Concluding observations of the Committee against Torture : Ukraine. 05/01/1997.
A/52/44,paras.122-152. (Concluding Observations/Comments)

Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE


CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION


Conclusions and recommendations of the Committee against Torture



G. Ukraine



122. The Committee considered the third periodic report of Ukraine (CAT/C/34/Add.1) at its 283rd, 284th and 287th meetings, on 29 April and 1 May 1997 (CAT/C/SR.283, 284/Add.1 and 287), and formulated the following conclusions and recommendations.

1. Introduction

123. The Government of Ukraine submitted its third periodic report in due time, in accordance with article 19, paragraph 1, of the Convention.

124. The Committee expresses its satisfaction with the report, which, in the main, conforms to the general guidelines concerning the presentation and content of such reports.

125. The Committee heard comments on and clarifications of the report by the representatives of Ukraine.

126. Following its consideration and discussion of the report, the Committee noted the following.

2. Positive aspects

127. A positive aspect of Ukraine's compliance with the Convention is the adoption, on 28 June 1996, of its Constitution, article 28 of which prohibits torture.

128. The Committee notes with satisfaction that Ukraine joined the Council of Europe on 9 November 1995 and that it has signed the European Convention on Human Rights and 11 protocols to that Convention. The Committee supports the intention of Ukraine to ratify that Convention.

129. The Committee welcomes the incorporation by Ukraine, in its legislation on the activities of law enforcement bodies, of provisions (such as article 5 of the Act on the Militia and article 5 of the Act on the Security Service) ensuring respect by law enforcement personnel for human rights and freedoms and on the obligation to comply with them.

130. The Committee expresses the hope that the Government will make efforts to bring its legislation and the practices of law enforcement bodies into line with the task of protecting the rights and freedoms of citizens proclaimed by the Convention.

3. Principal subjects of concern

131. The Committee is concerned about the large number of reports by non-governmental organizations of cases of torture and violence committed by officials during preliminary investigations, causing suffering, bodily injury and, in a number of cases, death.

132. The State party lacks a sufficiently effective system of independent bodies capable of successfully investigating complaints and allegations of the use of torture, preventing and putting an end to torture and ensuring that the perpetrators of such acts are held fully responsible for them.

133. The legislation in force fails to provide any effective judicial control of the lawfulness of arrests.
134. Although article 28 of Ukraine's Constitution prohibits the use of torture, its criminal legislation fails to define torture as a distinct and dangerous crime. In the circumstances, this provision of the Constitution is merely declaratory. Provisions on criminal responsibility for the imposition of inhuman and degrading punishment are also lacking.

135. The Committee is seriously concerned about the scale on which the death penalty is applied as being contrary to the European Convention on Human Rights and the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee is also concerned about the large number of provisions in the Criminal Code that envisage the imposition of the death penalty, including an attempt on the life of a militiaman. This situation is contrary to the obligation assumed by Ukraine to introduce a moratorium on the imposition of the death penalty.

136. The Committee considers that the systematic mistreatment and beating of recruits in the armed forces constitutes a flagrant violation of the Convention.

137. The conditions prevailing in premises used for holding persons in custody and in prisons may be described as inhuman and degrading, causing suffering and the impairment of health.

138. A major obstacle in efforts to prevent torture is the difficulty experienced by accused persons in gaining access to a lawyer of their choice in cases where the lawyer's participation in the proceedings depends on his presentation of an authorization to act as defence counsel; this problem can be solved only by the Ministry of Justice which issues such authorizations.

139. The Committee expresses regret that Ukraine has not as yet joined those countries which have recognized the provisions of article 20 of the Convention.

140. The Committee notes that the report contains insufficient information and, in particular, gives no statistical data on the number of persons serving custodial sentences or arrested as a preventive measure, on the number of complaints made regarding the use of torture or on the number of persons prosecuted for that offence. There is also insufficient information about conditions of detention. No details are provided with regard to compensation for persons subjected to torture or their rehabilitation.

141. The Committee is particularly concerned that article 29 of the Constitution of Ukraine has been suspended for five years, especially since the provisions of that article are of great importance in ensuring the observance of the law and preventing the use of torture. The Committee notes the lack of an independent body for monitoring compliance with the Convention in all its aspects.

4. Recommendations

142. The main issue in connection with the fulfilment by Ukraine of the requirements of the Convention concerns the drafting and adoption of directly enforceable regulatory instruments, as only by this means can the provisions of the Convention, and the relevant provision of the Constitution of Ukraine, be applied.

143. Priority should be given to the adoption of a new criminal code, defining torture as a punishable offence, and a new code of criminal procedure, guaranteeing the right of an accused person to counsel at all stages of criminal proceedings, as well as to effective and practical supervision by the courts of preliminary confinement to preclude any use of torture at the stage of detention or arrest or at subsequent stages of criminal proceedings.

144. Another major task is to extend supervision by the judicial and civil authorities over the work of the law enforcement agencies and to establish a system of independent institutions for rapid and effective follow-up of complaints regarding the use of torture and other degrading treatment or punishment.

145. It is highly desirable that the widest possible publicity should be given to the main provisions of the Convention through the press and other media and that practical training in the rules and standards of the Convention should be made available for investigators and the staff of penal institutions.

146. The Committee recommends that interrogation of any person detained or arrested without the participation of defence counsel or when the person is being held incommunicado should be prohibited by law.

147. The Committee considers the 18-month maximum period during which an accused person may be held in custody to be excessive and recommends that it should be reduced.

148. The Committee encourages the Government of Ukraine to consider withdrawing its reservation to article 20 of the Convention and to make the declarations under articles 21 and 22, as well as ratify Protocol No. 6 to the European Convention on Human Rights.

149. The Committee considers that a radical reform of correctional institutions, such as colonies and prisons, and places of pre-trial detention is essential to ensure full compliance with the provisions of the Convention. Solitary confinement and especially conditions of imprisonment give rise to particular concern.

150. The Committee recommends that the moratorium on the application of the death penalty be given permanent effect.

151. It is particularly important, in the Committee's view, to organize special training for the personnel of correctional institutions, especially doctors, in the principles and standards of the Convention.

152. The Committee believes that there is a need to establish by law a procedure for providing redress for injury caused to victims of torture, including compensation for moral injury, and to define the arrangements, amount and conditions for such compensation.

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