Sixth Periodic Report of Ukraine on Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment • KHARKIV “PRAVA LUDYNY” 2014 ББК 67.5 Second edition, amended and enlarged Designer Boris Zakharov This edition has been published with the financial assistance of the programme “Matra” of the Netherlands Embassy in Ukraine This document has been created with the financial assistance of the European Union. The contents of this document are the sole responsibility of Kharkiv Human Rights Protection Group and can under no circumstances be regarded as reflecting the position of the European Union Sixth Periodic Report of Ukraine on Implementation of the Convention against Torture and Other Cruel, Inhuman or De- grading Treatment or Punishment / Kharkiv Human Rights Pro- tection Group. — Kharkiv: Prava ludyny, 2014. — 188 p. ISBN 978-617-587-137-9. ББК 67.5 © Y. Zakharov, G. Tokarev, compilers, 2014 © B. Zakharov, cover, 2014 ISBN 978-617-587-137-9 © Kharkiv Human Rights Protection Group, 2014 Introduction INTRODUCTION In 2013, the UN Committee against Torture (hereinafter — the Commit- tee) should have considered the Sixth Periodic Report of Ukraine on imple- mentation of the provisions of the UN Convention against Torture. We recall that the previous Fifth Periodic Report of Ukraine was considered by the Com- mittee in May 2007 and the periodic reports are provided once in four years. In early 2010, the Committee provided a list of 35 issues completely covering the problems of torture and ill-treatment to the Government of Ukraine. By mid-2012 the Government had prepared a draft of the Sixth Periodic Report. The draft is posted on the website of the Ministry of Jus- tice of Ukraine for discussion and it is available at http://www.minjust.gov. ua/41050 (in Russian). This draft was prepared ahead of many important amendments in legi- slation and practice which took place in 2012–2013. However, the Kharkiv Human Rights Protection Group (KHPG) has prepared the Shadow Report to the draft report of the Government. KHPG published the UN Convention, Committee’s list of issues, draft of the Sixth Periodic Report and the Shad- ow Report. The Ukrainian version of this book is available at http://library. khpg.org/index.php?id=1383484324, the English version — at http://library. khpg.org/index.php?id=1383903736. The Government has prepared a new version of the Sixth Periodic Report and referred it to the Committee in early 2013. Unfortunately, this version has not been published in Ukraine and the public has not been discussed. It has been available only recently after appearing on the website of the Committee. We has updated own edition and offers it to the reader. KHPG com- mented on the new report of the Government and included in the Shadow Report overview of events in 2013–2014. We hope that it will be useful for the governmental experts. The KHPG continues the tradition of commenting the periodic reports of the Government on implementation of the UN Convention against Torture. In 1997, 2001 and 2007 the KHPG prepared and published its Shadow Reports to the Third, Fourth and Fifth Reports respectively. The Shadow Report of the KHPG represents the answers to all 35 issues of the UN Committee against Torture. It covers a variety of issues of the re- Sixth Periodic Report of Ukraine spect of the Convention during 2008 — August 2014 and it was prepared on the basis of its own information and the information got from the partner organizations and state authorities. The Shadow Report of the KHPG is submitted to the UN Committee against Torture and it aims at comprehensive coverage of the issues of re- spect of the rights enshrined in the Convention and attraction of the atten- tion of the Committee’s experts to the most actual problems in the sphere of their implementation which in our opinion are not reflected or which are incompletely covered in the draft report of the Government of Ukraine. We admit that during the past few years there have been positive changes and trends in Ukraine. However, we set a goal to present our posi- tion regarding the situation with torture and other forms of ill-treatment in the most problematic areas of human rights protection in our country in order to assist the Committee’s experts to get the most full possible un- derstanding of the problems in this area. In particular, our concern is the problems of impunity in the cases of torture, conflict of the prosecution functions which makes it difficult to effectively investigate the cases of tor- ture, routine practice of violation of the rights to liberty and other rights of detainees, practice of mass violence in penal institutions, and the lack of adequate medical care for the persons deprived of liberty. When preparing the Shadow Report there were used the materials of monitoring of the situation of torture carried out in 2008–2014 in all regions of Ukraine by the network of human rights organizations within the framework of the Campaign against torture and ill-treatment in Ukraine, results of the ac- tivity of the Strategic Litigation Center created within this program, and analy- sis and observations provided by other Ukrainian NGOs. For more information, please refer to the Kharkiv Human Rights Protection Group at [email protected]. The Shadow Report was prepared by the lawyers of the KHPG Olena Ashchenko (§4, 5, 6, 13, 14, 15), Yana Zayikina (§24, 32, 33, 34, 35), Liliia Ibadova (§8, 9, 10, 11, 12, 18, 25, 31), Nataliia Okhotnikova (§1, 2, 3, 16, 17), and interns of the KHPG from Georgia Levan Gulua (§7, 20, 21, 26, 27) and from Germany Mathias Hankel (§19, 22, 23, 28, 29, 30). General editing was performed by Yevhen Zakharov and advocate Gennadiy Tokariev. The Kharkiv Human Rights Protection Group expresses its sincere gratitude to the European Commission and Human Rights Fund of the Em- bassy of the Kingdom of the Netherlands in Ukraine, which provided finan- cial assistance for this work. Yevhen Zakharov Comments of the KHRPG regarding the Sixth Periodic Report COMMENTS OF THE KHARkiV HUMAN RiGHTS PROTECTION GROUP REGARDING THE SiXTH PERIODIC REPORT OF THE GOVERNMENT OF UkRAINE ON IMPLEMENTATION OF THE UN CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT Concerning paragraph 1 In 2001 “torture” became a separate criminal offense case in the Ukrai- nian legislation and has been added to the Criminal Code of Ukraine (CC). Since then the definition of the above said offense case has been changed several times by the legislator. In particular, changes added in 2005 provided responsibility for torture performed by a special subject who was identified as a law enforcement officer. In 2008 the qualifying features of crimes committed by law enforcement officers were excluded from the definition, and then in 2009 the special sub- ject of criminal offense, namely a person acting in an official capacity, was also removed from the text of the article, thus removing the meaning of the term “torture” from the definition as defined in Article 1 of the CAT. Instead of that such aggravating circumstances as the crime having been committed “on the basis of racial, ethnic or religious intolerance” were included into the text, which constitutes partial specification of the term “discrimination” in- troduced into Article 127 §1 of the CC of Ukraine in 2008.1 At present the definition of torture in Ukrainian legislation in Ar- ticle 127 of the Criminal Code reads as follows: the intentional infliction of severe physical pain or physical or mental suffering by beatings, torture and other acts of violence to coerce the victim or another person to commit acts contrary to their will, including obtaining from him or another person information or a confession, or to punish him or any other person for acts 1 http://helsinki.org.ua/index.php?id=1298292734 Sixth Periodic Report of Ukraine committed by him or by another person, or in the commission of which he or another person is suspected, as well as for the purpose of harassment or discrimination against him or other persons. The same action committed repeatedly or by a group of persons with prior arrangement or on the basis of racial, ethnic or religious intolerance are considered as aggravating cir- cumstances and are referred to in par. 2 Article 127 of the CC. The content of the article suggests that this definition contains several criteria: 1. The inflicting of physical pain, physical or mental suffering on an- other person. Domestic legislation understands physical suffering to be that which arises from adverse impact on a person’s body. If a person is psycho- logically healthy, physical suffering is inevitably accompanied by mental suffering that can manifest itself in resentment, shame, grief, depression, feelings of irreversible loss etc.2 2. Intention to cause such suffering to another person, e. g. direct or indirect intent to cause suffering in order to achieve a specific purpose. 3. The method of causing suffering — beating, torment or other acts of violence. Beating is an act of inflicting repeated blows on the victim. Torment refers to actions involving the prolonged or repeated infliction of physical pain (pinching, causing slight but numerous lesions with sharp or blunt objects, impact of thermal factors, etc.) Other acts of violence may be understood as referring to various forms of physical pressure on a person causing painful sensations: squeezing parts of the body, pulling hair with force, suspending a person’s body, subjecting a person to constant and loud noise, forcing them to eat inedible substances, etc. 4. The aim of causing suffering is to coerce a person to commit acts contrary to their will, or to punish them or another person for actions which they or the other person committed, or which they or the other person are suspected of having committed, as well as to intimidate or discriminate against them or another person.3 The presence of racial, ethnic or religious motives is considered to be an aggravating factor.