HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF UKRAINE

The Human Rights Committee has considered the sixth periodic report of Ukraine on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Dmytro Kotlyar, Deputy Minister of Justice of Ukraine, said that a new era of human rights developments had been ushered in with the so-called Orange Revolution in 2004, when mass democratic demonstrations had led to the election of a new Government. Human rights and fundamental freedoms were now better guaranteed. Freedom of Assembly and freedom of expression, in particular, had been reinforced and the general human rights situation in Ukraine was a positive one.

In preliminary concluding remarks, Christine Chanet, Committee Chairperson, highlighted the draft law on equality of opportunities, and the publication of a document that included all the concluding observations of UN treaty bodies to which Ukraine was a party. The Ombudsman’s Office had frequently carried out an excellent analytical review of the situation in Ukraine, and it only remained to be seen what the Government did with those excellent suggestions and comments. With regard to the case of the Uzbeki asylum-seekers who had been deported, she reminded the delegation that it was not just a case of the violation of due procedure under the Covenant, but also of the article against cruel, inhuman treatment or punishment, and she urged the delegation to follow the case of those individuals closely to ensure that they suffered no irreparable harm as a result.

Other Committee Experts raised questions and asked for further information on a number of topics, including the status of investigations in cases of individuals who had died in pre-trial detention; allegations of police brutality against those in custody; the status of the planned council on equal opportunities; details of judicial reform, in particular with regard to the appointment of judges and their tenure; reports of abusive treatment of young recruits in the military; what measures were being taken to address the 27 per cent salary gap between men and women; and reports of flagrant cases of discrimination against Jews.

The Committee will issue its formal, written concluding observations and recommendations on the report of Ukraine towards the end of its session, which will conclude on 3 November 2006.

The Ukrainian delegation that presented the report also included representatives of the General Prosecutor’s Office, the Higher Administrative Court, and the Ukrainian Parliament’s Commissioner for Human Rights.

Ukraine is among the 159 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is one of the 107 States parties to the Optional Protocol to the Covenant, which provides for the confidential consideration of communications from individuals who claim to be victims of a violation of any rights proclaimed in the Covenant. It is also one of the 59 States parties to the Second Optional Protocol, which aims at the abolition of the death penalty.

The Committee will reconvene in public at 3 p.m. on Wednesday, 25 October, to begin its consideration of the third periodic report of the Republic of Korea (CCPR/C/KOR/2005/3).

Report of Ukraine

The sixth periodic report of Ukraine (CCPR/C/UKR/6) says that it cannot be denied that the problem of domestic violence persists in Ukraine. In the course of 2005 alone, more than 20,000 people were placed on the register of domestic violence offenders. In 2001 the Supreme Council of Ukraine adopted the Ukrainian Domestic Violence (Prevention) Act, which establishes police and local inspectors to prevent domestic violence and provides for crisis centres and medical and social rehabilitation centres for victims. Implementation of the Act is beginning to bear fruit: over the first nine months of 2004, the number of homicides and deliberate acts of grievous bodily harm committed as a result of family disputes, jealousy or on other domestic grounds, as compared with the same period in 2003, dropped by 13.5 per cent.

In the event of an urgent necessity to prevent or stop a crime, a person may be remanded in custody as a temporary preventive measure, the reasonable grounds for which must be verified by a court within 72 hours. Ukrainian law also makes provision for detention for longer than 72 hours, for further consideration of information relating to the identity of the detainee or to elucidate other circumstances of significance. In such cases, the judge is entitled to extend the period of detention to up to 15 days. To track down violations of civil rights and to ensure a prompt response to such violations, the authorities conduct comprehensive unannounced checks, with particular attention given to ensuring that there are lawful grounds for the detention. Over the course of 2004, 21 detainees were discharged from remand centres by order of the procurator and, in 2003, 50 detainees. In addition, every month detainees may have interviews with the authorities on personal matters and to verify the lawfulness of decisions taken in respect of complaints. Following such interviews, in 2004, 120 detainees were released from special punishment facilities by order of the procurators and, in 2003, 131 detainees. Over the period from 2003 to the first quarter of 2005, inclusive, no complaints or reports of the use of torture or inhuman or degrading treatment or punishment against detainees by employees of the criminal corrections system have been received by the Ukrainian Criminal Corrections Service.

Presentation of Report

DMYTRO KOTLYAR, Deputy Minister of Justice of Ukraine, introducing the report, said that a new era of human rights developments had been ushered in with the so-called Orange Revolution in 2004, when mass democratic demonstrations had led to the election of a new Government. Human rights and fundamental freedoms were now better guaranteed. Freedom of assembly and freedom of expression, in particular, had been reinforced and the general human rights situation in Ukraine was a positive one. The parliamentary elections held subsequently had been declared to be free and fair by impartial international observers, a first for Ukraine.

In July 2006, the Parliament ratified the Optional Protocol to the Convention against Torture, which came into force in September. The second Optional Protocol to the International Covenant on Civil and Political Rights, on the abolition of the death penalty, was under consideration by the Government, and should be ratified very soon Mr. Kotlyar observed.

Efforts had also been made to intensify judicial reform in Ukraine, Mr. Kotlyar stressed. In May the President launched a 10-year plan of judicial reform and tasked an independent expert body to prepare draft legislation to comprehensively reform the judiciary. A new law came into force this year that called for all court judgements to be posted on the Internet and higher courts decisions were already being regularly posted. Administrative courts had been set up to protect people against human rights abuses by State agents or officials. The Government was finalizing a draft law on free legal aid, which had not been available before. In May this year, the Government had decided to subordinate the department for administering penitentiary system to the Ministry of Justice, severing the close ties with the military administration and ensuring a civil oversight. In August, the Government had adopted a new five-year programme to improve conditions of both prison detentions and custody, or pre-trial detention, and had earmarked funds to implement it.

Questions by the Committee Experts

A list of issues was submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.

Constitutional and Legal Framework for Implementation of the Covenant

The delegation of Ukraine said that, in accordance with the Constitution, the Covenant formed part of the national legislation and superseded national law in cases of conflict between the Covenant and domestic legislation. There was no need to incorporate the Covenant separately in national law; it could be invoked directly in decisions

The Covenant and the European Convention on the Protection of Rights and Freedoms were both frequently cited in domestic case law. For example, in April this year the High Administrative Court had invoked it in a case brought by a political party involving the parliamentary elections.

Regarding the Ombudsman’s Office, since it had come into existence, it had received more than 700,000 complaints from citizens and non-nationals. The delegation stated that one in three cases investigated saw the rights of the complainant reinstated. An analysis of the reports of the Ombudsman, which had been carried out by the local and national authorities, showed that it led to much greater respect to the rights and freedoms of citizens.

A new initiative of the Ombudsman’s Office was the publication, in conjunction with the United Nations Development Programme, of the conclusions adopted by UN treaty bodies on reports presented to them by Ukraine. The delegation also felt it was important to note the Ombudsman’s proposal on the reduction of pre-trial detention, from 72 to 48 hours.

Gender Equality

Gender equality was a fundamental principle incorporated both in the Constitution and in national legislation in Ukraine, the delegation said. The 2005 Law on Equal Rights of Women and Men adopted last year ensured gender equality in all spheres of social life, established State policy on gender equality, provided for affirmative action measures, established penalties and remedies for discrimination and provided a number of specific instruments to provide for gender equality. For example, under the law the Government was obliged to carry out a review of all legislation to ensure that it did not discriminate by gender.

In concrete terms, the delegation noted that, in 2002, in Parliament there had been 23 women out of 450 members, whereas as a result of the 2006 elections, 39 of 450 deputies were women. The number of women candidates, in particular, had been much higher, and at the start of the campaigns one in four candidates had been women. In the civil service up to 70 per cent of lower level positions were held by women, and overall there was a very even gender mix, but not at the highest levels, where there were much fewer women than men.

Regarding domestic violence, the delegation noted that the Human Rights Ombudsman had received twice as many complaints on this topic over the past two years. By law, however, the Ombudsman could not interfere in relations between individuals, and domestic violence had to be addressed by the courts. One in five women in the Ukraine had experienced domestic violence at least once. The 2001 Ukrainian Domestic Violence (Prevention) Act, established recourse for victims, including through establishing police units to investigate cases and setting up crisis centres to provide medical and psychological assistance to victims.

Prohibition of Torture

The Code on the Administration of Justice, in its article 6, established that foreigners had the same rights as citizens of Ukraine under the law, the delegation affirmed. In order to ensure the protection of the rights of citizens, the right of appeal for administrative decisions was guaranteed, and that held as well for foreign nationals and stateless persons. Deportation could only be affected following a court judgement. Furthermore, it was illegal to expel a person to a country where they were under threat of ill-treatment or torture.

Turning to the specific case of the 10 Uzbeks who registered as asylum-seekers with the UN Refugee Agency (UNHCR), but were deported to their country of origin despite claims of risk of torture, there had been procedural violations in that case, the delegation declared. The individuals had not been allowed to appeal or to have consultations with their lawyer or with the representative from UNHCR. That decision had now been comprehensively reviewed at the highest levels, the errors made had been detailed and measures had been taken to ensure it would not happen again.

The delegation noted that within the Prosecutor’s Office there was a unit to monitor the proper carrying out of police activities, and the cases reported to it were closely investigated. Some 1,500 allegations of illegal police procedures had been brought last year. Unannounced visits were made to police detention facilities every 10 days. A major inspection of detention conditions had been carried out this year, and cases of illegal proceedings registered.

The delegation drew attention to the fact that recently the definition of torture in Ukrainian law had been amended and aligned with the UN definition. In particular, it now included those acts inflicted with a view to obtaining information or a confession, and heavier penalties were incurred if the perpetrator was a law enforcement officer or if the torture resulted in death.

There was no policy of subjecting minorities to torture or ill-treatment. The delegation could not exclude, however, that at the local level, owing to stereotypes persisting in society, that some vulnerable groups and that some minorities, such as the Roma or Crimean Tatars, had been subjected in some incidents to ill-treatment or torture. But those were isolated cases, and the authorities were working to raise awareness among law enforcement officers to give equal treatment.

Prohibition against Slavery, Servitude and Forced Labour

Amendments to the Criminal Code had been adopted in January, and the trafficking legislation had been aligned with UN standards. The Department for Trafficking was established last year and now had regional offices for preventing trafficking. Units of the juvenile police within the Ministry of the Interior were also dealing with trafficking and sexual exploitation. Some 300 cases were detected and some 35 children were recovered from sexual exploitation. This year some 700 cases of child exploitation were detected and dozens of illegal groups were liquidated. Moreover, over 700 persons had returned from abroad after having been trafficked, the delegation confirmed.

Trafficking was one of the priority areas for the General Prosecutor’s Office. Special prosecutors had been designated for cases of trafficking and sexual exploitation. A number of seminars had been held for members of the Prosecutor’s Office and the police, looking at current issues, detection, investigation and sanctions. Ukraine was the third State in Europe to define human trafficking as a crime, when it adopted legislation on the topic in 1998, the delegation observed. Ukraine had also been very advanced in its reporting, investigation, on the topic. A National Coordinating Council worked with other departments and NGOs to prevent trafficking.

Security of Person, Protection From Arbitrary Arrest, Right to A Fair Trial

All persons who were arrested had the right to be informed immediately of the reasons for their detention, and to be informed of their rights, including access to counsel, the delegation said. Those persons who could not afford legal counsel would be provided with such counsel at the State’s expense, in criminal cases. However, the legal aid system was not highly functioning and that was why the Government had adopted a strategy for the reform of legal aid in June this year. It was envisaged that legal aid would be available in the future not just in criminal cases, but in civil and administrative cases as well.

In 2005 and the first half of 2006, 15 civil suits were considered for illegal detention or arrest. Compensation was granted in 10 cases to 10 individuals and monetary compensation awarded. Compensation could be granted by either the criminal courts or by the administrative courts, the delegation indicated.

In cases of urgent necessity in order to prevent or stop a crime a person could be detained for up to 72 hours. If in that time no substantiating information was provided, the person had to be released. The delegation, while it maintained that the law was in accordance with the Covenant, also felt that the 72-hour time limit was too long. Indeed, the Government was working on shortening that span to 48 hours, at the recommendation of the Ombudsman. Regarding the possible extension of the detention to 10 or even 15 days, that was an anachronistic provision left over from Soviet times and should be abolished. It was expected that the expert body working on the new code of criminal procedure would abolish it.

On the alleged arbitrary detentions of students who peacefully demonstrated during the election campaign in 2004, investigations had been carried out by the police. Although no conviction was brought against him, the head of the regional police department involved was dismissed. The deputy head of police had been convicted, but was granted amnesty and released. Regarding the election-related violations, some 2,000 investigations had been carried out on some 6,000 individuals. The results had been good, as evidenced by the free and fair parliamentary elections held in 2006.

Oral Questions by Committee Experts

Committee Experts then asked various questions and made comments on a number of topics, including whether the Covenant superseded the Constitution in case of conflict; the status of investigations in cases of individuals who had died in pre-trial detention; a response to the allegation that 66 per cent of detainees in police custody had been subjected to brutality; the status of the planned council on equal opportunities; regarding a reported absence of complaints on the grounds of racial discrimination, what measures were being taken to ensure that that was not owing to a lack of trust in the authorities; more details on the act that allowed for restrictions on freedom of religion in a state of emergency; details of judicial reform, in particular with regard to the appointment of judges and their tenure; details on the domestic violence manual for law enforcement officials; what measures were being taken to sensitize judges to domestic violence issues; abusive treatment of young recruits in the military; what measures were being taken to address the 27 per cent salary gap between men and women; whether a quota system to encourage women’s participation in public office was contemplated; and reports of flagrant discrimination against Jews.

In the case of the students who had been arbitrarily arrested during the 2004 elections, why was the local Police Chief not convicted and why did the Deputy Police Chief, who was convicted, receive amnesty?

In the case of the 10 Uzbeks that had been admittedly improperly deported, one Expert was gratified by the delegation’s assertion that measures were being taken to ensure such procedural mistakes would not be committed again, but still wished to know what had happened to the Uzbeks themselves. Had they received any compensation?

Response to Oral Questions

Responding to these oral questions and others, the delegation said, with regard to a case in which the Constitution and the Covenant were found to be in conflict, in the delegation’s opinion, the Covenant would prevail. However, such a case would have to be interpreted by the Constitutional Court and there was no precedent in this area.

Local civilian police review boards had been set up and they were now present in all districts, the delegation asserted. The boards were composed of members of human rights organizations and representatives from the internal investigations unit of the Ministry of the Interior. The boards were mandated to review detention conditions and were empowered to visit all detention facilities for unannounced visits to ensure that no human rights violations were taking place.

The suggestion to videotape all investigations was certainly appreciated, and it was to be hoped such a rule could be established in future. At present the funds were simply lacking, and it was necessary to concentrate on the basic needs of detainees.

The high volume of complaints received by the Ombudsman’s Office and the high rate of violations found was more comprehensible if one considered the wide scope of rights guarantees in the Ukraine, including to free medical care. That was especially true, the delegation observed, if one also considered the Government’s lack of resources to always adequately ensure those rights.

Regarding judicial reform, there were no plans to change the term limits for judges, which were set by the Constitution. Judges were first appointed for a provisional first term of five years, which could then be converted to a life appointment by the Parliament. What could and should be changed, the delegation pointed out, were the selection procedures, which were currently carried out at the regional level and with no standardized controls. The first thing was to set up a national selection system, and to require a competitive examination or standardized system for evaluating candidates’ credentials. In addition judicial salaries were quite low and that had contributed to corruption. Last year judges’ salaries had been increased several times, and the authorities were planning to raise them still further in the future.

On non-refoulement and the case of the 10 Uzbekis who were deported, as soon as they had been arrested, the Office of the Ombudsman, together with UNHCR, had carried out an investigation. The delegation could not say for certain, but information had been received that the individuals concerned were now under investigation and were awaiting disposition of their cases.

With regard to abuse of conscripts in the military, the delegation said that was an unfortunate legacy of the conscription system. The best thing would be to abolish conscription and to institute a professional military force, and a transition to a professional force was planned by 2010, which would solve the problem. Moreover, criminal prosecutions of such abuses had been stepped up. A recent administrative instruction to the military had held that breaches of the rules of conduct would not be routinely tracked to administrative military tribunals, but directed to the Prosecutor’s Office for criminal investigations. This year alone 143 cases had been investigated, regarding 106 military personnel.

The delegation said that a quota system to promote women’s participation in Government had indeed been discussed in Parliament but it had been decided not to pursue such a system.

On human rights violations by law enforcement officers, this year alone the Prosecutor’s Office had carried out investigations of police abuses for every type of violation. There had been disciplinary sanctions and three criminal proceedings against policemen that had violated the law in carrying out their duties.

Conditions in Deprivation of Liberty Situations

The delegation said there was a problem of overcrowding in detention centres and in prisons, but stressed that the authorities were working on solutions. The number of detainees had been decreasingly steadily over the past few years, in part because criminal legislation enacted in 2001 had transferred the responsibility for ordering pre-trial detentions from the Prosecutor’s Office to the courts. For example, in 2002, the courts had ordered 60,000 detentions, in 2004, 47,000. They were also working to reduce the prison population. In 1999, some 37 per cent of sentences handed down were for a term of imprisonment; in 2003, only 30 per cent of sentences were for imprisonment; and in 2004 only 26 per cent of all criminal judgements provided for a prison sentence.

Freedom of Opinion and Expression

Following the journalists’ revolution – when hundreds of journalists had refused to report on the elections owing to censorship and harassment – there had been a dramatic change in the freedom of expression and in the media in Ukraine. In general, the media was free, and freedom of speech was guaranteed.

Violence against journalists persisted, but it was decreasing, the delegation affirmed. In 2003, four journalists had disappeared or were killed, but in 2004 and 2005 there had been no such incidents. In 2005 eight journalists had been arrested, and in 2006 only two had been arrested. Unfortunately attacks on journalists still occurred: in 2004, 47 journalists had reportedly been beaten, and in 2005, 16 beatings had occurred. Some progress had been made in the six-year investigation into the murder of the journalist Georgiy Gongadze. The trial of the policemen responsible for the murder, who had confessed, was now under way. However, that was just a first step, as it only involved the executioners and not those in power who had ordered the crime.

Prohibition of Incitement to National, Racial or Religious Hatred

There were several alleged anti-Semitic incidents that had occurred in 2005, the delegation affirmed, including physical attacks and the defacement of synagogues in Kiev and other cities. Three persons wee convicted and some cases were still pending. Following the 2005 attack in Kiev, the President had made a public statement denouncing that act. Acts of Islamophobia had not been witnessed in Ukraine.

Protection of Children

The percentage of adoption by foreigners had grown, to just over 60 per cent of all adoptions last year. Complaints regarding adoptions had doubled from last year. In 2005, eight adoptions by foreigners were annulled and declared illegal. A draft law had been submitted to improve adoption procedures and to strengthen guarantees, and to bring Ukrainian law in line with the Hague International Code of Adoption.

Equality Before the Law; Equal Protection of the Law; and Minority Rights

With regard to the Crimean Tatar minority, whose members had returned in great numbers to the Autonomous Republic of the Crimea, this year the Cabinet of Ministers had approved a settlement policy for the Crimean Tatars for their adaptation and social integration through the year 2010. Funds had been earmarked in the State budget to that end, in particular for the construction of buildings and for the holding of social and cultural events. Most of the repatriated people had become Ukrainian citizens, the delegation stressed. The problems faced by the Tatars were largely economic: ones of housing and employment.

With regard to an alleged large number of foreigners in detention facilities, the delegation said that there was no evidence of a concentration of a particular nationality in detention or of a discriminatory policy against them.

Oral Questions by Committee Experts

Committee Experts then asked various questions and made comments on a number of topics, including conditions of detention for those with HIV/AIDS or suffering from tuberculosis; a challenge to the delegation’s assertion that there was no Islamophobia in Ukraine, in particular with regard to the Muslim Tatar community; continuing concern about attacks on journalists; the status of funding for the Ombudsman’s Office; how the Government was going to implement the Ombudsman’s proposals regarding the Crimean Tatars; and conscientious objector status for military service, which could only be granted on religious grounds.


Response to Oral Questions

Responding to these oral questions and others, the delegation said that provision was made for HIV/AIDS and tuberculosis patients in both pre-trial and prison detention facilities. In that respect, he noted that the number of tuberculosis cases in detention had greatly decreased.

The delegation noted that, by a Presidential decree, a draft law was being prepared to extend the grounds of conscientious objection to include non-religious beliefs. It was true that under the current law such grounds were not admissible.

Preliminary Remarks

CHRISTINE CHANET, Chairperson of the Committee, thanked the delegation, adding that the sixth periodic report of Ukraine was a model of a kind, as it had been presented on time; it had complied with the Committee’s guidelines; and it had been presented by a high-level competent delegation. There had been a clear concern expressed throughout the report to comply with international human rights standards, even if those were often those of the European Convention for the Protection of Human Rights and not those of the Covenant. There was much in common between the two instruments.

The proposed law on equality of opportunities, and the publication of a document that included the concluding observations of UN treaty bodies to which Ukraine was a party, were particularly noteworthy achievements, Ms. Chanet felt. In addition, the Ombudsman’s Office had frequently carried out an excellent analytical review of the situation in Ukraine and, as an Expert aptly remarked, it remained to be seen what the Government did with those excellent suggestions and comments.

With regard to the case of the Uzbeki asylum-seekers, Ms. Chanet wished to remind the delegation that it was not just a case of the violation of due procedure under the Covenant, but also of the article against cruel, inhuman treatment or punishment, and she urged the delegation to follow the case of those individuals closely to ensure that they suffered no irreparable harm as a result.

Ms. Chanet recalled once again the reports received that over 60 per cent of detainees in Ukraine had suffered from ill-treatment. Also, while it had been clear that the delegation felt that the current 72-hour period for detention was too long, it had not been clear whether the length of detention was to be changed.

Finally, Ms. Chanet noted that the issue of acts of Anti-Semitism and discrimination against the Crimean Tatar minority required more than public declarations by the authorities: acts of discrimination had to be eliminated at both the national and the local levels.

For use of the information media; not an official record

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