Publication

Right to life and freedom from torture

Section is prepared by D. Mazurok, A. Martynovska, M. Tarakhkalo, the UHHRU.

 

During 2014 the European Court of Human Rights (ECHR) adopted 12 decisions in which the Courts stated violations of articles 2 and 3 of the Convention made by Ukraine and in 2015 the Court adopted already 26 such decisions/[1]

For example the case “A. N. vs. Ukraine”[2] (A.N. v. Ukraine, № 13837/09, 29 January 2015) is connected with a lack of effective investigation by the government authorities of cruel treatment in relation to the applicant from the side of the law enforcement officers in the process of his detainment and further interrogation with the purpose of receiving confession of his guilt in an act of killing. The applicant was detained by the law enforcement officers and interrogated with use of violence in particular by means of electric current with the purpose to force him to confess to an act of killing. These statements were made in a presence of an advocate and were used as the basis for conviction of the applicant.

One of the main problems is the length of the investigation. Sometimes it can take years and does not give any results. Some of cases were connected with extremely long periods of investigation when the competent authorities even after grounded complaints received from the victims failed to provide adequate and timely response, violating the requirements of the principle of effective investigation[3]. Thus in the case “Prilutskiy vs. Ukraine”[4] (Prilutskiy v. Ukraine, № 40429/08, 26 February 2015) the applicant’s son was killed in a car accident. The criminal case was registered on the next day and th applicant soon was involved as a victim. But after six and a half years since the tragic events the criminal proceedings in this case were still lasting. Such actions of the state authorities contradict with requirements of of full and rapid investigation as it stated in the article 2 of the Convention. In the cases Basyuk vs. Ukraine[5] and Kosmata vs. Ukraine[6] the Court came to conclusion that the pre-trial stage of cases that lasted more than eight years in a violation. Similar conclusion was made bu the Court in the case Prilutskiy vs. Ukraine[7] in which it acknowledged that even taking into account  the complexity of the case the period of investigation more than six years is unacceptable.

The case “The Barsukovs vs. Ukraine”[8] (Barsukovy v. Ukraine, № 23081/07, 26 February 2015) is connected with ineffective and unduly long investigation of the road traffic accident in result of which their closed relative has died. The reports of the court show that the ascertainment of guilt or innocence of the suspected person lasted almost 10 years. The stage of pretrial investigation that led to introduction of the case to the court lasted 6 years and 7 months. It is particularly remarkable that the place of accident was inspected in proper time and the main witnesses were questioned at teh very beginning of the investigation.

In total in 2015 the European Court of Human Rights adopted 15 decisions against Ukraine in which were registered violations of the positive obligations of the state in accordance with the article 3 of the Convention 10 of which were connected with a lack of effective investigation.  During this period it was also stated that in another 10 cases Ukraine violated its obligations in the form of failure of effective investigation in accordance with the article 2 of the Convention.

Very often such violations are caused by objective factors such as lack of proper equipment and experts and sometimes the cause can be connected with a lack of funding from the state. The behavior of investigators also plays an important role: delay in investigation that leads to loss of important evidence, failure to conduct examinations in the case or failure to generate issues for the experts which are necessary to fully clarify the circumstances of the case – all of these leads to the fact that the international authorities acknowledge the investigations conducted by the national authorities to be ineffective.

Implementation by the state of decisions of the European Court at the national level includes the so-called individual measures. Particularly in cases where it was found violation by the state of its obligations in accordance with the articles 2 and 3 of the Convention in sense of absence of an effective investigation Ukraine is obliged to resume the investigation and to take all possible measures to ensure its effectiveness. Unfortunately the investigation in such cases is not conducted even after admission of the fact of cruel treatment made by the European Court especially in case of cruel treatment from the side of the law enforcement officers.

On April 21, 2011 the European Court adopted the decision in the case “Nechiporuk and Yonkalo vs. Ukraine”[9]. The court declared that there was a torture of the applicant from the side of the law enforcement officers and the effective investigation of this fact was not conducted.

In September 2012 the applicant filed a petition to the public prosecutor’s office to initiate criminal proceedings against the police officers D. Martsyniuk, S. Korsinovskyy, I. Vesna, O. Rybalko, O. Mostovyy in accordance with the fact of torture and illegal deprivation of liberty of the applicant. Within the period from 2012 till 2015 the law enforcement authorities were closing the case and then renewing the investigation for six times. At the time of closing the criminal case the investigators referred to the fact that during the investigation taken in 2004-2005 (which was considered to be ineffective by the European Court) the national law enforcement authorities acknowledged the absence of fact of torture of the applicant, that the persons who were named in the application had not been working in militia any more and that the new examinations proved the results of the examinations 2004-2005 after performing their check.

According to statistical reports of the General Prosecutor’s office of Ukraine for 2015 in the Unified Register of Pre-Trial Investigations were published 1583 (as of October) violation in accordance with the article 365 of Criminal Code of Ukraine (transgression of authority or abuse of power by a law enforcement officer) and among them 110 in accordance with part 3 of the mentioned article when such actions led to harsh consequences. These released data raise serious concerns since for the whole period of 2014 there were registered 1326 of such violations including 79 with harsh consequences.

The effective investigation in most crimes in commission of which the law enforcement officers are suspected is absent. Furthermore according to statistics the major part of decisions of the European Court against Ukraine in there were confirmed the lack of an effective investigation of the facts of death or torture are connected with the cases where the applicant accused the law enforcement officers in commission of a crime. If we look at the decision of this year we can see that in ten cases in which there were found violations of the article 3 of the Convention due to the lack of an effective investigation the applicants complained against cruel treatment from the side of the law enforcement officers.

The lack of effective investigations of the cases of cruel treatment from the side of the law enforcement officers is connected with the fact that there exists no independent body that would be involved in investigations of crimes in which the law enforcement officers are involved. Very often the investigation of complaints against of cruel treatment from the side of the law enforcement officers is reduced to the evaluation of reports submitted by the mentioned officers.

Therefore on November 12, 2015 the Verkhovna Rada of Ukraine adopted the Law “On the State Bureau of Investigation” taking into consideration the obligations to the European Court and the Committee of Ministers of the Council of Europe on the creation of such authority[10]. According to the final and transitional provisions of the Law it shall come info effect from the date of formation of the State Bureau of Investigation made by the Cabinet of Ministers of Ukrain but not later than March 1, 2016.

In most cases the application of force by the police officers is connected with the aim to compel a person to give a false testimony or to make a self-incrimination. The purpose of such actions is to improve statistics on crime detection which influence on the level of wages. Until there exists the system of evaluation of effectiveness of the police work in terms of crime detection nobody can guarantee that the use of cruel treatment will be stopped.

On November 13, 2015 the head of the Ministry of Internal Affairs of Ukraine signed the order that have reorganized the system of evaluation of activities of the law enforcement officers[11]. The above mentioned order canceled a number of indicators of evaluation of activities of the law enforcement officers such as the number of solved crimes. The Ministry of Internal Affairs of Ukraine announced that from now on the evaluation of activities of the National police will be made on the basis of the following four principles: 1) the results of external questioning; 2) evaluation of the efficiency of police activities by the business environment; 3) results of internal questioning; 4) results of fulfillment of the priority tasks. This is an important decision that hopefully will lead to positive changes.

In recent times there was registered a number of deaths which occurred on the territory of military units[12]. There are many cases when the administration of the military units tries to hide certain facts and details of the death of a person which can cast in a negative light, raise doubts about the methods of administrating or demonstrate involvement of other soldiers in such murder. The state bears the particular responsibility for life of people who are under its full control including the soldiers. The state must provide an explanation of any injury or lack of medical care which led to the death of a person. Unfortunately in Ukraine is not conducted an effective investigation in such cases of deaths of soldier concerning the issue of actions of the military administration. If certain actions are rarely taken they are usually reduced to the formal inspection or are held under control of the administration of such military unit in which the incident occurred.

In Ukraine exists authority authorized to investigate such crimes and exactly this often leads to an incomplete and ineffective investigation. In 2014 was adopted the Law “On amendments to the Law of Ukraine “On the Public Prosecutor’s Office” concerning the establishment of military prosecutors’ offices” under which was established a system of military prosecutors’ offices. But the legislator did not determine exactly which powers such military prosecutors’ offices will have. In accordance with the Law this issue should be regulated by the General Prosecutor’s Office. To the jurisdiction of the military prosecutor belong crimes define in articles 402-421, 425-435 of the Criminal Code of Ukraine (chapter XIX «Crimes against the established order of military service”).

The state is responsible for the lives and health of all persons who are under its control including the person in places of imprisonment. The state should provide appropriate conditions of detention which should include among others the safety of persons, provision of an adequate medical care, good sanitary conditions, etc.

Very often the ECHR admits the guilt of the state in cases connected with failure to provide an adequate medical care to persons in the places of imprisonment.[13]. Thus in the case “Lunev vs. Ukraine”[14] (Lunev v. Ukraine, № 4725/13, 22 October 2015) the applicant complained that the condition of his health did not allow it to take him in custody. Despite the fact that the applicant was diagnosed with HIV he received no medical care during the whole year. The applicant also was suffering from other infections caused by the weakening of his immune system. However any medical treatment was not given to him until his health condition became critical. The applicant was also beaten by police officers to prevent him to file a petition to the Court and to force him to confess to the crime but this fact was not investigated properly.

However there are numerous cases when representatives of the penitentiary service exceed their authority and use violence against prisoners or put them into an isolation ward without a reasonable basis.

One of the problems of Ukraine regarding compliance with the appropriate conditions of detention remains the issue of condition of the state penitentiary establishments most of which have long exhausted their period of operation. Despite the selective current repairs the housing accommodations of residential facilities and cells need modernization and reconstruction. As long as the complex reconstruction and rebuilding of facilities of the penitentiary system is not carried out in Ukraine the prisoners will be still detained in overcrowded cells, premises without sufficient amount of light, unsanitary conditions, without ventilation, hot water and heating as well as without any possibility to isolate themselves.

In places of deprivation of freedom is also present a sad tendency of non-provision of an adequate medical care. The equipment of medical departments is outdated and does not meet national and international standards. The premises require general overhaul and renovation. There is also a shortage of medicines and medical specialists.

During a monitoring visit to the premises of the operating unit of Olshanska correctional camp (No. 53) there was found a convicted person P. with evident physical injuries – bone fractures of the upper limb, numerous abrasions and bruises. According to the words of the convicted person he was injured on 05.09.15 and on the same day he applied to the medical unit where he was given only painkiller pills. Roentgen diagnostics and subsequent cast application were made in the medical department only on 07.09.15 and the plaster cast was applied by the paramedic. This fact of defect of providing medical assistance to the convicted person with a severe trauma may be regarded only as misbehavior and torture[15].

The problem of inadequate confinement conditions in facilities of the penitentiary system requires fast solution since it leads to worsening of the state of health of prisoners, distribution of various diseases or even to death of imprisoned persons.

In Ukraine there is no effective protection against such violations. Convicted persons are afraid to complain to the national authorities because of the threat of use of force to them from the side of workers of the correctional camp or another prisoners controlled by them. In Ukraine there is no possibility to complain actions of the administration of the correctional camp anonymously and no possibility to appeal for transfer to another penitentiary facility while an investigation is in an active phase.

One of the most dependent and powerless group of people who are under state control are patients of psychiatric treatment facilities. They are not almost able to complain against the actions of the workers of such facility. In total in Ukraine work more than six thousand places of imprisonment. Among them are 144 psychoneurological residential care facilities and 70 psychiatric hospitals where live about 60 thousand of people.

The most common violation of the right to prohibition of torture is forcing patients to take medicines which do not lead to improvement of their condition or even worsen it. There were also registered numerous cases of torture and beating patients, unauthorized use of psychotropic drugs with the purpose “to calm them down”/

In Ternopil region in Berezhansk psychoneurological residential care facility the monitoring commission[16] found two men in an “isolation ward” – in closed cramped room with metal grate on the door that was locked, without any electric lighting, fresh air and water, with a bucket used as a toilet. These men were disabled to wash themselves and do their physical needs in the appropriate conditions. The patients of this psychiatric facility did not have any underwear, clothing and personal hygiene facilities. There were unsanitary conditions in premises. The fire safety standards were not met too.

In the Horodnia psychoneurological residential care facility the patients who can not move on their own are not taken out for promenade and those who can walk are forced to work in vegetable gardens and farms[17]. The patients were in a terrible state: without underwear and with wounds. In the residential care facility there were terrible unsanitary conditions.

 

Recommendations

1. To introduce effective mechanisms of investigation of cases of deaths and cruel treatment especially those caused by the actions of law enforcement officers, in particular:

  • to develop detailed instructions in which should be introduced the minimal list of investigative actions that should be done in each case allowing the investigation body initiate closing of criminal file. To suspend from active work and to take disciplinary action against investigators who without any ground refuse to follow these instructions;
  • to conduct regular trainings (or retraining) of investigation officers with the purpose of improvement of quality of investigative actions carried out by them;
  • to implement the structural reform of the law enforcement authorities and in its process to minimize functions and tasks which are duplicated by different departments and authorities, to reduce load on certain law enforcement officers by means of reduction of a number of their secondary functions and duties (it is very important to do in practice and not only on paper), to stop the practice of use of the law enforcement officers at their free time without provision of additional off days, to establish an effective system of remuneration of labour.
  • to improve material and technical equipment of the law enforcement units;
  • to improve the quality and the speed of carrying out expert studies;
  • to create national registers of information about persons suspected in or convicted for crimes (registers of fingerprints, DNA samples, etc.).

2. To create in practice the system of inevitable responsibility for all cases of unjustified violence used by the law enforcement officers. It is very important to create a system of resumption of investigation in cases in which the ECHR found that the investigation was carried out ineffective.

3. To create a new system of pre-trial detention centers beyond borders of the cities. To improve the material and technical facilities in the places of imprisonment in accordance with the recommendations of the European Committee for the Prevention of Torture.

4. To create an effective system of provision of medical assistance in the places of imprisonment. To improve the material and technical facilities of the medical units as well as to provide such units with qualified medical personnel.

5. To implement reforms in the sphere of health protection in accordance with recommendations of the specialists with the purpose of prevention of increase of death rates of population including those of children.

6. To simplify the procedure of collection and registration of evidence used in criminal proceeding (to decrease a number of formal documents which should be filled in by the person who is carrying out the investigation and which are not used further with the purpose of ascertainment of guilt of a suspected person).

  1. To adopt a new legislation which should provide the possibility of release on parole of persons sentenced to life imprisonment.
  2. To create a coordination center for providing medical assistance to persons living with HIV, hepatitis and tuberculosis and to involve in its activities the specialized non-governmental organizations working in this sphere.
  3. To create and to implement an effective procedure of procurement of medicines.
  4. To develop an effective system of transportation of persons who need help from the ATO zone and the Autonomous Republic of Crimea to the territory controlled by Ukraine including those persons who are located in places of imprisonment.
  5. To provide the patients of the psychiatric treatment facilities with a possibility of presentation of petitions about violent behavior towards them and to establish an effective system of control.
  6. To create a separate department for investigation of cases connected with hate crimes and to introduce the system of education for the law enforcement officers in this sphere.

 

[1] For example ref. the cases “Zhyzitskyy vs. Ukraine”[1]  (Zhyzitskyy v. Ukraine, № 57980/11, 19 February 2015), “Kirpichenko vs. Ukraine”[1] (Kirpichenko v. Ukraine, № 38833/03, 2 April 2015), “Ushakov and Ushakova vs. Ukraine”[1] (Ushakov and Ushakova v. Ukraine, № 10705/12, 18 June 2015).

[2] http://hudoc.echr.coe.int/eng?i=001-150651

[3] Also ref. the cases “Buchynska vs. Ukraine”[3] (Buchynska v. Ukraine, № 35493/10, 30 April 2015), “Kholodkov vs. Ukraine”[3] (Kholodkov and Kholodkova v. Ukraine, № 29697/08, 7 May 2015), “Serdyuk vs. Ukraine”[3] (Serdyuk v. Ukraine, № 61876/08, 12 March 2015)

[4] http://hudoc.echr.coe.int/eng?i=001-152597

[5] Basyuk v. Ukraine, no. 51151/10, § 66 – 73, 5 November 2015 http://hudoc.echr.coe.int/eng?i=001-158353

[6] Kosmata v. Ukraine, no. 10558/11, 28218/11, § 67, 15 January 2015 http://hudoc.echr.coe.int/eng?i=001-150304

[7] Prilutskiy v. Ukraine, no. 40429/08, § 42 – 46, 26 February 2015http://hudoc.echr.coe.int/eng?i=001-152597

[8] http://hudoc.echr.coe.int/eng?i=001-152596

[9] Nechiporuk and Yonkalo v. Ukraine, No. 42310/04, judgment from 21April 2011

[10]http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=54012

[11] Arsen Avakov cancelled 86 indices of effectiveness of the law enforcement officers

http://www.mvs.gov.ua/mvs/control/main/uk/publish/article/1707878

[12] The Military Prosecutor Office launched investigation of the fact of death of a soldier from Volyn http://www.volynnews.com/news/extreme/viyskova-prokuratura-rozpochala-rozsliduvannia-za-faktom-smerti-volynianyna/

Death of the soldier http://excl.com.ua/news/2015/05/13/8386/smert_vijskovosluzhbovcja

Mobilized soldier who was undergoing medical treatment at Rivne military hospital died  http://4vlada.com/rivne/42939

Mysterious death at the military unit: the soldier was drunk but there was found no evidence of murder http://ukr.segodnya.ua/ukraine/zagadochnaya-smert-zaporozhskogo-boyca-muzhchinu-nashli-mertvym-na-territorii-voinskoy-chasti–618828.html

Family of the fallen mobilized soldier requires investigationhttp://ntn.ua/ru/video/news/2014/09/16/15472

Mysterious death of a soldier, nobody believes it tot be suicide http://24tv.ua/zagadkovoyu_smertyu_zaginuv_viyskoviy_u_suyitsid_nihto_ne_virit_n625978

Law enforcement authorities cover up slaughters at military units http://helsinki.org.ua/index.php?id=1437556531

[13] Also ref. the cases “Savinov vs. Ukraine”[13] (Savinov v. Ukraine, № 5212/13, 22 October 2015),  “Sokil vs. Ukraine”[13] (Sokil v. Ukraine, № 9414/13, 22 October 2015), “Sergey Antonov vs.  Ukraine”[13] (Sergey Antonov v. Ukraine, № 40512/13, 22 October 2015).

[14] http://hudoc.echr.coe.int/eng?i=001-157967

[15] In penitentiary facilities of Mykolayiv region were discovered the facts of violation of the rights of prisoners http://www.ombudsman.gov.ua/ua/all-news/all-activity/16915-wl-u-vipravnix-zakladax-mikolaiivskoii-oblasti-viyavleno-fakti-porushen-p/

[16] Conditions in the residential care facility are so terrible that it does not look entirely strange that patients are trying to escape from there http://www.ombudsman.gov.ua/ua/all-news/all-activity/101115-ck-umovi-v-internati-nastilki-zhaxlivi-scho-zovsim-ne-divnim-viglyadaye-b/

[17] There were brought criminal proceedings against administration of the psychiatric treatment and residential care facilities https://tsn.ua/ukrayina/u-psihlikarnyah-na-chernigivschini-paciyenti-spali-u-vlasnih-viporozhnennyah-i-pracyuvali-do-11-godin-na-dobu-529586.html

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