You read it here first. There are two Ukrainian men, who have just appeared in court here in the UK, both seeking asylum because they don’t want to be sent back to Ukraine to serve in the army there. Information just released today, published here first –
https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-79
Read the full case notes here, unedited, it makes for absolutely fascinating reading:
VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
& 1 November 2016
…………………………………
Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE LINDSLEY
Between
VB (1)
IS (2)
(ANONYMITY ORDER MADE)
Appellants
and
secretary of state for the home department
Respondent
Representation:
For the Appellant: Mr M Symes and Ms S Panagiotopoulou instructed by Yemets Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer
At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.
There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR.
DECISION AND REASONS
Introduction
The agreed facts in relation to the first appellant, VB, are as follows. He is a citizen of Ukraine born on 29thJuly 1981. He completed his military service during the period 1999 -2001 when he was a communications operator and driver. He suffered serious bullying and injury in the army. He entered the UK clandestinely on 5th January 2013, to join his wife who was already in the UK, and his daughter was born on 1st October 2013. Whilst in the UK call up papers were issued requiring his attendance with the military commissar in April 2014 and again in May 2014.
VB claimed asylum on 19th May 2014; his claim was refused on 27th November 2014 and his appeal dismissed by the First-tier Tribunal on 9th November 2015. However, on 27th June 2016 the Upper Tribunal found that the First-tier Tribunal had erred in law and set aside their decision. The reasons for that decision are set out in Annex [B]
The agreed facts in relation to the second appellant, IS, are as follows. He is a Ukrainian citizen born on 25th March 1986. He is married to a Ukrainian citizen who is presently in the UK, and has a daughter born in the UK on 9th February 2013. He entered the UK unlawfully in the back of a lorry with his wife in January 2013. He claimed asylum on 13th August 2015 on the basis of his having evaded military service, having been prosecuted and having been sentenced to two years’ imprisonment on the 7th July 2015 by the Ternopil City Court in accordance with Article 335 of the Criminal Code of Ukraine.
IS’s asylum claim was refused and his appeal against that decision was dismissed by the First-tier Tribunal, but an error of law was found in that decision by the Upper Tribunal and it was set aside on 29th April 2016. The reasons for that decision are set out in Annex [C]
The decisions of the First-tier Tribunal were both set aside with no findings preserved, and adjourned for remaking in the Upper Tribunal. We now remake these two appeals.
It was agreed with the parties that this decision would also seek to provide Country Guidance on the following issues:
What are the likely punishments for draft evasion in Ukraine
Are prison conditions for draft evaders in Ukraine contrary to Article 3 of ECHR, or has there been a significant and durable change in Ukraine such that the country guidance decision of PS (prison conditions; military service) CG [2006] UKAIT 00016 should no longer be followed?
Are draft evaders who have been imprisoned under Article 336 of the Ukrainian criminal code required thereafter to undertake military service during periods of mobilisation? If so what are the conditions to which they will be exposed during such military service?
At the hearing however it was agreed by both parties and the Panel that it is only possible to address the first two issues with a view to providing country guidance and that there was simply insufficient country of origin material available to make any informed guidance decision on the third issues as to whether those conscripted or mobilised into the Ukrainian army were at real risk of being required to commit acts contrary to international humanitarian law or whether they would be at real risk of persons such as the appellants being subject to “dedovshchina”, which means violent bullying or initiation within the army, which might in turn put those recruited or mobilised at risk of serious harm.
The only substantial material on the issue of “dedovshchina” is in the Strasbourg judgement of Mosendz v Ukraine52013/08 in which a violation of Article 2 ECHR was found for failure to uphold the positive obligation to protect the life and investigate the death of a young soldier doing his military service, where that soldier had committed suicide due to violent bullying. This case cites evidence, including a report from the Ukrainian Parliamentary Commissioner for Human Rights and the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe regarding this issue, but all evidence is prior to 2007. There is also evidence of a small number of convictions for such offences by members of the military in the 2013 US State Department Report on Ukraine. Professor Bowring accepted that he had only anecdotal evidence that the practice, which he believed was mostly an issue for younger recruits, remained widespread in the Ukrainian army today.
Current Political & Economic Situation in Ukraine
We must acknowledge the current political and economic situation in Ukraine, which is not a matter in dispute between the parties.
Political unrest started with mass demonstrations in Kiev’s Independence Square in November 2013 in reaction against the government’s suspension of the preparations to sign an association agreement with the European Union. This movement became known as “Euromaidan” or “Maidan”. Violent protests followed against repressive measures by the then government, with a change in power in February 2014. Shortly thereafter Russia annexed Crimea and armed conflict broke out in the east of Ukraine. Russian-backed armed separatists continue to hold substantial territory in the areas of Donetsk and Luhansk.
The US State Department Report on Ukraine published in 2016 reports that more than 9000 have died and 18000 people have been wounded in this conflict since 2014. More than two and a half million people have fled this region. More than one and a half million people are registered as internally displaced persons and over a million Ukrainians are refugees in other countries, mostly Russia.
In this context the US State Department Report 2016 notes that the country suffers severely from corruption, including in the prosecutor’s office and judiciary, and deficiency in the administration of justice. In September 2016 441 judges were sacked for having made illegal decisions regarding Maidan participants or being pro-Russian with 104 new ones appointed by Presidential decree, and a new prosecutor general was appointed who has no legal education and is associated with current President Poroshenko’s political party; see the supplementary evidence from Professor Bowring relying upon internet news reports.
The UN Human Rights Commissioner’s Report on the human rights situation in Ukraine 16 May to 15 August 2016 states that the entire population of Ukraine is affected by the deteriorating economic situation as a result of the conflict and instability in the east, with a 4.9% rise in prices over the first six months of 2016, and the price of utilities for heating and hot water double that of the beginning of the year by 1st July 2016. There has been no increase in the average salary, and the impact is felt acutely by vulnerable groups such as internally displaced people and pensioners.
Basic Outline of the Detention/ Imprisonment System in Ukraine
The system of penitentiary provision in Ukraine is not a matter of dispute between the parties.
The main source of information on the detention system is the reports produced by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). The CPT was set up under the Council of Europe’s European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1989. It is a non-judicial preventative mechanism to prevent those deprived of their liberty from being exposed to torture or other ill-treatment. To achieve this aim the CPT carry out periodic inspections about every four years with additional ad hoc inspections where necessary. CPT delegations have unlimited access to places of detention, and the right to move inside such places without restriction. They interview persons deprived of their liberty in private, and communicate freely with anyone who can provide information. Co-operation with the national authorities is at the heart of the CPT’s work, since the aim is to protect persons deprived of their liberty rather than to condemn States for abuses. However, ifa state fails to co-operate or refuses to improve the situation in the light of the CPT’s recommendations, the Committee may decide to make a public statement
The other sources, principally the Home Office’s report “Country Information and Guidance (CIG) Ukraine: Prison conditions report January 2016” are reliant on the CPT’s reports as a source which is cited extensively. Further information about the system is provided in the CIG report and by Dr William Bowring.
The Ukrainian penitentiary system is one inherited from the Soviet era. Subject to some exceptions, detention prior to sentence is mainly in one set of establishments known as SIZOs. Those sentenced to custodial punishments are held in a range of different institutions including correctional colonies, where prisoners live in barrack type accommodation, and closed prisons.
There were 148 facilities controlled by the State Penitentiary Service of Ukraine in 2015, 29 SIZOs and 113 correctional colonies for adults and 6 for juveniles. In addition, there are also internal detention isolators (ITTs) for short periods of initial detention (generally up to 10 days although this can be longer when needed as a protective measure) run by the various regional divisions of the Ukrainian Home Office. There are also said to be secret detention facilities used in security cases but these are not the focus of this decision.
Historically there was a high rate of incarceration in Ukraine with 147,142 (324 prisoners per 100,000 of population) persons imprisoned in 2013 where as in July 2016 the number had been reduced to 61,816 (or 170 prisoners per 100,000 of population). The high rate of detention had resulted in a very severe problem of overcrowding. The numbers in detention were reduced by a combination of government actions starting in 2012. The most significant measure was the introduction of the new Criminal Procedural Code, the CCP, which came into force on 19th November 2012 which provided for automatic bail rather than pre-trial detention in the majority of cases. The Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT) Report on Ukraine dated April 2014 comments that this provision led to a 57% reduction in remand prisoners in the period November 2012, when the new Code came into force, to October 2013. At the same time other legislative steps were also taken to decriminalise some petty crimes and to introduce probation for some offences which also reduced prison numbers.
There is no separate military prison system for those convicted of offences relating to failure to be drafted into military service, so they are held in the civil detention and prison facilities as outlined above.
Basic Outline of the Military Service System in Ukraine
As with the basic prison system the overall operation of the military service system was not a matter of dispute between the parties in the appeal. This summary draws on the materials provided to the Tribunal in the joint bundle including the Country Information and Guidance (CIG) Ukraine: Military Service September 2016, the evidence of the expert Dr William Bowring and UNHCR in their January 2015 report International Protection Considerations related to developments in Ukraine Update II, as well as reports from Amnesty International and the Quaker Council for European Affairs cited below. We use the term “conscription” to refer to the compulsory military service system by which young men are taken into the army for the first time for a period of service and the term “mobilisation” for the forced re-recruitment of those who have done service at a later stage in their lives. However, we are aware that reports, particularly those from the press, do not necessarily use these terms with any precision.
The Constitution of Ukraine provided at its inception as an independent state in 1991 for compulsory military service for all male citizens aged 18 to 25 years for a period of 12 months in the army or air force, or 18 months in the navy, with a number of exemptions, for instance for those medically unfit or those who had served a prison sentence. Under Article 335 of the Criminal Code avoidance of conscription was punishable by imprisonment for a term of up to 3 years, although there were provisions for a range of exemptions, as indicated above, and for conscientious objection based on religious grounds with an alternative service for such persons.
Ukraine’s army consisted largely, at this stage, of conscripted recruits: there were in the region of 300,000 men, 250,000 of whom were conscripts. In 2005 plans were made for phasing out conscription and a transition to a professional army by 2010, although due to insufficient funding the transition period was extended to 2015.
The army of modern Ukraine has always had a very substantial problem with draft evasion. In 2004 the Ukrainian Ministry of Defence said that between 1996 and 2004 there were 48,624 cases of draft evasion. Amnesty International and the Quaker Council for European Affairs estimated that around only between 10% to 30% of those eligible actually performed their military service; see material set out in the Australian Refugee Tribunal Country Advice on Ukraine dated 11th December 2009. Information from this period on the numbers prosecuted for draft evasion is not available to the Panel.
In October 2013 President Viktor Yanukovych abolished conscription hoping to create a professional army instead. In spring 2014, when fighting broke out in eastern Ukraine, he did not immediately resort to conscription but instead relied upon mobilising former soldiers to replenish his forces.
In May 2014 acting President Oleksandr Turchynov signed a decree reinstating general conscription. At this point the army wished to conscript some 40,000 20 to 27 year olds for 18 months of military service.
In July 2014 the Ukrainian parliament raised the age to which former soldiers could be recalled to 60 from 50 years. There were three waves of mobilisation of former soldiers in 2014. In 2015 there were a further three waves of such mobilisation, with the purpose to bring qualified personnel into the army. Persons targeted included those with past experience as paratroopers, grenade launchers, in artillery, logistical support and other personnel including physicians, electricians, mechanics and drivers. However, it has proved difficult to source military personnel in this way, and the last wave of the recruitment drive raised only half of the 25,000 soldiers the military wanted.
In 2014 and 2015 it is reported in the press that approximately 125,000 of those summons to military service did not report. In 2015 it was reported in the press that 1500 criminal investigations had been commenced against persons for avoiding military service; and that in 2016 the defence ministry reported that 26,800 men were subject to prosecution for avoiding military service, and that military prosecutors had sent to the courts 2500 prosecutions for evasion of military draft. There were said to be 8000 arrest warrants, 3750 search warrants but only 337 persons detained for these reasons at the beginning of 2016.
The Ukrainian army is reported in the press as being in very poor shape suffering from a shortage of basic supplies, disastrous discipline, low competence of soldiers and officers, a lack of leadership, large numbers of non-combat casualties, and corruption and theft of supplies. It is reported that many evade military draft by bribery or by leaving the country.
Relevant Sections of the Penal Code and Administrative Code
Chapter XIV.
CRIMINAL OFFENSES RELATED TO THE PROTECTION OF STATE SECRETS, INVIOLABILITY OF STATE BORDERS, CONSCRIPTION AND MOBILIZATION
Article 335. Avoidance of conscription for active military service
Avoidance of conscription for active military service, – shall be punishable by restraint of liberty for a term up to three years.
Article 336. Avoidance of mobilization
Avoidance of mobilization, – shall be punishable by imprisonment for a term two to five years.
Article 337. Avoidance of military registration or special assemblies
Avoidance of military registration by a person bound to military service after notification by an appropriate military commissariat, – shall be punishable by a fine up to 50 tax-free minimum incomes, or correctional labor for a term up to two years, or arrest for a term up to six months.
Avoidance of military training or special assemblies by a person bound to military service, – shall be punishable by a fine up to 70 tax-free minimum incomes, or arrest for a term up to six months.
Chapter XIX.
CRIMINAL OFFENSES AGAINST THE ESTABLISHED PROCEDURE OF MILITARY SERVICE (MILITARY OFFENSES)
Article 409. Evasion of military service by way of self-maiming or otherwise
Evasion of military service by a military serviceman by way of self-maiming or malingering, or forgery of documents, or any other deceit, – shall be punishable by custody in a penal battalion for a term up to two years, or imprisonment for the same term.
Refusal to comply with the duties of military service, – shall be punishable by imprisonment for a term of two to five years.
Any such acts as provided for by paragraph 1 or 2, if committed in state of martial law or in a battle, – shall be punishable by imprisonment for a term of five to ten years.
The Code of Administrative Offences of Ukraine
Article 210. The violations of the law by military service staff or subjects on general Military Duty and Military Service.
– For failing to appear in the military recruitment office without good reason or late submission of information on change of residence, education, employment, position, and also violations of the order of educational meetings (sessions) are punishable by a fine of 85-119 UAH.
We adopt the abbreviation “UAH” for the Ukrainian currency, the Hryvnia. As at the date of hearing, the exchange rate was 31.25 UAH to the Pound Sterling making the maximum fine approximately £3.90. A further offence within one year can lead to a fine starting from 170 UAH to 255 UAH. However, in May 2014 the Administrative Code was supplemented by an article on violation of legislation on mobilization, where fines are much higher:
Article 210-1. Violation of legislation on defence mobilization preparation and mobilization:
– Violation of legislation on defence mobilization preparation and mobilization entails a fine of up 170-510 UAH, and for officials – 510-1700 UAH. If the violation is repeated within a year then the penalty increases to 510-1700 UAH for citizens and for officials to 1700-5100 UAH.
Also the Administrative Code has a fine of UAH 17-51 for wilful damage or loss of military documents and 17 UAH for failure to appear for recruitment to be registered at the military recruiting station.
Strasbourg Case Law
There is a large body of case law from the European Court of Human Rights assessing whether conditions of imprisonment or detention breach Article 3 of the Convention.
As set out in the very recent case of Mursic v Croatia(7334/13 Grand Chamber judgment of 20th October 2016), torture, inhuman or degrading treatment or punishment is prohibited irrespective of the circumstances and the victim’s behaviour. Ill-treatment must attain a minimum level of severity to fall within the scope of Article 3. To conclude there has been a breach of Article 3 there must be an assessment which takes into account all the circumstances of the case which include the duration of the treatment, its physical and mental effects and in some cases the sex, age and health of the victim. It usually includes bodily injury or intense physical or mental suffering, but even if these are absent a violation can be found where there is a diminishing of human dignity so as to raise fear and or anguish capable of breaking an individual’s moral and physical resistance. An absence of an intention to humiliate a detainee by placing him in poor conditions does not conclusively rule out a finding of a violation of Article 3. It is incumbent on the government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees regardless of financial and logistical difficulties.
In relation to the issue of prison overcrowding the Grand Chamber concluded in Mursicthat a minimum standard of 3 square metres per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard of assessment under Article 3, and that failure to meet that standard creates a strong presumption of a violation of Article 3. Rebutting this presumption of a violation could be done by showing that there was only a short, occasional or minor reduction in the required personal space where this is accompanied by sufficient freedom of movement outside the cell, where there are adequate out of cell activities and where the detention facility is otherwise appropriate. Reference is made to Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT) standards requiring all prisoners to be allowed at least one hour’s exercise in the open air every day, with a reasonable part of the day outside cells doing purposeful activities such as work, recreation or education.
There are a series of cases against Ukraine brought by prisoners or detainees in which violations of Article 3 ECHR are found. Truten v Ukraine[2016] ECHR 561 found a violation due to lack of space and exercise conditions in a SIZO; Yarovenko v Ukraine [2016] ECHR 835 found a violation regarding detention in three SIZOs and a temporary detention facility as a result of the poor physical conditions of detention, but not in the prison where the applicant was eventually held, and found also treatment for tuberculosis inadequate and in violation of Article 3; Andrey Yakovenko v Ukraine [2014] ECHR found a breach of Article 3 in SIZOs because of overcrowding, lack of lighting and ventilation and lack of proper sanitary facilities; Yakovenko v Ukraine [2007] EHCR 877 found a breach of Article 3 in a SIZO and pre-trial detention centre due to overcrowding, sleep deprivation, lack of natural light and air, and failure to provide adequate medical assistance; Poltoratskiy v Ukraine [2003] ECHR 216 found a breach of Article 3 in a prison for overcrowding, inadequate lighting and heating, and lack of outside walks, correspondence and visits. However, it is to be noted that all of the cases relate to detention and imprisonment in Ukraine prior to 2007.
Extradition Cases
In the case of Igor Lutsyuk v Government of Ukraine[2013] EWHC 189 (Admin) the Administrative Court reviewed the decision in PS (Conditions; Military Service) Ukraine v SSHD CG [2006] UKAIT 00016, with additional evidence provided by Professor William Bowring, Professor of Law at Birkbeck University, in the context of having to decide whether the appellant should be extradited to Ukraine where he had been convicted of robbery and sentenced to two years imprisonment given his contention that this would breach his Article 3 ECHR rights as a result of detention and prison conditions in that country. The appellant contended that he was likely to be held in a SIZO on return to Ukraine. Lord Justice Laws takes PS as an authoritative starting point, and concludes that the evidence presented by Professor Bowring from the Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT) and US State Department reports on Ukraine “paints a picture which, if anything, displays a deteriorating state of affairs.” Laws LJ also concludes that the succession of visits and reports by the CPT “speaks loud as to the gap between aspiration and achievement” on the part of the Ukrainian government. The conclusion of the Administrative Court was that there were substantial grounds for believing that the appellant would be subject to ill-treatment on return to Ukraine due to the detention conditions he would face on return.
Original Sources of Country of Origin Information on the Situation in Ukrainian Prisons and Pre-trial Detention
The Panel finds that the key original sources of information on the situation in Ukrainian detention centres and prisons are the reports of the Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT); the reports of the United Nations Subcommittee on Prevention of Torture (SPT) and the reports of the Ukrainian Parliamentary Commissioner for Human Rights (the Ombudsman). These three sources are all viewed as reliable, as any reports are written by impartial bodies with relevant expertise which have the right to carry out often unannounced prison inspections and gain access to all detention areas, thus basing their reports on first-hand un-sanitised information. We therefore provide summaries of the key relevant material provided from these sources.
Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT) Reports dated 29th April 2014 and 29th April 2015
2014 CPT Report on Ukraine Relating to a Visit in October 2013
The 2014 CPT report results from a visit in October 2013 to eight ITTs in Kiev, Crimea, Dnipropetrovsk, Odessa and Vinnytsia regions, four SIZOs (Kiev, Dnipropetrovsk, Odessa and Simferopol), a closed prison and a correctional colony. This was a periodic report rather than ad hoc visit, although it is notable that the last visit had been less than a year previously in December 2012. This was the tenth visit to Ukraine by the CPT. It was not suggested by any party that this report did not provide a representative view of SIZOs and pre-trial detention facilities, and clearly it included Kiev SIZO which is the largest such facility in Ukraine.
It is noted at paragraph 9 of the report that intimidatory action or retaliatory action against prisoners prior to, during and after CPT visits has been a recurrent issue since the CPT’s first visit in 1998, and that there were on-going concerns in two of the SIZOs and in the prisons. This is deplored by the CPT, at paragraph 11 as “an assault on the principle of co-operation which lies at the heart of the Convention.”
CPT noted a major decrease in the number of inmates due largely to the adoption of the new Criminal Procedure Code (CCP) in 2012 but commented that “localised overcrowding” had been seen in all the SIZOs visited. At paragraph 18 the CPT notes that key issues previously identified had not been progressed at all: “By way of illustration, the Committee noted that no decisive action had been taken to upgrade material conditions in most SIZOs visited and to introduce programmes of out-of-cell activities for adult remand prisoners. Further the situation for male prisoners facing/sentenced to life imprisonment remained basically unchanged. Measures to improve the medical examination of inmates and to ensure the proper documentation of any injuries observed on examination were clearly ineffective.”
It is clear from paragraph 23 of the report that there were still concerns about the effective investigation into allegations of torture and ill-treatment from public officials, with the phenomena of torture being said to have been “an issue of grave concern for the CPT since the Committee’s first visit to Ukraine 15 years ago”. In relation to those held in Kiev by internal affairs officials in ITT facilities the Committee found that since the entry into force of the new CCP the instances of severe physical abuse had reduced although there were still many detained persons who complained of physical ill treatment such as punches, kicks and being hit with hard objects, and threats of beatings. The improvement in relation to such matters was not as good in other regions outside Kiev and there were also allegations of treatment which was severe enough to amount to torture such as being suspended, the use of electric shocks, burning with cigarettes and asphyxiation. CPT conclude that the phenomenon of ill-treatment is a long way from being overcome and has become closely connected with corrupt practices. There were great improvements in relation to this issue at Kiev and Simferopol SIZOs where no complaints of ill-treatment by staff were made, but this was not the case at Odessa and Dnipropetrovsk SIZOs. In the correctional colonies and in the closed prisons improvements relating to staff ill-treatment were found, but in both cases a group of inmates was being used to ill-treat others at the behest of the prison authorities.
At paragraph 99-102 of the report it is reiterated that the overall level of overcrowding in the Ukrainian prison system had diminished significantly, and explained that the Ukrainian Ministry of Justice now believed that their system was compliant with their own national legal standard of providing 2.5 square meters of living space per inmate. However, the view of the CPT was that the Ukrainian standard was not acceptable and that the SIZO system remained seriously overcrowded in the institutions they visited. They also noted serious problems of disrepair in the majority of the prison estate, with little in the way of purposeful out of cell activities for the inmates and with most remand prisoners being locked up in their cells all day. Although in contrast a new block for women in Kiev SIZO provided reasonable space, and conditions were materially better.
At paragraph 144 the CPT summarises their conclusions on health care as being that there were insufficient health-care staffing resources.
2015 CPT Report on Ukraine relating to a visit in September 2014
The 2015 CPT report results from an ad hoc visit by the Committee in February 2014 to two correctional colonies (No. 25 and No. 100) in the Kharkiv area and an investigation into the position of those detained in SIZOs in Kiev and Kharkiv and in a State Security Service detention facility in Kiev as a result of anti-terrorism operations. The Committee found evidence that state security staff had used ill-treatment on detainees in anti-terrorism operations, although there were no substantial allegations of ill-treatment by custodial staff in the SIZOs or in the State Security detention facility.
It was noted that at the two penal colonies that there were frequent and serious allegations of ill-treatment by staff and a climate of fear and intimidation of prisoners observed by the delegation. There was also an unacceptable system of “duty prisoners” who had delegated authority from staff; and frequent allegations of corruption and exploitation of prisoners for economic reasons. The Committee concluded that there were major management problems in both establishments. At paragraphs 42 and 43 of the report detailed remedial actions are set out giving the measures taken by the Ukrainian government as a result of the information provided by the Committee, which included the dismissing of both directors of the colonies and instigation of criminal investigations against staff as a result of complaints of ill-treatment by two prisoners. The CPT concluded that “a page is being turned and decisive action is now being taken by the relevant authorities to combat the phenomena of ill-treatment and intimidation of prisoners in colonies”, although it was noted that the Committee would continue to monitor the situation of prisoners in these colonies and others and would reinvestigate if improvements were not sustained or if actions not vigorously pursued. Concerns were also expressed about life prisoners and their conditions, which had not improved in line with previous recommendations.
United Nationals Subcommittee on Prevention of Torture (SPT)
The SPT was established pursuant to the provisions of a treaty, the Optional Protocol to the Convention against Torture(OPCAT). The OPCAT was adopted in December 2002 by the General Assembly of the United Nations and entered into force in June 2006. The SPT has two primary operational functions. First, it may undertake visits to States Parties, during the course of which it may visit any place where persons may be deprived of their liberty. Under the OPCAT, the SPT has unrestricted access to all places where persons may be deprived of their liberty, their installations and facilities and to all relevant information. Second, it has an advisory function which involves providing assistance and advice to States Parties on the establishment of National Preventive Mechanisms (NPM) which OPCAT requires that they establish, and also providing advice and assistance to both the NPM and the State Party regarding the working of the NPM. In addition, the SPT cooperates, for the prevention of torture in general, with relevant United Nations organs and mechanisms as well as with international, regional, and national institutions or organizations.
Whilst we do not have a report from the SPT on Ukraine Professor Bowring has brought to our attention a report of the Human Rights House Network (HRHN), an umbrella organisation for 90 non-governmental human rights groups, website which explains that in May 2016 the United Nations Subcommittee on Prevention of Torture suspended its visit to Ukraine where it was trying to investigate allegations of torture in places where it suspected persons were being held by the Ukrainian security services. “This denial of access is in breach of Ukraine’s obligations as a State party to the Optional Protocol to the Convention against Torture,” said Sir Malcolm Evans, head of the four-member delegation. “It has meant that we have not been able to visit some places where we have heard numerous and serious allegations that people have been detained and where torture or ill-treatment may have occurred.” “This cancellation suggests that Ukraine is unwilling to fully cooperate with the international community on human rights,” responded Florian Irminger, Head of Advocacy at HRHN. “After Euromaidan, the annexation of Crimea, and the conflict in the East, one would expect the government in Kiev to fully cooperate with such mechanisms – in order to build a Ukraine committed to human rights and universal values. Ukraine must really choose the side of full cooperation with international and regional human rights mechanisms.”
The Ukrainian Parliamentary Commissioner for Human Rights (the Ombudsman)
Ms Valeriya Lutkovska was appointed to this position in April 2012. She is a qualified lawyer who has amongst other things been deputy minister of justice in Ukraine and a government agent before the European Court of Human Rights. She is the National Preventative Mechanism (NPM) since Ukraine ratified the Optional Protocol to the UN Convention Against Torture. States must allow the NPM to visit all, and any suspected, places of deprivation of liberty, and the NPM must be able to carry out visits in the manner and with the frequency that the NPM itself decides. This includes the ability to conduct private interviews with those deprived of liberty and the right to carry out unannounced visits at all times to all places of deprivation of liberty, in accordance with the provisions of the Optional Protocol. Concerns have been raised about the insufficient financial support provided to her to fulfil the service of the NPM in the Ukrainian Human Rights Union report on the implementation of the Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishments (CPT) report. Her work is of course far wider than dealing with prison conditions (although it is said she has conducted more than 300 inspections of prisons in Ukraine in the letter from the FCO dated 20th September 2016), and it is perhaps notable that her office has issued no reports at all since 2013.
In September 2016 Ms Lutkovska put information regarding human rights violations at Kiev SIZO No 1 into the public domain which is accompanied by photographs which show cells with no windows, insufficient space, walls covered in fungus and dangerous electrical fittings. Ms Lutkovska notes that cells have insufficient ventilation, do not have a lavatory, that inmates do not have free access to drinking water and that there is no night lighting so the lights are on all of the time. She notes, as examples regarding over-crowding, that the national standard of 2.5 square meters per inmate was not met with one cell measuring 8.3 square meters containing 4 people and another measuring 7.5 square meters containing 6 people. This information will, it is anticipated by her office in conversation with Professor Bowring, be part of a forthcoming official report.
Evidence of Professor William Bowring
Like Laws LJ in Igor Lutsyuk v Government of Ukrainewe are satisfied that Professor Bowring is an appropriate expert and we give weight to his opinions and evidence. He is a qualified barrister who still practises at the European Court of Human Rights and is a professor of law at Birkbeck University. He is fluent in Russian and has provided expert evidence in extradition cases since 2003, including seven relating to Ukraine. He has an extensive experience of working on the penitentiary systems of post-Soviet countries.
We find he has collated in his report the evidence on the issues before the Tribunal from the key sources, the sources outlined above as well as notably information from the press, from the Home Office Country Information and Guidance Reports (CIGs) on Ukraine and the US State Department Reports on Ukraine. In oral evidence he was able to give fully reasoned answers to all questions put to him, being careful both in his report and in oral evidence to say when his evidence was speculative. He has provided additional responses both as a result of questions from the Tribunal and the respondent.
Professor Bowring’s opinion is that the document relating to VB’s conviction appears to be genuine given its appearance and language. Although the offence VB is convicted of is one under Article 409 of the Criminal Code this is not necessarily incorrect given his past military service, and his being a case of mobilisation, although Article 336 would also apply and might be seen to be more appropriate. Professor Bowring also accepted that call up papers must be hand delivered according to material from the Canadian Refugee Board.
Starting therefore from the premise that both appellants had been convicted of offences of failing to do military service in absentia Professor Bowring believes that it is highly likely that they would be arrested on return to Ukraine and held in a SIZO pending a retrial. They would be highly likely then, in his opinion, be entitled to be retried as Ukrainian law provides for this in almost all circumstances where an accused person has been convicted in absentia. This is in accordance with Article 412 of the Ukrainian Criminal Procedure Code. Further this would be the compatible with European Court of Human Rights law, (see Jones v UKApplication No 30900/02 9th September 2003), and would reflect the fact that the Ukrainian authorities do generally attempt to cooperate with the Council of Europe.
The appellants would, in Professor Bowring’s opinion, be very likely to be detected as having been previously convicted of offences on entry to Ukraine as there are computerised systems at the airport. They would then be likely to be taken to a SIZO, with a significant possibility that this would be Kiev’s SIZO No 1 as this is the largest one in Ukraine. This is the SIZO which featured in the Ombudsman’s most recent critical report. A prosecutor would then have to decide what would happen next with the appellants, considering a possible retrial or other options to deal with them. Professor Bowring believes that there is therefore a real risk that the appellants would be subject to degrading treatment contrary to Article 3 ECHR if returned to Ukraine as they would be very likely to be in detention in a SIZO for a period of weeks or months whilst the prosecutor determined what should happen with the appellants.
Professor Bowring is unable to quantify the likelihood of the various options available to the prosecutor to dispose of the appellants thereafter due to the lack of relevant evidence in the public domain. It is possible that there might not be a retrial if the appellants were to agree to be called-up (although on the evidence before us this is not something either would be likely to do), or they might be dealt with as administrative offenders – and thus in accordance with the Administrative Code only be liable to a fine. Professor Bowring noted that although the fines were low for administrative offences (a maximum of just over the minimum wage for a month) that Ukraine is a poor country so these fines are not insignificant punishments to many citizens.
The evidence in the public domain is that very few draft evaders have, to date, been subject to any criminal proceedings let alone convicted of any criminal offence or sent to prison. However, no precise official figures are available on criminal penalties and there is nothing at all available about those convicted in absentia who are being retried. It is possible that sentencing might be more severe for these appellants due to their efforts to do everything possible to avoid call-up. If criminal proceedings were brought there is not a power under Article 69 of the Ukrainian criminal code for a judge to give a lesser sentence than the prison terms set out in Articles 335, 336 and 409 but it would be possible for that prison sentence to be suspended, and if a term is suspended there is a power to give probation/supervision. Professor Bowring is of the view that the very recent change of staff for the prosecutor and judiciary may possibly herald a harder line against draft evasion. He felt that despite the new bail provisions it was very likely indeed that these appellants would not automatically be granted bail due to their having absconded previously.
In relation to the issue of whether there had been a durable change in prison conditions in Ukraine warranting a departure from PS, Professor Bowring does not agree this is the case. He is clear that there have been real improvements regarding overcrowding and serious engagement with the EU and Council of Europe. For instance, there were six mini projects undertaken by the Ukrainian State Penitentiary Service with the Council of Europe and the EU, in the period 2015 to early 2016, to support prison reform by improving the rehabilitation of prisoners, examples being training prison staff in conflict free communication, improving preparation for release, training convicts to adopt a healthy lifestyle and improved systems for suicide prevention. So whilst there was an aspiration for positive change by the authorities the evidence of conditions in the 2014 CPT report, and the very recent evidence 2016 from the Ombudsman shows that significant overcrowding is still found in Kiev SIZO; and more broadly within the prison system (SIZOs and penal colonies) that abusive conditions (violence by staff who are often ex-military who treat prisoners as the enemy and poor physical conditions in prisons) continue to exist. He felt that Ukraine was not in a good position to make sustained durable improvements at the current time, despite some desire to do so, given it is a country at war and was starting from what is essentially an aging Soviet gulag system.
Country Information and Guidance (CIG) from Home Office – Ukraine Military Service and Prison Conditions
Key relevant information in these reports not already set out elsewhere is summarised as follows.
The CIG opinion is that conditions within military service do not amount to a real risk of serious harm, and that penalties for failing to do it are not disproportionate.
The FCO information, set out in a letter dated September 2016, is that only one person has been given a prison sentence for draft evasion, and even this has been postponed, and that this is despite hundreds of cases being opened for this offence. 77 guilty verdicts were said to have been issued by courts as of February 2016 but the majority were given probation and released. UNHCR information from January 2015 indicated that in December 2014 32 people had been sentenced for evasion of conscription or mobilisation and that when 16 of those cases were looked at all got administrative fines, community service or suspended sentences. A UNHCR report from September 2015 found statistics from Ukrainian courts showing that from July 2014 to July 2015 661 criminal cases were recorded against draft and mobilisation evaders. Further in November 2015 the organisation Global Research reported 7000 criminal cases opened against evaders of mobilisation. A blogger who had urged conscientious objectors not to fight was sentenced to a three-and-a-half year prison term in July 2016. The publication “Global Security” stated in June 2015 that there have been 10,000 cases of desertion registered in the Ukrainian army since the outbreak of war in April 2014.
Information provided by the Canadian Immigration and Refugee Board in June 2015, and taken from a US private non-profit foundation, indicates that military service call-up is via a written instruction to citizens to go to a commissariat for further instructions and a medical check-up. This notice has to be hand-delivered and requires the signature of the recipient. News reports are cited that show that attempts to mobilise reservists have led to between 70% and 95% ignoring the notices. Some had moved to another address, other refused to open their doors and some ignored the notice or ran away. Corruption enables richer persons to bribe their way out of service whilst poorer rural residents were a large portion of those mobilised.
With respect to prison conditions it is accepted in the FCO letter of September 2016, annexed to the CIG, that many prison and pre-trial detention centres are in old buildings which sometimes do not have adequate sanitary facilities or ventilation, and that overcrowding is a problem in Ukrainian prisons. The letter goes on to say that there are common complaints about medical care, being held in a cell with someone who has TB, lack of open air activities, lack of access to drinking water, lack of timely response to emergencies in cells, lack of furniture in cells, lack of light, showers and adequate food. Prisons in Ukraine, it is accepted, do not meet European standards, and conditions in some prisons violate human rights although it is said that they do not pose a direct threat to life. There have been improvements since 2014: for instance, social and psychological services established in prisons; religious services and visits by priests; and fewer cases of torture and mistreatment recorded by human right organisations since 2012. There have also been measures, such as house arrest and probation, to reduce the numbers serving prison sentences.
In the CIG itself reliance is placed on the CPT report of April 2015 that “decisive action” is now being taken to combat the phenomena of ill-treatment and on positive comments in the April 2014 CPT report with regards to marginal systemic improvements in the treatment of prisoners, and on the Ukraine Council of Europe/ EU project of reform for 2015 to 2017. It is accepted that the US State Department covering events in 2014, and other reports, found that prison and detention centre conditions remained poor, did not meet international standards, and at times posed a serious threat to life and health of prisoners. Poor sanitation, abuse, and lack of adequate light, food, and medical care were persistent problems. However, the conclusion is that although prison conditions are poor in Ukraine and there are reports of torture and mistreatment in some establishments, conditions are not so systemically inhumane and life threatening as to meet the high threshold of Article 3 ECHR.
Discussion – Country Guidance
The first issue identified for country guidance is what are the likely punishments for avoiding military service.
There is a stark contrast between the penalties provided in the law, which appear to be straight-forwardly long periods of imprisonment of between 2 and 5 years under the relevant parts of the Criminal Code at Articles 335, 336 and 409, or fines of varying severity under Article 210 of the Code of Administrative Offences; and the evidence of what is happening in practice in Ukraine, which is far less clear, but collectively does not lead us to conclude that statistically a prison sentence or even a fine is currently likely for the reasons set out below.
We lack a straight forward set of official statistics on the issue but information obtained by the FCO, UNHCR and newspapers indicates only a couple of persons would appear to have actually been sent to prison for conscription or mobilisation evasion, with evidence of suspended sentences, probation or fines in only tens of other cases.
This appears firstly to be the case because the Ukrainian authorities have faced draft evasion, both from young conscripted men and those summonsed for mobilisation, on a colossal scale and have not yet got anywhere near the stage of the process where they would be “sentencing” the majority of evaders. The overwhelming majority of the over 100,000 draft evaders would appear, from the information before us, to have faced to date no consequences for their actions at all. In some cases it would seem likely that this is because these people have left Ukraine as war refugees or otherwise, in others it seems likely that they are internally displaced, given that there are over a million internally displaced people in Ukraine; others may have avoided receiving their call up papers or simply ignored papers served.
It appears from the information before us that failure to answer call-up papers has historically been a major problem, and that problems with provision of kit, training and leadership in the army are likely to be the major issues with currently persuading citizens to serve in the army, rather than a lack of patriotism or support for the Ukrainian government in defending the state against Russian backed separatist aggression. It would also appear that the Ukrainian government has to date preferred to try to persuade parents to encourage their sons to cooperate with their conscription by reassuring them in political statements that they would not be sent to the front; and by agreeing generally to slightly better pay for those volunteering to join the army; and made attempts to regulate the borders and thus prevent people escaping, rather than by attempting to come down heavily on large numbers of evaders through criminal proceedings. It may well be that such a clampdown is something that they are not in a position to do, perhaps administratively or financially, and also in the sense of their not having the prison places to deal with such a large number of potential convicts. It would also perhaps not be in line with the Ukrainian government’s intended future for the army as one of professional soldiers rather than coerced conscripts.
Of the less than 30,000 draft-evaders against whom some investigation or initial proceedings may have been instigated, according to the data before us, these steps would appear mostly to be at a very preliminary stage. The information about the tens of cases known to have an outcome indicates that these are mostly dealt with by fines or suspended sentences.
It is possible that a new harder line judiciary and prosecutor might decide to make some examples of those evading service, as was done with the blogger, Ruslan Kotsaba, who posted a YouTube video demanding an end to fighting in Donbass and called on Ukrainian men to resist conscription, who faced a treason trial and was sentenced to three and a half years in prison for hindering the activities of the Ukrainian armed forces in July 2016. At this stage it is very hard to understand if there would be a profile for an “ordinary” draft-evader who would be more likely to receive a prison sentence: the one case which has featured in the news press (and the FCO letter) from Zaporizhzhya district was of a plumber in Kryvyi Rih, who was married with a child, who ignored four notices calling him up, and then said in court he was not joining the army. He received a two-year prison sentence with one-year probation, although FCO information is that he is yet to serve his sentence due to ill-health. It is possible, as Professor Bowring has argued, that doing more to avoid the call-up might lead to harsher sentencing as an aggravating circumstance, and that leaving Ukraine might be seen as such an aggravating circumstance, but it is still unclear when that would be in the context of criminal proceedings or when this would be in the context of administrative proceedings, and it would seem to us that there is a major factor of unlucky chance involved before any particular draft-evader finds himself identified for any proceedings at all.
We conclude at present there is no real risk of an individual receiving a prison sentence for draft-evasion in Ukraine. However, the law provides for such proceedings and penalties and in at least one apparently unremarkable case, discussed in the paragraph above, there was a prosecution which led to a two-year prison sentence.
The second issue identified for country guidance is whether prison conditions for draft-evaders in Ukraine are contrary to Article 3 ECHR, or whether they are not as there has been a significant and durable change in Ukraine such as to mean that previous country guidance in PSshould no longer be followed.
It is firstly important to note that that there is no difference in prison conditions for draft-evaders than for other prisoners. They are held in the same conditions, and are not subject to any military prison regime.
We are guided by the decision in the Grand Chamber of the European Court of Human Rights in Mursicin considering the circumstances in which imprisonment will amount to a breach of Article 3 ECHR due to the conditions of that imprisonment. We note of course that torture, inhuman or degrading treatment or punishment is prohibited irrespective of the circumstances and the victim’s behaviour but that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3. It is important to note, given the situation of armed conflict and economic crisis in Ukraine, that the Grand Chamber said: “It is incumbent on the government to organise its penitentiary system in such a way as ensure respect for the dignity of detainees regardless of financial and logistical difficulties.” We note that without a minimum standard of 3 square metres space per detainee in multi-occupancy accommodation there is a presumption that prison/detention conditions are in breach of Article 3 ECHR unless there is only a short, occasional or minor reduction in the required personal space where this is accompanied by sufficient freedom of movement outside the cell, where there are adequate out of cell activities and where the detention facility is otherwise appropriate.
We find that the cases drawn to our attention against Ukraine, finding breaches of Article 3 ECHR based on prison conditions before the European Court of Human Rights, support PShaving been rightly decided but that as they are all about violations of Article 3 ECHR based on prison conditions prior to 2007 they do not assist us in assessing whether there is a current real risk of a breach of Article 3.
We find that there have been some positive changes in Ukraine regarding the prison system since PSwas decided. The most significant positive development has been changes to the criminal code and criminal procedural code which have led to a very significant reduction in the prison population, with there being around 61,000 persons incarcerated in 2016 compared to 147,000 in 2013. This must have reduced overcrowding, particularly in pre-trial detention facilities given the presumption in favour of bail introduced for those awaiting trial and the removal of criminal penalties for minor matters.
Also significant has been the fact that the various inspection reports of the CPT and Ombudsman available to us do, if generalised, indicate a reduction in the reporting of mistreatment severe enough to qualify as torture in pre-trial detention and a pattern of lesser allegations of acts of ill-treatment, not so severe as to qualify as torture, by staff in pre-trial detention.
However, with respect to torture and ill-treatment contrary to Article 3 the evidence before us is that whilst in the 2014 CPT report improvements in staff treatment of inmates in correctional colonies and other provision for convicted prisoners were noted, this was sadly countered by the fact that systems were in place whereby control was retained by the authorities using groups of inmates being empowered to ill-treat others. In the 2015 CPT report inmates in correctional colonies no 25 and 100 were found to be subject to ill-treatment by both staff and “duty prisoners” delegated to maintain order resulting in a “climate of fear and intimidation”, with frequent allegations of corruption and economic exploitation of prisoners. It is appreciated however that the material we have on correctional colonies and other provision for convicted prisoners is not as wide in scope as that for pre-conviction detainees and so whilst this evidence is of a very serious nature it may not be a reflective of the situation across all facilities for convicted prisoners.
There is significant evidence of improvements for Ukrainian inmates in the ability by the Ukrainian authorities to take, in the words of the CPT in their 2015 report, “decisive action” to “combat the phenomena of ill treatment and intimidation of prisoners in colonies” when presented with evidence of breaches of Article 3 ECHR in their prison estate in Colonies No 25 and 100. There is also evidence of Ukraine working with the EU and Council of Europe on smaller projects to improve their penal system in an on-going programme started in 2015 and the establishment of the Ombudsman with a mandate to inspect prisons and report on their condition since 2012, which has also led to decisive action in dismissing staff when ill-treatment has been found.
However, this evidence of cooperation with international and national human rights bodies to improve the prison estate and bring about conformity to human rights norms has to be placed in the balance with evidence that Ukraine has very recently, in May 2016, prevented access to detained facilities by the United Nations Subcommittee on Prevention of Torture (SPT), thus breaching their obligations as a state party to the Optional Protocol to the Convention against Torture. Further evidence of a less positive attitude to Ukraine upholding prisoners’ human rights standards is also found in a report on prisoners’ rights by the Ukrainian Helsinki Human Rights Union dated 25th April 2016 that says that the heads of Colonies 25 and 100, sacked