PS (prison conditions; military service) Ukraine CG  UKAIT 00016
Date of hearing: 30 November 2005
Date Determination notified: 22 February 2006
|Secretary of State for the Home Department||RESPONDENT|
Prison conditions in the Ukraine are likely to breach Article 3 of the ECHR.
This determination supersedes TV (Ukraine – Prison conditions) Ukraine  UKIAT 00222.
There is insufficient evidence to establish a real risk of Article 3 ill-treatment to conscripts and new recruits from the practice of dedovshchina (hazing) in the Ukrainian armed forces.
"The Claimant had returned to the Ukraine when his work permit expired. On 31 January 2004 he signed to the effect that he had no other grounds but those relating to the refusal of entry for deception. It was only in the Notice of Appeal to the Adjudicator on 10 February that the Claimant said that he wished to apply for asylum. Then on 5 April 2004 he signed a statement of additional grounds pursuant to Section 120 of the Nationality, Immigration and Asylum Act 2002. This was now treated as an application by the Secretary of State upon which a decision was given, appealable to an Adjudicator prior to the hearing before the Adjudicator. The 2002 Act, however, had come into force on 1 April."
"The Adjudicator may have erred in law in failing to separately consider the Appellant's Article 3 claim and failing to consider whether, if the Appellant chooses to refuse to serve in the Military, any term of imprisonment he might receive would amount to Article 3 mistreatment."
".. so that unequivocal and clear findings can be made with respect to the Appellant's military service and prison conditions claim."
"This appeal has had a long history having first begun as an immigration only appeal (paragraph 5 of the determination), that was dismissed, as was an asylum claim. In respect of the asylum claim the sole basis of the claim was the question of military service and the Appellant's unwillingness to undertake it. The Adjudicator dismissed the asylum claim. This was an appeal in which the Article 3 claim did not necessarily stand or fall with the asylum claim; the Article 3 claim was in respect of prison conditions in the Ukraine. The Adjudicator did not deal with that aspect of the claim. The first question we have to decide is whether there was any error of law on the part of the Adjudicator.
Having considered the determination and heard submissions from Mr Mullen on behalf of the Appellant and Mr Matthews on behalf of the Respondent, we are satisfied that the determination contains an error of law. The Adjudicator rejected the Appellant's claim that he is a conscientious objector and therefore that he will face any period in prison (paragraph 37 and first 2 sentences of paragraph 35). However she also states that if he does not undertake military service he will be imprisoned (last sentence of paragraph 35). It is unfortunate that she does not then go on to consider the consequences of imprisonment. The reference in paragraph 35 introduced a hint of uncertainty into the Adjudicator's decision (that may be the danger of considering matters on an 'even if' basis).
We are satisfied that the error of law lay in the Adjudicator's conclusion that the asylum and Article 3 claim stood or fell together (when they clearly did not in this case) and her failure to give the Article 3 claim any consideration. Had that been the only matter we were satisfied that we could have considered the objective material ourselves. However, the Adjudicator's lack of clarity as to the possibility of the Appellant being imprisoned meant that we were unable to decide a basis on which to proceed. Her failure to consider the Article 3 prison claim in the light of the lack of clarity as to the possibility of the Appellant being imprisoned (paragraph 35) also amounted to an error of law."
The Appellant's evidence relating to whether he would refuse to carry out military service.
"The Appellant was asked why he did not want to do military service in the Ukraine. He stated that he does not believe in war and that the army teaches you to kill people and that is against his principles. He said life in the army is violent even if there is no conflict."
"9. The Appellant was asked if he knew about dedovshchina. He said that he did and he was asked what it is. He said that when new recruits are sent to the army, soldiers who have been in the army for one year are supposed to look after these recruits, but what happens to the new recruits is that they get subjected to violence. He said that the new recruits are subjected to degrading treatment and violence. The Appellant was asked what effect this has on the new recruits and he said that it makes them believe in violence and when they have been in the army for a year they in turn treat the next batch of new recruits badly. He said that this treatment makes the new recruits to the army mentally unstable.
10. He told the story of a soldier who saw other soldiers stealing. It was his duty to report this but when he did this he was found hanged. He said that this was not a suicide as the soldier had been beaten black and blue before he had died. The Appellant said that he did not wish this to happen to him and he did not wish to join the army in the Ukraine."
"3. I left the Ukraine because I wished to avoid carrying out military service. I do not believe in war and I do not believe I should be forced to join the army. If I refuse to join the army I will be arrested and taken to the army by the police. Once I am there, if I refuse to follow orders I will be imprisoned. I also believe that if I protest against and refuse to undertake military service I will be subjected to violence.
4. My brother MS was forced to undertake military service and his hands were permanently damaged while undertaking military service. He suffered from frostbite as a result of not being provided with adequate clothing equipment. Many people who are forced to undergo military service return with their health badly affected. I do not wish to be forced into the army where there are very poor standards and conditions and where the standards and conditions will put my life and my health at risk and in danger. I believe that if I am returned to the Ukraine I will be called to undertake military service, arrested by the police and taken to the army and imprisoned and ill-treated if I refuse to carry out military duties. The conditions in military service itself are poor and dangerous.
5. If I am returned I will refuse to carry out military service and I believe this will result in me being imprisoned, ill-treated and kept in life threatening conditions.
6. I confirm that I have read through and signed this statement and I adopt it as my evidence for the court today.
7. I am scared about the practice of hazing, the classmate of my friend was killed as a result of this practice".
"I told the interviewer that I did not want to undertake military service".
"What I believed this was – that it was just an additional reason, additional question because I had already submitted the main asylum form. I thought everything was in the main form and this document was just additional grounds for claiming asylum."
Mr Pattison reminded the Appellant that the SAG form was completed on 31 January 2004 and that the Home Office had never received the Appellant's claim for asylum until 10 February 2004. The Appellant's noteworthy response was:
"I am confused now. I believe as I explained, that I thought it was just additional to the main claim for asylum.
"I have not contacted them as I know because everyone knows in the Ukraine that every man aged eighteen to twenty five must do military service in Ukraine – that is compulsory".
When asked upon return to the Ukraine, whether he could delay being called up by reason of higher education studies, the Appellant responded that he did not have a sufficient level of secondary education that would enable him to go to a high education college in the Ukraine for this purpose.
The Background Evidence
VB (Desertion – Chechnya War – Hamilton) Russia CG 2003 UKIAT 00020. (To which no reference was made by Mr Bradley in his closing submissions);and
TV (Ukraine – Prison Conditions) Ukraine  UKIAT 00022.
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment".
"The ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment and punishment, the manner and method of its execution, its duration, its physical or mental effects and in some instances the sex, age and state of health of the victim."
"a. That the level and nature of the conflict and the attitude of the relevant governmental authority towards it, had reached the position where combatants were or might be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community;
b. that they would be punished for refusing to do so, and;
c. that disapproval of such methods and fear of such punishment was the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict;
then it should find the Convention ground had been established".
"In cases which rested not on a personal risk of harm (for example, where the police or prison staff would have cause to target a claimant) but on a risk of serious harm said to face people generally, for example in this case all persons detained pending trial, it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention."
"At this stage the Appellant's argument before the IAT was that he was at risk of ill-treatment if returned as a member of a class, rather than on account of facts especially put to him. His essential complaint and the point on which Ward LJ granted permission to appeal, is that the IAT in paragraph 10 applied a standard of proof for the establishment of a risk of persecution or treatment contrary to Article 3 which is higher than, and at variance from, the standard established in the jurisprudence. In short it imposes greater burdens on an applicant than should be imposed having regard to the test set out in Sivakumaran  1 AC 958, in their Lordship's House, namely: 'a reasonable degree of likelihood' of relevant ill-treatment. This requires proof of a real, that is, not a fanciful, risk; but its perceived incidence may well be less, perhaps a good deal less, than a formal probability of 51 per cent or more. It is common ground that the Sivakumaran standard applies as surely in appeals brought under the European Convention on Human Rights as it does in refugee appeals as such. The Appellant's target in this argument is the requirement, adopted at paragraph 10 of the IAT determination which I have read, to show 'a consistent pattern of gross and systematic violation of fundamental human rights' by way of punishment for draft evasion or unauthorised departure from the country, before a case of persecution or Article 3 ill-treatment could be accepted…
In my judgment however, the Appellant's arguments all forget one simple but central fact in this case. It is that the points concerning the Appellant's individual circumstances had all fallen away. When it came to paragraph 10 of the IAT determination, his case depended entirely upon it being established that there was a real risk that he would suffer unlawful ill-treatment, as I have said, as a member of a class or perhaps two classes: draft evaders and those who had left the country without authority. In those circumstances, as it seems to me, the 'real risk' – the conventional Sivakumaran standard – could not be established without it being shown that the general situation was one in which ill-treatment of the kind in question generally happened: hence the expression 'gross and systematic'. The point is one of logic. Absent evidence to show the Appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the Appellant would be returning was one in which such violence was generally or consistently happening. There was nothing else in the case that could generate a real risk. In this situation, then, a 'consistent pattern of gross and systematic violation of fundamental human rights', far from being at variance with the real risk test is, in my judgment, a function or application of it".
"37. I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri to the formulation that ill-treatment which is 'frequent' or even 'routine' does not present a real risk to the individual unless it is 'general' or 'systematic' or 'consistently happening': see paragraphs 9 to 10 in the previous judgment.
38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT's more cautious phrase in Iqbal, 'a consistent pattern', which the Court in Hariri sought to endorse.
39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language as in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is."
Conditions in Ukraine Prisons
"For this reason we do not consider the findings we have made should necessarily be regarded as of continuing relevance in future cases. Nevertheless, the material before us, establishes a reasonable likelihood that the Claimant faces a violation of his Article 3 rights".
"The Government's human rights record was poor in some areas; however, the Government continued to respect the rights of its citizens in other areas. In previous years, police and military committed extrajudicial killings; however, there were no reports of such incidents during the year. Police and prison officials regularly tortured and beat detainees and prisoners, sometimes resulting in death. Prison conditions are harsh and life-threatening. There were instances of arbitrary arrest and detention. Lengthy pre-trial detention in very poor conditions was common and detainees often spent months in pre-trial detention for violations that involved little or no prison time if convicted. Long delays in trials are a problem. The government rarely punishes officials who commit abuses. The SBU, Police and Prosecutor's Office have drawn domestic and international criticism for their failure to take adequate action to curb institutional corruption and abuse in the Government.
There was no improvement during the year in prison conditions, which are harsh, life-threatening and do not meet minimum international standards. Prison officials intimidated and mistreated inmates. Due in part to the severe economic crisis, prisons and detention centres were severely overcrowded and lacked adequate sanitation and medical facilities. According to official statistics, funding for prisons decreased by almost 14 per cent over the last 3 years. During the year, the Government announced a general amnesty for 34,800 inmates intended to relieve overcrowding. Because the country lacks a well-developed system of suspended sentences and the law does not differentiate between misdemeanours and felonies, at least one-third of inmates were convicted of only minor violations.
Conditions in pre-trial detention facilities routinely failed to meet minimum international standards. Inmates sometimes were held in investigative isolation for extended periods and subjected to intimidation and mistreatment by jail guards and other inmates. Overcrowding is common in these centers. For example, the pre-trial detention centre in Kiev, houses 3,500; it was constructed to hold 2,850 persons.
According to official sources, information on the physical state of prison walls and fences as well as pre-trial detention blocks is considered to be a government secret. However, the press reported freely about harsh prison conditions. In 1998 there were 1,901 deaths in prisons and detention facilities, which was more than 3 times the death rate of the general population. Poor sanitary conditions resulted in deaths from diseases such as tuberculosis and dysentery. There are frequent incidents of murder by fellow inmates and suicide. "
The US State Department Report for 2002, released on 31 March 2003 is not substantially different:
"According to complaints received from the Office of the Ombudsman and Human Rights NGO's prison officials intimidated and mistreated inmates… According to official statistics of the Penal Department in the first 6 months of 2001, there were 865 deaths in the prisons. Poor sanitary conditions resulted in 300 deaths from diseases such as tuberculosis and 13 from dysentery during the first half of 2001. There were frequent incidents of killings by fellow inmates and in the first half of 2001, 13 individuals were reported officially to have committed suicide, although human rights groups believe the official figure to be higher.
Prisoners were permitted to file complaints to the Ombudsman about the conditions of detention, but human rights groups reported that inmates were punished for doing so. In January 2001, the Rada passed amendments to the Penal Code that relaxed Soviet-era restrictions in high-security prisons and removed a requirement that all prisoners' letters should be read.
Conditions in pre-trial detention facilities also were harsh. Inmates sometimes were held in investigative isolation for extended periods and subjected to intimidation and mistreatment by jail guards and other inmates. Overcrowding was common in these centers. Although there were no official figures, local lawyers believed that the pre-detention center in Kiev housed as many as 6,000 persons, although its capacity was estimated to be 3,500. The SBU still maintained its own pre-trial centers at year's end, although it had announced in 2001 that it would close them. According to Human Rights Ombudsman Nina Karpachova, approximately one third of detainees were tortured."
"Prisons and Prison Conditions
5.22 Prison conditions are harsh and do not meet minimum international standards. Due in part to severe economic conditions, prisons and detention centres are severely overcrowded and lack adequate sanitation and medical facilities. In June 1999, official statistics put the prison population at 223,900 including 42,600 in pre-trial detention, twice that of 1992. In addition prison officials intimidate and mistreat inmates, who are subject to regular beatings as well as torture, which has sometimes led to death. According to official statistics of the Penal Department, in the first 6 months of 2001, there were 865 deaths in the prisons. Poor sanitary conditions resulted in 300 deaths from diseases such as tuberculosis and 13 from dysentery during the first half of 2001. There were frequent killings by fellow inmates, and in the first half of 2001, 13 individuals were reported officially to have committed suicide.
5.23 Because the country lacks a well-developed system of suspended sentences and the law does not differentiate between misdemeanours and felonies, at least one third of inmates have been convicted of only minor offences. In response to the overcrowding, a mass amnesty in July 1999 released some 40,000 inmates.
5.24 Diplomatic representatives and human rights monitors have reported that it has become more difficult to obtain access to prisons. In addition, cases were reported of prisoners being denied correspondence and limited to one family visit per year. Prisoners may complain to the Human Rights Ombudsman about the conditions of detention, but human rights groups have reported that inmates were subsequently punished for initiating complaints."
"Police and prison officials regularly beat detainees in prisons and there have been persistent reports that Berkut (special militia units or riot police) troops beat and torture inmates as part of regular training exercises. Two forms of torture reported are the 'swallow' method, whereby the detainees placed on his stomach and his feet are tied to his hands behind him, forcing his back to arch, and the 'baby elephant' method, whereby a gasmask is placed on the victims head and the flow of oxygen is slowly reduced. Another form of torture employed is called the 'monument' method, whereby the detainee is suspended from his hands on a rope and beaten. Some detainees were beaten until they waived their right to a lawyer. There is no effective mechanism for registering complaints about mistreatment or for obtaining redress for such actions. Prisoners may address complaints to the Human Rights Ombudsman, who has received widespread reports of torture in pre-trail detention, but this avenue is limited by the Ombudsman's lack of enforcement authority. Prisoners' fears of punishment for initiating complaints, and insufficient effort on the part of the government to end such practice or to punish those responsible. One positive step is a new Criminal Code that came into effect on 1 September 2001 mandating 40 to 10 years imprisonment for torture and on 28 May 2002, in the first case brought by the Ombudsman against law enforcement agencies, the Frankivskiy District Court in Lviv ordered the Lviv Prosecutor's Office and the Security Service of Ukraine to pay damages to the parents of a man tortured to death in prison.
6.5 Ukraine committed itself to a moratorium on the death penalty on joining the Council of Europe in November 1995. However, subsequent reports indicated that at least 212 people were executed between then and March 1997, which led the Council of Europe to adopt a third resolution, in January 1998, condemning the continuing executions in Ukraine and threatening it with expulsion should more executions be carried out. Reports indicate that at least 345 prisoners remained under sentence of death at the end of 1998, which caused further international concern and doubts over Ukraine's commitment to ending the death penalty. However, in February 2000 the ADA passed amendments to the Criminal Code which abolished the death penalty in the Ukraine and signed a special Protocol of the European Convention on Human Rights to this effect on 3 May 2002. Crimes previously punished by the death penalty are now punishable by life imprisonment".
"Endemic overcrowding was exacerbated by a general policy of remanding criminal suspects in custody and the infrequent use of non-custodial punishments. Delays in the administration of justice resulted in prolonged period of pre-trial detention".
"[The majority] of the prison population… was subjected to appalling material conditions. Inmates were crammed into severely overcrowded dormitories… with virtually no natural light, often poor artificial lighting and inefficient ventilation… Furthermore the establishment was unable to provide each prisoner with a bed; consequently, in many dormitories, many inmates had to take turns to sleep. While some dormitories had been freshly painted, many others were dirty and infested with cockroaches and other vermin."
"… poor, with overcrowding and inadequate sanitation. There is a risk of intimidation and ill-treatment by prison officials. These conditions are caused in part by the huge prison population compared with the size of the population (224,000 in custody out of a population of 49 million – of which some 43,000 were in pre-trial detention in 1999). The ECHR does not guarantee for this claimant that prison conditions will be of a particular standard or in accordance with European or British norms. Whatever the reference in the material to international standards may mean, Ukrainian prisons, like many others, fall below the European and United Kingdom standards. Nevertheless, the claimant is required to establish a consistent pattern of serious violations of the human rights of detainees of a severity to violate the threshold set by Article 3. it is only by establishing such a consistent pattern that he will satisfy the 'real risk' test that triggers the right not to be returned.
20. The material to which we have referred is a catalogue of serious human rights abuses taking place in the Ukrainian prison system. The difficulty with which a Tribunal is faced is in making an assessment of the scale and frequency of these abuses. In that regard, we find it extremely difficult not to attach significant weight to one of the assessments that attempts to quantify the incidents of abuse. According to Human Rights Ombudsman Nina Karpacova, approximately one-third of detainees were tortured. The Tribunal expresses some concern as to the basis on which this calculation is made. It is not clear whether the information comes from inmates themselves, in spite of the suggestion that many are reticent to complain. Its reliability has not been established beyond reasonable doubt. If the assessment is made simply on those cases that have been reported to her, it may not provide a conclusive or reliable statistic for condition across the entire penal system. Nevertheless, particularly given that we have to decide only if there is a reasonable degree of likelihood that the Appellant will face ill-treatment in pre-trial detention, the Tribunal cannot lightly disregard this evidence.
21. Against this evidence, there is some evidence that the government is taking steps to address some of the problems. Steps, for example, have been taken to reduce overcrowding. The figures for the Kiev detention centre, for example, whilst demonstrating an occupancy significantly beyond its design capacity (6,000 although designed for 3,500) may not be worse than overcrowding in some European facilities. Overcrowding is not, in itself, a violation of an inmate's human rights. Similarly, the deaths in custody, although high, include deaths from natural causes and this may be a reflection of the poor state of the physical health of those prior to detention. It also appears that the government has taken steps to address the problem of torture, albeit under pressure from the Council of Europe, by introducing an amendment to the Criminal Code specifically aimed at criminalising it. In May 2002 a successful prosecution was brought".
"Prison conditions remained harsh and life threatening … According to complaints received from the Office of the Ombudsman and Human Rights NGOs, prison officials intimidated and mistreated inmates. Due in part to severe economic conditions, prisons and detention centres were severely overcrowded and lacked adequate sanitation and medical facilities. Almost 25,000 individuals reportedly were held in prison cells with neither windows nor toilets …
According to the State Department for Execution of Punishments, during the year  There were 696 deaths in prison and 130 deaths in detention facilities (compared to a combined total of 1,381 in 2001), many due to harsh conditions. Officials attributed this reduction in the number of prison deaths to a concerted effort to improve prison conditions, including healthcare and nutrition…
According to human rights groups a reorganisation of the Penal Department to ensure greater independence of the penal system did not affect the Department's practices, there was little civilian oversight of its activities … According to prison authorities, no criminal proceedings involving torture or mistreatment of prisoners were open during the year  and no employee of the penitentiary system was disciplined for improper treatment of detainees…
Prisoners were permitted to file complaints with the Ombudsman about the conditions of detentions, but human rights groups reported they were punished for doing so… The Ombudsman continued to draw attention to the state of the penitentiary system by visiting prisons and raising prison-related issues in public. Following a visit to a detention facility in Crimea, officials built a courtyard to provide inmates, who previously were unable to exercise out of doors, with an area where they could engage in physical activity…
In 2001, the RADA ratified the first and second protocols of the European Convention on Prevention of Torture which mandates the inspection of prisons by international observers. While conditions remain below international standards, the media reported the monitors of the Council of Europe (COE) left with a 'good impression' after their visit to prisons in the Zaporizhzhya Oblast. Additionally, a new pre-trial facility has been built in Kharkiv, which reportedly meets European standards and several cells with modern comforts were offered in a detention centre in Dnipropetrovsk".
"There are a total of 180 regular detention facilities in the country, including forty three pre-trial isolators (SIZOs), 131 labour colonies (VTKs) eleven juvenile penal institutions for prisoners under the age of twenty (ten for boys and one for girls). All these facilities are supervised by a special government department charged with monitoring detention conditions."
"Ukrainian detention facilities were overcrowded. There were 45,000 pre-trial detainees while the official capacity of the facilities was only 36,000 places. Due to lack of beds and overcrowded cells, detainees often had to sleep in turn."
"It was estimated that 9,900 of the total of approximately 200,000 prisoners in all facilities were ill with tuberculosis. All diseases spread fast, speeded up by the fact that healthy persons were sometimes kept together with infected inmates."
"In April  the European Court of Human Rights ruled in favour of six men held on death row in various Ukrainian prisons in the 1990s who had lodged complaints about the cruel, inhuman and degrading conditions of their detention."
"… that one prisoner was beaten so badly by the guards that his feet had to be amputated. The prisoner is believed to have been attacked after refusing to obey his wardens' instructions. The attack is under investigation by the Prosecutor-General's office and the guards are under investigation for abuse of authority".
"Ukraine has been plagued by numerous human rights problems that require a structural approach on the part of the government. While it has begun to act on some of these issues, many remain unaddressed.
Torture and ill-treatment continues to be a significant problem in police detention and prisons in Ukraine. Ukraine's human rights Ombudsman receives numerous complaints of torture from criminal suspects and estimates that thirty percent of all detainees may become victims of torture or ill-treatment by law enforcement agents. Ill-treatment has resulted in permanent physical damage to many victims and in the most severe cases has resulted in death. In the vast majority of cases the perpetrators of torture are not investigated or prosecuted for their crime. Prison conditions in Ukraine continue to be poor. Prisons are overcrowded and prisoners have insufficient access to food and health care. As in many other former-Soviet nations, tuberculosis is widespread in prisons."
"… during her nearly seven year tenure she has received approximately twelve thousand complaints from persons who asserted they had been tortured in police custody. In an August 2 special programme on the opposition - owned Fifth Channel Television Network, Karpachova acknowledged that torture of citizens by police officers remained a major problem."
The report went on to exemplify such conduct.
"Prison conditions improved somewhat as a result of reforms in the penal system. Prison official reported that, due in part to the decriminalisation of many offences there was a reduction in the number of inmates in prison, which eased overcrowding. Nevertheless prisons were sometimes overcrowded or lacked adequate sanitation and medical facilities.
Although information on the physical state of prison walls and fences, as well as on pre-trial detention blocks is officially considered to be a government secret, the press reported freely about harsh prison conditions.
Conditions in pre-trial detention facilities were harsher than in low and medium security prisons. There were reports that inmates in pre-trial facilities were sometimes held in investigative isolation for extended period and subjected to intimidation and mistreatment by jail guards and other inmates. Overcrowding was more common in these centres; their total capacity was 36,000 with 39,021 detainees were held in them as of September 1 according to the State Penal Department (SPD).
Human Rights Ombudsman Karpichova expressed indignation over conditions in temporary detention centres, particularly Crimea and in April it was reported that the Prosecutor General's office was concerned about poor conditions in pre-trial detention facilitates nationwide.
The SPD in co-operation with the NGO community implemented some programmes for the professional development of prison and police officials. According to the SDP, as of September 1, no criminal proceedings involving torture or mistreatment of prisoners had been opened against SPD employees; however, as of September 1, six criminal cases had been opened against employees for unspecified 'non human rights related' offences. No employee of the penitentiary system was disciplined for improper treatment of detainees; however 420 employees were disciplined in the first eight months of the year for 'serious flaws in their work in violation of work ethics' according to the SDP.
The 2003 Criminal Penal Code was intended to regulate prison life and provide safeguards against the mistreatment of prisoners. Officials stated that it was still too early to evaluate the code's effectiveness, but maintained that NGO's international experts, prisoners, and prison employees have reacted favourably to it. In accordance with the new code, all new inmates were required to undergo psychological screening and prison administrators were required to develop a plan for the rehabilitation and eventual release of inmates. Correctional institutions for adults were also sub-divided into three categories: minimum, medium and maximum security. Also in keeping with the new Code, deprivation of the right to receive a parcel is no longer used against prisoners as a punishment. Prisoners are permitted to receive much larger parcels than in the past, which may include food items, medicine, books, writing implements, clothing, shoes, and personal hygiene items.
According to official statistics from the SPD, there were 464 deaths in prisons during the year: 438 were due to illness, 20 suicides, 2 homicides (one murder and one manslaughter), and four lethal traumatic injuries. In addition there were eighty eight deaths in pre-trial facilities: eighty two due to illness and six to suicide. Tuberculosis in prisons continues to be of concern; however, officials stated that mandatory screening of all new inmates had reduced infection rates. Inmates with tuberculosis were isolated from the general population and treated at one main prison hospital complex in Kharkiv Obalst. Almost twenty five thousand individuals reportedly were held in prison cells with neither windows nor toilets. …
The Government continued to allow prison visits from human rights observers and generally granted full access to prison facilities; however, some monitors reported that at times it was difficult to obtain access to prisons to visit specific prisoners and there were instances in which they were not allowed full access to prison facilities. The SPD maintained however, that there had been no instances of domestic of international human rights groups being denied access to pre-trial detention facilities. Prisoners were permitted to file complaints with the Human rights Ombudsman about the conditions in detention, but human rights groups reported that prisoners were sometimes punished for doing so. …
Legislation passed in July 2003 strengthened the role of the Human Rights Ombudsman and of MPs in investigating human rights violations, providing for the imposition of fines against individuals seeking to hinder there work."
"… during her nearly seven year tenure she has received approximately ten thousand complaints from persons who asserted they had been tortured in police custody. In an August 2 special programme on the opposition owned Fifth Channel television network, Karpachova acknowledged that torture of citizens by police officers remained a major problem."
Conclusions as to prison conditions in the Ukraine
Military Service in the Ukraine
"5.48 A law on alternative service was adopted by the RADA in December 1991. It allows people who object to military service on religious grounds to 'perform works for the public good' instead. At present, the percentage of males allowed to take alternative military service is low, at around the region of between 1.2 and 1.5 percent. In March 1999 an amendment to the alternative service law reduced the period of alternative service from thirty six months (twenty four for those with a full higher education) to twenty seven months (eighteen months for those with a full higher education and a Masters Degree, or specialists). Alternative service can be undertaken only when the authenticity of an individual's religious convictions has been established by a military commission.
5.49 Draft evasion, which became a common feature in Ukraine following independence in 1991, has since become widespread. This reflects less fear of the consequences on the part of draft evaders in a country more democratic and aware of human rights and their belief that the newly-formed Ukrainian military machine is less able than its Soviet predecessor to punish them. In theory, males avoiding military recruitment can be sentence to up to three years imprisonment. However, in July 1993, media reports cited a study, commissioned by the Ukrainian Procurator General, which predicted only one-third of conscription aged men would actually serve in the Ukrainian armed services. The study also revealed that evasion of military service; failure to turn up for military registration and absence without leave had become 'unprecedently widespread'. It stated that very rarely were officials and citizens of call-up age punished for violating the law. The study criticised existing legislation and the Procurator General urged the Ukrainian Minister of Defence to take necessary measures."
"Hazing is described as the torture and ill-treatment of young conscripts at the hands of senior soldiers, including humiliation, beatings and murder (AI 15 October 2001; Country Reports 2003 25 February 2004, SEC. 1a, 1c; Country Reports 2002 31 March 2003, SEC 1a 1c). In November 2003 a Ukrainian serviceman was convicted of hazing thirty seven junior conscripts, one of who committed suicide…
Human rights reports indicated violent hazing of young recruits, also referred to as dedovshchina, is widely practised in the Ukrainian Army (HRW 2003; Country Reports 2003 25 Feb. 2004. SEC 1a, 1c; Country Reports 2002 31 March 2003, SEC 1a, 1c; Country Reports 2001 4 March 2002, SEC 1a, 1c; National Security and Defence 2002; UNHCR 25 Sept. 2002; ibid, 21 Nov. 2001; AI 2002; ibid 2001) and that approximately 10 to 20 soldiers' deaths are attributed to hazing each year in the Ukraine (AP 11 Nov 2003) and that 15 per cent of all cases brought to military courts deal with alleged hazing (IHF 2002).
In its analysis of the Ukrainian Armed Forces, the Razumkov Centre for Economic and Political Studies in Kiev notes that in 2000, 20.7 per cent of all military servant convictions in the Western Ukraine region were related to dodovshchina, and that this number rose to 23 per cent in 2001 (National Security and Defence 2002, 13). Further it is noted that there are repeated cases of violence against subordinates on the part of their commanders. In 2001 and the first quarter of 2002, court marshals of the Western Region convicted twenty four officers and NCOs for abuse of power with respect to their subordinates. Their criminal actions did harm the twenty nine military servants, twelve of them suffered bodily injuries.
Despite these reports, official data of the number of soldiers that are subjected to hazing or killed during violent hazing events is not systematically collected, reported or published (Defence and Security 3 Sept. 2003; Country Reports 2003 25 Feb. 2004, Sec 1a, 1c; Country Reports 2002 31 March 2003, Sec 1a, 1c; National Security and Defence 2002), and military officials have reported no deaths due to physical violence during the same period that human rights groups such as the Ukrainian Association of Soldiers Mothers in Kiev have reported widespread violent hazing (Country Reports 2003 25 Feb. 2004. Sec 1c). In a 3 September 2003 Defence and Security Article, Major-General Nikolai Feshchuk, Military Prosecutor in the Southern Ukrainian region, explains that:
'The quantity of crimes connected with hazing of young recruits has increased by a third in 2003… As a rule, Commanders conceal crimes committed in military units: 93% of criminal cases were started by military prosecutors' offices, and only 7% by Commanders. In addition many incidents are linked to beating of soldiers by their Commanders… Senior Commanders do not start criminal proceedings when their subordinates refuse to obey orders.
According to [HRW] Country Reports 2003, official reporting and accounting of hazing-related deaths are further complicated by the tendency to label such events as suicide; …
With regard to the issue of mental distress experienced by the victims of hazing, Amnesty International (AI 2001; ibid, 15 Oct 2001), the United Nations International Covenant on Civil and Political Rights (12 Nov. 2001), and the International Helsinki Federation (2002) indicate that each year a number of recruits are driven to suicidal desertion to escape their violent treatment by other soldiers and officers. In its 15 October 2001 report entitled 'Ukraine Before the United National Human Rights Committee', Amnesty International cites the case of a young recruit whose mental health problems were confirmed by medical examination after he deserted his unit in Zhytomyr because he was 'subjected to various forms of ill-treatment by other recruits'.
Measures Taken to Remedy the Situation of Victims
Notably, in 2001 and 2002, the United Nations Committee Against Torture recommended that those who commit hazing in the Ukraine be prosecuted and punished and that a more effective system be adopted in the Ukrainian Armed Forces to end hazing, through training and education (UNHCR 25 Sept. 2002; ibid 21 Nov 2001). However, no information could be found among the sources consulted about practices, policies or measures currently in place to prevent or remedy hazing in the Ukrainian Armed Forces. Rather, Country Reports 2003 indicates that complaints of physical harassment are often not investigated and punishment administered to senior officers for tolerating or participating in hazing has been insufficient to prevent continued practice (25 Feb. 2004, Sec 1c).
According to Amnesty International, some recruits who deserted the Ukrainian Army to escape hazing were subsequently sentenced to prison terms of five to seven years for desertion under Articles 240 and 241 of the Ukrainian Criminal Code (15 Oct. 2001). Amnesty International cites the specific case of a recruit who deserted his unit in Simferopol and subsequently appealed to a Kharkiv Military Prosecutor claiming he had been the victim of hazing:
'Although the Military Prosecutor's Office purportedly acknowledged that the recruit had voluntarily turned to them and there existed a medical report supporting the recruit's allegations of having been subjected to violent physical abuse, the Military Prosecutor's Office in Simferopel reportedly refused to consider the evidence and put pressure on the recruit to withdraw the allegations. In desperation, the recruit reportedly deserted again shortly afterwards (15 Oct 2001).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not and does not purport to be, conclusive as to the merit of any particular claim for refugee protection'.
"Senior conscripts often beat recruits, sometimes into death and force them to give up money and gifts that they receive from home. According to the human rights associations, garrison prosecutors often did not investigate complaints of physical harassment. Punishment administered for committing or condoning such activities was insufficient to deter further abuses. Although military officials reported there were no deaths due to soldier on soldier physical violence, human rights groups, including the Association of Soldiers' Mothers, reported that violent hazing continued to be widespread. They reported in 2002 that the Office of the Prosecutor General opened one hundred and twenty nine criminal cases pertaining to violent hazing. It is unlikely that further information will be available on the progress, if any, in these cases"
1. Firstly, there is no question of persons in the military being required currently to perform acts contrary to international law.
2. Secondly, the conditions of military service although far from ideal (with hazing remaining a serious problem) are not generally such as to themselves give rise to a real risk of treatment contrary to Article 3.
3. The material to which we have referred does not disclose evidence that those who refuse to perform military service face a real risk of imprisonment. That is because of two main considerations. One is, that persons who refuse military service on religious grounds are given an optional alternative service. The other is that only rarely do persons who seek to evade military service face punishment. The theoretical punishment available of up to three year's imprisonment, seems rarely to be applied in practice. Thus what risk there is, must be regarded as remote and not a real risk.
Conclusions on the Appellant's particular circumstances
"35. The Appellant has not said that he will not join the army if he is returned to the Ukraine. He has stated that he does not want to join the army. The evidence does not show that he is a conscientious objector and I therefore find that if he returns to the Ukraine today and joins the army he will serve for the normal period. If he does not join the army he may well be imprisoned for a longer period based on the background evidence but as I do not find that this man is a true conscientious objector or even partial conscientious objector I do not find that conditions of the prisons in Ukraine applies in this case.
36. The Appellant has not shown that the conditions of military service in Ukraine are so harsh as to amount to persecution on the facts.
37. The Appellant has not shown that the military service to which he will be called would involve acts which he may be associated with which are contrary to basic rules of human conduct. I do not find that the punishment in question is disproportionately harsh or severe were he to refuse to join the army and I find that if he is returned to the Ukraine and has to join the army he will do so although he may not believe in violence.
38. I have also considered the fact there is an alternative service to military service. This Appellant does not appear to fit into this category but it is something that could be explored by him on return.
39. I do not find that this Appellant is a conscientious objector. I do not find that his claim meets the categories brought out in  UKIAT 00020 B (Russia)."
"His other ground of appeal is that he wishes to claim for asylum. This is another material fact he failed to disclose to the visa officer. Furthermore he failed to disclose his asylum application on the Home Office form IS76(One Stop Notice) and at the interview despite having the opportunity to do so when I had asked him if there were any other reasons for him to stay in the UK".
'What I believed - this was just an additional question because I had already submitted the main asylum form. I thought everything was in the main form and this document was just additional grounds for claiming asylum.
Q. But this form was completed on 31 January 2004. The Home Office never received your claim for asylum until 10 February 2004.
A. I am confused now. I believe as I explained that I thought it was just additional to the main claim for asylum. My brother had completed military service in the Ukraine. He completed it about eight years ago. No, sorry, I think five years ago.'
N H Goldstein
Senior Immigration Judge
Soering  11 EHRR 439
Muzafar Iqbal  UKIAT 02239
Batayav  EWCA Civ 1489
Hariri  EWCA Civ 807
Dankevich v Ukraine (40679/98) (2004) 38 EHRR 25 2003 WL 23192423
Krotov  EWCA Civ 69
Poltoratskiy v Ukraine (38812/97) (2004) 39 EHRR43 2003 WL 23508990
TV (Ukraine – Prison Conditions) Ukraine  UKIAT 00222
Afanasyev v Ukraine (2005) Application No: 00038722/02 5/4/2005
Nevnerzhitsky v Ukraine (2005) Application No: 00054825/00 05/04/2005
Salov v Ukraine (2005) Application No: 00065518/01 6/9/2005
US State Department Report on Ukraine, March 2001.
Reports of the United Nations Committee Against Torture – Ukraine, November 2001.
Reports of the United Nations Committee Against Torture – Ukraine, September 2002.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment - 2002
US State Department Report on Ukraine, March 2003.
US State department Report on Ukraine 2004
Immigration and Refugee Board of Canada relating to Military Service in the Ukraine, October 2004
CIPU Bulletins 1/2004 issued 2 July 2004 and 1/2005 released May 2005 on Ukraine.
Report of Ukraine's first Ombudsman's visit to the Ukrainian Free University dated 26 May 2004.
Human Rights Watch World Report on Ukraine, January 2005.
Amnesty International Report on Ukraine, May 2005