HUMAN RIGHTS COMMITTEE CONTINUES REVIEW OF REPORT OF UKRAINE

Human Rights Committee
73rd session
16 October 2001
Morning




Government Delegation Queried on Extent and Standards for
Detention;Restriction of Rights During States of Emergency



The Human Rights Committee continued its consideration this morning of a fifth periodic report of Ukraine, asking an eight-member Government delegation about the extent of pre-trial or preventive detention and the rules governing such detentions, and also questioning the legal restriction of certain rights and freedoms under states of emergency.

Ukrainian Government representatives said, among other things, that detention was carried out by bodies conducting pre-trial enquiries under the office of the prosecutor, the security services, the Ministry of Internal Affairs, and the tax police; that detention could be for up to 72 hours, after which an extension had to be sought in court for an extension of up to two months; and that further detention could be authorized after an investigation. A separate procedure allowing extension of detention from 72 hours to 10 days appeared to violate Constitutional provisions and the Ukrainian Ombudsman's office was considering formally challenging the provision.

There was a clear list of conditions under which states of emergency could be introduced based on a Presidential decree which then had to be approved by Parliament within two days, the Government delegation said. The list was based on cases where there were threats to the lives and health of citizens or to the existence of the Government. Certain rights and freedoms were restricted under such decrees, but these restrictions did not violate the International Covenant of Civil and Political Rights, the delegation contended, as in such situations the threat to citizens and their human rights was greater than any abrogation of rights necessary to face it. There was a clear list of what rights could be restricted at such times.

Discussion during the morning meeting also covered the general topics of freedom of movement; privacy; the freedoms of thought, conscience, religion, opinion, expression, and assembly; the family and the rights of the child; and participation in the conduct of public affairs.

The Ukrainian delegation, led by Olexander Paseniuk, Deputy State Secretary of the Ministry of Justice, presented the report on Monday and began to field questions from the Committee's 18 members. Ukraine, as one of 148 States parties to the International Covenant on Civil and Political Rights, is required to provide periodic accountings to the Committee on efforts to implement the Covenant's provisions.

The Committee will reconvene at 3 p.m. to conclude its review of the report of Ukraine, after which it will meet in private.


Discussion

The Ukrainian delegation answered a series of questions put by Committee members following the initial debate on Tuesday on the general topics of the country's Constitutional and legal framework; non-discrimination; gender equality; the right to life; prohibition of slavery; detention and imprisonment; and prohibition of torture. It went on to answer a collection of written questions submitted by the Committee in advance and covering the general subjects of freedom of movement; privacy; the freedoms of thought, conscience, religion, opinion, expression, and assembly; the family and rights of the child; and participation in the conduct of public affairs.

Ukraine had a hierarchy for legislative acts, the delegation said; the highest level was the Constitution, followed by various legislative codes, and then various legal, normative acts issued by the Government, the President, ministries, and departments. International treaties, once ratified, were on an equal footing with Ukrainian laws and could be directly applied in the courts; under the country's 1996 Constitution, the standards of international treaties were not given primacy over national laws. However, there was a Government standard that international laws took precedence over national laws.

Religious minorities, under article 35 of the Ukrainian Constitution, were entitled to freely practice their religions, the delegation said; in addition there was a law ensuring freedom of conscience and religion and stating that all Ukrainians were equal before the law regardless of their religious convictions. There was virtually no religious discrimination in the country. The number of Muslims in the Ukraine had increased following the return of many Crimean Tartars.

Census data from 1989 showed over 100 nationalities in the country, the delegation said. Ukrainians made up roughly 73 per cent of the population; Russians 22 per cent; Jews 0.9 per cent; Belorussians 0.9 per cent; and the many other minorities accounted for still smaller percentages. The President had created a council for national minorities; the Ombudsman also paid keen attention to the situations of minorities. There was a law that protected the use of minority languages. The Government paid a good deal of attention to the country's 48,000 Roma, as did the Ombudsman; the number of complaints received by this official indicated there were problems affecting the Roma, particularly economic and job-related. Similarly, there were employment problems for the Tartars who had returned to the Crimean Autonomous Republic. In this year's budget a special appropriation had been made to improve the employment situation of the Tartars. There were some 262,000 Tartars in the Ukraine; over 90 per cent were citizens; the fact that all were not reflected the fact that many had returned from other Central Asian republics and had not yet given up their previous nationalities.

Detention was carried out by bodies carrying out pre-trial enquiries in the office of the prosecutor, the security services, the Ministry of Internal Affairs, and the tax police. Detention could be for up to 72 hours; during this period, approval had to be given for the detention; from the moment of detention, a person was entitled to a legal advocate, with payment covered by the State if the detainee was poor. The Prosecutor's Office maintained constant monitoring of detention centres, and persons were often freed when it was determined that there was no reason to hold them -- 28,000 people in one recent year were liberated in such a manner. Interrogators had to be in contact with the prosecutor; considering the materials provided him, the prosecutor decided whether to bring a case or not; without sufficient evidence that such a person had committed a crime, the detainee was released. Relatives or close associates of a person under suspicion, or his lawyer, could appeal such detentions to the prosecutor or to the court. If the prosecutor concluded that the person had committed a serious crime and was likely to commit another crime, or that there was a need to collect further evidence, then the prosecutor had to apply to the court for authorization of further detention.

Before July 2000, the prosecutor was empowered to make such decisions on his own; after that time the power lay with the court.

A court could authorize further detention or could free a suspect pending trial, the delegation said. If the slightest right of a detainee was violated, the court could not authorize further detention. If authorized, detention could be extended to two months from the original 72-hour period. If sufficient information was not obtained in that time, an investigator could go before the prosecutor to seek an extension, and the request had to be investigated.

Ukraine was a young State, the delegation said, and setting up a new justice system had been complicated; crimes that required a great deal of investigation were often transnational in character; and in those cases investigations often took a long time and required extended detention of a preventive form. Specific units within the prosecutor's office looked into complaints against, for example, the police; although complaints were handled by the prosecutor's office, the units that reviewed them were separate from the rest of the office. Some 8 per cent of detainees were released, either for reasons of violation of procedure or because it was determined that there was no reason to hold them.

The Ministry of the Interior, and its security services, had detention cells, the delegation said, but the prosecutor's office could order detainees held in other locations if it was suspected that maltreatment had occurred. Anyone who maltreated a detainee was criminally liable, and there had been cases in which such charges had been brought to court. A preventive measure had been decreed by the President in 1994 for preventive detention of up to 30 days if investigatory bodies determined that the person concerned might commit an offense that could cause considerable damage to the interests of citizens or the State, but that decree lost force when the 1996 Constitution was adopted. Conditions of detention could be appealed by detainees or their legal counsel.

The Ombudsman's office had received complaints about pretrial detention and about conditions of detention, the delegation said; under an administrative procedure rule, and in apparent violation of the Constitution, detention could be extended from 72 hours to 10 days, and the Ombudsman's office was considering bringing a formal challenge to this procedure.

There were cases of bullying in the army, the delegation said; the problem dated from the Soviet era and the Government and military prosecutor were trying to end the custom. Bullying that amounted to criminal behaviour led to the filing of criminal charges.

There was a clear list of conditions under which states of emergency could be introduced, the delegation said. The list was based on cases where human rights had been or could be violated -- where there were threats to the life and health of citizens or to the existence of the Government, uch as overthrow of the State. A state of emergency could be decreed by the President, but had to be adopted within two days by Parliament. A state of emergency could cover the entire State or any smaller amount of territory; a state of emergency could last for up to 30 days for the entire country and up to 60 days for small regions; such states could be ended sooner, of course, by Presidential decree. Certain rights and freedoms were restricted under these decrees, but these restrictions did not violate the International Covenant of Civil and Political Rights, as in such situations the threat to citizens and their human rights was greater than any abrogation of rights necessary to face it. There was a clear list of what rights could be restricted at such times.

Ukraine currently had no law on asylum, although a bill was being considered to that effect, the delegation said. Refugee status was regulated by a special law which stated that refoulement could not be compulsory to countries where a refugee might face discrimination. A foreigner could leave Ukraine voluntarily at any time, provided he had not committed a crime and was being held for trial; to enter Ukraine, a foreigner needed a visa whose time limit had to be respected. A law set out various terms under which a foreigner could be expelled, most of them relating to threats to the well-being of the Ukrainian people or State; orders for expulsion could be appealed.

Restrictions on freedom of opinion and expression could be enforced based on certain threats, such as to public order or well-being, the delegation said, although in general terms the 'opposition' press was not affected. Similar restrictions could be imposed on freedom of assembly and association, although such restrictions did not have any effect on peaceful demonstrations.

Restrictions could be imposed on political activity and political parties that threatened to undermine the State or its authority or threatened to stir up ethnic hostility or damage public welfare, the delegation said.




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