Pain Grips Domestic Legislation

“My son, Pokhlebin Dmytro Viktorovych, was detained by police in Simferopol for four months. Trying to beat a confession out of him, investigators injured one of his kidneys and broke his leg. Earlier, officers at the railway precinct No. 20 brutally beat my son, with paramedics registering his injuries.”

“In Rivne, a senior criminal police investigator shot at Mykola Rusnak, a suspect in a car tire theft case, mortally wounding him.”

Hundreds of similar complaints, starting from 1997, are quoted in the Review of Reports on Brutality and Torture recently published by the Kharkiv Human Rights Group. About 300 complaints and appeals against the violations of human rights and liberties have been submitted to the Verkhovna Rada Committee Against Organized Crime And Corruption this year alone, with fifty protesting physical and psychological violence against detainees. This was the topic of recent parliamentary discussion on how Ukraine abides by the requirements of the UN Convention against torture and other inhuman or humiliating investigation procedures and punishment and the European Convention on preventing torture and inhuman or humiliating investigation procedures and punishment. According to Verkhovna Rada Ombudswoman Nina Karpachova and the results of her monitoring, 25,000 detainees were kept for over 24 hours without food in Kyiv’s district precincts last year alone.

Meanwhile, the aforesaid UN Convention was ratified by Ukraine on February 24, 1987 and the European Convention on January 24, 1997. Until now, however, Ukraine has not ratified Article 28 of the European Convention acknowledging the right of independent experts to anonymously consider appeals sent to the Council of Europe.

As Vice President of the International Society for Human Rights Andriy Sukhorukov told The Day, widespread torture and police brutality exist mainly during pretrial detainment and preliminary investigation. According to the human rights activist, large scale violations of human rights, beatings, torture, and brutality occur only during detention and investigation. “Certainly, there is police brutality in prisons but these are isolated cases related to violations of prison rules by convicts and you cannot speak about any definite system of violating human rights,” he said. This is proven by statistics of the penal corrections department, saying that only four officials have been held accountable in the last three years while 194 criminal charges were filed against police officers accused of using torture and humiliation in 1998-1999 alone, according to information released by the Verkhovna Rada Committee For Human Rights, Ethnic Minorities, and Interethnic Relations. The most widespread kinds of such crimes include illegal detention or arrest, violation of defense rights, intimidation, and physical and psychological violence.

Mr. Sukhorukov noted that this problem is urgent not only in Ukraine but in many more developed countries. Ms. Karpachova echoed him by saying that similar violations happen even in law-governed Switzerland. In many cases, Mr. Sukhorukov continued, police violence to a certain extent is triggered by the pressure exerted upon investigation by the public, especially in high-profile cases when everyone wants the police to solve cases instantly. In human rights activists’ view, many violations have been caused by the lack of funds for the upkeep of detainees. According to First Deputy State Secretary for the Ministry of Internal Affairs Viktor Zubchuk, between seven and fifteen thousand persons are put in pretrial detention centers every day, with the number reaching 20,000 on some days. The ministry admits that in some cases police exceed their authority but the heads of the ministry are doing everything possible to curb police brutality by implementing a special personnel program and internal regulations. It is worth noting that the 2002 budget bill allocates UAH 266.3 million for food in pretrial detention centers, up 21% from last year. It is obvious, however, that, despite considerable funding, the problem should be solved by other means.

Thus, the replacement of preventive detention by a suspect’s obligation not to leave his city of residence can be one of the measures preventing brutality and infringements of human rights. According to Senior Research Associate of the Institute of Sociology Yevhen Holovakha, Ukrainians should be aware of their rights and defend them in court, with the help of investigation and public human rights organizations. Much will depend on the presence of political will and the intentions of law enforcement, if not to root out, then at least to combat brutality toward suspects and prisoners, putting to use the assistance of human rights activists and NGOs even at the cost of tainting the reputation of the police. This is all the more so that all the necessary prerequisites are available, as has been evidenced by joint workshops held at the Penal Corrections Department: the NGOs are ready to cooperate. A new article which appeared in the recently approved Criminal Code establishes criminal liability for torture and brutal treatment of detained persons. Given positive starting conditions for Ukraini an law enforcement, of top priority for them is not to limit their efforts by in ca mera service inquiries and demonstration lashing of delinquent officers but get down to fighting the system — that is if they are really preoccupied with curbing wrongdoing in their midst.

EXPERT COMMENTARY

Oleh SUKHORUKOV, member of the Council of Lawyers of Ukraine and Director of the Foundation To Promote Legal And Political Reforms:

True, torture and causing deliberate physical pain, physical, or moral sufferings by means of beating, humiliation, or other violent actions with the purpose of forcing individuals to resort to actions that run counter to their intentions are subject to between three and five-year terms of imprisonment. Similar repeated actions or premeditated actions executed by a group are subject to between five and ten year terms of imprisonment. Paragraph 1 of Article 127, however, does not directly indicate the perpetrator of this crime. Consequently, in accordance with the existing presumption, the perpetrator has not been specified, in simple words, it could be any person whose criminal liability has been established under the General Part of the Criminal Code of Ukraine. Simultaneously, under the UN Convention, the perpetrator of such crimes is specified, a state official. It should be added that Article 127 considerably narrows the purpose of the crime, reducing it merely to attempts by the perpetrator to compel his victim or other person to behave in a manner against the victim’s will. Meanwhile, in accordance with Article 1 of the UN Convention, the purpose of a crime must not only include the victim but also the perpetrator of the crime. Consequently, Article 127 purposefully carries no mention of an official as the perpetrator. In the absence of the perpetrator, no criminal liability can be established. As a result, state officials cannot be held accountable and this explains the low number of police and prison officers who have been brought to justice. Moreover, the UN Convention envisions that each country should impose criminal punishment for torture independently, based on the gravity of such crimes. While in our Criminal Code such crimes are classified as medium and are subject to between three and five-year terms of imprisonment, against up to ten-year terms to be imposed for grave crimes. Thus, the European standards have been implemented in our laws only formally. This is evidenced by the low number of law enforcement officers against whom criminal charges are filed. There can be no talk about the protection of human rights in Ukraine unless the corresponding changes are made in our Criminal Code. We must stop cheating ourselves and bring Ukrainian laws into compliance with international practice.