Implementation of the provisions of the International Covenant on Civil and Political Rights
Last year, Ukraine reported to the UN Human Rights Committee. Based on the results of the report’s consideration, the Committee obliged Ukraine to provide answers to certain questions in the recommendations within one year.
Below is a fragment of the Ukrainian side’s commentary regarding the Concluding Observations of the Human Rights Committee
Commentary of the Ukrainian side regarding the Concluding Observations of the Human Rights Committee
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1. Ukraine is tirelessly making efforts to bring its national legislation into compliance with international human rights standards. According to the Constitution of Ukraine, the Law of Ukraine ‘On the Prosecutor’s Office’, and the orders of the Prosecutor General of Ukraine, prosecutors at all levels exercise constant supervision over the observance of laws during the execution of court decisions in criminal cases, as well as during the application of other coercive measures related to the restriction of citizens’ personal liberty.
2. To ensure regular oversight of all pre-trial detention and penal institutions, interviews with convicted persons regarding personal matters are conducted once a month, and decisions made by the administration of penitentiary institutions are reviewed for compliance with the law. Article 24 of the Criminal Executive Code of Ukraine defines the list of persons who have the right to visit penal institutions without special permission for the purpose of monitoring. Prosecutors are required to hear complaints from detained and imprisoned persons regarding the violation of their rights and freedoms and to investigate such cases. In accordance with Article 25 of the aforementioned Code, supervisory commissions are created to ensure public control over the observance of the rights of convicts during the execution of criminal sentences.
3. Regarding the case of a 36-year-old man beaten to death in the city of Zhytomyr on 7 April 2005, the Zhytomyr Region Prosecutor’s Office initiated a criminal case against citizen Yu. on the fact of murder in accordance with Clause 1 of Article 115 of the Criminal Code of Ukraine.
4. According to the preliminary investigation protocol, on 6 April 2005 at approximately 22:50, Inspector P. of the Zhytomyr City Department of the Ministry of Internal Affairs in the Zhytomyr region handed over citizen Yu., who was in an intoxicated state, to the duty station of the department along with a protocol on an administrative offence, provided for by Article 173 of the Code of Administrative Offences of Ukraine. Citizen Yu. was placed in pre-trial detention cell No. 2 of the duty station of the Zhytomyr City Department of the Ministry of Internal Affairs. The health condition of citizen Yu. deteriorated significantly between 1:00 and 6:00 on 7 April 2006. Inspector P. and the duty officer K. decided that citizen Yu. was faking illness and inflicted bodily injuries on him in the form of bruises and abrasions on his chest, fractures of the left and right ribs, as well as damage to the lungs, which caused the death of the detainee in the duty station of the Zhytomyr City Department at 7:35 am on 7 April.
5. On 27 April 2005, the criminal case against citizens K. and P. was transferred to the Bohunsky District Court of Zhytomyr for trial on the merits in accordance with Clause 2 of Article 121 and Clause 3 of Article 365 of the Criminal Code of Ukraine. A judicial investigation is ongoing.
6. In the case of a man beaten to death in the Kharkiv SIZO on 17 December 2005, the Prosecutor’s Office of the Zhovtnevy district of Kharkiv initiated a criminal case against the SIZO medical staff on 22 December 2005 for the improper performance of their professional duties, which led to the death of the detainee.
7. According to the pre-trial investigation protocol, the detained citizen M. was sent to the medical unit of the SIZO on 29 November 2005 due to diagnosed hypertensive vegetative-vascular dystonia, which was accompanied by loss of consciousness, falling out of bed, as well as spatial disorientation when moving around the cell. On 17 December 2005, citizen M. died in the medical unit of the Kharkiv SIZO due to craniocerebral trauma and meningitis, which began four to five days before his death, causing severe vomiting and the entry of vomit into the respiratory tract. According to the findings of the forensic medical examination, the actions of the medical staff of the Kharkiv SIZO were timely, comprehensive, and appropriate.
8. Following the results of the pre-trial investigation, the criminal case was closed on 29 May 2007 in accordance with Part 2 of Article 6 of the Criminal Procedure Code. There are no grounds for changing the decision to close the criminal case.
9. Regarding the death of Mykola Zakhadkhevsky in the SIZO in April 2004, it should be noted that the Department for Monitoring the Execution of Court Decisions of the Kharkiv SIZO has no records of such a person. Moreover, in 2004, not a single fatal incident occurred in the institution.
10. In accordance with Article 85-2 of the Criminal Procedure Code of Ukraine, inquiry bodies, investigators, and prosecutors have the right to use video recording when conducting investigative actions. Representatives of the Prosecutor General’s Office believe that such video recordings can be used constantly when conducting investigations regarding suspects, which, in their opinion, could reduce the number of cases where suspects retract their testimony.
11. In recent years, the Government of Ukraine has taken several steps to support human rights within law enforcement agencies, namely:
• In October 2004, the position of Advisor to the Minister of Internal Affairs of Ukraine on Human Rights and Gender Issues was introduced;
• In December 2005, a Public Council on Human Rights was established under the Ministry of Internal Affairs of Ukraine; similar councils were established under the regional departments of the Ministry. Public councils are collegiate bodies where representatives of civil society and law enforcement agencies jointly identify the most pressing problems related to human rights and the activities of internal affairs agencies, as well as develop strategies to overcome such problems;
• In August 2006, mobile groups for monitoring the observance of constitutional rights and freedoms of citizens were created to conduct independent inspections of places of detention regarding detained and imprisoned persons; such groups are a unique tool for ensuring public oversight of the activities of internal affairs agencies in Ukraine. Mobile groups are considered a national preventive mechanism, which is called for by the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• In January 2008, the Department for Monitoring Human Rights Observance in the Activities of Internal Affairs Agencies was established in the Apparatus of the Ministry of Internal Affairs of Ukraine to create a system of internal oversight over the observance of human rights in the work of internal affairs agencies in accordance with international law enforcement standards.
12. It should be noted that on 7 May 2008, the Law of Ukraine ‘On Amendments to the Criminal and Criminal Procedure Codes of Ukraine regarding the Humanisation of Criminal Responsibility’ entered into force.
13. In accordance with the indicated amendments and additions, torture is punishable by imprisonment for a term of three to five years and is defined as ‘Torture, that is, the intentional infliction of severe physical pain or physical or mental suffering through the infliction of beatings, torment, or other violent acts for the purpose of forcing the victim or another person to commit acts that are contrary to their will, including obtaining information or a confession from them or another person, or for the purpose of punishing them or another person for acts committed by them or another person or in the commission of which they or another person is suspected, as well as for the purpose of intimidation or discrimination against them or other persons’.
14. Such a definition of torture is in line with Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
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15. Today, 407 (84%) temporary detention centres comply with established requirements. Cells are equipped with separate beds, washbasins, and windows through which sufficient natural light and air enter. Detention centres have exercise yards. Detainees receive food three times a day, which is provided at the expense of the state. Eighty institutions were closed for capital repairs. Medical assistance to persons in pre-trial detention is provided by 29 medical units and 3 first-aid points, where there is a 9% shortage of medical personnel.
16. Additional information: as of 1 January 2008, there were 535 special militia institutions, including 487 temporary detention centres where up to 9,800 persons could be held, 36 facilities for detention and processing with 1,300 places for persons detained for vagrancy, and 12 special detention facilities with 390 places for persons under administrative arrest. According to the Ministry of Internal Affairs of Ukraine, 6,300 persons are held in such facilities daily.
17. However, the state of observance of citizens’ constitutional rights in pre-trial detention institutions gives rise to concern, as 103 detainees died in them over the past year, while the overall average number of persons held in such institutions has decreased. Almost half of all deaths occurred in the detention centres of Kyiv and Donetsk.
18. Circulatory diseases and respiratory diseases were the cause of 44.2% of deaths in pre-trial detention centres and 64% in penal institutions.
19. Poor conditions of detention and medical care, inadequate funding, and the overcrowding of pre-trial detention institutions (for example, in Donetsk, Kyiv, Simferopol, and Kherson) are additional causes of fatal illness outcomes among detainees.
20. There were observed cases of terminally ill tuberculosis patients who died 10 days after hospitalisation due to delayed referral for treatment. The Law of Ukraine ‘Fundamentals of the Legislation of Ukraine on Healthcare’ provides for the provision of medical assistance in places of detention, taking into account international experience in this field.
21. The World Bank project ‘Control of Tuberculosis and HIV/AIDS in Ukraine’ is being implemented to prevent the spread of HIV/AIDS and tuberculosis and to ensure adequate treatment in penal institutions.
22. The project is aimed at addressing the issue of the tuberculosis and HIV/AIDS epidemic in Ukraine through support for the National Programme for Tuberculosis Control in Ukraine, developed in accordance with international standards, and the National Programme for Prevention of HIV Infection, Care, and Treatment of HIV-infected and AIDS patients for 2004–2008. The programme consists of three components: tuberculosis, HIV/AIDS, and penal institutions.
23. The sub-component of the programme regarding tuberculosis in penal institutions concerns four areas: development of institutional and technical capacity; diagnostics; monitoring; and treatment.
24. The sub-component of the programme regarding AIDS focuses on preventive measures for persons living with HIV infection and strengthening national capacity.
25. The total funding for the component related to penal institutions amounts to 9.9 million USD.
26. The Government of Ukraine signed a Memorandum of Understanding with the World Health Organization regarding the prevention, diagnosis, and treatment of tuberculosis, and also introduced advanced methods recommended by the WHO and optimal programmes for fighting this disease.
27. As of 1 January 2008, 104 special wards in municipal tuberculosis treatment facilities with 400 beds were allocated for law enforcement agencies. Every day, 150 to 200 patients receive treatment in such wards under the supervision of law enforcement officers. In 2007, 680 patients received treatment.
28. It should be noted that in 2007:
• in specialised departments of the Academy of Postgraduate Education for the penitentiary system, training was provided for 121 medical staff and approximately 300 nurses, who received qualifications and certificates of completion of training in accordance with the law;
• 113 HIV-positive prisoners received intravenous medication, which is twice the 2006 figure. As of 1 January 2008, 5,017 prisoners out of a total of 150,000 held in 181 institutions of the State Penitentiary Service were registered as HIV-positive;
• 215 persons received treatment in the infectious diseases department of the Darivska Penal Colony No. 10 in the Kherson region, which is 35% more than in 2006;
• the introduction of a number of disease control measures helped prevent outbreaks of intestinal infections, measles, influenza, and acute respiratory viral infections;
• a computer programme for the diagnosis of infectious diseases and epidemiological monitoring was introduced;
• a draft law was prepared on amendments and additions to certain legislative acts of Ukraine regarding patients suffering from active tuberculosis, to improve the prevention and treatment of imprisoned persons;
• an infectious diseases department for prisoners suffering from HIV/AIDS was created in the Donetsk region;
• the State Penitentiary Service created wards in 11 specialised medical institutions for the inpatient treatment of prisoners serving life sentences;
• the Kherson regional anti-tuberculosis dispensary created a ward for the treatment of tuberculosis patients serving life sentences;
• all medical institutions are equipped with ultrasound diagnostic machines and new X-ray machines. Replacement of medical equipment used in penal institutions has begun;
• planned repairs were carried out on all medical facilities and medical units of institutions and pre-trial detention centres of the State Penitentiary Service of Ukraine;
• repair and construction work was carried out on 45 facilities, including the ongoing construction of 14 new temporary detention centres, the restoration of 18 institutions, and capital repairs to 13 facilities for a total sum of 28 million UAH; the reconstruction of the Storozhynets District Department of the Ministry of Internal Affairs of Ukraine in the Chernivtsi region and capital repairs to the temporary detention centre of the Tsyurupynsk District Department of the Ministry of Internal Affairs of Ukraine in the Kherson region were completed.
29. Construction of the new temporary detention centre of the Stakhanov City Department of the Ministry of Internal Affairs of Ukraine in the Luhansk region and the restoration and capital repair of 12 facilities in the Zhytomyr, Ivano-Frankivsk, Kyiv, Lviv, Rivne, and Sumy regions and the city of Kyiv were scheduled to be completed in the first quarter of this year. Two facilities in the Autonomous Republic of Crimea and the Kyiv region were scheduled to be completed in the second quarter of this year, and the temporary detention centre of the Novohrad-Volynskyi City District Department of the Ministry of Internal Affairs of Ukraine in the Zhytomyr region – in the third. In total, it is envisaged to complete the repair and construction of 16 facilities.
30. Approximately 30 million UAH was allocated for the construction and repair of 35 special militia facility objects in 2008.
31. It should be noted that in accordance with the requirements of the Prosecutor General’s Office, prosecutors are conducting comprehensive inspections of special institutions of the internal affairs agencies and the State Department for the Execution of Punishments. As a result of such oversight in 2007, 5,055 complaints were reviewed (compared to 4,812 complaints in 2006), 13,498 cases of prosecutorial intervention were documented (11,812), disciplinary measures were applied to 9,950 officials (9,114), criminal cases were initiated in 344 cases (286), 295 illegally detained persons were released from special institutions of internal affairs agencies, and 89 persons were released from penal institutions where they were being held illegally.
32. In order to bring the conditions in which prisoners and detainees are held into compliance with international standards, the Government of Ukraine approved the State Programme for Improving Conditions for Convicted Persons and Persons Taken into Custody for 2006–2010 in 2006.
33. The main goals of the programme: improvement of the system of organisational and legal support for the functioning of the State Penitentiary Service; bringing the conditions of detention, medical-sanitary, and domestic support for convicts and persons taken into custody into compliance with legislative requirements; strengthening the material and technical base of educational institutions; facilitating the activities of State Penitentiary Service enterprises; updating and maintaining in good condition engineering support facilities, and engineering and technical means of security and communication.
34. The implementation of these measures provided for by the programme will help to improve the conditions for convicts and detainees.
35. It should be noted that in the last three years, cooperation with non-governmental organisations has intensified. Various non-governmental organisations visited institutions of the State Penitentiary Service 6,168 times in 2005, 8,227 times in 2006, and 9,467 times in 2007.
36. International organisations also show growing interest in cooperating with institutions of the State Penitentiary Service. Over the last three years, members of international organisations alone have visited such institutions 845 times, including 145 times in 2005, 233 times in 2006, and 467 times in 2007. 37. The number of inspections of the bodies and institutions of the State Penitentiary Service by various monitoring agencies has increased significantly, as has the number of visits by representatives of foreign States, religious and non-governmental organisations, and the mass media.
38. To humanise and improve the conditions of detention for detainees, amendments were made to the Law of Ukraine ‘On Pre-trial Detention’ to improve the legal status of detainees and the conditions of their detention. This includes the cancellation of some disciplinary punishments that were imposed on prisoners, such as the deprivation of the right to purchase food and receive parcels for a month. Efforts are also being made to ensure adequate access to legal literature for persons held in pre-trial detention centres, including the interpretation of certain constitutional and legal provisions.
39. The Law of Ukraine ‘On Amendments and Additions to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding the Humanisation of Criminal Responsibility’ provides for the mitigation of punishment for minor offences and for certain categories of citizens.
40. This Law will facilitate the effective implementation of state policy on the execution of sentences and will bring the order and conditions of sentence execution into compliance with international standards in accordance with the European Prison Rules.