ARTICLE 206 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE AND THE INVESTIGATION OF CRUEL TREATMENT (in the context of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms)

Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the “Convention”) prohibits torture, specifically guaranteeing that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. In the case law of the European Court of Human Rights (hereinafter “ECHR,” “the Court”), a procedural obligation of States under Article 3 of the Convention to conduct an effective official investigation into acts of ill-treatment of persons within their jurisdiction, and has defined the criteria for the effectiveness of such an investigation. These criteria have been repeatedly reiterated in judgments against Ukraine. For example, in the judgment in *Kaverzin v. Ukraine*, the Court reiterated that Article 3 of the Convention requires that investigations into well-founded complaints of ill-treatment be thorough. This means that the authorities must always make a good-faith effort to ascertain what happened and must not rely on hasty and unsubstantiated conclusions to close a criminal case or use such conclusions as a basis for their decisions. They must take all necessary measures to obtain all available evidence relevant to the incident, including, among other things, eyewitness testimony and expert opinions. The investigation must be capable of ensuring that those responsible are identified and punished. Otherwise, the general legal prohibition against torture and inhuman or degrading treatment or punishment would be ineffective in practice, and in some cases, state officials would be able to violate the rights of those under their control with virtual impunity [1]. The fact that investigations must be independent, impartial, and subject to close public scrutiny, and that the competent authorities must act with exemplary diligence and promptness was stated in the decision in *Yaremenko v. Ukraine* [2].

Given that Article 17 of the Law of Ukraine “On the Enforcement of Judgments and the Application of the Case Law of the European Court of Human Rights” obliges courts to apply the Convention and the Court’s case law as a source of law when adjudicating cases, and since the principle of the rule of law in criminal proceedings is applied in light of the case law of the European Court of Human Rights, Ukraine’s criminal procedural legislation is applied in light of the case law of the European Court of Human Rights (Articles 8 and 9 of the Code of Criminal Procedure of Ukraine); accordingly, the Code of Criminal Procedure of Ukraine provides certain guarantees for the effective investigation of acts of ill-treatment. Among these guarantees, particular attention should be paid to the duties of the judge set forth in Parts 6–8 of Article 206 of the Code of Criminal Procedure of Ukraine. Despite the importance of these guarantees for ensuring an individual’s right to personal integrity, the prohibition of ill-treatment, and the effective investigation of ill-treatment, certain provisions of Parts 6–8 of Article 206 of the CPC of Ukraine have shortcomings that call into question their effective implementation in the context of the State’s procedural obligation under Article 3 of the Convention.

For example, the provision of Part 6 of Article 206 of the CPC of Ukraine stating that “during any court hearing” does not fully correspond with the reference to the investigating judge in the same sentence, as well as with the title of this article, “General Duties of the Judge Regarding the Protection of Human Rights,” since a motion may be filed during a court hearing not only when an investigating judge is exercising his or her powers, but also at other stages of criminal proceedings, where the court is the entity responsible for exercising the powers provided for in Part 6 of Article 206 of the CPC of Ukraine; this shortcoming also applies to Parts 7 and 8 of Article 206 of the Code of Criminal Procedure of Ukraine. A.P. Bushchenko correctly notes that “court hearing” is used in the broadest sense in the context of this article; therefore, this obligation of the judge exists during any court hearing [3, p. 405]. It should be noted that in judicial practice, there are cases of such statements and responses to them already at the stage of court proceedings. In the ruling of the Oktiabrsky District Court of Poltava dated February 10, 2015, it was noted that during the trial of a criminal case, the defendant PERSON_2 stated that officers of the Poltava Regional Department of the Ministry of Internal Affairs of Ukraine had subjected him to physical and psychological pressure
on September 2, 2014, during his arrest and a search of the apartment where he resides. He further stated that a witness to these unlawful actions was his acquaintance, PERSON_3, who resides at ADDRESS_2. During the court hearing, the defendant filed a motion requesting that an investigation be conducted. The court, having heard the motion, concluded that it should be granted, in light of the requirements of Articles 1, 3, 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the position of the European Court of Human Rights regarding the thorough investigation of every case in which defendants sustain bodily injuries, based on their allegations of torture and other ill-treatment. The court noted that during the investigation, the following must be verified: the defendant’s testimony regarding his beating and the bodily injuries sustained, as well as psychological pressure exerted by police officers; information regarding his placement in a pretrial detention center, the medical examination, the persons questioned who participated in the search of the defendant’s residence—including the person identified by the defendant—as well as other necessary measures taken [4]. The ruling of the Leninsky District Court of Kirovograd noted that the defendants PERSON_1 and PERSON_2, during the court hearing on April 12, 2016, alleged that they had been subjected to violence by prison guards while being held in the premises of the Leninsky District Court of Kirovograd and while being escorted to the courtroom on April 12, 2016. The court ruled to grant the motion filed by the defendants PERSON_1 and PERSON_2 to ensure that their forensic medical examination be conducted without delay by ordering the relevant forensic medical examination [5]. Such issues were also addressed in other rulings [6; 7]. It should be noted, however, that the existing shortcoming in Part 6 of Article 206 of the CPC was highlighted in judicial practice: the ruling stated that “The provisions of Article 206 of the CPC of Ukraine establish obligations regarding the protection of human rights solely for the investigating judge; however, Part 6 of Article 9 of the CPC of Ukraine provides that in cases where the provisions of this Code do not regulate or ambiguously regulate issues of criminal proceedings, the general principles of criminal proceedings set forth in Part 1 of Article 7 of this Code shall apply. In view of the foregoing, the court, in considering the criminal proceedings against PERSON_3 and PERSON_7, deems it appropriate to be guided by the provisions of Article 206 of the Criminal Procedure Code of Ukraine when issuing this ruling.” [8]

Therefore, to bring the provisions of the parts of Article 206 of the CPC of Ukraine into compliance, the reference to the investigating judge in Parts 6, 7, and 8 of Article 206 should be replaced with “investigating judge, court,” which will eliminate the possibility of misinterpreting Part 6 of Article 206 of the CPC and will be consistent with the practice of the European Court of Human Rights regarding the procedural obligation to conduct an effective investigation into ill-treatment.

It should be noted, however, that in practice there are cases where judges delegate the duties specified in Part 6 of Article 206 of the CPC of Ukraine to prosecutors or investigators. For example, it is stated: “Forward the statement by PERSON_2 regarding the beating he suffered at the hands of police officers and the decision on ordering a forensic medical examination to the prosecutor of the Terebovlia District, Ternopil Region, for review” [9]; “Contact the prosecutor of the Makariv District of the Kyiv Region to ensure an appropriate and proper response to the statement by the defendant PERSON_1, which was recorded during the court hearing in this case regarding the use of unlawful investigative methods against him by law enforcement officers during the pretrial investigation, specifically the use of psychological pressure, which violates his right to defense during the pretrial investigation, in the course of which it is necessary to ensure that a forensic medical examination of PERSON_1 is conducted without delay, to instruct the relevant pretrial investigation authority to investigate the facts alleged by PERSON_1, and to take the necessary measures to ensure the safety of PERSON_1 in accordance with the law” [10]; “to instruct the investigator … to ensure that PERSON_3 undergoes a forensic medical examination without delay” [11]. It is impossible to agree with such an application of Part 6 of Article 206 of the Code of Criminal Procedure of Ukraine regarding ensuring the immediate conduct of a forensic medical examination of a person and taking the necessary measures to ensure that person’s safety, since the judge must exercise these powers independently and, moreover, on his or her own initiative, as provided for in Part 7 of Article 206 of the Code of Criminal Procedure of Ukraine, which precludes the possibility of delegating them to a prosecutor or an investigator. This is further confirmed by the fact that an investigating judge has the right to refrain from taking the actions specified in Part 6 of Article 206 of the Code of Criminal Procedure of Ukraine only if the prosecutor proves that these actions have already been taken or are currently being taken (emphasis mine—I.G.).

The provision of Part 6 of Article 206 of the Code of Criminal Procedure of Ukraine: “if, during any court hearing, a person alleges that violence was used against them during their arrest or detention by an authorized state authority, a state institution (a state authority or state institution authorized by law to detain persons),” does not address the question of how a judge should respond in a situation where, for example, allegations are made regarding the use of physical force during a search of the suspect’s or defendant’s apartment or another premises where they are located (and such allegations have occurred [4]). A literal interpretation of Part 6 of Article 206 of the Code of Criminal Procedure of Ukraine does not allow, in such a case, for the investigative judge to exercise the powers provided for therein, which is inconsistent with the practice of the European Court of Human Rights regarding the procedural obligation to effectively investigate ill-treatment, since at that moment the person is under state control: for example, an investigator or prosecutor has the right to prohibit any person from leaving the search site until the search is completed and to prevent any actions that interfere with the conduct of the search; upon the decision of an investigator or prosecutor, a search may be conducted of persons present in a dwelling or other premises if there are sufficient grounds to believe that they are concealing items or documents relevant to the criminal proceedings. This shortcoming must be rectified by amending Part 6 of Article 206 of the Criminal Procedure Code of Ukraine.

Certain issues also arise in the context of ensuring the prompt conduct of a forensic medical examination of a person. It is not specified in the CPC of Ukraine as a procedural action; therefore, legal literature logically notes that “the CPC does not specify how a judge is to ensure that a forensic medical examination is conducted.” Such an examination is not a procedural act within the framework of a criminal investigation. The law also does not require a forensic medical examination. Therefore, such an examination must be ensured by whatever means are most appropriate under the circumstances of the case, including by calling an ambulance or a doctor to the court hearing” [3, p. 405]. Overall, this approach is consistent with the practice of the European Court of Human Rights (ECHR), as authorities must take all necessary measures to obtain all available evidence relevant to the incident, inter alia, eyewitness testimony and expert opinions [1]. It should be noted that in judicial practice, examinations are entrusted to forensic medical examination departments [6; 12] through the appointment of a forensic medical examination [5].

In fulfilling their duty to instruct the relevant pretrial investigation authority to investigate the facts set forth in a person’s complaint, judges assign this task to prosecutors (at various levels) [7; 13; 14], the prosecutor’s office, its department [15; 16], the investigative department of the prosecutor’s office [17], the investigative directorate [18], or the deputy head of the Investigative Service [19]. The judge, given
that the addressee of the instruction is specified in Article 206 of the Code of Criminal Procedure of Ukraine in somewhat vague terms, namely “the relevant pretrial investigation authority,” must take into account, in accordance with Articles 8 and 9 of the CPC of Ukraine, the legal principles established in the case law of the European Court of Human Rights regarding the effectiveness of investigations, in particular regarding independence and impartiality. That is, officials involved in conducting investigations and decision-makers must be independent of persons involved in the facts under investigation. This requires independence in a practical sense, not merely the absence of hierarchical and institutional ties. Officials involved in conducting investigations and all decision-makers must be impartial. In particular, they may not participate in investigations or in decision-making regarding complainants who are victims in a case of ill-treatment that they are investigating [20, p. 15]. The judgment in Davydov et al. v. Ukraine clarified that for an investigation into torture or ill-treatment by state officials to be considered effective, the following general principle must be observed: those conducting the investigation, and those conducting the investigation must be independent, in terms of both hierarchical and departmental subordination, from anyone involved in the events of the case; that is, investigators must be independent in practice [21]. Accordingly, from the perspective of meeting the criteria for an effective investigation in accordance with ECHR practice, assigning an investigation to a higher-level investigative unit within the same pretrial investigation agency is questionable. As for assigning the case to a prosecutor or the prosecutor’s office, it should be noted that this does not fully comply with paragraph 2 of part 6 of Article 206 of the Code of Criminal Procedure of Ukraine, since neither the prosecutor nor the prosecutor’s office is included in the list of pre-trial investigation bodies provided for in Part 1 of Article 38 of the Code of Criminal Procedure of Ukraine. To enhance the effectiveness of the application of Parts 6–8 of Article 206 of the Code of Criminal Procedure of Ukraine in the context of European human rights standards and the practice of the European Court of Human Rights, we propose: 1) in Parts 6, 7, and eighth of Article 206 of the CPC of Ukraine, replace the phrase “investigating judge” with “investigating judge, court”; 2) amend the provision of Part 6 of Article 206 of the CPC of Ukraine “during detention or custody at an authorized state authority, a state institution (a public authority or state institution authorized by law to detain persons)” be amended to read: “during detention or custody at an authorized state authority or state institution (a state authority or state institution authorized by law to detain persons) or in other cases of restriction of a person’s personal liberty during the conduct of procedural actions.”

List of References:

1. Judgment of the European Court of Human Rights in “Kaverzin v. Ukraine” [Electronic resource]. — Available at: http://old.minjust.gov.ua/file/25576

2. Judgment of the European Court of Human Rights in “Yaremenko v. Ukraine” [Electronic resource]. — Available at: http://zakon2.rada.gov.ua/laws/show/974_405

3. Scientific and Practical Commentary on the Criminal Procedure Code of Ukraine of April 13, 2012 / Edited by O.A. Banchuk, R.O. Kuybida, M.I. Kharvonyuk. – Kharkiv: Faktor, 2013. – 1,072 pp.

4. Ruling of the Oktiabrsky District Court of Poltava dated February 10, 2015 (Case No. 554/15939/14-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/42729631

5. Ruling of the Leninsky District Court of Kirovograd dated April 12, 2016 (Case No. 405/6704/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/57118585

6. Ruling of the Primorsky District Court of Odesa dated March 7, 2014 (No. 522/3510/14-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/59444415

7. Ruling of the Zavodskyi District Court of Zaporizhzhia dated March 17, 2016 (Case No. 332/646/16-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/56504663

8. Ruling of the Sloviansk City and District Court of Donetsk Oblast dated July 7, 2016 (Unique Case Number 243/9563/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/61204089

9. Ruling of the Terebovlia District Court of Ternopil Oblast dated April 9, 2013 (Case No. 606/286/13-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/32100859

10. Ruling of the Makariv District Court of Kyiv Oblast dated December 5, 2014 (Case No. 370/2026/14-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/47002055

11. Ruling of the Investigating Judge of the Leninsky District Court of Kharkiv dated July 16, 2015 (Case No. 642/5517/15k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/46985784

12. Ruling of the Vasylkiv District Court of Dnipropetrovsk Oblast dated November 12, 2015 (Case No. 172/800/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/53381318

13. Ruling of the Blyznykivsky District Court of Kharkiv Oblast dated September 8, 2015 (612/780/14-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/49859476

14. Ruling of the Shevchenkivskyi District Court of Zaporizhzhia dated August 17, 2015 (Case No. 336/5712/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/48664692

15. Ruling of the Kirovsky District Court of Kirovograd dated October 3, 2014 (Case No. 404/7151/13-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/40750461

16. Ruling of the Pokrovsk District Court of Dnipropetrovsk Oblast dated August 11, 2016 (Case No. 189/1211/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/59681357

17. Ruling of the Novoukrainsky District Court of Kirovohrad Oblast dated June 29, 2016 (Case No. 396/46/16-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/58606154

18. Ruling of the investigating judge of the Orikhiv District Court of Zaporizhzhia Oblast dated February 19, 2014 (Case No. 323/545/14-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/37236664

19. Ruling of the investigating judge of the Malovyskivsky District Court of Kirovohrad Oblast dated June 26, 2015 (Case No. 392/1016/15-k) [Electronic resource]. – Available at: http://www.reyestr.court.gov.ua/Review/46093282

20. Svanidze, Eric. Effective Investigation of Acts of Cruel Treatment: Guidelines for the Application of European Standards / Eric Svanidze. – Kyiv: K.I.S., 2009. – 144 pp.

21. The Case of Davydov et al. v. Ukraine / Kharkiv Human Rights Group. – Kharkiv: Human Rights, 2011. – 184 pp. [Electronic resource]. – Available at: http://library.khpg.org/files/docs/1326275428.pdf