OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
THE OBSERVANCE OF HUMAN RIGHT TO FREEDOM FROM TORTURE IN
PROFESSIONAL ACTIVITY OF THE NATIONAL POLICE OF UKRAINE
(ARTICLE 3 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS)
Andrii Voitsikhovskyi
voitsihovsky@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Oleksandr Bakumov
bakumov.aleks@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Olena Ustymenko
ustimenko2312@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Vadym Seliukov
vadim.selyukov@gmail.com
Associate Professor of Department of Police Administrative Activity of Kharkiv National University
of Internal Affairs (Ukraine). Ph.D. in Law.
Abstract
The article considers the issue of observance by the bodies of the National Police of Ukraine
of human right to freedom from torture or inhuman treatment or punishment.
The practice of the European Court of Human Rights testifies that Ukrainians are increasingly
applying to the Court for violations of the prohibition of torture or inhuman treatment by the
police.
The authors noted that the responsibility of the bodies of the National Police of Ukraine to
prevent violations of human rights to freedom from torture or inhuman treatment was
enshrined both in national law and in international legal documents, especially in the
Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The
application of the provisions of the Convention, as well as the decisions of the European Court
of Human Rights as an integral part of its law enforcement practice, will contribute to the
development of the protection of human rights in Ukraine.
Summarizing the practice of the European Court of Human Rights in relation to Ukraine
regarding violations of Article 3 of the Convention, the authors of the research singled out
certain requirements that are binding on the bodies of the National Police of Ukraine.
The observance of national legislation, application of the provisions of the Convention for the
Protection of Human Rights and Fundamental Freedoms and the practice of the European
Court of Human Rights will contribute the increasing of the public trust and respect for the
law enforcement agencies, including the National Police of Ukraine and improving the
efficiency of the Ukrainian justice system.
Keywords
Torture or inhuman treatment, or punishment; European Court of Human Rights; Convention
for the Protection of Human Rights and Fundamental Freedoms; National Police of Ukraine.
How to cite this article
Voitsikhovskyi, Andrii; Bakumov, Oleksandr; Ustymenko, Olena; Seliukov, Vadym (2019).
"The UN in Conflict Resolution: the case of East Timor". JANUS.NET e-journal of International
Relations, Vol. 10, N.º 2, November 2019-April 2020. Consulted [online] on the date of the
last visit, https://doi.org/10.26619/1647-7251.10.2.11
Article received on March 3, 2018 and accepted for publication on August 28, 2019
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
153
THE OBSERVANCE OF HUMAN RIGHT TO FREEDOM FROM TORTURE IN
PROFESSIONAL ACTIVITY OF THE NATIONAL POLICE OF UKRAINE
(ARTICLE 3 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS)
Andrii Voitsikhovskyi
Oleksandr Bakumov
Olena Ustymenko
Vadym Seliukov
Introduction
One of the most important tasks of the state is to abide Article 3 of the Constitution of
Ukraine on the protection of human’s life and health, honour and dignity, inviolability and
security. In order to protect these rights and freedoms of citizens of Ukraine, the
Fundamental Law (Article 28) states that no one shall be subjected to torture or to
inhuman or degrading treatment or punishment [1].
Adhering to the specified constitutional requirements is the main duty of law enforcement
bodies of Ukraine, in particular the bodies of the National Police of Ukraine, which take
actions to eliminate the threats to the life and health of individuals and public security
resulting from a criminal offense (Article 23 of the Law of Ukraine “On the National
Police”)[2].
Accession to the Council of Europe and ratification of the Convention for the Protection
of Human Rights and Fundamental Freedoms of 1950 in July 17, 1997 incorporated
Ukraine in the European system of human rights protection, which includes not only the
obligation to protect and observe the rights and freedoms enshrined in the Convention,
but also recognition of the jurisdiction of the European Court of Human Rights. At the
same time, this means that the activities of all public authorities of Ukraine, in particular,
judicial and law enforcement agencies, their decisions and procedures, which are used,
should not be in conflict with the provisions of the Convention.
The observance of human rights by the National Police of Ukraine is increasingly
becoming the subject of discussion in the media, in academic community, and is the
focus of contentious political debate. Certain cases of torture, ill-treatment, use of
evidence obtained through inhuman treatment, lack of effective investigation of
applications and communications on this issue cause a serious public response and
adversely affect the credibility of the police authorities and the entire national law
enforcement system.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
154
According to Clause 4 of Article 7 of the Law of Ukraine “On National Police of Ukraine”:
“Police officers under any circumstances are forbidden to promote, perform, incite or to
treat tolerantly any forms of tortures, cruel, brutal or degrading treatment or
punishment. In case of identification of such actions each police officer shall take
immediately all feasible measures on their suppression and it is obligatory to report on
direct management on the facts of tortures and intentions of their application” [2].
However, the practice of the European Court of Human Rights testifies that Ukrainians
are increasingly applying to the Court, because they were subjected to torture or
inhuman treatment by law enforcement workers, including the National Police of Ukraine.
The Court has already adopted a lot of decisions on Ukraine’s violation of Article 3
“Prohibition of Torture” of the Convention on Human Rights and Fundamental Freedoms
(182 cases for the period from 2007 to 2014) [3].
The study of decisions of the European Court of Human Rights concerning the violation
of prohibition of torture or inhuman treatment or punishment promotes the interaction
of European law with the national law of the states parties to the specified conventions,
enabling them to fulfill duly their international legal obligations. Moreover, in 2006 the
Law of Ukraine “On the Implementation of Decisions and Application of the European
Court of Human Rights Practice” was adopted. According to Article 17, the practice of this
court is a source of Ukrainian law, that is, court decisions should be applied along with
laws and bylaws of Ukraine [4], however, the practice shows that the police officers
actually ignore the requirements of the above-mentioned decisions.
These factors determine the necessity to identify the level and nature of violations of
human rights to freedom from torture or inhuman treatment by the National Police of
Ukraine, to analyze the practice of the European Court of Human Rights in relation to
violation of Ukraine Article хъ of the Convention for the Protection of Human Rights and
Fundamental Freedoms for the purpose of scientific generalization and development of
requirements and standards of conduct, clear and understandable for police officers, that
they must strictly adhere to in the course of professional activities, which indicates the
topicality of the subject of this research.
The academic novelty of the results obtained is that the comprehensive analysis gave
the possibility to formulate a scientifically substantiated statement of a theoretical and
applied nature which is fully directed and can be practically used to address the issues
related to the duly observance of human rights to freedom from torture or inhuman
treatment by the bodies of the National Police of Ukraine.
Estimating the observance of human right to freedom from torture in
professional activity of the National Police of Ukraine
The authors of the manuscript highlighted the legislative consolidation of the human right
to freedom from torture or inhuman treatment, and once again proved its absolute
character, the retreat from which is impossible under any circumstances. Police are one
of the state institutions whose activities are aimed at respecting human rights and
freedoms, including the inadmissibility of torture or inhuman treatment. Unfortunately,
the practice of the European Court of Human Rights testifies to systematic violations by
the bodies of the National Police of Ukraine of Article 3 of the Convention on Human
Rights and Fundamental Freedoms. It is stated that the result of such violations of human
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
155
rights was the loss of public trust in the police and the national law enforcement system
in general.
It is noted that the national mechanisms assigned to the police include an important role
in respecting and guaranteeing the human right to freedom from torture or inhuman or
degrading treatment or punishment. Summarizing the practice of the European Court of
Human Rights regarding violations of Article 3 of the Convention on the Protection of
Human Rights and Fundamental Freedoms, the authors have developed the requirements
for the Ukrainian authorities and the National Police of Ukraine to advance effective
protection of human rights and, of course, increase public trust and respect to police and
the entire national law enforcement system.
One of the fundamental values of a democratic society, which is enshrined in Article 3 of
the Convention for the Protection of Human Rights and Fundamental Freedoms, is
protection of the physical integrity of a person, including from causing pain, which leads
to severe physical suffering. For one, Article 3 of this Convention provides that “no one
shall be subjected to torture or to inhuman or degrading treatment or punishment” [5].
A number of other international legal instruments also prohibit torture and inhuman
treatment: Article 5 of the Universal Declaration of Human Rights of 1948, Article 7 of
the International Covenant on Civil and Political Rights, of 1966, the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, of 1984, the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment of 1987, Minimum Standard Rules for
the Treatment of Prisoners of 1955, Code of Conduct for Law Enforcement Officials of
1979, and many others.
Torture and inhuman treatment are one of the human rights violations that cause the
greatest concern of the global community today. For a long time, torture and inhuman
treatment were the main means of obtaining evidence and were widely applied during
investigations by law enforcement agencies, including the bodies of the National Police
of Ukraine (in the past, the militia). At the same time, the phenomenon of torture and
inhuman treatment in law-enforcement agencies remains scantily explored. This is due
to the long closed nature of this subject existing for many years, a demonstrative non-
recognition by the officials of the character and scale of this phenomenon.
As a rule, torture and inhuman treatment almost do not exist separately from other types
of official misconduct. In most cases, torture and inhuman treatment are the means by
which a policeman attempts to obtain information from a person about the commission
of an offense by him/her or another person in order to achieve the intended result in the
official activities.
The denial of the true scale and the system of torture and inhuman treatment in the
National Police of Ukraine, attention only to specific cases, the search for several guilty
ones and a complaint about insufficient funding - this is how the approach of the Ministry
of Internal Affairs of Ukraine to the solution of this problem looks like. Although the
leadership of the state and the ministry has changed, in many respects the approaches
have remained the same: the reform of those aspects of the impact of the scale of
unlawful police violence is insufficient; statistics on violations committed by employees
of the National Police of Ukraine do not reflect the true state of affairs; the procedure for
receiving complaints about violation and the procedure for their investigation are still
non-transparent and ineffective.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
156
The statistics show that in the structure of crimes against life and health of a person,
torture in Ukraine amounts to: in 2013 -51 crimes; 2014 - 54; 2015 - 73; 2016 - 62;
2017 – 82, 2018 – 163 [6]. Moreover, police officers illegally use physical force and
special means.
Criminal proceedings for deliberate bodily blows, torture or other violent acts by police
officers with respect to suspects or accused are usually limited to an internal official
investigation, and only 3% of the proceedings are brought to court (in most cases, these
proceedings have grave consequences, or so-called public response, causing wide-scale
public indignation).
Such a system of response to violations of human rights to freedom from torture or
inhuman treatment by officers of the National Police of Ukraine can hardly be considered
effective. That is why the level of trust in the figures given to assess the scope of unlawful
violence in police is still poor. In addition, the system still has an impact on the number
of such reports: every victim of torture or inhuman treatment should report it to the
police or the prosecutor’s office (which often delegates the case to the police for
investigation). There is no point applying to the same agency whose officer has violated
human rights. That is why most victims do not report it anywhere, leaving the real scope
of violence hidden from statistics. Thus, the methods of collecting and evaluating
statistics on violations of human rights to freedom from torture or inhuman treatment by
police officers have actually remained the same as before.
In order to study the problems of unlawful violence by the bodies of the National Police
of Ukraine, the Kharkiv Institute for Social Research and the Kharkiv Human Rights
Protection Group conducted a monitoring sociological study, during which the following
estimates were obtained:
Table 1 - Estimated number of victims of unlawful physical violence committed by police during
2004-2017
Year
Estimated number of
injured
2004
1,026,616
2004-09
1,319,500
2010
791,700
2011
980,200
2015
409,080
2017
641,326
Source: Monitorynh nezakonnoho nasylstva v militsii (2004-2017 rr.) / Kol. avt. Kharkiv,
Kharkivskyi instytut sotsiolohichnykh doslidzhen, 2017. 17 p.
Table 2 - Estimated number of victims of torture committed by police during investigation during
2004-2017
Year
Estimated number of
injured
2004
93,498
2004-09
113,331
2010
75,400
2011
113,331
2015
62,935
2017
96,195
Source: Monitorynh nezakonnoho nasylstva v militsii (2004-2017 rr.) / Kol. avt. Kharkiv,
Kharkivskyi instytut sotsiolohichnykh doslidzhen, 2017. 19 p.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
157
These results of the monitoring sociological study significantly differ from the official
statistics. These are not final results, but they make it possible to assess the real level of
violation of the human right to freedom from torture or inhuman treatment committed
by the bodies of the National Police of Ukraine.
The attitude of Ukrainians to the danger of becoming a victim of unlawful violence by
police authorities is confirmed by the results of this monitoring study. (in 2009 – 2.5%,
in 2010 – 1.8%, in 2011 – 1.5%, in 2015 – 1.4%, in 2017 – 3.2%). At the same time,
this indicator gradually declined year after year, except for 2017 [7, p.27].
The following factors of violation of the human right to freedom from torture and
inhumane treatment by the bodies of the National Police of Ukraine were put forward by
Ukrainians as primary ones:
- lawlessness of officers who use unlawful methods for work - (43.5%);
- poor staff recruitment, as a result of which people with sadistic inclinations join the
police (34.7%);
- poor professional and cultural level of police officers (30.5%) [7, p.36].
Responsibilities of national law enforcement agencies and in particular the National Police
of Ukraine to prevent violations of prohibition of torture or inhuman treatment are the
result of a long process of establishing norms of international and national legislation, as
well as a no less long-term and debatable process of their coherence.
Among all existing international legal tools, the Convention for the Protection of Human
Rights and Fundamental Freedoms of 1950 is the most respected by the states parties in
practice. This is in particular due to the fact that this Convention is legally binding on the
states that have acceded to it, and the decisions of the supervisory agencies of the
Convention are binding on the signatory states parties. In addition, the monitoring of the
proper enforcement of human rights is carried out by the European Court of Human
Rights, whose activities are regulated by the Convention, the Rules of the Court and
application processing.
By ratifying the Convention for the Protection of Human Rights and Fundamental
Freedoms, Ukraine has thus recognized the mandatory jurisdiction of the European Court
of Human Rights.
In accordance with Part 1 of Article 32 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, the interpretation of its norms is the exclusive
competence of the European Court of Human Rights. Therefore, from this perspective,
the case law of the Court constitutes the official international interpretation of the
Convention for the Protection of Human Rights and Fundamental Freedoms [5].
While exercising its powers to protect human rights guaranteed by the Convention, in
particular the right to freedom from torture or inhuman or degrading treatment or
punishment, the European Court of Human Rights takes steps aimed at approximating
the laws of the States Parties and adopts decisions that directly affect their legal systems.
The main purpose of the Court is to interpret and express its position on the practice of
the application of the rights and freedoms proclaimed in the Convention. It is envisaged
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
158
that the state, amending its legal system as a part of implementation of the decision of
the European Court of Human Rights regarding a complaint of one of its citizens,
automatically prevents a similar violation of the rights of other citizens.
At the same time, the States not subject to the European Court of Human Rights decision
but having legislative and law enforcement practices similar to those found by the Court
as unlawful in relation to other parties to the Convention, may not wait for the decision
of the European Court of Human Rights to make timely changes to their national
legislation. Such a position of the European Court of Human Rights is particularly relevant
in terms of the restoration and observance of fundamental human rights, including the
right to freedom from torture or inhuman or degrading treatment or punishment, since
the Court establishes certain standards for internal domestic application of Article 3 of
the Convention and its interpretation.
Unconditional nature of the guarantee of the protection of rights contained in Article 3
also means that under no circumstances, in accordance with the Convention or another
provision of international law, actions that violate this article cannot be justified. In other
words, there are no factors that could be considered as justification for prohibited acts
within the internal legal systems (armed conflicts, state of emergency, victim’s behavior,
different external circumstances, etc.) [8, p.380-381].
The answer to the question of what exactly is a “torture, inhuman or degrading treatment
or punishment” depends on the circumstances of the particular case.
By dividing the terms “torture” and “inhuman treatment”, the European Court of Human
Rights applied the principle of determining the gravity of suffering, but under the
influence of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 1984, it transformed the position, adding to the
main differences the purpose and intentional nature of such actions. Inhuman treatment
is deemed both active actions and omission to act of the authorities or their employees,
which caused only the moral suffering of the applicant.
There is another difference between the concepts of “torture”, “inhuman treatment” and
“degrading treatment”, apart from the purpose, intention, gravity of suffering, which is
an impairment of dignity of a particular person. It has been investigated that torture and
inhuman treatment are attacks on human dignity in its absolute meaning, whereas
degrading treatment is aimed at denigration the dignity of a particular individual. The
European Court of Human Rights has also included the conditions for the detention of
prisoners to the qualification of degrading treatment, emphasizing the universal character
of the provisions of Article 3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, according to which detained or imprisoned persons have all the
rights inherent in the dignity of each person.
Considering the issue of violation of Article 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms, the European Court of Human Rights is based
on the doctrine of the minimum level of severity. The essence of this doctrine in a nutshell
is that to fall within the scope of Article 3, ill-treatment must be at the minimum level of
severity.
The practice of the European Court of Human Rights singles out three basic concepts,
which are contained in the contents of Article 3 of the Convention for the Protection of
Basic Human Rights and Freedoms regarding the degree of severity of a treatment:
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
159
- torture is an inhuman treatment aimed at obtaining any information or confession
for further punishment;
- inhuman treatment or punishment is a behavior that deliberately causes serious
moral or physical suffering and should not be justified in the given situation;
- degrading treatment or punishment is a behavior that savagely humiliates an
individual before others and forces him/her to give up their will or conscience.
In assessing the level of severity, according to the European Court of Human Rights, such
facts as sex, age, and health condition of the victim gain particular importance. The
doctrine of the minimum level of severity itself is used to separate torture from inhuman
or degrading treatment and punishment [9].
Summarizing the practice of the European Court of Human Rights in relation to cases of
violation of the human right to freedom from torture or inhuman or degrading treatment
or punishment, at least 5 following requirements regarding the treatment of detained
and arrested persons shall be put forward to the bodies of the National Police of Ukraine:
1. Duty to report any injury that happened during a stay under the jurisdiction of police
authorities.
2. Duty to provide explanations for each injury that happened during a stay under the
jurisdiction of police authorities.
3. Duty to provide explanations regarding the treatment with a person during his/her
stay under the jurisdiction of police authorities.
4. Duty to provide explanations on the causes of death and the medical treatment
provided to that person until his/her death if the person died during the detention.
5. Duty to provide a satisfactory and plausible explanation of the causes of death if a
person died while being under the jurisdiction of police authorities [10].
Analysis of judgments of the European Court of Human Rights
concerning violations of Article 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms
As a part of this study, it is important to clarify the additional requirements contained in
the decisions of the European Court of Human Rights concerning Ukraine regarding
violations of Article 3 of the Convention binding on the bodies of the National Police of
Ukraine. In the following, we shall examine this part of the practice of the European Court
of Human Rights.
The case “Kaverzin v. Ukraine” (2013). On January 12, 2001, Kaverzin O. was detained
in Kharkiv by militia officers on suspicion of committing several murders and robbery.
After the detention, the applicant was taken to the militia station, where he was allegedly
tortured by unknown militia officers in order to obtain testimony to commit crimes.
According to the applicant, during such ill-treatment, which continued for several days
thereafter, he received an eye injury which eventually resulted in him suffering a
complete loss of eyesight. The applicant complained that the state authorities did not
provide him with adequate medical treatment, resulting in a disability.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
160
The applicant complained that there was no effective investigation of the beatings and
torture of militia officers. In addition, in the Dnipropetrovsk colony, in spite of his
blindness, every time he was taken out of the cell and during short visits with family
members he was handcuffed.
The European Court of Human Rights, after considering this case, noted that there is a
violation of Article 3 of the Convention. The court reiterates that Article 3 of the
Convention requires the careful investigation of reasonable claims of ill-treatment. This
means that the authorities should always try in good faith to find out what happened and
not to rely on hasty and unreasonable conclusions to close the criminal case. The Court
also considers that the non-provision of necessary medical care to persons in places of
detention, which is the responsibility of the State, is a violation of Article 3 of the
Convention. The Court finds that the applicant’s use of handcuffs in the Dnipropetrovsk
colony was inhuman and degrading treatment and that there was a violation of Article 3
of the Convention [3].
The case “Kulik v. Ukraine” (2015). On May 4, 2003, Kulik V. was arrested on suspicion
of stealing cucumbers from a greenhouse on a vegetable farm, as well as for the
commission of an administrative offense (deliberate disobedience and resistance to
militia officers).
According to the applicant, on the same day, militiamen beat him at the
Chervonozavodskyi District Militia Station in Kharkiv, forcing him to confess to the theft.
Subsequently, the applicant granted confessionary evidence.
On May 5, 2003 the applicant turned to the hospital for medical assistance. The doctor
recorded the numerous injuries on the body of the applicant and diagnosed brain
concussion and a possible fractured nose. The applicant was admitted to the hospital for
a course of in-patient treatment in connection with the injuries sustained.
On July 8, 2003, the applicant was inspected by a psychiatrist who had diagnosed him
with a psychiatric disorder.
The applicant complained under Article 3 of the Convention that he had been subjected
to ill-treatment by militia officers and that there was no effective investigation of the
incident.
The European Court of Human Rights, after considering this case, came to the conclusion
that the applicant’s bodily injury was serious enough and his complaint of ill-treatment
was reasonable in terms of Article 3 of the Convention, and therefore demanded an
effective investigation to be conducted by the national authorities.
The Court considers that the medical evidence available in the case is sufficient to
conclude that on May 4, 2003, on the date when the applicant was detained and he was
in the militia station, he suffered a brain concussion and numerous bodily injuries. Medical
evidence also suggests that from that date, he had a psychological disorder. Under these
circumstances, the Court ruled that the state should be held accountable for the ill-
treatment that should be qualified as inhuman and degrading treatment. Therefore, there
was a violation of Article 3 of the Convention and the state should be held accountable
for it [3].
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
161
The case “Serikov v. Ukraine” (2015). On May 16, 2008 Serikov S. was detained by
militia officers and sent to the Kharkiv City Department of the Main Administration of
Ministry of Internal Affairs of Ukraine in the Kharkiv region.
During the search of the applicant’s personal belongings, the militia found a packet with
the substance that, as it was later established, turned out to be cannabis.
According to the applicant he was ill-treated by the militia to make him confess at the
militia station. In particular, he argued that he was threatened with rape, beaten with
legs and arms on the head and body, and also threatened with weapons. The officers
used the “Palestinian hanging”; with his hands handcuffed behind his back, he was hung
at a height of one or one and a half meters, and then thrown on the floor face down. He
lost consciousness a few times.
On May 17, 2008, the applicant turned to the medical institution, where he was diagnosed
with a brain concussion, a soft tissue bruise of the head and chest. The applicant
complained that he had been subjected to ill-treatment by militia officers and that the
national authorities had not conducted an effective investigation of his allegations of ill-
treatment. He referred to Articles 3 and 13 of the Convention.
Based on all available material, the European Court of Human Rights considers it
established that all bodily injuries were caused to the applicant after his encounter with
militia officers on May 16, 2008, and until he left the militia station on that day. For these
reasons, the Court finds that the applicant has been subjected to ill-treatment, the state
should be held accountable for, and which should be classified as inhuman and degrading.
Under these circumstances, the Court concludes that the national authorities did not
ensure that the applicant’s allegations of ill-treatment were effectively investigated.
Therefore, there was a violation of the substantial aspect of Article 3 of the Convention
[3].
The case “Pomiliaiko v. Ukraine” (2017). In early November 2008, equipment was
abducted from the company where Pomiliaiko S. worked. In connection with the theft,
she was summoned to the Ordzhonikidzevskiy District Militia Station in Kharkiv, together
with her employee.
Having arrived at the district station, the applicant was pushed into the office, handcuffed
with her hands behind her back, even though she did not demonstrate resistance.
The militia officers who were present were intimidating the applicant in order to force her
to confess to theft. Having failed to obtain her confession, the militia officers forced her
to sit on a chair, put on a polyethylene package on her head and began to choke her. At
the same time, they beat her on the head, face, and lips, so that she did not bite through
the package. The applicant has lost consciousness several times. When she told the
militia officers that she needed to visit the toilet room, one of the police officers hit her
in the stomach and head. She lost consciousness again and involuntarily urinated. She
repeatedly refused and declared her innocence. The applicant was compelled to write a
statement that she had no complaints about the treatment of the militia officers with her.
However, from 9 to 27 November 2008, she was in inpatient treatment in connection
with a closed craniocerebral injury, brain concussion, soft tissue bruise of the head, injury
of upper and lower limbs, injury of anterior abdominal wall, lumbar osteochondrosis and
asthenic syndrome.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
162
The applicant complained that she had been subjected to torture by militia officers and
that there had been no effective investigation of her complaints at the state level.
Although the applicant referred to the Articles 3 and 13 of the Convention, the Court
considers it appropriate to study this complaint only under Article 3 of the Convention.
Taking into account all the considerations on this issue, the European Court of Human
Rights considers it sufficiently established that the applicant had been subjected to ill-
treatment she complained about, which is a violation of Article 3 of the Convention [3].
Thus, based on the above-mentioned decisions of the European Court of Human Rights,
the Ukrainian authorities and the bodies of the National Police of Ukraine are obliged to
take the following actions:
1. A special medical examination should be conducted upon the complaint about ill-
treatment of the injured and his/her lawyer.
2. Police agencies are obliged to avoid any cases where the arrest of a person can be
interpreted as an excuse to overcome his/her internal resistance and receive
confessions.
3. Using force against detained and arrested persons, the police officers must strictly
adhere to the principles of necessity and proportionality.
4. Inability to establish civil officers guilty of unlawful violence against a detained person
cannot relieve the state from responsibility. Therefore, in case of a reasonable claim
by a person about ill-treatment by law enforcement officers, the state should conduct
an investigation, which should be: official, effective, independent, open to public
control and should provide the opportunity to identify the perpetrators.
The last item deserves special attention not only because it is mentioned in many cases
against Ukraine, but also because public access to the results of official investigations of
ill-treatment is a rather problematic one.
Today, the practice of the bodies of the National Police of Ukraine provides the victim
itself, who suffered from the unlawful actions of the police officer, with very brief
information in case of confirmation of such a fact.
It is clear that such an established ill practice mitigates the attempts of non-governmental
organizations to analyze the progress of official check of the facts of torture and
inhumane treatment, and therefore directly contradicts the requirements of the European
Court of Human Rights regarding the availability of such procedures for public control.
That is why the civil society for its own part considers it necessary to set an objective for
the administration of the Ministry of Internal Affairs and the General Prosecutor’s Office
of Ukraine to develop procedures for access of civil society institutions to the materials
of investigations.
Final considerations
“The prohibition of torture is absolute, i.e. not subject to any limitation, derogation or
relativisation” [11]. Summing up the material presented, we can conclude that the
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
163
problem of observance of the human right to freedom from torture and inhuman
treatment in the activities of the bodies of the National Police of Ukraine remains
important. This fact is confirmed by the numerous decisions of the European Court of
Human Rights concerning Ukraine on violation of Article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, according to which Ukraine was
found as a state violating human rights to freedom from torture or inhuman or degrading
treatment or punishment.
Having analyzed certain cases of the European Court of Human Rights, the main
obligations of the states under Art. 3 of the Convention for the Protection of Human
Rights and Fundamental Freedoms may be defined. From the general obligation of the
state to ensure conventional rights for each person under its jurisdiction other obligations
derive connected with the enforcement and observance of only a certain right. These
obligations can be negative and positive. Negative obligation of the states enshrined in
Article 3 of the Convention has a conventional nature and consists in refraining from any
actions which could lead to a breach of this provision. The positive obligations of states
assume the use of reasonable and adequate measures to protect the rights that a person
has under the Convention.
The prohibition of torture or inhuman treatment, as an international obligation of the
state, correspondingly determines the responsibility of law enforcement agencies,
including the National Police of Ukraine to prevent torture or inhuman treatment and to
effectively investigate each such manifestation.
To reduce the level of torture and inhumane treatment by the National Police officers, it
is advisable to take the following steps:
- it is necessary to develop a new system for evaluating the effectiveness of the
activities of the bodies of the National Police of Ukraine at the legislative level, which
completely abolishes the so-called “ticket quota” system of police work evaluation (it
is necessary to abolish the establishment of plans for the disclosure of crimes for a
certain period of time);
- in case of a person’s detention, police officers should secure the right to access to a
lawyer, the right to be examined by a doctor and the right to notify a relative or
other third party of such detention;
- the legislative level should enshrine the duty of the bodies of the National Police of
Ukraine to record (audio and video) all actions taking place with the participation of
persons irrespective of the status (detained, delivered or visitor) who arrived to the
police, with the archiving and storage of video materials;
- the administration of the Ministry of Internal Affairs and the National Police of Ukraine
should ensure the development of plans for the training of employees, including
teaching materials on the complete prohibition of torture or inhuman or degrading
treatment or punishment, with the study of the content of specific cases of the
European Court of Human Rights on the violation of Ukraine and other states of
Article 3 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, by generalizing clear and understandable for police officers requirements
and standards of conduct which they must strictly adhere to in their professional
activities;
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
164
- to ensure public access to the progress and results of investigations of violations of
human rights to freedom from torture and inhumane treatment by the National Police
of Ukraine.
The implementation of these recommendations by the administration of the Ministry of
Internal Affairs and the National Police of Ukraine will contribute to ensuring the human
right to freedom from torture or inhuman or degrading treatment or punishment in the
course of police professional activity and will contribute to increasing the public trust and
respect for the police and the law enforcement system in general.
References
[1] Konstytutsiia Ukrainy: zakon Ukrainy vid 28.06.1996 No. 254k/96-VR // Baza danykh
“Zakonodavstvo Ukrainy” / Verkhovna Rada Ukrainy. Available
at: http://zakon.rada.gov.ua/ laws/show/254к/96-вр.
[2] Pro Natsionalnu politsiiu: zakon Ukrainy vid 02.07.2015 No. 580-VIII // Baza danykh
“Zakonodavstvo Ukrainy” / Verkhovna Rada Ukrainy. Available
at: http://zakon.rada.gov.ua/ laws/show/580-19.
[3] Stattia 3 “Zaborona katuvannia” / Ofitsiynyi sait Ministerstva yustytsii Ukrainy.
Available at: https://minjust.gov.ua/m/stattya-3-zaborona-katuvannya.
[4] Pro vykonannia rishen ta zastosuvannia praktyky Yevropeyskoho Sudu z prav
liudyny: zakon Ukrainy vid 23.03.2016 No. 3477-ІV // Baza danykh “Zakonodavstvo
Ukrainy” / Verkhovna Rada Ukrainy. Available at:
http://zakon3.rada.gov.ua/laws/show/3477-15.
[5] Convention for the Protection of Human Rights and Fundamental Freedoms //
Available at: https://www.coe.int/en/web/compass/the-european-convention-on-
human-rights-and-its-protocols.
[6] Za danymy statystychnoi informatsii Heneralnoi prokuratury Ukrainy // Ofits. sait
Heneralnoi prokuratury Ukrainy / Heneralna prokuratura Ukrainy. Available
at: https://www.gp.gov.ua/ua/statinfo.html.
[7] Monitorynh nezakonnoho nasylstva v militsii (2004-2017 rr.) / Kol. avt. Kharkiv,
Kharkivskyi instytut sotsiolohichnykh doslidzhen, 2017. 100 s.
[8] Andreychenko S.S. Rol praktyky Yevropeyskoho sudu z prav liudyny u rozvytku prava
na zakhyst vid katuvan abo neliudskoho chy takoho, shcho prynyzhuie hidnist,
povodzhennia abo pokarannia // Pravove zabezpechennia efektyvnoho vykonannia rishen
i zastosuvannia praktyky Yevropeyskoho sudu z prav liudyny: materialy mizhnarodnoi
naukovo-praktychnoi konferentsii (Odesa, 15 veresnia 2012 r.) / Natsionalnyi universytet
“Odeska yurydychna akademiia”. Odesa: Feniks, 2012. S. 378-385.
[9] Zamula A.Yu. Mizhnarodno-pravova zaborona katuvannia yak faktor vplyvu na
efektyvnist borotby z teroryzmom: dysertatsiia na zdobuttia naukovoho stupenia
kandydata yurydychnykh nauk (doktora filosofii): 12.00.11. Кyiv, 2017. 285 s.
[10] Martynenko O.A. Vymohy mizhnarodnoho zakonodavstva u natsionalnomu vymiri:
zoboviazannia orhaniv vnutrishnikh sprav Ukrainy u sferi zapobihannia porushen prav
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
165
liudyny. Available at: http:// http://nadoest.com/vimogi-mijnarodnogo-zakonodavstva-
u-nacionalenomu-vimiri-zobov.
[11]. Manfred Nowak Challenges to the Absolute Nature of the Prohibition of Torture and
Ill-treatment // Available at:
https://journals.sagepub.com/doi/abs/10.1177/016934410502300410