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COMMITTEE AGAINST TORTURE HEARS RESPONSE OF UKRAINE
09 May 2007
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Committee against Torture 9 May 2007
The Committee against Torture this afternoon heard the response of Ukraine to questions raised by Committee Experts on the fifth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Tuesday, 8 May, Valeriya Lutkovska, Deputy Minister of the Ministry of Justice of Ukraine, said regarding the mobile human rights teams established within the Ministry of the Interior in 2004, over the past two years, 2005-2006, the mobile groups had visited more than 90 detention facilities in Ukraine, or about one in six such facilities. A single standard for reporting by the teams had been drawn up. Directors were informed 24 hours before the inspection group arrived, and the team then had the right to inspect all the cells, both the regular cells and in preliminary detention. Detainees were asked about their conditions, for example, whether they had been able to contact a lawyer, or their families.
In terms of bringing the prosecutor's office into line with European norms, much had been done over the past 12 years, Ms. Lutkovska said. The biggest step that had been taken was that the Prosecutor did not have the right to protest against a decision taken in a civil or criminal case. Obviously those responsible for investigations and those responsible for overseeing the legality of those investigations should not be part of the same body, and a concept paper for reform of the legal system was currently being drafted.
The Committee will submit its conclusions and recommendations on the report of Ukraine towards the end of the session on Friday, 18 May 2007.
As one of the 144 States parties to the Convention against Torture, Ukraine is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Thursday, 10 May, it is scheduled to begin consideration of the fourth periodic report of Poland (CAT/C/67/Add.5).
Response of Ukraine
VALERIYA LUTKOVSKA, Deputy Minister of Justice at the Ministry of Justice of Ukraine, responding to a series of questions raised by Committee Experts on Tuesday, 8 May, said that with regard to the definition of torture in Ukrainian law and how it corresponded with article 1 of the Convention, it was important to note that as of January 2005 new amendments had been made to the definition of torture in Ukraine. Torture now included intentional inflicting of physical pain or physical or psychological pain by means of beating or other means of inflicting torment to force a victim to do something against their will, such as obtaining testimony or a confession, or to intimidate him or her, among other things.
As far as human rights were concerned, foreigners enjoyed the same rights as citizens. With regard to the right to counsel, the rights for foreigners and citizens were the same. Free legal assistance was provided by lawyers associations in every region of the country, Ms. Lutkovska underscored, although it was true that in some less populated regions such assistance could give rise to technical delays.
On the issue of detention, in line with the Code of Criminal Procedure of Ukraine, arrest warrants had to be issued by a judge, Ms. Lutkovska said. The duration of detention was counted from the time of apprehension, and had a time limit of 72 hours. After that time, if the detainee had not had a judicial hearing he had to be released immediately. As a general rule, detainees came before a judge within 24 hours.
All detainees had the right to a lawyer during the initial detention period. There was also a requirement that members of the family of detained persons were informed of the detention. The court did have the right to extend detentions in certain cases up to 10 and even 15 days. A 10-day extension could be granted where there was insufficient information to make a judicial decision. A further extension could only be granted at the request of the detainee himself. Those extensions could be appealed.
Regarding crowd control, the experience of Ukraine had shown how disciplined and humane the forces involved in crowd control were, Ms. Lutkovska emphasized. During the serious political events of March 2006 there had been no major complaints brought related to crowd control.
Regarding the crime of "hazing" in the military and military suicides, there appeared to have been a mistranslation in yesterday's presentation. There had not been 73 cases of suicide in the military in 2006. Rather, 73 cases had been brought in 2006 related to abuse of authority in the military, 12 per cent lower than the number brought in 2005, and 58 per cent less than in 2004, Ms. Lutkovska pointed out.
Regarding searches to be carried out in places of detention as per the law of 2006, that had been implemented with a view to preventing terrorist actions Ms. Lutkovska said. A prosecutor had to monitor the carrying out of the procedure in the facility. In that connection, there had been an uprising in a prison facility last year. Following the riot all prisoners were subjected to a medical examination and were reviewed individually by the authorities to hear their complaints. Following the uprising, several inmates were transferred to different facilities, and the leaders of the uprising were separated.
Regarding abuses by the officials of the Kharkiv internal affairs unit, Ms. Lutkovska recalled that the European Court of Human Rights found that the investigation into the case had been ineffective. In 2006, a further investigation was launched. Unfortunately, to date the perpetrators of the crimes remained unknown and the investigation had been suspended.
On the Istanbul Protocol, Ms. Lutkovska said that the usual procedure that was applied when bodily harm was inflicted was that a complaint could be lodged with the Public Prosecutor for a medical report, which was carried out by an independent judicial medical practitioner in line with the Istanbul Protocol. The procedure was somewhat more complex when a complaint was lodged by an individual in a deprivation-of-liberty situation. A prisoner had first to complain to the prison doctor, who recorded those injuries in a log. The register of that injury then went to the Director of the penitentiary. The Director was then required to carry out an investigation, and had to report on that investigation to the Public Prosecutor. The Public Prosecutor, for his part, could order a further report.
Regarding mobile human rights teams, established within the Ministry of the Interior at the initiative of the Kharkiv Human Rights Protection Group and Kharkiv University in 2004, that had been done to enhance participation of civil society and to democratize conditions of detention. Over the past two years, 2005-2006, the mobile groups had visited more than 90 detention facilities in the Ukraine, about one in six such facilities, Ms. Lutkovska calculated. A single standard for reporting by the teams had been drawn up. Directors were informed 24 hours before the inspection group arrived, and the team then had the right to inspect all the cells, both the regular cells and in preliminary detention. Detainees were asked about their conditions, for example, whether they had been able to contact a lawyer, or their families.
Turning to statistics on convictions, in 2001, 183 officials of the Ministry of Justice had been convicted for crimes involving abuse of authority, such as jury tampering, and 179 in 2006. Regarding law enforcement officials there had been 63 cases involving abuse of power in 2001 as compared with 39 in 2006.
Questions by Committee Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the report of Ukraine, reiterated her concern about immigration issues, in particular the need for further information about the case of the 11 Uzbek asylum-seekers who had been deported. That was of particular concern given the large populations of Abkhazians, for example, who were present in Ukraine but did not have any regular status.
Regarding the 73 incidents of hazing in the military last year, Ms. Gaer would appreciate details on what form of abuse those had involved. She was concerned that none of those cases appeared to have come to trial.
The mobile teams mandated to inspect conditions in places of detention appeared to be a positive step, Ms. Gaer said. Were there any plans to formally incorporate those groups in the law?
On the dual nature of the Prosecutor's Office, which had both prosecutorial and oversight functions, Ms. Gaer understood that when Ukraine initially applied for membership in the Council of Europe it had promised to bring its Prosecutor's Office into line with European standards. As of 2005, that had not been done. She wondered if that had been done yet. That was of particular concern in light of the Gongadze case (in which it was alleged that evidence had been suppressed and other tampering had occurred in a case involving murder charges against a former member of the Ministry of the Interior). That was also worrisome in light of allegations of the failure of the Public Prosecutor to undertake investigations and prosecute complaints brought by Roma and other minorities.
In terms of conditions in confinement, Ms. Gaer would appreciate information on measures taken to deal with overcrowding, prisoners with AIDS and tuberculosis, and grills on prison windows.
ALEXANDER KOVALEV, the Committee Expert serving as Co-Rapporteur for the report of Ukraine, on the definition of torture, said the delegation had referred to a decree by the Supreme Court that torture consisted of extensive injuries. He was concerned that that might not take account of the fact that the injuries could be grave without being extensive.
On crowd control, in Mr. Kovalev's opinion those responsible for crowd control should be trained in how to diffuse situations that could escalate before they became a problem.
In terms of judicial medical staff and medical examinations, Mr. Kovalev wished to underscore that many physical injuries resulting from torture might not be visible, such as kidney damage, for example. Many countries had special training manuals to teach medical staff on how to identify cases of torture, and it was important to do so.
An Expert was concerned that a number of criminal matters appeared to be regularly routed to administrative procedures in Ukraine. It was also worrisome that individuals could be detained in the course of administrative proceedings.
An Expert was concerned about a list of unsafe countries kept by the immigration authorities and the possibility that persons coming from those countries would be peremptorily returned at the border.
An Expert then asked about the conditions for the detention of asylum-seekers and plans to build new facilities. An Expert suggested that there was a lack of detailed plans of action with respect to immigration and asylum, and that such plans should be drawn up in the very near future.
Response by Delegation
Responding to additional questions raised, Ms. Lutkovska said, with regard to the 11 Uzbeks who had been expelled, first, no extradition requests had been received from Uzbekistan. Those individuals had been living illegally on the territory of the Ukraine. The Security Service had informed the authorities that they were not to be given refugee status because of information uncovered about their connection to terrorist groups. Those individuals were aware from the moment that their asylum requests had been turned down that they were in Ukraine illegally. After a review by the General Prosecutor, it was found that the procedure carried out had not violated any domestic legislation.
However, Ms. Lutkovska said that probably said something about the quality of domestic legislation, and did not mean that the actions had not violated international norms. Two conclusions should be drawn from the case of the Uzbeks: the same mistake should not be repeated, and Ukraine should amend its domestic legislation so that it came in line with international standards.
Regarding a concern that prisoners only had an opportunity to make a complaint once a month, when the public prosecutor visited, that was not correct. Ms. Lutkovska noted that there was no limit on the number of complaints a prisoner could raise or the frequency of those complaints. The once monthly visit only related to the carrying out of the prosecutor's duties.
In terms of providing free legal counsel, there was a problem, Ms. Lutkovska acknowledged. Ordinarily lawyers received high salaries. Government payments for defending those who could not afford one were minimal, and it was natural that lawyers should avoid taking such cases. However, the lawyers were obliged to take a certain number of cases if they were to keep their licenses.
Whereas previously it may not have been the case, prisoners were now quite actively using the domestic complaints procedures available to them, Ms. Lutkovska said.
In terms of bringing the prosecutor's office into line with European norms, much had been done over the past 12 years, Ms. Lutkovska said. The biggest step that had been taken was that the Prosecutor did not have the right to protest against a decision taken in a civil or criminal case. Obviously those responsible for investigations and those responsible for overseeing the legality of those investigations should not be part of the same body, and a concept paper for reform of the legal system was currently being drafted.
On the Gongadze case, several measures had been taken to investigate the allegations brought by the widow and mother of the victim. The European Court of Human Rights had considered the case, on a complaint brought by his widow, and had found that Ukraine had violated articles 2, 3 and 13 of the European Convention on Human Rights. The widow had received compensation as provided for in that judgement. However, with regard to all of the allegations levelled against officials in connection with the case, until the Court took a decision on the guilt of the suspect it was not possible to follow-up on the other issues in the case, Ms. Lutkovska said.
In terms of training for medical staff, it was really during pre-trial detention that the risk of torture was great, because there could be an incentive to obtain a confession. Ukrainian judicial medical staff, who undertook examinations of individuals in such cases, were specially trained to determine whether torture had been inflicted, including non-visible wounds such as kidney damage. However, Ms. Lutvoska said, medical staff or penitentiaries received the same training as regular medical staff. Indeed, in her opinion it could possibly be considered discriminatory to provide medical staff for prisoners that did not receive the same training as medical personnel in civilian life.
Administrative detention was a possibility in Ukrainian law. Ms. Lutvoska stressed, however, that the regulations had been revised so that now detainees in administrative detention enjoyed the same rights as other detainees, including the possibility of appeal.
Concerning treatment of prisoners with HIV/AIDS and tuberculosis, another member of the delegation said that two programmes were being carried out to deal with those diseases at the national level. If a prisoner had full-blown AIDS, he was transferred to the relevant medical facilities in a hospital. There was a medical monitoring plan for persons with HIV/AIDS that was being carried out in conjunction with the World Bank. Also, in conjunction with the Global Fund and other partners, awareness-raising programmes were being carried out, including for prisoners. For prisoners with tuberculosis, a programme to promptly identify such cases and to treat them was currently being carried out in all detention facilities. Staring 2003, prisoners with tuberculosis received special care in designated facilities. Since then, the rate of tubercular infection among prisoners had fallen by 2.7 times.
__________
For use of the information media; not an official record
The Committee against Torture this afternoon heard the response of Ukraine to questions raised by Committee Experts on the fifth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Tuesday, 8 May, Valeriya Lutkovska, Deputy Minister of the Ministry of Justice of Ukraine, said regarding the mobile human rights teams established within the Ministry of the Interior in 2004, over the past two years, 2005-2006, the mobile groups had visited more than 90 detention facilities in Ukraine, or about one in six such facilities. A single standard for reporting by the teams had been drawn up. Directors were informed 24 hours before the inspection group arrived, and the team then had the right to inspect all the cells, both the regular cells and in preliminary detention. Detainees were asked about their conditions, for example, whether they had been able to contact a lawyer, or their families.
In terms of bringing the prosecutor's office into line with European norms, much had been done over the past 12 years, Ms. Lutkovska said. The biggest step that had been taken was that the Prosecutor did not have the right to protest against a decision taken in a civil or criminal case. Obviously those responsible for investigations and those responsible for overseeing the legality of those investigations should not be part of the same body, and a concept paper for reform of the legal system was currently being drafted.
The Committee will submit its conclusions and recommendations on the report of Ukraine towards the end of the session on Friday, 18 May 2007.
As one of the 144 States parties to the Convention against Torture, Ukraine is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Thursday, 10 May, it is scheduled to begin consideration of the fourth periodic report of Poland (CAT/C/67/Add.5).
Response of Ukraine
VALERIYA LUTKOVSKA, Deputy Minister of Justice at the Ministry of Justice of Ukraine, responding to a series of questions raised by Committee Experts on Tuesday, 8 May, said that with regard to the definition of torture in Ukrainian law and how it corresponded with article 1 of the Convention, it was important to note that as of January 2005 new amendments had been made to the definition of torture in Ukraine. Torture now included intentional inflicting of physical pain or physical or psychological pain by means of beating or other means of inflicting torment to force a victim to do something against their will, such as obtaining testimony or a confession, or to intimidate him or her, among other things.
As far as human rights were concerned, foreigners enjoyed the same rights as citizens. With regard to the right to counsel, the rights for foreigners and citizens were the same. Free legal assistance was provided by lawyers associations in every region of the country, Ms. Lutkovska underscored, although it was true that in some less populated regions such assistance could give rise to technical delays.
On the issue of detention, in line with the Code of Criminal Procedure of Ukraine, arrest warrants had to be issued by a judge, Ms. Lutkovska said. The duration of detention was counted from the time of apprehension, and had a time limit of 72 hours. After that time, if the detainee had not had a judicial hearing he had to be released immediately. As a general rule, detainees came before a judge within 24 hours.
All detainees had the right to a lawyer during the initial detention period. There was also a requirement that members of the family of detained persons were informed of the detention. The court did have the right to extend detentions in certain cases up to 10 and even 15 days. A 10-day extension could be granted where there was insufficient information to make a judicial decision. A further extension could only be granted at the request of the detainee himself. Those extensions could be appealed.
Regarding crowd control, the experience of Ukraine had shown how disciplined and humane the forces involved in crowd control were, Ms. Lutkovska emphasized. During the serious political events of March 2006 there had been no major complaints brought related to crowd control.
Regarding the crime of "hazing" in the military and military suicides, there appeared to have been a mistranslation in yesterday's presentation. There had not been 73 cases of suicide in the military in 2006. Rather, 73 cases had been brought in 2006 related to abuse of authority in the military, 12 per cent lower than the number brought in 2005, and 58 per cent less than in 2004, Ms. Lutkovska pointed out.
Regarding searches to be carried out in places of detention as per the law of 2006, that had been implemented with a view to preventing terrorist actions Ms. Lutkovska said. A prosecutor had to monitor the carrying out of the procedure in the facility. In that connection, there had been an uprising in a prison facility last year. Following the riot all prisoners were subjected to a medical examination and were reviewed individually by the authorities to hear their complaints. Following the uprising, several inmates were transferred to different facilities, and the leaders of the uprising were separated.
Regarding abuses by the officials of the Kharkiv internal affairs unit, Ms. Lutkovska recalled that the European Court of Human Rights found that the investigation into the case had been ineffective. In 2006, a further investigation was launched. Unfortunately, to date the perpetrators of the crimes remained unknown and the investigation had been suspended.
On the Istanbul Protocol, Ms. Lutkovska said that the usual procedure that was applied when bodily harm was inflicted was that a complaint could be lodged with the Public Prosecutor for a medical report, which was carried out by an independent judicial medical practitioner in line with the Istanbul Protocol. The procedure was somewhat more complex when a complaint was lodged by an individual in a deprivation-of-liberty situation. A prisoner had first to complain to the prison doctor, who recorded those injuries in a log. The register of that injury then went to the Director of the penitentiary. The Director was then required to carry out an investigation, and had to report on that investigation to the Public Prosecutor. The Public Prosecutor, for his part, could order a further report.
Regarding mobile human rights teams, established within the Ministry of the Interior at the initiative of the Kharkiv Human Rights Protection Group and Kharkiv University in 2004, that had been done to enhance participation of civil society and to democratize conditions of detention. Over the past two years, 2005-2006, the mobile groups had visited more than 90 detention facilities in the Ukraine, about one in six such facilities, Ms. Lutkovska calculated. A single standard for reporting by the teams had been drawn up. Directors were informed 24 hours before the inspection group arrived, and the team then had the right to inspect all the cells, both the regular cells and in preliminary detention. Detainees were asked about their conditions, for example, whether they had been able to contact a lawyer, or their families.
Turning to statistics on convictions, in 2001, 183 officials of the Ministry of Justice had been convicted for crimes involving abuse of authority, such as jury tampering, and 179 in 2006. Regarding law enforcement officials there had been 63 cases involving abuse of power in 2001 as compared with 39 in 2006.
Questions by Committee Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the report of Ukraine, reiterated her concern about immigration issues, in particular the need for further information about the case of the 11 Uzbek asylum-seekers who had been deported. That was of particular concern given the large populations of Abkhazians, for example, who were present in Ukraine but did not have any regular status.
Regarding the 73 incidents of hazing in the military last year, Ms. Gaer would appreciate details on what form of abuse those had involved. She was concerned that none of those cases appeared to have come to trial.
The mobile teams mandated to inspect conditions in places of detention appeared to be a positive step, Ms. Gaer said. Were there any plans to formally incorporate those groups in the law?
On the dual nature of the Prosecutor's Office, which had both prosecutorial and oversight functions, Ms. Gaer understood that when Ukraine initially applied for membership in the Council of Europe it had promised to bring its Prosecutor's Office into line with European standards. As of 2005, that had not been done. She wondered if that had been done yet. That was of particular concern in light of the Gongadze case (in which it was alleged that evidence had been suppressed and other tampering had occurred in a case involving murder charges against a former member of the Ministry of the Interior). That was also worrisome in light of allegations of the failure of the Public Prosecutor to undertake investigations and prosecute complaints brought by Roma and other minorities.
In terms of conditions in confinement, Ms. Gaer would appreciate information on measures taken to deal with overcrowding, prisoners with AIDS and tuberculosis, and grills on prison windows.
ALEXANDER KOVALEV, the Committee Expert serving as Co-Rapporteur for the report of Ukraine, on the definition of torture, said the delegation had referred to a decree by the Supreme Court that torture consisted of extensive injuries. He was concerned that that might not take account of the fact that the injuries could be grave without being extensive.
On crowd control, in Mr. Kovalev's opinion those responsible for crowd control should be trained in how to diffuse situations that could escalate before they became a problem.
In terms of judicial medical staff and medical examinations, Mr. Kovalev wished to underscore that many physical injuries resulting from torture might not be visible, such as kidney damage, for example. Many countries had special training manuals to teach medical staff on how to identify cases of torture, and it was important to do so.
An Expert was concerned that a number of criminal matters appeared to be regularly routed to administrative procedures in Ukraine. It was also worrisome that individuals could be detained in the course of administrative proceedings.
An Expert was concerned about a list of unsafe countries kept by the immigration authorities and the possibility that persons coming from those countries would be peremptorily returned at the border.
An Expert then asked about the conditions for the detention of asylum-seekers and plans to build new facilities. An Expert suggested that there was a lack of detailed plans of action with respect to immigration and asylum, and that such plans should be drawn up in the very near future.
Response by Delegation
Responding to additional questions raised, Ms. Lutkovska said, with regard to the 11 Uzbeks who had been expelled, first, no extradition requests had been received from Uzbekistan. Those individuals had been living illegally on the territory of the Ukraine. The Security Service had informed the authorities that they were not to be given refugee status because of information uncovered about their connection to terrorist groups. Those individuals were aware from the moment that their asylum requests had been turned down that they were in Ukraine illegally. After a review by the General Prosecutor, it was found that the procedure carried out had not violated any domestic legislation.
However, Ms. Lutkovska said that probably said something about the quality of domestic legislation, and did not mean that the actions had not violated international norms. Two conclusions should be drawn from the case of the Uzbeks: the same mistake should not be repeated, and Ukraine should amend its domestic legislation so that it came in line with international standards.
Regarding a concern that prisoners only had an opportunity to make a complaint once a month, when the public prosecutor visited, that was not correct. Ms. Lutkovska noted that there was no limit on the number of complaints a prisoner could raise or the frequency of those complaints. The once monthly visit only related to the carrying out of the prosecutor's duties.
In terms of providing free legal counsel, there was a problem, Ms. Lutkovska acknowledged. Ordinarily lawyers received high salaries. Government payments for defending those who could not afford one were minimal, and it was natural that lawyers should avoid taking such cases. However, the lawyers were obliged to take a certain number of cases if they were to keep their licenses.
Whereas previously it may not have been the case, prisoners were now quite actively using the domestic complaints procedures available to them, Ms. Lutkovska said.
In terms of bringing the prosecutor's office into line with European norms, much had been done over the past 12 years, Ms. Lutkovska said. The biggest step that had been taken was that the Prosecutor did not have the right to protest against a decision taken in a civil or criminal case. Obviously those responsible for investigations and those responsible for overseeing the legality of those investigations should not be part of the same body, and a concept paper for reform of the legal system was currently being drafted.
On the Gongadze case, several measures had been taken to investigate the allegations brought by the widow and mother of the victim. The European Court of Human Rights had considered the case, on a complaint brought by his widow, and had found that Ukraine had violated articles 2, 3 and 13 of the European Convention on Human Rights. The widow had received compensation as provided for in that judgement. However, with regard to all of the allegations levelled against officials in connection with the case, until the Court took a decision on the guilt of the suspect it was not possible to follow-up on the other issues in the case, Ms. Lutkovska said.
In terms of training for medical staff, it was really during pre-trial detention that the risk of torture was great, because there could be an incentive to obtain a confession. Ukrainian judicial medical staff, who undertook examinations of individuals in such cases, were specially trained to determine whether torture had been inflicted, including non-visible wounds such as kidney damage. However, Ms. Lutvoska said, medical staff or penitentiaries received the same training as regular medical staff. Indeed, in her opinion it could possibly be considered discriminatory to provide medical staff for prisoners that did not receive the same training as medical personnel in civilian life.
Administrative detention was a possibility in Ukrainian law. Ms. Lutvoska stressed, however, that the regulations had been revised so that now detainees in administrative detention enjoyed the same rights as other detainees, including the possibility of appeal.
Concerning treatment of prisoners with HIV/AIDS and tuberculosis, another member of the delegation said that two programmes were being carried out to deal with those diseases at the national level. If a prisoner had full-blown AIDS, he was transferred to the relevant medical facilities in a hospital. There was a medical monitoring plan for persons with HIV/AIDS that was being carried out in conjunction with the World Bank. Also, in conjunction with the Global Fund and other partners, awareness-raising programmes were being carried out, including for prisoners. For prisoners with tuberculosis, a programme to promptly identify such cases and to treat them was currently being carried out in all detention facilities. Staring 2003, prisoners with tuberculosis received special care in designated facilities. Since then, the rate of tubercular infection among prisoners had fallen by 2.7 times.
__________
For use of the information media; not an official record
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