First of all, let me express my deep gratitude to the Ministry of Justice of Ukraine and all the organisers of the International Forum for the high honour of expressing my thoughts on the issue of preventing torture in modern Ukraine.
And I would like to start by saying that as of 2024, it would be wrong and dishonest to deny the great successes of the Ukrainian Government, the Ministry of Justice of Ukraine, prison system staff and human rights defenders in preventing torture and combating torture and ill-treatment. Such successes are obvious.
However, the problem of combating torture and creating an atmosphere of absolute intolerance to any manifestations of ill-treatment in the prison system remains extremely relevant.
In this context, it is impossible to conceal or deny the impact of the latest Russian invasion on the extent of torture practices and attitudes towards torture on the part of the Ukrainian population, law enforcement officers and the prison system.
One can recall the beginning of the new phase of the war in February 2002 and how some Ukrainians began to apply torture practices to people who committed thefts in the frontline or even in central cities. I was personally surprised when some prominent lawyers, advocates and academics openly welcomed the use of public corporal punishment of looters, emphasising the imperative that ‘in time ofwar, they deserve to be punished by the people themselves in accordance with the conditions of wartime’. My worst fears were realised when the Western and, more sadly, Russian media began to publish these photos, distorting the image of the Ukrainian people.
I share the grief of many Ukrainian families who have lost loved ones and their homes. I share the grief of the relatives of Ukrainians who were tortured by Russian mercenaries and murderers. But each of us who calls himself or herself a scientist or a legal practitioner needs to analyse all these problems not from the point of view of an ordinary citizen, but from the point of view of a specialist who must defend the Ukrainian state and its European values as best he or she can.
Therefore, the objective lowering of the threshold of tolerance for torture and ill-treatment during the war, and the populist slogans about ‘people’s revenge’ that exist in parallel, are very dangerous trends, and they are dangerous, first of all, because they put Ukrainian people on the same level as the armed barbarians who came to kill Ukrainians.
Therefore, this war is not just a war for our survival, freedom and security. It is a war for European and Euro-Atlantic values, which our ‘neighbours’ hate and want to erase from the memory of Ukrainians. That is why absolute intolerance to torture is one of the weapons that the Ukrainian people must keep firmly in their hands.
Article 3 of the Convention for the Protection of Human Rights prohibits – absolutely prohibits – all forms of torture and ill-treatment, regardless of the victim and their behaviour, sometimes provocative and sometimes even criminal in the past. This axiom should be engraved in the minds of every police officer, every prosecutor, every judge and every prison officer.
And Ukraine has much to demonstrate in this regard.
According to CPT reports throughout the history of its visits to Ukraine, as a result of the decline in the number of prisoners in Ukraine – both in absolute and relative terms – the prison system in Ukraine has reached a new level. It is politically, economically and socially significant that when, instead of 220,000 prisoners with a minimal budget, Ukrainian taxpayers spend money on only 46,000 prisoners with a significantly increased budget, this cannot but have a positive impact on the state of affairs in the prison system, including in the area of relations between prisoners and staff, as well as prisoners themselves. Let’s not forget that torture is a form of social interaction between different people with different formal and informal statuses.
However, the fight against torture does not and cannot have a final point. This process is ongoing. And even after solving many problems related to overcrowding in prisons and eliminating the ‘overcrowding factor’ in the prison system, it is too early to say that a turning point has been reached in the prevention of torture.
I would like to make a special emphasis here.
Torture practices are social practices that are transformed in the same way as practices aimed at combating torture. The forms and manifestations of torture and ill-treatment as such are also changing. Thus, the fight against torture is a battle of artillery and armour, and the CPT’s recent reports on Ukraine are testament to this.
Looking at the CPT’s reports on Ukraine, one can see a trend of torture practices becoming more hidden, more, so to speak, ‘sophisticated’. It is becoming increasingly difficult to bring perpetrators to justice. Instead of overcrowding in prisons and the consequent ill-treatment, problems have emerged related to the dominance of criminal subculture and the corresponding informal hierarchies in prisons. The economic crisis caused by the war cannot but affect not only the prisoners, but also the staff and the prison system as a whole. Given that any informal prison hierarchies and the corresponding simulacra of what is called ‘prison subculture’ are a manifestation of organised crime, the Ministry of Justice of Ukraine faces new challenges.
It is important to realise that the scope of Article 3 of the ECHR is not just about ‘square metres’, food, drinking water, bodily harm by staff, natural and artificial light, toilet facilities and hygiene.
In addition, it includes verbal aggression, manifestations of intolerance, humiliation even with a single word, violence among prisoners themselves, the influence of organised crime on prisoners, the delegation of power by the state to informal leaders in prison, contact with the outside world, walks, purposeful activities, etc.
And all of this must be ensured by the state – regardless of the state of war – because no derogation from Article 3 of the Convention for the Protection of Human Rights is allowed due to economic or other problems.
Summing up the above, we can confidently say that Ukraine has passed this test in terms of creating proper institutional support in the field of torture prevention and prosecution of the perpetrators of these undoubtedly heinous crimes, where the key role, of course, belongs to the Ministry of Justice of Ukraine.
However, much remains to be done. And I am deeply convinced that the main key to this is to make the prison system as open as possible to society. A key role in this should be played by prison inspections, which should receive further impetus for their development. It is no wonder that proper inspection is one of the CPT’s standards. As a person who has made efforts to ensure that the Constitution of Ukraine provides for the establishment of prison inspections, I cannot emphasise enough that this area needs to be intensified, because the transparency of the prison system of a modern European democracy cannot be ensured without a system of prison inspections.
Once again, I thank the Ministry of Justice of Ukraine for the invitation!
Dmytro Yagunov
Member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Associate Professor, Attorney at Law, Doctor of Political Science, PhD in Public Administration, MSSc in Criminal Justice, Honoured Lawyer of Ukraine, Member of the Confederation of European Probation (CEP), Member of the Howard League for Penal Reform
Dmytro Yagunov 