigation of crimes, but on the contrary – to establish a system for which such crimes may be suppressed,” said Valeria Lutkovska, the Ombudswoman, in her speech.
Anatolii Selivanov, the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court, said that the Chairman of the Verkhovna Rada does not intend to give an assessment, does not give any facts, and does not conduct an analysis.
“The reform was carried out, and the Minister of Justice, as the highest official in the system of public administration, is called in a regulatory way to regulate relations with regard to the status of investigator, not having in mind, and in this position the legislator, somehow direct its activities,” – Anatolii Selivanov said.
In his speech, the representative of the Verkhovna Rada tried to prove that the investigative systems of the State Criminal Executive Service of Ukraine are completely independent and impartial, as stated in the law. In addition, Anatolii Selivanov noticed that Valeria Lutkovska did not make an analysis and statistics of appeals to the Commissioner for human rights violations due to the inadequate investigation on the territory of the State Criminal Executive Service.
“Therefore, I have doubts about the reliability of the data, which are reported to the Constitutional Court,” said Anatolii Selivanov.
Pavlo Petrenko, Minister of Justice of Ukraine, said that the arguments of the Ombudswoman look unconvincing.
“These references to the norms of the Constitution, which the Commissioner mentioned, are, in my opinion, the assumptions and artificial attraction to some opinions of the Commissioner concerning a particular situation. The Commissioner pointed out three cases in the ECHR against Ukraine between 2005-2007, which are arguments in favor of her claim. The court should be aware: during this period, the Ombudswoman worked at the Ministry of Justice, was a representative of Ukraine in ECHR, and in the case Shevchenko v. Ukraine (2006) and Kucheruk v. Ukraine (2007) she filed a completely different position, namely: denied the applicants’ position in ECHR. She said that the norms of the Ukrainian SSR legislation do not violate human rights,” said Pavlo Petrenko.
The Minister of Justice drew the court’s attention to the fact that the decisions of ECHR, referred to by the Ombudsman, were made against the old Criminal Procedure Code of 1960, and its provisions violated human rights, because they were Soviet-style norms, there was indeed a conflict of interests. Now, according to the minister, the reform of the law-enforcement system is underway, and it is much more controlled by the public.
“An independent and efficient investigative unit is created in the Ministry of Justice, which is not subordinated to either heads of institutions or the heads of the detention centers. This unit conducts an effective investigation on the territory of all the institutions of the State Criminal Executive Service,” said Pavlo Petrenko.
According to the minister, such a system operates in the vast majority of countries of the European Union.
Mykhailo Tarakhkalo, Head of the Strategic Litigations Center of the Ukrainian Helsinki Human Rights Union, reminded that in the judgment in the case of “Davydov and Others v. Ukraine”, the European Court found that the investigation of torture, which were used by the workers of the prison camp, was conducted by the regional Prosecutor’s Office and the State Department for the Execution of Sentences, were not independent of the hierarchical and departmental subordination of those who were involved in these events. In particular, the European Court drew attention to the fact that the on-site verification was carried out by the same investigators who participated in or supervised their execution, and the prosecutor who verified the complaints, approved the plans of their executions and had direct relations with officials of the prison camp, with whom he contacted every day at work. Consequently, the European Court stated that such an investigation did not correspond to the essence of effective and independent, capable of ensuring the establishment of factual circumstances.
“The investigative bodies of the Criminal Executive Service are institutionally dependent on the persons against whom the investigation will be conducted, resulting in such an investigation being considered a priori ineffective and lead to systemic human rights violations guaranteed by Articles 27 and 28 of the Fundamental Law of Ukraine”, said Mykhailo Tarakhkalo.one should not it as an absolute panacea for all human rights violations, one must not overestimate it. If human rights defenders see some disadvantages, then the attention should be paid to these comments and the law should be corrected.