COMMITTEE AGAINST TORTURE

Thirty-eighth session

Geneva, 30 April – 18 May 2007

List of issues to be considered during the examination of

the fifth periodic report of UKRAINE (CAT/C/81/Add.1)

Article 1

1.According to the State party report (paras. 19 and 22), the definition of torture contained in the new penal code (article 127), which entered into force in September 2001, is not in conformity with article 1 of the Convention because it does not define as offences the actions of law-enforcement and other officials. Other provisions of the penal code cited in the report (articles 126, 365 and 373) also lack some elements of the Convention’s definition of torture. Please provide the exact legal definition of torture in domestic law. How is it compatible with article 1 of the Convention and how is it applicable to public officials or to persons acting in an official capacity? Please provide the relevant jurisprudence (para. 20 of the report) concerning assault and other violent acts committed by a public official to allow the Committee to assess whether they adequately cover the crime of torture.Have the amendments noted in para. 84 of the report been incorporated into the Criminal Code?

Article 2

GE.07-406602.According to information before the Committee, the basic legal safeguards (access to lawyer and doctor and right to inform a relative) for detained persons, including foreigners, are often denied from the outset of the detention. According to reports before the Committee, which were received from several sources, there is substantiated information that persons detained by the militia [police] are tortured and ill-treated, in particular during questioning, before they are able to notify relatives or obtain access to legal counsel or medical care. What measures have been taken to ensure the full application of the Criminal Procedure Code? What steps have been taken to bring articles 43 of that Code in line with article 106, thereby clarifying the exact moment when those rights can be exercised? What concrete measures have been taken to ensure the notification of relatives in each instance as indicated in the report (para. 71)?

3.Please elaborate on the measures taken, if any, to prevent torture and ill-treatment of women in places of detention or confinement. Does the State party monitor sexual violence in the prisons or other places of detention or confinement, and if so, what are the results? Please provide statistical data on the number of complaints received and investigated and the measures taken to discipline or prosecute offenders.

4.Please provide information on the measures (legal, administrative, and practical) taken, if any, to prevent hazing (dedovshchina) in the military (para. 98 of the report), as well as other torture and other cruel, inhuman or degrading treatment or punishment in the armed forces, conducted by or with the consent, acquiescence or approval of the responsible personnel or officers, resulting in severe physical and/or mental harm to the victims. Are such acts criminalized? Has a “hotline” for victims been put in place? Do the armed forces ensure “prompt and impartial” investigation of all complaints of dedovschina as a preventive measure under the Convention? Please provide information on the complaints, investigation, prosecution, number of victims within the military, and the crimes committed, location and any suicides resulting from such action. What is the number of persons who have been held accountable, through disciplinary or criminal proceedings, for failing to stop such abuses in units subordinate to them?

5.Regarding para. 31 of the State party report, what law regulates the activities of the commission indicated and the official indicated in para. 32, and do they compile reports for review by supervisors? What specifically are the “measures and activities” indicated in para. 33 to analyse the conditions under which torture takes place, and prevent it? Regarding laws to create special subdivisions for training within the penitentiary system (Order No. 163 of 8 September 2003 and Order No. 167 of 10 October 2005), are the trainees allowed access to the prisoners? With reference to para. 65 of the report, what criteria are used to provide police with career incentives? What monetary compensation or denial of bonuses do law-enforcement employees receive based on their work results or the absence of disciplinary measures?

6.Please provide updated information on the State party’s legislation to prevent domestic violence against women adopted in 2001 (para. 188 et seq. of the report), and on specific measures taken by the State party to prevent domestic violence and to investigate reported cases. The Committee would appreciate receiving statistical information regarding prosecution and conviction under this legislation. Please also provide information on measures taken to ensure effective implementation of legislation to combat trafficking in women and children for sexual exploitation and on the progress made to provide more effective protection for victims and ensure prosecution of traffickers, including the more than 800 cases of trafficking in human beings reportedly being investigated.

Article 3

7.Please provide detailed information on the provisions implementing article 3 of the Convention in domestic law. Who are the competent authorities? What are the existing legal safeguards and the procedures of appeal? Do these have suspensive effect regarding the expulsion, return and extradition of persons to another State? Please comment on whether, in practice, such remedies exist. Please provide information on decisions taken on cases relevant to article 3 of the Convention, as well as on the criteria for those decisions.

8.The time-limit for submitting an application for asylum is very short, three or five days, according to whether the entry is unlawful or not. Please explain such legal restriction, since it may lead to foreigners being expelled to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture. What measures are considered by the State party to determine its non-refoulement obligations under the Convention? Please provide detailed information on access to counsel and to interpreters by asylum seekers. Regarding para. 27 of the report, can statutes or directives be cited which guarantee refugees or those seeking such status unimpeded access to lawyers?

9.Which guarantees were enjoyed by the four Uzbek nationals facing deportation to their country mentioned in paras. 50 to 57? Also, according to information before the Committee, in February 2006, 11 Uzbek asylum seekers (some of them with refugee status) were not allowed to appeal the deportation order and were sent back to Uzbekistan, where there are substantial grounds for believing that they would be in danger of being subjected to torture. Why and how were the Uzbeks detained on charges of vagrancy, and not on charges appropriately related to the detention of asylum seekers? Were they able to appeal the deportation decision, and supply information about the risk of torture? Please explain how those extraditions were compatible with the State party’s obligation under the Convention.

10.Regarding the expulsion of foreign citizens by the border-control personnel (paras. 155, 156 and 161 of the report), what appeal measures do foreign citizens have? Does a person who is the subject of an extradition request have the right to appeal the decision to a court or other body? Please provide data regarding those appeals and their outcome. Please provide statistical data on asylum seekers and on the outcome of their applications. What criteria does the Prosecutor General take into consideration in deciding to honour extradition requests? Are the criteria indicated in article 3, para. 2 of the Convention taken into account? Does a court or other official body have the right to halt extraditions until review of the case? Does the State party seek assurances before extraditing or returning persons to another State? Are any monitoring mechanisms in place to assess whether or not assurances are honoured?

Article 4

11.Please provide detailed information on criminal provisions concerning offences such as attempted acts of torture, the commission of torture or the order to commit torture by a person in authority and the exact penalties imposed for any of these offences, including disciplinary measures. Please provide information on the number and the nature of the cases in which those legal provisions were applied, as well as on the penalties that were imposed or the reasons for acquittal.

12.Regarding paras. 19 and 20 of the report, how many government employees have been sentenced under article 127 for use of torture while performing their official duties for the period from 2001 to 2006? Does the definition of the crime of torture contain all the elements stipulated by article 1 of the Convention? Do any other articles of the Criminal Code contain these elements of the crime of torture? Please specify.

Article 5

13.Please indicate any legislative or other measures taken to implement each provision of article 5 of the Convention and whether acts of torture are considered universal crimes under national law, wherever they occur and whatever the nationality of the perpetrator or victim.

Articles 6, 7, 8 and 9

14.How are criminal cases handled when Ukraine refuses to extradite to another country a person suspected of actions falling under the definition of article 1 of the Convention? Which agency reviews such cases, and under what law? Have there been any such cases in the practice of Ukrainian law-enforcement agencies? Please specify.

Article 10

15. Please provide detailed information on training programmes for persons charged with the different functions enumerated in article 10 of the Convention, and in particular on the training of judges, forensic doctors and medical personnel dealing with persons under arrest and persons in detention, or with asylum seekers and refugees, to detect physical and psychological sequelae of torture. Regarding the prevention of torture and ill-treatment, what specific training has been provided to the militia? Is there gender-sensitive training? How are trainees monitored? Has a criminal investigation been undertaken to establish the facts about responsibility for the use of force during special training exercises on 30 May 2001 and 29 January 2002 in Zamkovaya Colony No. 58? Please provide details.

16.What measures are being taken to address issues of selecting appropriate persons for positions of law enforcement to improve the level of qualifications and to improve conditions for work for these personnel? Please clarify whether and in what ways the re-attestation process for law-enforcement officials has been modified to reinforce the prohibition against torture. Please also provide information that clarifies the number of persons serving in the militia and other areas of law enforcement by gender, nationality or ethnicity, and age.

Article 11

17.Please provide information on the interrogation rules, instructions and methods, as well as on the inspection of prisons and other places of detention, the authority which is competent to receive complaints from inmates in prisons, and the procedures to deal with such complaints. Has the State party taken any steps to set up or designate a national mechanism that would conduct periodic visits to places of deprivation of liberty in order to prevent torture or other cruel, inhuman or degrading treatment or punishment, as requested by the Optional Protocol to the Convention? Do the monitors’ councils attached to the State Department on Corrections include members of non-governmental organizations?

18.With reference to para. 30 of the report, what practical measures have been taken to prevent unlawful actions with regard to detainees, i.e. their unlawful detention under the guise of administrative offences; refusal to provide them with qualified legal and medical assistance; informing their relatives of their detention; or the use of physical force or psychological coercion? With reference to para. 82 of the report, is a person accused of an administrative offence that is punishable by 15 days of detention guaranteed a fair judicial procedure, including the right to counsel, the right to summon and question witnesses, and the right to sufficient time and means for preparation of a defence?

19.Regarding paras. 77 and 79 of the report, what measures have been taken to prevent pressure being put on detainees to decline the services of a lawyer? What measures have been taken to provide legal aid for the indigent? What means are available to provide lawyers in regions which have no law associations? Is there a procedure to assign a lawyer to a case if the lawyer is not a member of a law association? Is there any legal restriction to the duration of an interrogation, or any requirements for breaks during interrogations?

20.What means does a detainee have to document any bodily injuries suffered while in detention? What measures are taken to ensure access to medical care, and what guarantees are provided that medical personnel and institutions within prisons are impartial and able to assist persons claiming torture in the verification of their complaints?

21.With reference to para. 136, what criteria exist for placement of minors in holding cells? Under which agency’s authority are such persons placed in holding cells? Do they have the right to initiate an adversarial judicial procedure to contest the issue of the lawfulness of their detention in these facilities?

22.Regarding para. 146, at which point, in practice, does the duration of the period of detention (72 hours) begin, which was established by article 29 of the Constitution? Does this period contain sufficient time for the preparation of defence for a judicial proceeding regarding detention or release, the convening of the court, and the delivery of a decision?

Article 12

23.Please indicate if the data provided on prosecution under article 127 of the Penal Code refer to persons acting in an official capacity (para. 20 of the report). How many criminal proceedings against law enforcement officials were initiated under articles 126 and 127 of the Criminal Code? Please provide information on how many ex-officio cases the prosecution has brought before the courts. Please provide statistical information regarding investigation, prosecution and sentencing of persons acting in an official capacity, under articles 365 and 373 of the Penal Code (paras. 22 and 23 of the report). Please also provide information or statistical data regarding complaints, investigations, prosecutions and/or convictions of abuses during criminal investigations as mentioned in para. 69 et seq. of the report, disaggregated by sex, location, and alleged crime. Please explain if criminal sanctions were imposed on the perpetrators in relation to the cases mentioned in paras. 46 and 47 of the report, or only administrative sanctions, particularly in the very serious case where a detainee died following abuses.

24.According to information before the Committee, hooded prison staff have carried out searches in prisons, beating detainees and confiscating documents concerning legal proceedings in SIZO No. 21 (pre-trial prison). Please provide information on this allegation and on the investigation carried out.

25.Please provide detailed information on the investigation, prosecution and conviction regarding the cases of trafficking in human beings as well as on the global programme adopted in June 2002 and its results (para. 167 et seq.).

26.What measures are taken to preserve the confidentiality of complaints containing allegations of torture made to the authorities, and to ensure that such complaints are addressed promptly? Regarding paras. 115 and 116, under which procedure are complaints of allegations of torture made, article 97 of the Code of Criminal Procedure or under the law on Appeals by Citizens?

27.Does the Prosecutor’s Office provide reports on its oversight of its own agency, the police, and places of detention? To whom are these reports made public? Is there any public access by independent representatives of civil society to these reports? Can you provide additional information about the existing requirement for doctors who find signs of torture which occurred in pre-trial investigation to file notices to the police, rather than to the prosecutor’s office, which is responsible for oversight of police? What measures are taken to address the issue of a conflict of interest, given that the prosecutor’s office itself is the agency that reviews the lawfulness of investigations undertaken by its own office, which may lead to findings that could serve as the basis for charging its own employees? Are there instructions or regulations on how personnel are to act if they receive allegations of torture?

Article 13

28.Please explain why there are no methods to obtain statistical data regarding complaints and investigations of abuses in detention centres and prisons (paras. 36 to 39 of the report). Please provide an explanation for considering abuses of detainees by law-enforcement officials as mere “arbitrary acts”. Please provide an explanation as to why a complaint, in respect of abuses committed (para. 107 of the report), needs to be submitted within 24 hours, and how this limitation is compatible with article 13 of the Convention.

29.Please provide detailed information on the programmes, activities, resources and results of the Office of the Ombudsman. Can you supply any information about complaints of torture filed with this office by citizens, as to number, crime, location, and age, sex and nationality/ethnicity of complainant, etc.? Regarding para. 202 of the report, has legislation been introduced to enable persons in the military to file confidential complaints with the Ombudsman? Please provide detailed information on the internal procedure mentioned in paras. 31 and 32 of the report and its result.

Article 14

30.The Committee notes the existence of over 1.400 complaints that have been lodged since 2002 by detainees (para. 40 et seq. of the report), yet there have been no penal convictions so far and, therefore, no compensation has been made available to the victims. Please clarify the reasons for this. Please provide information on the procedures in place to obtain rehabilitation and compensation for victims of torture and their families and specify whether or not those procedures are also available to non-nationals. What rehabilitation programmes exist for victims of torture?

Article 15

31.How does the State party implement the provision in article 15 of the Convention prohibiting the use of any statement obtained as a result of torture as evidence in any proceedings, except against the alleged torturer? Please provide examples of any judicial cases where the courts have declared statements inadmissible on the grounds that they had been obtained coercively. According to the report (para. 10), the judiciary continues to make more use of pre-trial detention rather than alternative measures to prison. Can you provide an explanation for the large number of confessions of guilt and incriminating statements obtained in the pre-arraignment phase and pre-trial investigation, which form the basis for charges and conviction?

Article 16

32.According to information before the Committee, the material conditions of detention in the Ministry of Internal Affairs district police stations are very bad (e.g. very small cells, no ventilation, no light, no outside activities or exercise) and no food is provided, all of which amounts to cruel, inhuman or degrading treatment. Please provide information on the measures taken to improve this situation, including the financial resources allocated. Describe the current conditions in those premises, including the number of metres per prisoner used in practice in these facilities. Please provide statistical data and detailed information on the prevention and treatment of tuberculosis and HIV/AIDS in detention facilities, and the results obtained. According to information before the Committee, most of the Ministry of Internal Affairs district police stations are also overcrowded. Please indicate what measures have been taken to improve this situation and provide data on the current effective occupancy rate of those premises. Please provide similar data for remand facilities and those under the authority of the Department for the Execution of Sentences.

33.According to allegations before the Committee, foreign nationals detained under legislation on aliens are often ill-treated when apprehended by border guards or on arrival at the detention centres; in some cases reportedly to extort money or valuables. Please comment.

34.Life-sentenced prisoners are reportedly subject to unnecessary stigmatization and harsh measures in prison, such as cells with 24-hour light, and no opportunity to work. Have measures been taken to bring this regime into line with that of other detainees?

35.Remand detainees and detainees awaiting final sentencing are subject to a blanket restrictive regime irrespective of the individual case. Please clarify the justification for such a regime. Which measures has the State party put in place to prevent cases (para. 72 of the report) where relatives and lawyers are informed of a person’s detention only after the person has been transferred from police custody to a pre-trial detention facility (which can be as long as two weeks)?

36.Please provide detailed statistical information on the length of pre-trial detention and the purpose of administrative detention and detention of “vagrants” (para. 81 of the report). What measures are envisaged to shorten the current 72-hour police-custody period during which detainees may be held in isolation cells prior to being brought before a judge (para. 145 of the report)?

Other issues

37.Please indicate whether and in what way the State party’s legislation prevents and prohibits the production, trade, import, export and use of equipment specifically designed to inflict torture or other cruel, inhuman or degrading treatment. Please indicate whether the adoption of such legislation is being actively considered.

38.Please provide information on the legislative, administrative and other measures that the State party has taken to respond to the threat of terrorist acts. Please describe if, and how, these measures have affected human rights safeguards in law and practice. In this respect, the Committee would like to recall Security Council resolutions 1456 (2003), 1535 (2004), 1566 (2004), and 1624 (2005), all of which reiterate that States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law and humanitarian law. Please describe the relevant training given to law-enforcement officers, the number and types of convictions under such legislation, the legal remedies available to persons subjected to anti-terrorist measures, whether there are complaints of non-observance of international standards, and the outcome of these complaints.

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