OHCHR report on arbitrary of Ukrainian state security

OHCHR remains highly concerned about consistent allegations of detainees being held in unofficial places of detention by SBU. These places are not accessible to the National Preventive Mechanism and international organizations. Reliable accounts from victims and their relatives indicate a widespread pattern of conduct across several SBU departments. Since the outbreak of the conflict, a network of unofficial places of detention, often located in the basement of regional SBU buildings, have been identified from a large number of reliable accounts from victims and their relatives. OHCHR recalls that the prohibition of unacknowledged detention is not subject to derogation.
For instance, OHCHR has received alarming allegations that in Odessa, detainees are held for up to five days incommunicado at the SBU building following their arrest, without any contact with their family or access to a lawyer. Information recorded by OHCHR indicates that, as of February 2016, 20 to 30 people were detained illegally and incommunicado at the Kharkiv regional SBU building. When asked about their fate and whereabouts, SBU officials have systematically denied any involvement. According to information gathered by OHCHR, the vast majority of those held in the Kharkiv SBU were not arrested in accordance with legal procedures and have not been charged, despite being held because of their presumed affiliation with the armed groups. These detainees are held in such circumstances until surrendered to armed groups in simultaneous releases of detainees.
During the reporting period, OHCHR documented a pattern of cases of SBU detaining and allegedly torturing the female relatives of men suspected of membership or affiliation with the armed groups. In addition to being a violation of the prohibition of torture, these cases raise concerns of arbitrary deprivation of liberty and gender-based violence. On 8 December 2015, in Shchurove village, Donetsk region, SBU officers arrested a 74-year-old woman at her house while they were looking for her son. She was detained at the SBU building in Mariupol, charged with ‘terrorism’, and beaten. OHCHR visited her in the Mariupol pre-trial detention facility (SIZO). After OHCHR communicated this case to the Office of the Military Prosecutor, a criminal investigation was initiated into her allegations of ill-treatment. On 27 January 2016, the woman was relocated to the SBU SIZO in Kyiv. OHCHR believes she is at risk of further abuse. The SBU informed OHCHR that she and her son are suspected of being informants for the ‘ministry of state security’ for the ‘Donetsk people’s republic’. OHCHR also documented the case of three women, who were detained in May 2015, in a town under Government control in Donetsk region. The victims included the wife of an armed group commander and her daughter. The latter was allegedly severely tortured, and both were allegedly threatened with sexual violence.
In another case, a ‘pro-federalism’ activist from Odessa, charged of acts of terrorism was pressured to sign a confession after being tortured at the Odessa SBU. During his interrogation, he was reportedly suffocated with a plastic bag covering his head and was beaten on the face, head and body. The SBU officers then allegedly took him to the lobby of the SBU building where he was shown his son whom they had also arrested. His son was taken to a separate room and the father could hear his harrowing screams. Also at the Odessa SBU, a pregnant woman who had been apprehended with her husband at a checkpoint while crossing the contact line in Donetsk region, in October 2015, was threatened. She subsequently lost her baby which, she claims, was the result of the ill-treatment she suffered in detention.
OHCHR received alarming reports on poor detention conditions and ill-treatment of pre-trial detainees throughout Ukraine. On 11 November 2015, during a routine inspection of cells in Dnipropetrovsk SIZO, guards allegedly started insulting detainees and damaged their personal belongings. As the detainees fought back, they were beaten with sticks and sprayed with gas. 25 detainees sustained bodily harm and were provided with medical treatment following the incident. The police initiated a criminal investigation into the disturbance caused by the detainees, and the Prosecutor’s Office into the alleged abuse of power by SIZO officials. Repeated beatings of detainees at SIZO have been reportedly been taking place since October 2015. Some detainees also complained of malnutrition and lack of medical assistance, which leads to chronic diseases and other illnesses. According to the State Penitentiary Service, 103 deaths in custody were reported in the Government-controlled territories in 2015.
OHCHR remains concerned about the lack of systematic investigations into allegations of torture committed by Ukrainian security forces and law enforcement. During its visits to Artemivsk and Mariupol SIZOs, OHCHR came across several detainees who had filed complaints of torture, with no notable progress in investigations into their allegations. In 2015, the Office of the Prosecutor General launched 1,925 criminal investigations into allegations of torture and ill-treatment by police and penitentiary officials. In 1,450 cases, the investigation found that the requisite elements of crime had not been met. Courts subsequently overturned the prosecution’s findings in 119 cases, compelling investigations to proceed. In total, 49 police and penitentiary officials were indicted for alleged acts of torture and ill-treatment. OHCHR is also deeply concerned that despite its repeated interventions, it continues to receive allegations of SBU violating basic procedural guarantees, denying detainees the right to counsel, and subjecting them to torture and ill-treatment.
The failure to investigate allegations of torture is of particular concern. OHCHR has observed that the authorities are unwilling to investigate allegations of torture particularly when the victims are persons detained on grounds related to national security or are viewed as being ‘pro-federalist’. Torture can only be prevented if detainees are brought before a judge promptly. Complaints and investigations into allegations are more likely to be effective if they are initiated promptly, and remedies need to be timely for victims to rebuild their lives. In the vast majority of cases documented by OHCHR, police and prosecutors close investigations citing lack of evidence. For instance, at the end of 2015, the Odessa Regional Prosecutor’s Office closed two criminal investigations into allegations of torture due to “lack of evidence”. While monitoring trials, OHCHR observed that prosecutors and judges rarely record or act upon defendant’s allegations of torture. This contravenes Ukrainian legislation, which penalises torture and obliges public prosecutors to launch criminal investigations within 24 hours of receiving such allegations. It also violates Ukraine’s obligation as a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to its Optional Protocol to take all possible measures to prevent torture. Delays in collecting evidence of torture often lead to the loss of crucial evidence. Systemic inaction or delays also inhibit justice and perpetuate impunity.
OHCHR is also very concerned about the use of statements extracted through torture as evidence in court proceedings. On 26 January 2016, three men were convicted of ‘terrorism’, allegedly on the basis of confessions they were forced to sign after being subjected to severe torture in the Regional SBU in Zaporizhzhia in 2014. The SBU informed OHCHR that officers resorted to ‘proportionate’ and ‘justified’ force when detaining the men, but did not address allegations of their torture while in SBU detention. OHCHR recalls that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings. A man who is currently on trial in Zaporizhzhia for ‘terrorism’ was told by SBU interrogators that his wife and children would be at risk if he were to complain about the torture and ill-treatment he was subjected to by SBU. As a result, he has refrained from challenging the admissibility of incriminating statements that were extracted through torture. The SBU has challenged this account, stating that a medical examination found no injuries or marks that could have been caused by torture, and confirmed to OHCHR that the man has not filed any complaints about his treatment while in SBU custody. OHCHR urges the Ukrainian authorities to take steps to ensure that complainants and their relatives are protected from reprisals as a consequence of complaints of torture and ill-treatment.

OHCHR is concerned about SBU officials’ systematic denial of these allegations, which suggests their resistance to any investigations. The SBU leadership continues to fail to take all necessary and reasonable measures within their authority to prevent or sanction the commission of human rights violations by their subordinates. The case of Oleksandr Agafonov is emblematic in this regard. Agafonov was severely tortured in Izium, Kharkiv district and died of related injuries in November 2014. OHCHR has reasonable grounds to believe that the superior commanders of the perpetrators were ‘hiding’ those responsible. Two SBU officers from Kyiv have only been charged with exceeding authority in connection with Agafonov’s death but remained in their positions, pending investigation. On 15 December 2015, OHCHR was informed that the case was being transferred from Kharkiv to Kramatorsk. Despite the official justification provided, OHCHR is concerned that this transfer may lead to pressure on the due process of law and prevent a fair trial, due to the significant presence of Ukrainian military and SBU officers in Kramatorsk, which hosts the headquarters of the SBU Anti-Terrorist Centre. The trial is set to begin in March 2016.
During 2015, the Office of the Military Prosecutor for anti-terrorist operation forces launched 34 criminal investigations into allegations of ill-treatment, torture, and unofficial detention. Investigations into 19 cases remain pending, while 15 cases have been dismissed in the course of the preliminary investigation for lack of evidence. OHCHR is concerned that the Office of the Military Prosecutor, which has exclusive jurisdiction to investigate and prosecute military and security forces personnel, has not taken all possible steps to investigate and prosecute serious human rights and international humanitarian law violations allegedly perpetrated by such forces in the course of hostilities. The Military Prosecutor denies the possibility of indiscriminate shelling of residential areas by the Ukrainian military. Such a posture precludes effort s to verify and investigate allegations. In one case documented by OHCHR, the Military Prosecutor attempted to dismiss an investigation into the ill-treatment of a woman who was detained on for allegedly planning a ‘terrorist’ act in Kyiv.
OHCHR has followed cases of residents of Government-controlled Donetsk and Luhansk regions who have been charged and tried for their alleged membership in and support of the armed groups, simply for being in contact with people (usually their relatives) living in territories controlled by these groups or for working for a civilian water supply company operating in the ‘Luhansk people’s republic’.
In December 2015, SBU carried out two operations in Donetsk region that resulted in mass arrests, raising serious concerns about the protection of human rights under counter-terrorism legislation. On 14 December, some 600 Ukrainian military, National Guards and SBU servicemen conducted a raid in the Government-controlled town of Krasnohorivka, where they arrested 85 residents for their alleged affiliation with the armed groups. On 20 December, a similar raid was undertaken in the Government-controlled town of Avdiivka, where up to 100 residents were arrested on the same grounds. In both instances during house raids, hundreds of people were forced to surrender their phones for examination, and were detained for several hours for questioning. Most were subsequently released.
The raids were conducted under the Law on Combating Terrorism, which applies to the entire territory of Donetsk and Luhansk regions where the ‘anti-terrorist operation’ was declared on 14 April 2014 and grants powers to SBU, the National Guard and Armed Forces to undertake such operations with no guarantees regarding human rights. The overbroad formulation of certain provisions of this law and a lower standard of proof than in the Criminal Procedural Code can lead to violations, including arbitrary arrests and detention. In the abovementioned case and in several other instances, OHCHR has noted that basic human rights principles and procedural guarantees are often neglected during such operations.
OHCHR reminds the Government of Ukraine that despite its notification of derogation from certain provisions of ICCPR, including article 14 on fair trial rights, certain elements of the right to a fair trial are explicitly guaranteed under article 6 of Additional Protocol II to the Geneva Conventions during armed conflict and that the principles of legality and the rule of law that fundamental requirements of fair trial must be respected at all times.
OHCHR has observed a worrying trend in criminal proceedings of people charged with “trespassing against the territorial integrity or inviolability of Ukraine.” Courts regularly and repeatedly extend the initial period of detention for individuals held on national security grounds for 60 days without providing sufficient and relevant reasons to justify detention. Grounds for continued detention are almost never provided, and conditional or interim release is rarely – if ever – granted. Many defendants are detained for long periods of time, up to 20 months, and eventually charged with minor offenses, such as “hooliganism”. This has been noted as a serious trend in Kharkiv and Odessa.
This trend extends to high-profile cases, such as that of Spartak Holovachov. For instance, one of the leaders of the anti-Maidan movement in Kharkiv Mr. Holovachov was accused of participating in riots. After the conclusion of his trial, on 19 November 2015, the prosecution requested the introduction of additional evidence and new witnesses. As of February 2016, none of the summoned witnesses had appeared before court. Mr. Holovachov has been in solitary confinement in the 100th
Penal Colony, a high security detention facility, since 1 May 2014. The General Prosecutor attests that Mr. Holovachov is held separately because he is the only detainee in his category. OHCHR recalls that the separation of detainees cannot be used as a disciplinary sanction, prolonged investigations or trials cannot justify indefinite solitary confinement, and that the use of prolonged or indefinite solitary confinement runs afoul of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.


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