禁止酷刑委员会审议乌克兰的报告

禁止酷刑委员会

2014年11月6日

禁止酷刑委员会今日结束审议乌克兰关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》条款情况的第六次定期报告。

来自乌克兰司法部的欧洲人权法院政府代理人娜塔莉亚·瑟诺斯蒂安诺娃（Natalia Sevostianova）介绍了报告，她表示，2012年的刑事诉讼法载有平等保护权、辩护权保障和可受理证据的明确标准，该法律摧毁了惩罚的范式。2014年3月，政府通过了部长内阁活动方案，旨在确保人权保护和2011年引入的免费法律援助机构。乌克兰采取了一切可能措施来确保被俄罗斯占领和兼并地区的基本权利和自由，乌克兰还对虐待、酷刑、绑架或死亡事件开展了调查。

委员会专家对该国控制领土外发生酷刑和虐待行为的报告表达了关切，并对解决这些行为和确保遵守国际义务的措施提出疑问。专家们对新的刑事立法表示欢迎，但对其条款无法得到系统性的落实和拘留场所的严重程序违规现象表示担忧。他们还提到了警察暴力、审前拘留和被拘留者遭到72小时以上违规关押的独立投诉机制存在情况、单独监禁的法律机制、去年拘留中死亡和自杀案件大幅增长的问题。被拘者健康状况受到了关注，专家们强调，狱中健康恶化可以被认为是虐待行为。

瑟诺斯蒂安诺娃女士在总结发言中向委员会致谢，并希望乌克兰不会对占领和侵略背景下的每一起酷刑行为无所作为。

委员会主席克劳迪奥·格罗斯曼在总结发言中感谢代表团向昨天和今天的审议提供了信息并作出贡献。

乌克兰代表团包括司法部、内政部、国家监狱部门和乌克兰常驻联合国日内瓦办事处代表团的成员。

委员会的下一次公开会议将在11月7日（周五）下午3点举行，届时将继续审议委内瑞拉的第三和第四次合并定期报告（CAT/C/VEN/3-4）。

报告

乌克兰的第六次定期报告CAT/C/UKR/6可在此查看。

Presentation of the Report

NATALIA SEVOSTIANOVA, Government Agent for the European Court of Human Rights, Ministry of Justice of Ukraine, introducing the report, said that Ukraine was a strong country with a powerful civil society and the power to choose its own destiny. The new Criminal Procedure Code had been adopted in 2012, which with the equal right to protection, guarantee of the right to defence and the clear criteria for admissibility of evidence had destroyed the punishment paradigm. In March 2014, the Government had adopted the programme of activities of the Cabinet of Ministers aimed at securing the protection of human rights on the principles of the rule of law and openness and transparency of public authorities, including ensuring the effectiveness of justice, reform of law enforcement agencies, full and comprehensive investigation of the crimes related to the mass protests from November 2013 to February 2014, and adoption of legislation. Ukraine had in 2011 adopted the law on legal aid which had introduced the institution of legal aid, while in 2013 the list of categories of persons entitled to secondary free legal aid had been significantly expanded. A draft law improving the principles of organization and functioning of the judiciary in accordance with European standards had been prepared and would soon be submitted to the Venice Commission, while the Council for Judicial Reform, established as an advisory body to the President of Ukraine, would implement the Strategy for Sustainable Development of Ukraine 2020 with the purpose of developing and implementing the strategy for the reform of judicial organization and procedure and the reform of other legal institutions. In October 2014, a Presidential decree had been issued mandating the creation of the national human rights strategy.

Concerning the events in Crimea and Eastern Ukraine, Ms. Sevostianova said that the occupation of the territory of the autonomous Republic of Crimea by Russia and the annexation of part of the Ukrainian territory represented not only a gross violation of international principles but also a major humanitarian challenge. Citizens suffered systematic violation of their fundamental human rights and freedoms and were forced to change citizenship, while the human rights situation of prisoners and convicted persons was particularly challenging. Ukraine was taking all possible measures to ensure fundamental rights and freedoms in the occupied and annexed territories, including in the Donbas and Luhansk regions, and was conducting investigation of all the facts of ill treatment, torture, abduction or death. Three cases had been lodged with the European Court of Human Rights against Russia mentioning each and every fact of their military activity on the territory of Ukraine with all necessary evidence.

Questions by the Country Rapporteur

CLAUDIO GROSSMAN, Committee Chairperson and Country Rapporteur, took up the issue of the definition of torture, which in the legislation of Ukraine referred to “violent acts”, and asked the delegation to provide information about explanations in the jurisprudence of what constituted violent acts, the current definition of discrimination in the law and practice, and the application of prescribed punishment for acts of torture and how it compared with penalties for other offences. According to credible reports, torture and ill-treatment were taking place in places of detention in Crimea and the delegation was asked about the measures in place to ensure full compliance with the obligations of Ukraine in all of its territory, including a register of instances of torture and documentation of those instances. Amnesty International had reported over 500 acts of torture and ill-treatment in the areas not under effective control of the Government and Mr. Grossman asked what was being done to address those.

What concrete measures were being adopted to provide internally displaced persons with assistance, reparation and rehabilitation?

Some of the new provisions of the Criminal Code had not been systematically applied and there were serious procedural breaches in places of detention, which circumvented the new positive rules established by the legislation, the Committee Chairperson noted and asked whether there existed a uniform national register of detainees and whether any person had been investigated and sentenced for the breach of the provisions of the new law.

Mr. Grossman commended Ukraine for the establishment of free legal aid and asked for further information about the system, how it functioned, the funding provided and the number of persons who received this legal aid.

Turning to the issues related to detention, the Committee Chairperson asked about the evolution of pre-trial detention and the existence of an independent complaint mechanism accessible to persons detained beyond the prescribed 72 hours; the process to ensure that charges and grounds for detention were communicated in a language a detainee understood; and the way that families were informed about the detention. Could the delegation describe the legal regime concerning solitary confinement, comment on the increase in death in detention over the last year and the increased suicide rates, and inform the Committee about action taken to address the reported acts of violence against lawyers and about plans to reform the system of administrative detention?

Concerning the situation of migrants, the Chairperson recalled the 2008 “Operation Migrant” and asked what was being done to ensure that such actions did not have a negative impact on the creation of racial stigma. The Committee had determined that undocumented aliens could not be held in prisons and asked about the process for refugee determination, dormitories for migrant children and the system in place allowing migrants to challenge their detention.

Other issues raised with the delegation included the use of the Istanbul Protocol for training of doctors and lawyers, the existence of a national preventive mechanism and whether it could assist in reducing the number of deaths in prisons, the need for independent investigations of all sorts, and the steps to combat xenophobia and racial or ethnic intolerance, violence and discrimination. The Committee placed great importance on issues of domestic violence and the delegation was asked about the ongoing campaign against this phenomenon, the incidence of domestic violence in the country and the measures taken to address it. What measures were taken to address military hazing and to train the military in international humanitarian law? What was the situation of lesbian, gay, bisexual and transgender persons, including those who had to flee Eastern Ukraine, and what were the statistics on homophobic attacks?

Questions by the Committee Experts

Concerning complaints for torture and ill-treatment received by the Procurator’s office and the high number of deaths due to police brutality, a Committee Expert noted that this indicated a high level of violence by the public authorities and asked about steps taken to address those and the incidents of deaths in prison and what was being done to prevent the repetition of acts of torture.

On the implementation of the new prosecutorial system, an Expert asked how it was compatible with the old system. The Expert also requested the delegation to explain the system of judicial self-governance and security of tenure and asked whether the legal system in the country was monist or dual.

Concerning judicial power and integrity and the ongoing judiciary reform, another Expert noted the criticism of the power of the magistrates and wondered whether the reforms would be successful in addressing this anomaly, and also the anomalies in the police force concerning the use of physical force. Sometimes the detention of asylum seekers went beyond a reasonable time frame, while the absence of juvenile justice impeded the addressing of the phenomenon of violence against children.

The deterioration of health while in prison was not part of a sentence and could amount to ill treatment. There were reports about the increase of deaths in prison over the past 10 years, including in 2014, and the suicide rates over the same period had tripled; rates of HIV/AIDS were quite high. The delegation was asked about the procedure to establish the health status upon arrival at the prison, access to anti-retroviral therapies, reporting of possible cases of ill-treatment and torture and the training of medical doctors in prisons on the provisions on the Istanbul Protocol.

Another Committee Expert took up the issue of the territory outside of the control of the Government and asked about its ability to document the events taking place in those territories, to investigate those events and punish those responsible? What were the results of investigations on the Odessa fire, what was the status of the return of the prisoners of war to Russia and what steps were being taken to ensure that reported abuses by Ukrainian armed forces were investigated? Was the Government able to ascertain who were the individuals found in mass graves outside Donetsk and Slavyansk, whether they were civilians or combatants?

CLAUDIO GROSSMAN, Committee Chairperson, asked about the system of psychiatric care, the juvenile justice system in the country and the access of Roma children to quality education.

Replies by the Delegation

In response to the questions asked by the members of the Committee, concerning the definition of torture, the delegation said that there was a provision in the Criminal Code for violent acts for purposes of extracting a confession which carried the penalty of deprivation of liberty for two to five years. The sanction of deprivation of liberty for five to ten years was awarded for violent acts by a group of persons on the ground of religious or ethnic intolerance. The Criminal Code also defined the rights of victims to compensation and prescribed inadmissibility in court of any confession or evidence obtained as a result of violent acts. In 2013, a total of 1,031 claims for various human rights violations had been lodged with the authorities, including 194 for physical harm. The authorities had received in 2012 a total of 82,00 claims for domestic violence, while 85,000 had been filed in 2013; 219 criminal cases of domestic violence had been investigated in the first eight months of 2014.

The law on criminal procedure had been adopted in 2013 and set out the rules on taking individuals in custody, including recording the time of arrival to the place of custody, information about grounds for detention in a language understood by detainee, access to medical care and informing the family. There was a register of interpreters in place to assist the police in translation work. An investigating judge, who was a part of the process, had the right to verify the legality of detention of any person and could order immediate release if a violation of the human rights occurred during the custody. Over 9,000 persons were held in custody this year, of which 39 had been released because of procedural breaches. Administrative detention could not last longer than three hours for violations of the Administrative Code, and not longer than 72 hours without judicial ruling.

In total, there were 27 centres for the provision of free legal assistance in the territory of Ukraine; unfortunately, centres were not functional in the Autonomous Republic of Crimea; in Donetsk and Luhansk regions they were operational in the parts of the territory under the control of the State authorities. The authorities had opened 27 procedures for criminal acts against journalists during the period November 2012 to February 2014, such as theft, hooliganism, bodily harm and even death.

The draft law on the judiciary and the status of judges, elaborated in cooperation with civil society, contained a package of reforms and aimed to increase the effectiveness of the judicial system and remove corruption; it also provided for the establishment of a mechanism to hold judges accountable. One third of judges and 70 per cent of the staff employed in the sector were women. Decisions of the European Court for Human Rights were directly applicable in Ukraine.

The law on refugees aimed to bring legislation closer to European standards and upheld the principle of non-refoulement. The Cabinet of Ministers had adopted an Integration Plan for Refugees and Persons Requiring Protection up to 2020. Alien children could request a shelter in the so-called dormitories. A new package of laws in the migration area had been adopted and it was now the State Migration Services that were in charge of the examination of asylum requests; 1,093 such requests had been received since 2013.

The number of detainees had been halved between 2010 and 2012, due to changes in the legislation and the amnesty laws. Twenty-two hospitals provided care to prisoners, including 10 for tuberculosis; some 3,500 persons received treatment annually. HIV/AIDS was the leading cause of death among prisoners, with 157 casualties in 2013. To reduce tuberculosis-related morbidity and mortality rates of detainees, the Government had extended access to high quality services for the prevention and treatment of the disease, with support from the Global Fund, and had also reduced the number of persons in pre-trial detention. Over the past 15 years, the number of persons suffering from tuberculosis had been reduced by a factor of four. The situation was more complex when it came to HIV/AIDS, where consultations were voluntary and diagnosis was made late. Some reduction in the number of suicides had been recorded, but the delegation recognized that more needed and could be done in this regard.

A national preventive mechanism against torture had been established and the Ombudsman verified about one third of detention facilities in the country; as a result of those visits a white book had been produced that set out the problems in the State penitentiary system. One of the problems raised was the lack of separation between different categories of convicts, which at the moment fuelled violence and attacks. In cooperation with the Ombudsman, the Government was able to evacuate 172 women held in the detention facility in Colony N° 54 in the occupied Harkov region, but there were more prisoners in facilities in the occupied territories that needed to be evacuated. An investigation into the violation of children in the Dubinsk juvenile colony had been carried out and the main perpetrators had been punished. Ukraine was in the process of revising internal rules and regulations for the penitentiary system which would inter alia increase cooperation with social institutions.

The Code of Criminal Procedure required specific conditions for work with juveniles, such as social and psychological help to minors in detention facilities and the prohibition of detention of juveniles except for the most severe reasons; the full-fledged system of juvenile justice was currently being developed.

On discrimination, the delegation said that in 2014, legislation was improved to implement State policy in the area of ethnic cohabitation and the rights of ethnic groups, and an Office of the Ombudsmen on Ethnic Policy had been established. A programme had been put in place to provide health services to the Roma population for the period up to 2015, and measures were being put in place to address discrimination against lesbian, gay, bisexual and transgender persons.

It was hard to exactly define the area outside of the effective control of Ukraine, in which acts of torture and ill-treatment were committed against citizens by illegal armed forces. Three cases had been brought to the European Court of Human Rights, and the number of violations against Crimean Tatars and Ukrainians were on the increase. There were about 200 prisoners in facilities in the occupied territories who came under the amnesty review, but their release was being obstructed by Russia, thus effectively making them hostages. The anti-terrorist operation conducted by the Government had established a control over a part of the occupied territories, which changed on a daily basis. As of today, more than 2,500 cases of abduction by the illegal armed forces had been lodged in the occupied territories; this number changed on a daily basis and all were recorded in a register. All information about human rights violations committed by Russia was being sent to the European Court for Human Rights. Torture was a wide-spread phenomenon among the illegal armed forces.

Further Questions by the Committee Experts

CLAUDIO GROSSMAN, Committee Chairperson and Country Rapporteur, noted with appreciation the efforts of Ukraine to provide answers, including on challenging issues, and asked how many persons were sentenced for torture and ill-treatment and what the penalties were. Mr. Grossman drew attention to the serious protection gap in matters of detention and stressed the obligation of Ukraine to document cases of torture and ill-treatment in all its territory, and so to create conditions for effective investigation and punishment, reparation and guarantees of non-repetition. How many women were in the higher echelons of the judiciary and how many were members of the Supreme Court? There was not much progress in addressing the discrimination of Roma and the absence of Roma representation.

Committee Experts commended Ukraine for its success in addressing tuberculosis and asked the delegation about initial medical examination on admission, who controlled the education of judges, if the juvenile justice system was in line with international norms, and about more than 800 missing persons on the list prepared by the High Commissioner for Human Rights.

Further Responses by the Delegation

The delegation said that the international airport of Donetsk was under the control of the Ukrainian military and it suffered from continuous shelling by the terrorists. Initial medical examinations upon arrival were mandatory, but consultations for HIV/AIDS were voluntary. Concerning compensation for harm and losses due to anti-terrorist operations, the delegation said that those social benefits would be delivered once effective control of the territory was established.

The Government took upon itself to respect its human rights obligations and to fight negative practices of the administration, and already saw positive changes even in the difficult situation the country found itself today.

Concluding Remarks

CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for the information provided and the contribution to the review yesterday and today.

NATALIA SEVOSTIANOVA, Government Agent for the European Court of Human Rights, Ministry of Justice of Ukraine, thanked the Committee against Torture and hoped it would not fail to respond to a single act of torture committed in the context of occupation and aggression.


________________

For use of the information media; not an official record