Presentation of the report
NAZAR KULCHYTSKYY, Government Agent before the European Court of Human Rights, presenting the seventh periodic report of Ukraine (CCPR/C/UKR/7), noted that the dialogue with the Expert Committee was a matter of paramount importance. Awareness of Ukraine’s commitments under international law and the rights that derived from those had increased in the last few years. The authorities consistently referred to the work of treaty bodies in the course of the dialogue with non-governmental organizations (NGOs) and other actors, such as Ukraine’s Ombudsman. Ukraine had recently launched a process of criminal justice reform. As a first step, a new Code of Criminal Procedure had been adopted on 13 April 2012, 60 laws and 70 Government decrees had been amended to ensure compliance, and as a result of the implementation of the new Code, pre-trial detentions had decreased by a third. Fifty million Euros had been budgeted this year for the implementation of the new Code of Criminal Procedure. The right to fair trial was guaranteed by equal rights and opportunities in the collection and submission of evidence before courts, clear criteria for the admissibility of evidence, and adversary proceedings and judicial control in the pre-trial stage. The new Code made sure that no individuals were subjected to ill-treatment in order to obtain self-incriminating testimonies to prove their guilt. Mr. Kulchytskyy mentioned that 1,055 criminal proceedings had been initiated following claims of inhumane or degrading treatment during the first three months of 2013.
A credible justice system was another pillar of human rights protection and public confidence in the judiciary had to be increased through judicial reforms. A law on the judicial system and the statute of judges had been recently adopted to improve the administration of justice. A draft law strengthening the independence of judges had been submitted to the Parliament. It established that the powers of the Supreme Court should be amended to ensure the consistent application of laws by all general courts, that the creation and organisation of courts should be carried out according to the law rather than Presidential decrees, and amended the procedure for election and dismissal of judges. Significant progress had been made with regards to the establishment of the National Preventive Mechanism under the Optional Protocol to the Convention against torture. The Mechanism would follow the model of the “Ombudsman Plus.” The Ombudsman’s representatives had carried out 169 visits in various custodial settings in 2012 and a report had been published after each visit. An action plan had been adopted with a view to the effective implementation of the Mechanism’s recommendations. Free legal aid was provided in all regions of the country and assistance was provided by lawyers chosen on a competitive basis. People under arrest were provided with aid on the basis of the Law on free legal aid, which had entered into force in January 2013. A target programme had been designed to improve the provision of free legal aid and to bring increase public awareness about it. The legal training and qualification of lawyers had also crucially improved.
Several legal provisions had been adopted in order to counter discrimination. A distinction between direct and indirect discriminations still had to be made; the definition of discrimination was non-exhaustive and the law had to be further improved and amended. In the context of cooperation with the European Union, a draft law was under consideration before the Parliament regarding the powers of the Ombudsman and the adoption of a law on discrimination at work. Medical and legal assistance was provided to victims of human trafficking and the Ministry of Social Affairs was developing standards and guidelines in this regard. A broad media campaign had been launched, informing the public on the current rehabilitation plans and institutions. Several centres across the country offered shelter and assistance to victims of human trafficking. A network of shelters for children also provided rehabilitation measures. An agreement between NGOs and the Government had made possible the active involvement of civil society. The International Organization for Migration also contributed to the rehabilitation of victims. Ukraine was a multinational State and policy in this area aimed at striking a balance between all nationalities. The rights of minorities were recognized and financial support was provided to minorities’ representatives. Members of religious minorities could enjoy freedom of belief and religion. All national minorities had the right to use their own language in day-to-day life and in relations with the administration. The Crimean Tatars deported in the 1930’s had been allowed to come back to Crimea. More than 15 schools in the Crimean language existed in the region.
Questions by Experts
A Committee Expert noted that Ukraine was one of the first parties to the International Covenant on Civil and Political Rights and to the two Optional Protocols, and emphasised the important input from non-governmental organizations received in preparation for the discussion. Ukraine’s report showed that important achievements had been realized, especially regarding the legal framework for the protection of human rights. The Expert asked for additional information on the status of the Covenant in the domestic legal system, were the provisions of the Covenant directly applicable in national law? Could the judiciary assess the conformity of the legal system with regard to the Covenant? It was important for the judiciary to be aware of the obligations Ukraine had accepted in the framework of the Covenant. How thorough was the judges’ awareness about the provisions of the Covenant? The Expert also inquired about steps undertaken to implement the decisions of the Committee regarding specific cases brought to the attention of the Committee through its communications procedure. Had the Supreme Court looked at the substance of the aforementioned cases? Domestic laws had to be amended in order to take into account the provisions of the Covenant. Did Ukraine give serious consideration to the recommendations of the Committee? On the issue of fair trial, the Expert asked whether those who had faced unfair trials under the previous Code had access to new trials under the new Criminal Code. Were sufficient financial resources available for the implementation of the Ombudsman’s mandate? What effective remedies were available to the Ombudsman when a case was referred to him? The Expert underlined that the Government had to protect the religious minorities and asked about concrete measures envisaged in this regard.
Another Expert noted with concern that the report focused on legal measures and information on the concrete situation on the ground was missing, was discrimination on the basis of sexual orientation forbidden by law? The Expert also inquired about compensation for victims, which had to include not only financial indemnity but also redress and satisfaction. Did the anti-discrimination law respect international standards with regards to direct and indirect discrimination? In accordance with international standards, positive actions had to be taken to guarantee equal opportunities in practice, were investigations being carried out regarding attacks against minorities, especially the Roma. What steps was Ukraine taking to fight hate speech in public spaces? The Expert requested information on specific cases related to hate speech and wondered if sentences in this area reflected the gravity of the crimes. Regarding ill-treatment and torture, could the delegation provide information on the measures taken to combat torture? Concerning the creation of a National Prevention Mechanism, had State officials been convicted on the grounds of ill-treatment? Finally, the Expert noted that a person who ran the risk of being tortured in his country had been deported, contrary to international standards in this regard, and said that the principle of non-refoulement had to be upheld.
An Expert inquired about the outcome of the Parliament’s discussion on gender equality, noting that women were not represented among regional Governors and stressing that equal remuneration between men and women was of utmost importance. In light of reported attacks and discrimination against lesbian, gay, bisexual or transgender persons, including violence, threats, illegal arrests and extortion by law enforcement agents, the Expert asked the delegation to outline the steps taken to combat discrimination and social exclusion of lesbian, gay, bisexual or transgender persons. What concrete measures was Ukraine taking to protect lesbian, gay, bisexual or transgender minorities? The Expert inquired about legal and policy measures aimed at facilitating access to personal documents and at improving the situation of Roma people in terms of access to education, health care, housing, and employment. Turning to the situation of the Crimean Tatars, what measures had been taken to counter discrimination against this minority? Did Ukraine intend to adopt a specific legislation regarding the restoration of rights of persons formerly deported on the basis of ethnic origin? The delegation was asked to provide additional information regarding domestic violence and the statistics contained in the report.
Experts also requested more detailed information on the progress achieved in the implementation in practice of the amendments to laws on the rights of persons with disabilities, adopted on 22 December 2011. The Ombudsman had published a report on the conditions in medical centres, what steps had been taken to respond to that report? Numerous allegations of arbitrary detention of drug users had been received during the last six months. One Expert asked for more details on Ukraine’s policy in this regard, noting that measures taken by the Government had apparently undermined prevention programmes. What measures was the Government taking to decrease the number of deaths in custody. According to the Code of Procedure, a person must be brought before an investigative judge within 72 hours after an arrest. What happened during the 72 first hours?
Response of the delegation
Responding to questions raised by the Committee, Ukraine’s delegation said that its Constitution clearly stated that all international instruments were part of national legislation and they were applied on the same footing as domestic laws. Once an instrument had been ratified, its provisions applied automatically. Statistical data on the application of the provisions of the Covenant by the courts was not available. However, the Constitutional Court had quoted specific provisions of the Covenant in a recent ruling and the Covenant was a source of law that courts had to apply. The Committee’s decisions in specific cases concerning Ukraine were implemented in good faith and in line with the Code of Criminal Procedure. However, these decisions could only be implemented as far as the domestic legislation allowed it. In one of the specific cases mentioned by the Experts, the ruling could not be revised because the Human Rights Committee was not an international judicial body but a set of safeguards had been taken to avoid that such cases arose in the future. The delegation said that the Ombudsman could initiate disciplinary sanctions against judges who did not comply with the relevant standards of the administration of justice.
Concerning the situation of Roma persons and reports that Roma persons had been beaten up in custody, an investigation had been carried out on alleged acts of violence committed by a police officer, but no criminal case had been brought due to the lack of incriminating evidence. A series of incidents of discrimination based on ethnicity or religion had been noted last year. The legislation had been amended to take into account racial discrimination and incitement to hate and the investigative committee of the Ministry of Internal Affaires was currently looking into three cases related to hate crimes. Investigators had to demonstrate that the specific crime had been committed on the basis of intolerance, but racism was an aggravating factor when it came to convictions. A campaign had been launched by the Ministry of Internal Affairs to encourage ethnic and religious tolerance. Drug-related crimes could lead to fines and imprisonment up to three years.
The practical implementation of legislative instruments was crucial and the new Criminal Code of Procedure needed time to deploy its effects. A draft law had been drafted in cooperation with the Council of Europe in order to guarantee its conformity to international standards. An anti-discrimination draft bill prohibited discrimination on the ground of sexual orientation at work. The delegation agreed that this draft bill contained provisions that might be incorrectly interpreted but had to be submitted to Parliament even though some of its provisions were not in line with international obligations. Law enforcement agents took into consideration anti-discrimination standards and all complaints in this regard were duly investigated.
Since Ukraine ratified the Convention on the Rights of Persons with Disabilities, several court decisions had confirmed the applicability of new standards regarding accessibility. As a result, the Prime Minister had decided to grant licenses to medical centres taking into account accessibility conditions for persons with disabilities.
The Ministry of Social Policy had drafted a new bill to ensure gender equality, which provided quotas for local and regional elections, as well as measures against discrimination at work. Unfortunately there were no female governors in Ukraine; however, women were increasingly represented at the highest political level. Three Ministries were led by women and women were well represented in local political bodies. Some positive changes had been recently noted in this regard. Concerning wages, Ukraine recognized the principle of equal pay for an equal job and, when occupying an equivalent post, women and men received the same pay.
Preventing domestic violence was one of the main issues and the aim was to improve domestic legislation to protect family members affected by violence. A draft bill had been put forward to raise awareness on domestic violence and to create a hotline to report domestic violence. In 2012, the courts had received a large number of complaints from women facing domestic violence. There were 29 centres providing assistance for women victims of domestic violence and human trafficking. In 2013, the Ministry of Internal Affairs had looked into more than 600 cases of domestic violence and several preventive measures had been taken, such as early warning mechanisms.
Strategies for the integration of Roma people had been implemented to ensure that they benefited from equal opportunities. In this context, the involvement of NGOs was instrumental to facilitate legal protection and assistance, the issuing of identification documents, and finding employment. The goal was to offer appropriate training for adults and education for children and housing and protection were also provided. A working group that included Roma organizations had been set up to look at integration strategies. Concerning how Roma persons were informed about their legal rights and obligations, mediators were involved in the assistance given to Roma people to ensure that they enjoyed their rights. Regarding the situation of deported Crimean Tatars, a draft bill offering compensation and housing was under consideration. The delegation also noted that Crimean Tatars were well represented in Crimea at the local level.
Response by the Delegation
Judges had to verify the grounds for any preventive detention and that the rights of detainees were not infringed. Persons in custody had the right to appeal against their detention and underwent a medical examination. If the doctor determined that a detainee had suffered from any kind of injury, the prosecutor had to be informed. It was acknowledged that the treatment of patients in psychiatric institutions could be problematic because abuses could only be reported to the legal guardian of the detainee. A working group was currently amending the legislation to correct the gaps in this regard. It was too early to clarify what specific provisions would be included in the law to come and to predict the timing of its adoption. The Ombudsman visited medical detention centres and psychiatric hospitals.
Concerning the principle of non-refoulement, refugees and asylum-seekers could not be deported to a country where they faced the risk of ill-treatment. The Office of the Prosecutor had to assess the risks faced by individuals seeking asylum. In addition, the country to which individuals were deported had to provide guarantees. Asylum-seekers could lodge complaints in court regarding their deportation or refusal to provide appropriate protection. A decision to extradite or deport an individual could not be enforced until an appeals court reached a final decision on the refugee status. According to national legislation, there was no clear link between refugee status and deportation.
Questions by Experts
An Expert noted that the Ombudsman’s Office was insufficiently funded and the monitoring of the detention facilities had to be done in cooperation with NGOs. What alternative means existed to ensure that the 6,000 detention centres across the country were regularly visited? What extent the recommendations of the Ombudsman were followed and what was the response to his findings?
Experts mentioned abusive prosecutions, harassment, and other forms of pressure on lawyers, in particular against those involved in sensitive cases. What were the concrete measures taken to protect lawyers against such attacks and to ensure their independence? The Expert asked whether the new law on the Bar association had been adopted and if concrete action had been taken towards implementation. What kind of training was offered to prosecutors with regards to juvenile criminal cases?
It was noted that demonstrations were banned in several streets of Kiev. Had the draft act on peaceful events been adopted and did it comply with the Covenant? Experts also requested information on its implementation, including on sanctions for violations of the right of peaceful assembly and its application in practice.
Another Expert inquired about the implementation of recommendations from the Committee at the domestic level, which seemed difficult. It did not make sense for anyone to lodge a complaint to the Human Rights Committee if its decisions could not be applied by the national authorities. Many draft laws were still on the table and some of them contained elements which were incompatible with the obligations of Ukraine under international law. What exactly was the position of the Government concerning those bills currently under discussion? What was the concrete programme to achieve gender equality in the political sphere and what concrete measures were envisaged to narrow the gap between men and women at work?
Regarding hate crime, what were the concrete plans of the Government in order to apply the anti-hate speech provisions of the Criminal Code in a more effective manner? What additional measures were taken with regards to the protection of women victims of domestic violence?
An Expert applauded the adoption of an anti-human trafficking law and noted that the Government recognized that Ukraine was increasingly a country of transit, as well as a source. What concrete measures had been taken to ensure that every victim could be protected? What funds were available to the State programme on trafficking on human beings? Was the Government helping regional authorities in the fight against human trafficking? Were civil society organizations providing assistance to victims?
Adequate remuneration to judges was very important to ensure the independence of justice. An Expert highlighted that the act on judges’ status had been adopted to prevent any political pressure on judges. What steps had been taken to fully implement the recommendations of the Venice Commission regarding the independence of justice?
The new law on refugees allowed for important improvements in the situation of refugees and asylum-seekers and Experts inquired about the implementation of this law, noting that asylum-seekers only had five days to appeal the decision. Persons under extradition arrest could apply for refugee status but it was usually rejected by the courts. In practice, the procedure was not up to international standards. In some situations, asylum-seekers had to bring their own interpreters and asylum-seekers could be placed under administrative detention for up to twelve month, which should be the exception rather than the rule.
One of the Experts requested updated information on the status of the draft law on the relation between the State and religious faiths and the draft amendments to the law on freedom of conscience and religious organizations. Had Ukraine taken any steps to extend the right of conscientious objection against mandatory military service to persons who held non-religious beliefs?
There were measures to protect individuals from discrimination on the grounds of sexual orientation in the labour law, but why were there no provisions in this regard in the anti-discriminatory law?
Concerning torture, was there an independent mechanism that could receive and transmit cases of torture to the relevant authorities? Were video recordings of questioning compulsory and were people medically examined before entering detention centres in order to prevent acts of torture?
Experts noted that human rights defenders suffered from harassment and could be condemned up to five years for defamation. Another Expert inquired about the length of pre-trial detention. There were cases of pre-trial detention periods of up to five years and Experts requested the delegation to clarify the situation. Could the police bring a suspect to a judge before the 72-hours period of administrative detention expired? What was the underlying rationale behind article 365 of the Criminal Code, under which Yulia Timoshenko had been tried? Why had sanctions for abuse of power without a personal motive been more severe than the sanctions for abuse of power with personal motive? What safeguards existed against excesses of authority and politically motivated prosecutions?
An Expert inquired about the right to due process and effective remedy and noted the need for more transparency in court administration in order to avoid any political influence. The removal of judges due to breaches of oath had to provide sufficient safeguards in order to ensure the political independence of the judges. No judge should be forced to adjust their adjudication for political reasons or in order to achieve career advancement. What measures had been taken to limit the power of the courts’ chairpersons and to increase transparency?
Response by the Delegation
The delegation noted that the army would recruit on a voluntary basis by 2017 and that there currently were no conscripts in the army.
As soon as a complaint concerning human trafficking was lodged, victims could benefit from protection, legal aid, material assistance and assistance to return to their country of origin. The prevention of human trafficking was funded by the State’s and local authorities’ budgets, but more funding was needed. In this context, the cooperation with civil society organizations played a crucial role in the preparation of a draft law on human trafficking. An agreement had been signed with 22 civil society organizations that assisted the Government in the implementation of measures against human trafficking.
Regarding the rights of women and the representation of women in positions of power, a new draft law aimed at a 30 per cent quota for all electoral lists. The implementation of a gender balance in high-level posts was also envisaged and a programme to ensure gender equality was under consideration. Men and women received equal wages for the same work. Awareness raising campaigns drew employers’ attention to the importance of equal wages for the same work. Affirmative action was possible, but women were not permitted to work in certain jobs that required night shifts or business trips if they had young children.
The Ministry of Social Policy monitored the prevention of domestic violence and collected information on incidents and the number of people undergoing a correction programme. A national campaign to stop domestic violence was currently under way. A programme ensured that appropriate health services were offered to women facing domestic violence. Ukraine had ratified several regional instruments designed to combat domestic and sexual violence.
Over the period 2012-2013, the Office of the Ombudsman had carried out a high number of monitoring visits to detention centres, followed by investigations on specific problems reported. Strict monitoring by the Ministry of Internal Affairs was now in place and measures were taken to prosecute perpetrators of ill-treatment; however, due to financial constraints, some detention centres could not be monitored. Measures had been taken to ensure that video recordings were used during questioning to prevent acts of torture and independent observers were now posted in all detention facilities.
The European Court of Human Rights had found that the existing legal procedures to challenge extraditions were appropriate. All individuals were provided with legal aid and no one could be held in detention for more than twelve months. The Ombudsman did cooperate with non-governmental organizations.
A draft law on juvenile justice produced by the Ministry of Justice in close cooperation with NGOs did not receive support from part of the society and the draft had been rejected but some amendments had been made. Juveniles were provided with assistance and free legal aid; the reconciliation procedure had also led to a change in the Criminal Code; and alternative sanctions, such as community service, had been established. According to the new Code of Criminal Procedure, the age of the defendant was also taken into account. A National Action Plan ensured that the conceptual framework of the juvenile justice system was appropriate, as well as the training for officials. Two draft bills had been recently submitted to Parliament, on juvenile justice system reform and on probation, and were under consideration.
The creation of a nationwide self-regulating Bar Association was also under consideration. State authorities had no role in disciplinary procedures against lawyers and lawyers had a clearly defined status, with safeguards that protected their independence. No statistics were available on the situation of human rights activists because they did not enjoy a specific status and no independent body could investigate allegations of ill-treatment. As a consequence, the new Criminal Code of Procedure would set up an independent investigative committee by 2015.
The European Court of Human Rights deemed that restrictions to the right of peaceful assembly, which existed in Ukraine’s legislation, were not in line with international standards, and the authorities were using laws inherited from the Soviet Union to restrict the right of peaceful assembly. A new draft bill providing very limited restrictions to peaceful assembly was currently being drafted by members of Parliament in cooperation with the Ministry of Justice and civil society organizations. The European Court of Human Rights had decided that sanctions to judges did not function properly. All laws on proceedings against judges had been amended within the limits of the Constitution; however, an amendment to the Constitution was necessary and would constitute the first step towards the full resolution of that problem. The prosecutor did not have the power to initiate proceedings against judges and that the Supreme Justice Council was now responsible for the promotion and dismissal of magistrates.
A large number of people were requesting refugee status but most of the applications were rejected. Appropriate protection was provided to those who needed it. The decisions of the Supreme Court were final and could not be appealed. Regarding the status of the decisions and recommendations of the treaty bodies, a draft bill was currently under consideration.
Two draft laws on the prevention of propaganda in favour of homosexuality had been submitted by two members of the Parliament and the President would veto these draft laws in the case they were adopted.
Some licenses were not granted to radio and television stations due to the limited number of frequencies available and the authorities determined a list of media that received a digital frequency. It was a technical issue that had nothing to do with limitations to the freedom of expression. Regarding the freedom of conscience, the relationship between the State and the Church was based on a partnership approach. Religious organizations were interested in the return of all their properties and, today, only a few religious sites were still possessed by the State and would be returned to the religious organizations. The Parliament was envisaging legislative measures to ensure the enjoyment of believers’ rights. Commemorative events on the deportation of Crimean Tatars were organized every year and, since their return to Crimea, the Government had provided housing assistance.
People under detention had access to lawyers and acts of torture perpetrated by officials were automatically prosecuted.
Questions by Experts
An Expert noted that 40 per cent of asylum-seekers were rejected at the initial stage and wondered whether appeal procedures were available? Were there any safeguards to ensure that pre-trial detentions were not unduly extended?
Response by the Delegation
Responding to questions posed by the Committee, the delegation indicated that the draft law on defamation had been withdrawn. Persons were recruited in the military on a voluntary basis and serving in the military was a requisite to work as a policeman or a fire-fighter. Candidates for a military career outnumbered the amount of soldiers authorities would be willing to enlist and this explained why there were no conscripts in the army. Forced sterilisation was not allowed by law and the maximum duration of pre-trial detention included the time elapsed since the arrest.
NAZAR KULCHYTSKHYY, Government Agent before the European Court of Human Rights, thanked the Committee and indicated that answers would be provided in writing to the questions that were left unanswered. Ukraine was committed to pursuing its work towards a better protection of human rights.
NIGEL RODLEY, Chairperson of the Committee, said that there was a real sense of progress in Ukraine, less than a quarter of century after its independence from the Soviet Union. The transition that had taken place so far had been encouraging but there was still room for improvement and the protection of human rights was an on-going process. Mr. Rodley was interested in the role of international law under the constitutional system. No country was purely monist or dualist. The courts had a substantial role to play in the protection of human rights, which also depended on the training of judges. Several measures had been put into place to prevent abuses against people deprived of liberty; however a deterrent approach had to complement prevention.
For use of the information media; not an official record