Report by Office of the United Nations on the human rights situation in Ukraine

Office of the United Nations High Commissioner

for Human Rights

Report on the human rights situation in Ukraine

16 August to 15 November 2017

I. Executive summary

1. This twentieth report on the situation of human rights in Ukraine by the Office of the United Nations High Commissioner for Human Rights (OHCHR) is based on the work of the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU), and covers the period from 16 August to 15 November 2017.
2. The findings presented in this report are grounded on data collected by HRMMU through 290 in-depth interviews with witnesses and victims of human rights violations and abuses, as well as site visits in both government-controlled and armed group-controlled territory. HRMMU also carried out 423 specific follow-up activities to facilitate the protection of human rights connected with the cases documented, including trial monitoring, detention visits, referrals to State institutions, humanitarian organizations and non-governmental organizations (NGOs), and cooperation with United Nations human rights mechanisms.
7. OHCHR continued to document cases of summary executions, enforced disappearances, arbitrary detention, torture and ill-treatment, and conflict-related sexual violence.
8. In government-controlled territory, OHCHR – in gene ral – continue to enjoy unimpeded access to conflict-related detainees, with the exception of several individuals in Kharkiv, Kyiv and Dnipro who are under investigation of the Security Service of Ukraine. As enforced disappearances, torture and conflict-related sexual violence often take place in the context of detention, this denial of access raises serious concerns that human rights abuses may be occurring.
9. Accountability for grave human rights violations in conflict-related cases remained elusive. Legal proceedings were plagued by ineffective investigations, politicization of cases with the involvement of high level officials and infringements on the independence of the judiciary. OHCHR documented substantial pressure exerted on judges in numerous cases.
13. Freedom of opinion and expression continued to face mounting challenges. OHCHR noted with concern the broad interpretation and application of terrorism-related provisions of the Criminal Code in cases where SBU initiated criminal investigations against Ukrainian media professionals, journalists and bloggers.

II. Rights to life, liberty, security, and physical integrity

2. Unlawful/arbitrary deprivation of liberty, enforced disappearances and abductions

36. OHCHR continued documenting cases of unregistered detention, when a person is held incommunicado prior to being delivered to an official place of detention, a practice which increases the likelihood of torture and ill-treatment with a view to extracting a confession. Although these cases occurred earlier, they were documented during the reporting period.
37. For example, on 16 April 2015, a former member of an armed group was detained in his home by armed men in balaclavas. Without introducing themselves or presenting a search warrant, they beat him, threatened him, and searched his house. They took the victim to a basement, which he believes was on the outskirts of Pokrovsk (formerly Krasnoarmiisk), where he was detained incommunicado, handcuffed to a metal safe which forced his body into a difficult position. He was interrogated and tortured by having water poured over his face, electrocutions, and beatings on his back and kidneys. The perpetrators made him sign documents and filmed a video confession. He was taken to the Kramatorsk SBU on 21 April 2015, where he was given more documents to sign. In November 2015, he was convicted of terrorism.
38. On 10 January 2015, a resident of Pokrovsk was stopped in his car and detained by four armed men. They brought him to the Right Sector training camp near Velykomykhailivka (Dnipropetrovsk region), where he was detained in a basement and beaten with a truncheon for two days. The victim was held incommunicado until 14 May 2015, during which time he was ill-treated and witnessed the death of another detainee. The perpetrators are currently on trial.

3. Torture and ill-treatment

47. During the reporting period, OHCHR continued to receive allegations which match the previously documented pattern of use of torture to extract confessions from persons suspected of being members of or otherwise affiliated with armed groups. Also, in a few cases, Ukrainian servicemen detained on suspicion of committing criminal offences were subjected to torture until they provided self-incriminating testimonies. It is deeply concerning that investigations into allegations of torture are rarely opened and when so, have been ineffective. Defence lawyers also rarely raise allegations of torture, either due to intimidation or as a strategy to reduce the sentence.
48. For example, in August 2015, in two separate episodes, SBU arrested two residents of Kharkiv region accused of being supporters of the ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ and planning to carry out subver sive activities. Both victims were transported to the regional SBU department, where they were tortured (beaten, hands twisted behind the back, subjected to mock execution, and threats of violence against their families) until they signed self-incriminating statements. Although they were taken to hospital, SBU officers instructed doctors not to record any injuries. One of the victims begged a lawyer not to raise allegations of torture in court, fearing reprisals. The victim told the doctors in the pre-trial detention facility (SIZO) that he was injured falling from a tree. Both victims remain in detention, with trials ongoing
49. In another case, on 16 June 2016, a victim was physically attacked next to his apartment building by two men wearing balaclavas. The victim ran out into the street, where two other individuals hit him on the head, strangled him, and kicked his head when he fell on the ground. He was handcuffed, dragged into a van, and driven 30-40 minutes away. When the van stopped, an SBU official of the Kharkiv regional department questioned him about his acquaintances who joined the armed groups of the ‘Donetsk people’s re public’. Unsatisfied with the victim’s reply, SBU officers strangled, kicked and punched him while threatening his family. When the victim agreed to cooperate, the SBU officers explained that he would be taken to the Ukrainian-Russian border and detained for “smuggling weapons”. At the border, one officer stabbed the victim’s heel so he would not be able to escape. Afterwards, the victim was taken to the Kharkiv SBU building and forced to memorise a written statement. His “confession” was video recorded. The victim is currently on trial for “terrorism” and “t respass against territorial integrity of Ukraine”. While the Military Prosecutor for Kharkiv Garrison is investigating the allegations of torture, no notifications of suspicions or indictments have been issued.
50. In another case, a man was detained in his home in Nyzhnioteple in November 2016 by members of the UAF. They searched him at gun point, beat him causing lasting pain, and subjected him to suffocation and electroshocks. They forced him to make a video confession that he provided information on Ukrainian military positions to armed groups. Then he was taken to the Sievierodonetsk SBU building where he was interrogated without a lawyer and forced to sign papers in order to receive medical care. Afterwards, he was taken to the hospital but threatened by SBU officers not to complain of any ill-treatment. He is accused of being a spotter for armed groups and is currently on trial.
51. OHCHR also followed cases of Ukrainian servicemen who reported being subjected to torture while detained on criminal charges. On 30 October 2014, a serviceman of the Kirovohrad volunteer battalion together with five fellow soldiers was detained by a group of 20 armed men. The victim was held incommunicado in solitary confinement for three days in the basement of the SBU regional department building in Kramatorsk. He was tortured several times a night in order to extract information about his commanders. The victim was beaten, including with truncheons, and hung from bars while being hit and subjected to electroshocks. On the third night, the perpetrators cuffed the victim’s hands behind his back, put duct tape tightly over his eyes and mouth causing pain, pushed him to the floor and kicked him. The victim lost consciousness and choked on his own blood. The beating continued until the victim confirmed that he was ready to “confess”. He was told what to say in court and forced to sign documents. The SBU officers who took him to the court threatened that if he asked for a lawyer or complained, his “therapy” in the basement would continue. In the presence of two masked, armed SBU officers, the judge ordered his pre-trial detention for 60 days, without announcing any charges. The victim’s injuries were later documented at hospital and in the SIZO. Despite his written complaints about the incommunicado detention and torture, as well as two court orders for the Office of the General Prosecutor to conduct a forensic expertise of his injuries and investigate the circumstances of his arrest, there has been no progress in investigation. As of 15 November 2017, he remains in detention and complains about not receiving necessary medical aid.

6. Conditions of detention

61. In government-controlled territory, HRMMU noted during its visits that the general conditions in some places of detention did not satisfy applicable international standards such as the Mandela Rules. The issue of access to medical care remains acute, particularly for conflict-related detainees in SIZOs. Frequently raised concerns included: refusal to provide medical care; failure or inability to provide opportunities for specialised medical care (e.g. consultations with a neurologist, endocrinologist, surgeon or gynaecologist) or for a specific medical examination despite repeated requests; failure to provide medical check-ups or needed X-rays; and failure to provide medical assistance due to the absence of basic medication in SIZOs or inability to ensure access to antiretroviral treatment for detainees with HIV. While these findings are based on HRMMU interviews with conflict-related detainees, the United Nations Subcommittee on Prevention of Torture (SPT) also captured these violations as a result of systemic challenges.
62. During interviews and court hearings, alleged victims and their lawyers continue to raise concerns that bodily injuries of detainees as a result of torture are not systematically documented when detainees are admitted to a SIZO or temporary detention facility (ITT), despite existing regulations. For example, a detainee was first rejected by the ITT in Kramatorsk due to visible signs of ill-treatment, but later admitted after the military police forced him to sign a statement that the injuries were sustained prior to his apprehension. The ITT administration did not attempt to verify the veracity of the written statement. Often, detainees are only asked if they have any medical complaints and are not duly examined by a health practitioner. In some cases, although injuries were documented, SIZO staff failed to provide a copy of the medical certificate to the detainee despite the legal requirement to do so. As was highlighted by the SPT, delayed or superficial medical examination may thwart investigative efforts into allegations of torture.

III. Accountability and administration of justice

A. Accountability for human rights violations and abuses in the east

68. As of 1 November 2017, military prosecutor’s offices reported carrying out investigations into crimes allegedly perpetrated by Ukrainian military forces and other military formations (including killings of civilians) as well as by the SBU (including abuse of power and physical abuse of detainees to force confessions). They further reported that, under their procedural guidance, the national police are carrying out 119 investigations. At the same time, certain human rights violations allegedly perpetrated by Ukrainian military (in particular by members of special units formed on a voluntary basis) and SBU remain uninvestigated.
69. Similarly, police were hesitant to investigate the enforced disappearance of a Luhansk resident on 14 July 2014 allegedly perpetrated by members of the Ukrainian military due to “absence of elements of the crime”. Only in May 2017, after the victim’s mother had repeatedly filed a complaint with the police, was an investigation formally launched. In another case, a Ukrainian soldier, accused of arbitrarily detaining a person, complained that the military prosecutor’s office failed to investigate his own complaint of arbitrary detention and beatings over the course of three days at the Kramatorsk SBU. Despite repeated complaints since 2015, the investigation was closed and reopened twice, with no results to date.
70. The effectiveness of investigations is also an issue. For example, the criminal investigation into unlawful detention of individuals at the Kharkiv SBU has been ongoing for a year without yielding any results, raising concern regarding the genuine intention to bring the perpetrators to accountability. Similarly, a conflict-related detainee’s allegations of torture and ill-treatment by SBU officers in Sievierodonetsk were not properly addressed by the military prosecution. Furthermore, the investigation into the enforced disappearance of a resident of Dobropillia (Donetsk region) on 1 October 2014 has not yielded any results. The victim’s brother collected witness accounts suggesting that the crime had been committed by members of the Donbas battalion with the acquiescence of the SBU and local police. The same police department is in charge of the investigation.
71. OHCHR is deeply concerned with the release on 6 November 2017 of a State Border Guard who had been convicted in the first instance court of killing a civilian in 2014 and sentenced to 13 years in prison. The release followed a public information campaign by political figures in support of the accused which distorted the facts of the case, requests by members of Parliament for the SBU to investigate the judges of the trial court for links to armed groups and to examine their previous judgments, and a meeting between members of Parliament and the Prosecutor General. Further, President Poroshenko made a public statement in support of the accused. Such pressure is emblematic of interference with the judiciary, and is likely to have a chilling effect on future investigations into serious violations of international human rights law or international humanitarian law committed by members of the security forces. According to the Military Prosecutor, only 11 persons have been charged with violating the rules and customs of war under article 438 of the Criminal Code.

B. Fair trial rights

76. Article 258-3 of the Criminal Code on the “setting up of a terrorist group or organization” criminalizes a broad range of actions , including “participating in” as well as “materially, institutionally, or otherwise facilita ting the setting up or operation of” a terrorist group or organization. Such wording allows for broad interpretation of the law, in contradiction to the basic principle of legal certainty. On 28 September 2017, the Andrushivskyi district court of Zhytomyr region sentenced one media professional and one IT specialist to nine years for the “informational facilitation” of “activity of a terr orist organization” for helping to organize the operation of Novorossiia TV channel.
77. OHCHR continued to observe attempts to pressure or otherwise interfere with the judiciary in conflict-related cases. A judge of Zarichnyi district court of Sumy reported being harassed by ‘civic activists’ in response to the ac quittal of a former security officer accused of joining an armed group. In an unrelated case, after acquitting the former chief of the Kramatorsk town police who was accused of supporting armed groups, another judge found himself under investigation for the same charges. A judge of the court of appeal of Luhansk region considering an appeal in the second acquittal of a district council official charged under article 114-1 of the Criminal Code openly stated during a hearing that it was difficult for him to handle the “poorly substantiated appeal” given the attention to the case of “people from above”. Judges of Selydivskyi town court of Donetsk region who complained to the High Council of Justice about interference with their functions by the prosecutor’s office of Donetsk region in conflict-related criminal cases, afterwards found themselves under investigation led by the latter.

IV. Fundamental freedoms

B. Freedom of opinion and expression

101. OHCHR is concerned about the use of and the broad interpretation of terrorism-related provisions of the Criminal Code, as well as the provisions on high treason and trespass on territorial integrity of the country, in cases against Ukrainian media professionals, journalists and bloggers who publish materials or make posts or reposts in social media which are labelled by the security service as “anti-Ukrainian”.
102. Within the reporting period, at least three individuals were arrested and detained and one was convicted and given a suspended sentence based on a repost he made on social media. In addition, on 28 September 2017, the Andrushivskyi district court of Zhytomyr region convicted one media professional and one IT specialist on terrorism charges and sentenced each to nine years. They were accused of facilitating the online broadcasting of Novorossiia TV channel (affiliated with the ‘Donetsk people’s repu blic’, which the SBU considers a terrorist organization). Another journalist detained at Zhytomyr SIZO since 2 August 2017 is charged inter alia with treason and terrorism based on his publications, and could face up to 15 years of imprisonment.
103. The lack of accountability for crimes against journalists raises serious concerns. Little progress was achieved in investigations of recent physical attacks against media professionals or in the high-profile cases of the killings of Pavlo Sheremet and Oles Buzyna.
104. OHCHR also noted a worrying trend of foreign journalists reporting on the conflict in the east being labelled “propagandists” as a basis for their deportation from Ukraine. Three journalists from the Russian Federation and two from Spain were subjected to arrests, interrogations, and expulsions in connection with their reporting. The SBU insists it is compelled to undertake restrictive measures in cases when journalists disregard objectivity and distort information. OHCHR stresses that any restriction of freedom of expression, if applied, must be proportionate to the legitimate aim pursued and calls for careful consideration of each restrictive measure, based on international standards including practice of the European Court of Human Rights.

X. Conclusions and recommendations

167. Furthermore, as we move into 2018, it is imperative that Government policies and legislative developments evolve in an inclusive manner, and together with judicial reforms, contributes to the enhancement of accountability and the foundation for future peace and reconciliation. Such measures would also create conditions for a free media and freedom of expression in the run-up to the 2019 elections, while combatting hate speech and discriminatory acts of violence.
168. Most recommendations made in the previous OHCHR reports on the human rights situation in Ukraine have not been implemented and remain valid. OHCHR further recommends:
169. To the Ukrainian authorities:

• Law enforcement agencies to ensure effective investigation of cases of enforced disappearance, incommunicado detention, torture and ill-treatment in which Ukrainian forces (SBU, UAF, volunteer battalions, etc.) are allegedly involved, and consider establishing an inter-agency group in charge of investigation of such cases, as civilian investigative bodies do not have access to many alleged places of detention or where the victims were last seen;
• Security Service of Ukraine to grant immediate, unrestricted, and confidential access to conflict-related detainees newly arrested by SBU, including in Kharkiv region;
• National Police to conduct transparent and effective investigation in all cases of attacks on media professionals, and undertake all possible measures to ensure accountability for killings of journalists, including with international expertise where needed;

175. To the international community:

• Support the Ministry of Justice and other Government actors in carrying out penitentiary reform in Ukraine which will improve material conditions and provision of services, particularly medical services, in places of detention;
• Ensure that the Media Freedom Guidelines developed for Ukraine by international media experts and lawyers continue to adhere to international standards and best practices in the domain of freedom of expression during any review or amendment process.