Comments of the Kharkiv Human Rights Protection Group regarding the Sixth Periodic Report of the Government of Ukraine on Implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment With regard to paragraph 1 For the first time torture was criminalized in Ukrainian legislation through the 2001 Criminal Code (CC). Since then the definition of torture has been changed several times. In particular, amendments in 2005 provided for liability for torture of a special person who was identified as a law enforcement officer. In 2008 the qualifying feature of the crime being committed by a law enforcement officer was excluded from the definition, while in 2009 the special person, namely a person acting in an official capacity, was also removed from the text of the article, thus removing the essence of torture as defined in Article 1 of the CAT from the definition. Instead of that such aggravating circumstances as the crime having been committed on the basis of racial, ethnic or religious intolerance were included in the text, which constitutes partial specification of the term “discrimination” introduced into Article 127 § 1 in 2008.1 At present the definition of torture in Ukraine’s legislation in Article 127 of the Criminal Code reads as follows: the intentional infliction of severe physical pain or physical or mental suffering by beatings, torture and other acts of violence to coerce the victim or another person to commit acts contrary to their will, including obtaining from him or another person information or a confession, or to punish him or any other person for acts committed by him or by another person , or in the commission of which he or another person is suspected, as well as for the purpose of harassment or discrimination against him or other persons. The same action committed repeatedly or by a group of persons with prior arrangement or in the basis of racial, ethnic or religious intolerance are considered as aggravated circumstances and are referred to in par. 2 Article 127 of the CC. The content of the article suggests that this definition contains several criteria: 1. The inflicting of physical pain, physical or mental suffering on another person. Domestic legislation understands physical suffering to be that which arises from adverse impact on a person’s body. If a person is psychologically healthy, physical suffering is inevitably accompanied by mental suffering that can manifest itself in resentment, shame, grief, depression, feelings of irreversible loss etc.2 2. Intention to cause such suffering to another person, e.g. direct or indirect intent to cause suffering in order to achieve a specific purpose. 3. The method of causing suffering – beating, torment or other acts of violence. Beating is when the victim is subjected to repeated blows. Torment refers to actions involving the prolonged or repeated infliction of physical pain (pinching, causing slight but numerous lesions with sharp or blunt objects, impact of thermal factors, etc.) Other acts of violence may be understood as referring to various forms of physical pressure on a person causing painful sensations: squeezing parts of the body, pulling hair with force, suspending a person’s body, subjecting a person to constant and loud noise, forcing them to eat inedible substances, etc. 4. The aim of causing suffering is to coerce a person to commit acts contrary to their will, or to punish them or another person for actions which they or the other person committed, or which they or the other person are suspected of having committed, as well as to intimidate or discriminate against them or another person.3 The presence of racial, ethnic or religious motives is considered to be an aggravating factor. The crime components according to Article 127 do not include the requirement that the person committing the torture is a person in an official position of power with respect to the victim. Yet from a systematic analysis of the definition provided in the CAT one may conclude that its norms are aimed at situations where a person, for whatever reason becomes dependant on a state official or any other persons with power to perform official duties in respect of the victim. 1
http://helsinki.org.ua/index.php?id=1298292734 http://pravoznavec.com.ua/books/162/11997/28/ 3 http://pravouch.com/kodeks-ukrainyi-ugolovnyiy/statya-127-pyitki.html 2