A/HRC/40/59/Add.3
alleged crimes committed on its territory from 20 February 2014 onwards, with no end date.
Following the declarations, the Office of the Prosecutor of the International Criminal Court
has been conducting a preliminary examination covering all crimes committed after 20
February 2014. The Court may therefore exercise its jurisdiction over Rome Statute crimes
committed on the territory of Ukraine since 21 November 2013.
15.
At the regional level, Ukraine has ratified the Convention for the Protection of Human
Rights and Fundamental Freedoms (11 September 1997) and the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (5 May 1997).
16.
The Special Rapporteur takes note of the fact that, in June 2015, the Government of
Ukraine notified the Secretary-General of derogations from articles 2 (3), 9, 12, 14 and 17 of
the International Covenant on Civil and Political Rights to be applied in certain districts of
the Donetsk and Luhansk provinces. On 20 October 2015, the Government gave further
notification on “the specifics of the territorial application and implementation” of 16 United
Nations treaties, including the Convention against Torture, stating that the application and
implementation by Ukraine of its obligations under those treaties was “limited” and “not
guaranteed” on territories deemed to be “occupied and uncontrolled”.
17.
In this context, it should be recalled that the prohibition of torture and other cruel,
inhuman or degrading treatment or punishment is of absolute character and cannot be
derogated from under any circumstances, including in times of public emergency such as
armed conflict. Moreover, while the Special Rapporteur recognizes that the current
circumstances may limit the ability of the Government to implement all of its human rights
obligations in parts of the Ukrainian territory that are not under its effective control, that does
not absolve the Government from respecting those rights whenever its operations can affect
the inhabitants of those territories, or from taking all measures reasonably available to it to
otherwise ensure respect for human rights throughout its territory.
2.
(a)
National level
Definition and prevention of torture
18.
To a large extent, the international and regional legal regimes are implemented at the
national level through a strong normative and procedural framework for the prevention and
punishment of torture. The right to be free from torture is protected by article 28 of the
Constitution and article 127 of the Criminal Code.
19.
However, the definition prescribed in the Criminal Code does not cover all elements
of the crime of torture, as defined in article 1 of the Convention against Torture. Notably, the
Criminal Code criminalizes only the direct perpetration of torture, but not mere consent or
acquiescence by a public official or other person acting in an official capacity, and it does
not foresee command or superior responsibility. Furthermore, the Criminal Code fails to
make clear that the definition of torture includes the intentional infliction of severe pain and
suffering for any reason based on discrimination of any kind, as set out in article 1 of the
Convention. In the view of the Special Rapporteur, both shortcomings create unacceptable
loopholes for impunity.
20.
The Special Rapporteur is of the view that the fact that the Criminal Code penalizes
torture by any perpetrator, regardless of their official status, may have certain benefits in the
current circumstances where parts of the Ukrainian territory are controlled by de facto
authorities lacking recognized status as State officials. However, he is concerned that the
definition of the crime of torture in article 127 of the Criminal Code does not incorporate all
the elements required by article 1 of the Convention. Most notably, the mere consent or
acquiescence of State officials with regard to acts of torture or ill-treatment does not appear
to be criminalized.
21.
Additionally, according to article 127 of the Criminal Code, the crime of torture is
punishable by imprisonment for a term of three to five years, a maximum sentence that is not
commensurate with the potential gravity of the crime.
22.
Finally, the Special Rapporteur is concerned at information indicating that, in practice,
acts that could amount to torture and ill-treatment under article 1 of the Convention appear
5