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IV. CiviL and PERSONAL rights in ukraine: THE STATUS OF LEGISLATIVE SECURITY AND EXERCISE |
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Judging from the data of law enforcement bodies, the crime rate in the country is extremely high. In 1999 there were 558,700 registered cases of offenses, 208,200 of them grave ones. Most of the offenses were accompanied by brutality, torture and cruel treatment of the victims. It is with regret that the Commissioner for Human Rights has to state that the constitutionally guaranteed inalienable right of citizens to life, inviolability and respect for human dignity are grossly violated in this country. In 1999 there were 4,626 cases of premeditated murder, i.e. by 1.3% more than in 1998. According to official data, 28 murders were committed by contract, 102 were organized by criminal groups, each five cases were accompanied by cruelty and torture, and in 202 cases firearms were used. Besides, 7,047 cases of grave bodily harm were registered as well as 5,173 holdups, 22,800 robberies, 1,288 rapes and many other offenses. Offenses infringe more and more often on the rights of citizens to private property (Article 41 of the Ukrainian Constitution). In 1999 there were 175,400 cases of theft, or 31.4% of all registered offenses, 3,228 cases of extortion, and 17,600 cases of fraud. The rate of economic offenses has grown enormously. Given the current economic crisis and destitution of a large part of the population, such offenses affect primarily the most socially vulnerable people – pensioners, invalids and children. In 1999 law enforcement bodies uncovered 535 offenses in the system of finance and credits. In foreign economic trade there were 148 such cases, 60 in privatization, and 437 in commercial structures. In 1999 the number of victims of criminal actions increased and came to 138,400 persons, 5,200 of them children. 8,198 persons were deprived of life, 25,100 suffered harm to their health, and 129,400 sustained moral and material damages. Material damages were valued at UHA 501.9 million, UAH 324.5 million of them in the economy. Since only a negligible share of such offenses is being uncovered, the statistics on the economic damage inflicted on the state and citizens are far from complete. The spread of offenses shows that bodies of authority, vested by the state with the powers to ensure the protection of the constitutional rights of the people, are not always operating effectively, thereby failing to enforce in full measure the provisions of Article 3 of the Constitution by which the main duty of the state is to affirm and ensure human rights and freedoms, while the human being, his life, health, honor, dignity, inviolability and security are recognized as the highest social value. This is exactly in the focus of the majority of appeals the citizens address to the Commissioner for Human Rights. A considerable number of the appeals concern violations of the right to inviolability of the person and freedom from torture. An examination conducted by the Commissioner for Human Rights established that Ukrainian criminal law, in contradiction to the Constitution, does not take into account the international standards on freedom from torture, while the Criminal Code does not contain any rules on criminal liability for torture. Regrettably, neither is criminal liability for torture provided for in the draft of the new Criminal Code currently under the review of Parliament. Although there are constitutional rules on the inviolability of the person and respective provisions are contained in the Criminal Code and the Code of Criminal Procedure, the mechanism of their exercise is ineffective. Article 28 of the Ukrainian Constitution takes into account the international standards on human rights and stipulates that no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his dignity. The same article stipulates that no one shall be subjected to medical, scientific or other experimentation without his free consent. These constitutional provisions are consistent with Article 5 of the Universal Declaration of Human Rights of 1948 and Article 7 of the International Covenant on Civil and Political Rights of 1966 that were ratified by Ukraine. Under Article 2 of the Covenant Ukraine undertook “to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.“ Besides, Ukraine ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, the provisions of which develop and clarify the international standards on these issues. In accordance with this Convention, Ukraine recognizes that “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Ukraine also undertook to ensure that all acts of torture shall quality as offenses under its criminal law. Ukraine is a party to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Article 3 of this Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Ukraine also ratified on January 27, 1997 the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 that does not present a definition of torture, but provides for effective international mechanisms for the implementation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. For all that, Ukraine still lacks a legislative and organizational framework to ensure the constitutional standards and its international obligations on the prevention of torture. The requirements of the said international legal instruments, although a part of national legislation already, are not complied with in reality. Torture is regarded no more than an excess of official authority resulting in bodily harm in contradiction to the constitutional rules and international obligations of Ukraine. An expert examination by the Commissioner of Human Rights of the Criminal Code of Ukraine established that punishment for torture has to be included as a rule in Ukrainian criminal legislation in compliance with international standards. Therefore, the existing draft law on introducing amendments and additions to the Criminal Code and the Code of Criminal Procedure insofar as it concerns defining torture as a separate type of offense entailing severest punishment (draft of June 18, 1999 submitted by MP M.Brodsky) has to clarify the perpetrator of the offense in conformity with international standards. The analysis of the appeals to the Commissioner for Human Rights proves that the largest number of violation of rights through torture occurs during the detention of people and investigation. Citizens, NGOs and the mass media communicate such facts to the Commissioner almost every day. Incidents of torture in Ukraine have become common knowledge abroad. A report in 1998 by the US State Department of compliance with human rights in Ukraine pointed out that the Ukrainian Constitution prohibits torture, but the militia and employees of penitentiary institutions constantly beat up the detained and imprisoned. A joint study by the Commissioner and public prosecution bodies on compliance with citizens’ constitutional rights and freedoms by employees of the MIA showed that in the overwhelming majority of oblasts physical violence and degrading treatment of citizens are practiced by the militia on point duty, by precinct inspectors, highway patrol militia and employees of criminal investigation departments. In 1998-1999, 285 militia employees were held criminally liable in 194 criminal cases against abuse of power with application of violence and degrading treatment of people. In particular, 55 militia employees were held criminally liable in Odessa oblast, 23 in Luhansk and Kherson oblast each, 22 in the Autonomous Republic of Crimea and Kyiv each, 19 in Khmelnytsky oblast, 17 in Sumy oblast and Ivano-Frankivsk oblast each, and 13 in Zhytomyr oblast and Zaporizhia oblast each. An alarming element is the nature and the intentional cruelty of the committed offenses. It is not only a question of abuse of power during the apprehension of offenders or self-defense, but the deliberately performed actions that exceed by far the authority vested in militia employees by the law. For instance, on November 1998 M.Lotnyk, precinct inspector of the Dzerzhinsk district MIA department of Zhytomyr oblast, in response to telephone call to deal with a family conflict went to the township of Dzerzhinsk to the home of Mr.M.Antipov where he was sleeping at that time. Without inquiring into the real causes of the telephone call, the precinct inspector dragged the supposed offender out of his bed by force and ordered him to go to the precinct office. After Mr.Antipov refused to comply, the precinct inspector beat him with a nightstick in the presence of his two children, handcuffed him and led him out into the street. Mr.Antipov dropped to the ground and refused to get up, explaining that he did not do anything against the law. Then he was mercilessly beaten up, thrown into the back of the militia van and brought unconscious to the precinct station, from where an ambulance took him to a hospital. The next day Mr.Antipov died from grave injuries. It was only six months later that the investigation into the criminal case under paragraph 3, Article 166 and paragraph 3, Article 101 of the Criminal Code was completed and referred to the court. On September 1, 1999 at 9 p.m., a drunken precinct inspector, L.Protsenko, of the Hola Prystan district M IA department of Kherson oblast, arrived at the home of Mr.V.Regeda in the village of Chulakivka. Mr.V.Regeda, at that time resting in his home, was called outdoors by the inspector. The latter hit him several times on the head, and then he drew his regulation pistol and shot him in the head in the presence of Mr.V.Regeda’s baby brother. The inspector’s offense fell within the purview of paragraph 3, Article 166 and Item “g”, Article 93 of the Criminal Code and the case was referred to the Kherson oblast court that is processing it now. Mr.A.Dodenko, a resident of Borispol district, Kyiv oblast, cited another example of abuse of power by the militia in an appeal to Commissioner for Human Rights. Formerly a teacher, he was granted a certificate as a registered vendor at the local garments market where he had a permanent stall. At the market the militia apprehended him and resorted to force when they made a search of his apartment for no valid reason. Failing to find evidence incriminating him of any offense he was ostensibly to have committed, the militia took him to a detention ward at Boyarka where he was held in custody for 20 days on a trumped-up charge of “vagrancy and mendacity.” In response to his appeal, the district and Kyiv oblast public prosecutors did not establish any breach of the law by the militia employees. The Attorney General’s office conducted an additional investigation and established that “Mr.A.Dodenko was apprehended by the militia employees for no valid reason, while his detention was unlawful.” On June 24, 1998 a criminal case was initiated for abuse of power and excess of official authority by the employees of the Borispol MIA district department. But the public prosecutor of Zhurivka district, Kyiv oblast, closed the criminal case in November 1998 owing to the absence of elements of crime. Only after Mr.A.Dovenko filed with the Commissioner for Human Rights an appeal on the unjustified closure of his business and the Commissioner addressed an appeal to the Attorney General did the public prosecutor revoke the decision on closing the criminal case as being illegal and instructed the public prosecutor of Kyiv oblast to conduct an additional investigation. However, after the additional investigation of the case it was closed again on the very same grounds as the first time. Regrettably, there are numerous examples when after additional investigations cases were nonetheless closed contrary to established facts of gross violations of human rights and inviolability of the person. Moreover, there have been cases when public prosecutors did not effect legally prescribed measures to investigate the circumstances of cases more thoroughly and impartially. For instance, Mr.V.Solomakha and Mr.V.Darnyk, suspected of a car accident, filed an appeal to the public prosecutor of Cherkassy to the effect that in the premises of the highway patrol department of Cherkassy a militia employee, P.Khomych, as well as an unidentified major and lieutenant tried through brutal force to make the suspects confess that they were responsible for the accident that caused the death of Mr.Zosymchuk in December 1998. After the suspects were cruelly beaten up, car tires were hung on their necks and arms and they were forced to stand thus “crucified” for several hours in a row. The applicants complained against the unlawful actions of the militia, but senior investigating judge A.Bachyshche of the public prosecutor’s office conducted a perfunctory investigation and refused to bring criminal charges owing to the absence of elements of a crime in the actions of the militia employees, without even so much as mentioning their names in the disposition of his ruling of February 14, 1999. The public prosecutor agreed with the results of the investigation. As a result, officials who violated human rights were not made accountable as provided for by law. The Commissioner for Human Rights took the personal initiative of making an inquiry into the violations of human and civic rights and freedoms in this particular case. In order to receive from the Attorney General a conclusion on the legality of the adopted decision, the public prosecutor of Cherkassy oblast was requested to provide the material on refusal to initiate the criminal case. The Commissioner for Human Rights received quite a few complaints against preliminary investigation officials whose actions were inconsistent with what their duties required. Mr.K. and Mr.Sh. of the Autonomous Republic of Crimea complained that the employees of the Zaliznychny district MIA department of Simferopol cruelly beat up the applicants’ children, causing them bodily harm. The Commissioner for Human Rights forwarded a statement to have the complaint investigated by the public prosecutor of the Autonomous Republic of Crimea. The public prosecutor of the Zaliznychny district instituted criminal charges against the unlawful treatment of minors by the militia employees and on September 7, 1998 referred the case for the examination of the court. In response to an appeal by Mr.H.Hrtytsyk, a father of three children from Vinnytsia oblast, the Commissioner for Human Rights initiated an inquiry. It was established that the innocent man became the victim of an illegal investigation conducted by the Bershad district militia department employees O.Postupailo and O.Burlachenko who suspected the appellant in theft of a fuel tank. They apprehended him in the office of the board chairman of the Avangard Collective Agricultural enterprise and beat him with rubber clubs, demanding to confess in the theft. After that, he was taken to the shore of the Southern Buh River where the torture was continued: the militia handcuffed him and sitting on his legs, began to push his head into the water. In his appeal to the Commissioner he wrote the following: “They kept pushing my head into the water. I begged the torturers to have mercy on me because of my three little children. But the torture continued. They broke my ribs and injured my rib cage. For some time after that I was laid up in hospital. To this day I cannot come to my senses: I wake up in the night from nightmares as if I am undergoing a beating again…” By judgment of the Chechelnyk district court of Vinnytsia oblast of October 7, 1998 the offenders were given a suspended sentence of three years each for committing a crime under paragraph 2, Article 166 of the Criminal Code, deprived of the right to act in any official capacity for five years, and made to pay UAH 10,000 in moral damages. But to this day Mr.H.Hrytsyk is making the rounds of different offices, seeking redress for his assaulted honor and dignity, the more so since he did not receive anything in moral damages. So the law as it operates today considers a suspended sentence as being an adequate penalty for ghastly torture. For all that the formal terms of appeal have long expired, the investigation of the Commissioner for Human Rights into the torture and degrading treatment of Mr.Hrytsyk and the non-execution of the court’s decision is still going on. In view of the fact that torture of people is gaining in frequency lately, the Commissioner called a press conference for the mass media to focus attention on this menacing problem, inviting the victims of torture, in particular Mr. Hrtytsyk, for this purpose. But regrettably, only one TV channel – STB – had the courage to broadcast the press conference. What causes alarm is that some employees of law enforcement bodies go out of their way to help their colleagues evade responsibility for the breach of law. The Commissioner for Human Rights has been receiving appeals requesting immediate intervention. In a telegram of July 12, 1999 Mrs.Z.Lazarenko informed that her son S.Lazarenko was kept in an investigation ward in Luhansk in a grave condition after he was beaten up and tortured by militia employees of Krasny Luch. An on-site inspection conducted by the employees of the Commissioner’s Secretariat established that criminal investigators of Krasny Luch detained Mr.S.Lazarenko on July 9, 1999. Since he refused to plead guilty for committing any crimes, the militia employees subjected him to prohibited methods of investigation procedure. In a statement to the employees of the Commissioner’s Secretariat, S.Lazarenko wrote the following: “Militia employees V. and P. began beating me, pulling me by my hair and hitting my liver. Some minutes later, they sat me on a chair and V. began striking my head with a half-liter plastic bottle filled with water, while P. was hitting my legs with a stick. Two investigation department officers, whose names I do not know but whom I could visually identify, came for me and took me to an office where they a put a sheet of clean paper on the table, a pen, and said, ‘Write down the ten offenses you committed.’ Since I did not commit any, I had nothing to write about. So they handcuffed me, shoved a steel pipe under my knees and armpits, put chairs on the table and suspended me on the pipe, pressing hard on my knees, tearing at the muscles of my arms, beating my head with an attaché case and keeping on insisting that I write down the ten offenses. Then they pulled a gas mask over my head and shut off the air until I lost consciousness. I passed out three times. They brought me back to consciousness by beating my legs and shaking the pipe on which I was hanging.” During the examination of the emergency treatment log, it was established that the investigation ward workers called out the ambulance three times from the hospital at Krasny Luch to have Mr.S.Lazarenko treated. The doctors diagnosed concussion of the brain and bruises of both forearms and the chest. In order to conceal the fact that the suspect was beaten up in the premises of the militia city department, the investigation officers asked the employees of the point duty department to make up a false report to the effect that S.Lazarenko was in a state of intoxication and disturbed the peace. After the Commissioner for Human Rights conducted a personal inquiry and appealed on July 16, 1999 to the Attorney General to check on the facts concerning Mr.S.Lazarenko, the public prosecutor initiated a criminal case against the militia employees. The Commissioner’s examination of the militia’s practices in Luhansk oblast revealed that cases of cruel treatment and torture were far from being rare. The similarity of torture techniques was striking. Mrs.V.Anzheurova complained to the public prosecutor of Krasny Luch against the very same investigation officers who tortured S.Lazarenko. Six months earlier, on March 2, 1999, she informed that in the premises of the city militia department her son V.Anzheurov was subjected to torture, because he pleaded not guilty for committing a theft he was accused of. The savage torture followed the same scenario as with S.Lazarneko (gas mask, suspension on the pipe). But at that time the public prosecutor of Krasny Luch did not examine the appeal properly and refused to bring criminal charges against the militia employees, arguing that there were no elements of crime in their actions. The criminal case was initiated only after the on-site investigation of the Commissioner’s Secretariat employees. To have a more impartial judgment of the case rendered, the public prosecutor of Luhansk oblast referred it to public prosecutor of Antratsyt on November 23, 1999. But the investigation is proceeding at a strangely sluggish pace and has not been completed to this day. What occasions particular alarm is that individual officials, legally bound that they are to ensure compliance with human rights and freedoms, resort to torture of the detained. For example, Captain R.Ushchepovsky, jointly with Captain O.Serbin and Lieutenant K.Kyianytsky of the Luhansk militia repeatedly beat with outright brutality the detained Mr.A.Zhovtun in the premises of the detention ward on November 27-28, 1999, demanding that he plead guilty to the murder of Mr.Y.Zaskalka. The on-site inspection of the Commissioner proved that Mr.Zhovtun was subjected to the same kind of torture as Lazarenko and Anzheurov with the only difference that after the torture he was stripped, his bare body was beaten with a club, after which the club was pushed into his anal orifice. During the preliminary investigation, A.Zhovtun’s guilt was not proved and he was released from custody. For the offense committed against Mr.A.Zhovtun the said militia employees were made criminally liable under paragraph II, Article 166 of the Criminal Code. R.Serbin and R.Ushchypovsky were sentenced to three and a half years of deprivation of liberty each and K.Kyianytsky was given a suspended sentence of three years and made to pay UAU 7,000 in moral damages. The three of them were denied the right to work in MIA bodies for five years. Regrettably, the court’s judgment has not been executed to this day. The offenders were not placed under detention in good time for their crime; they simply disappeared and are currently searched for. The Secretariat of the Commissioner for Human Rights forwarded a letter to the MIA directorate in Luhansk oblast, requesting that definite measures be effected to bring the search to a positive outcome. Unfortunately, the search is still going on. In 1998 the courts of Luhansk oblast tried three and in 1999 four militia employees for torture of people, and the cases of another two have been referred to court. Besides, after inspecting the temporary detention wards at Krasny Luch and Luhansk, the Commissioner’s Secretariat established that the wards were damp, inadequately illuminated and actually without access to fresh air; the suspects were kept in conditions that did not correspond to sanitary and hygienic rules set out by the State Department for the Execution of Penalties and the Ministry of Health Care. In order to check the violations of human rights by employees of the MIA Directorate in Luhansk oblast, the Commissioner for Human Rights forwarded an appeal to the Minister of Internal Affairs of Ukraine, Yuri Kravchenko, strongly condemning the facts of torture by officials of MIA bodies as well as other degrading treatment that are among the grossest violations of human rights. The appeal also pointed out that the Commissioner for Human Rights demanded compliance with the international standards enshrined in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified by Ukraine. As the MIA informed on November 5, 1999, the appeal of the Commissioner for Human Rights was considered and the militia employees were disciplined in cases when they falsified the grounds for detention and grossly violated the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms. The MIA Directorate in Luhansk oblast is effecting additional measures to improve the sanitary and hygienic conditions of the temporary detention wards, to have public catering establishments pay off UAH 198,000 in debts, and to organize for the detainees meals three times a day. The cited examples from the work of the Commissioner for Human Rights convincingly prove the need to secure on a legislative basis criminal liability for torture as it follows from Ukraine’s obligations under international law, to instruct employees of law enforcement bodies in the international standards on the freedom from torture and the legal invalidity of evince gained through torture. Article 29 of the Ukrainian Constitution proclaims that every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law. Everyone detained has the right to challenge his detention in court at any time. In practical terms this undoubtedly important legal standard has to protect a person from illegal deprivation of liberty. Article 5 of the Convention for the Protection of the Human Rights and Fundamental Freedoms stipulates important procedures for ensuring the rights to freedom and inviolability of the person, but these provisions have to be secured in Ukrainian legislation on criminal procedure; to ensure this right, courts in 1998 passed 3,200 individual rulings on offenses against the law during the conduct of inquiries and preliminary investigations. But human rights and freedoms are violated much more often, especially during apprehension, arrest, search, interrogation and the like. Violations are most frequently committed when people are held to answer criminal charges. In 1999 courts completed processing 221,000 criminal cases, under which 227,200 persons were sentenced. Over 25,800 cases, or about 10%, were recommitted for additional examination. Criminal charges were illegally brought against 294 persons who were absolved by courts. Besides, courts allowed 938 appeals, i.e. every third, against illegal approvals of arrest by public prosecutors. The Commissioner for Human Rights thoroughly examined the appeals against the unlawful actions of employees of law enforcement bodies who for no justified reasons closed the criminal cases initiated against them. In most cases prejudice and incomplete investigation of circumstances are the reasons why public prosecutors revoke such rulings. But the analysis of this category of appeals gives reason to conclude that there is a lot of unaccountable procrastination when it comes to inquiring into criminal cases with elements of abuse of power and transgression of authority (Article 166 of the Criminal Code). The victims are deprived of the opportunity for impartial medical checkups and conclusions of experts about the nature of the injuries. The inquiries of the Commissioner for Human Rights prove that most of the rulings on refusal of initiating criminal cases against militia employees for abuse of power and transgression of authority are of a similar nature. They are not properly reasoned; in the rulings the appeals of the complainants are couched in an ambiguous language (the substance of appeals is not set forth, the medical evidence of the complainants’ injuries is missing). The very same militia employees against whom the appeals have been filed mostly refute the complainants’ evidence and, of course, flatly deny having transgressed authority. The Commissioner for Human Rights has been expending a lot of effort to have Ukrainian laws brought into conformity with the international standards on compliance with the rights to life, respect of human dignity and inviolability of the person by establishing criminal liability terrorism that is becoming widespread throughout the world, in our country included. The absence of criminal liability for terrorism and some of its varieties, such as interference in civil aviation traffic and seizure of hostages, makes it difficult, on the one hand, to legally identify terrorism and, on the other hand, it results in other negative consequences, namely violations of civic and constitutional rights. After all, every person has to be protected against the threat to his life and health as well as any forms of physical and psychological violence. The Commissioner for Human Rights holds that in Ukraine prevention of terrorism and its punishability as a grave crime has to be immediately regulated legislatively and the Criminal Code has to stipulate criminal liability in conformity with international standards that recognize terrorism as the gravest of crimes. International conventions lack the definition of terrorism, but individual instruments on the prevention and punishment of specific types of terrorism define its basic attributes: Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents of 14 December 1973, International Convention against the taking hostages of 17 December 1979, Convention for the Suppression of unlawful seizure of aircraft of 16 December 1970, Convention for the suppression of unlawful acts against the safety of maritime navigation of 10 March 1988. Ukraine is a party to all these international instruments. Terrorism is a crime committed by an individual, group of persons or NGOs in order to force natural persons, legal entities, bodies of authority, states or international organizations to comply with the demands of terrorists or to refrain from any action through threats of violence by different means, including weapons of mass destruction, highly toxic and radioactive substances, explosives, firearms, cold steel, or influence on the computer system. Terrorism is always directed at large groups of people. Accordingly, individuals acting on their own behalf, but not on behalf of states commit terrorism. In order to identify an act as terrorism, there has to be by all means a subjective aspect of the crime, specifically an aim – to force natural persons, legal entities, bodies of authority, states or international organizations to do what is to the advantage of the terrorists. To define the element of crime in terrorism, allowance has to be made for all the attributes of this grave crime under the standards recognized in international cooperation in terrorism control. Precisely worded provisions of criminal legislation on terrorism not only ensure its prevention and sufficient and just punishment, but also guarantee compliance with legality and the rule of law and prevention of using the said legislation to violate in any manner the constitutional rights and freedoms of people and citizens. In Ukraine an attempt was made to adopt a law to combat terrorism. The Commissioner for Human Rights certainly did not stand aloof of this process of including in Ukraine’s criminal legislation a provision on punishing terrorism. The Commissioner’s critical scrutiny of the Law On Introducing Amendments and Additions to the Criminal Code and the Code of Criminal Procedure of Ukraine showed that the international standards if was supposed to introduce were obscured by ambiguity and vagueness, making it possible to qualify a large number of offenses as acts of terrorism. The law of October 8, 1998 provided for adding Article 601 “Terrorism” to the Criminal Code. Its first paragraph defines the element of crime in terrorism as follows: “The committal, preparation to produce or the threat to produce an explosion, arson or any other actions that create a danger to the life or health of people or the danger of accrual of other grave consequences, if they have been performed with the aim of inducing a body of state authority, a body of local self-government or their officials, an international organization or its representative, as well as a natural person or legal entity or a group of persons to perform or refrain from performing any action aimed at intimidating the population, provoking war or hostility, or creating international complications.” The application in legal practice of such a definition of an element of crime would create a great danger to Ukrainian citizens as well as other persons residing on its territory. The absence of a clear-cut definition of “terrorism”, the all too broad range of actions that can be referred to the category of “terrorist acts” provide no reason to speak of Ukraine’s compliance with the international standards on the right to inviolability of the person as secured in Article 9 of the Universal Declaration of Human Rights and in articles 9 and 15 of the International Covenant on Civil and Political Rights. This standard is secured in Article 29 of the Ukrainian Constitution. The objective aspect of the crime as worded in the law of October 6, 1998 misses the basic attributes of terrorism – the creation of an atmosphere of destabilization, intimidation and oppression in society. A body of preliminary investigation could thus treat arbitrarily, say, arson or any other offense referred to in Article 601 as a terrorist act. One should also not exclude the possibility of the article being applied depending on a definite political situation, but not on the interests of enforcing liability. In this connection the Commissioner for Human Rights forwarded on October 27, 1998 a letter to the Ukrainian President, voicing concern over the possible negative consequences that could follow from the introduction and application of the said article and what a real threat it could be to the rights of Ukrainian citizens and foreigners staying in the country. The proposal of the Commissioner for Human Rights met with the understanding of the President: the law of October 1998 was vetoed. Parliament failed to override the President’s veto and the law was revoked. It goes without saying that the absence in the Criminal Code of an article stipulating punishment for terrorism is inadmissible at a time of rampant terrorism worldwide. Since Parliament failed to override the President’s veto, there is an urgent need to draft a respective rule for punishing terrorism in compliance with the constitutional provisions and international human rights standards. Unfortunately, the notion of “terrorism,” as defined in the draft of the Criminal Code, has the same shortcomings as in the law of October 6, 1998. Therefore, the Commissioner believes it is necessary to continue improving on the rules of this article. Following from the analysis of compliance with the right to inviolability of the person and to respect of human dignity and freedom from torture, the Commissioner for Human Rights deems it necessary that legislators include in the operative Criminal Code an article on recognizing torture as a grave crime in conformity with international standards and Ukraine’s obligations under international laws. Since the provisions of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 accord with Article 9 of the Ukrainian Constitution and are a part of Ukrainian national legislation, the Ministry of Internal Affairs and the Department for the Execution of Penalties have to conduct training of their personnel in international standards on the prohibition of torture and the punishment of its application. It is also important that the invalidity of evidence exacted through torture should be included in the legislation on criminal procedure and recognized in judicial practice. Translated by Anatole Bilenko |
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