Practicing ill-treatment

In Davydov and others v. Ukraine, the European Court of Human Rights was confronted with particularly disturbing facts. The case concerned ill-treatment committed by special forces on prisoners during training exercises. Not during an actual emergency situation of riot in the prison. No, during exercises. Twice.

The prisoners were not warned about the exercises. They were beaten, struck, hit, stepped upon, forced to strip naked and humiliated during the exercises. They did not receive any medical assistance for their injuries and their complaints were not taken seriously. Moreover, some of them were threatened to withdraw their complaints to the Court and were punished through solitary confinement for having submitted their application.

This case clearly shows that some countries still have a long way to go before reaching the standards set by the European Convention on Human Rights. How else can we interpret the above facts, but by concluding that the Ukraine organises training exercises for special forces that are aimed at practising ill-treatment?

The case raised such serious issues, and the lack of cooperation by the government was so clear, that the Court decided to go on an investigation of its own. Three judges carried out a fact-finding mission during which they heard the applicants and dozens of witnesses. They concluded, among other things, that the system in place in the Ukraine enabled penitentiary officers to not record injuries sustained by the prisoners and to not react to medical complaints. Concerning the mission, the Court held in its judgment that, while being sensitive of its subsidiary role as to the establishments of the facts, it would nonetheless assess the case on the basis of the evidence it had gathered itself since sufficiently strong allegations of ill-treatment had been made.

The Court found a violation of article 3 ECHR on four counts: (i) for the ill-treatment, (ii) for lack of an effective investigation, (iii) for not providing medical treatment to the injured prisoners, and (iv) for the general conditions in the prison. The Court also found, among other things, a violation of article 34, holding that the applicants’ right to individual petition had been violated in view of the pressure exercised on them to withdraw their applications. The Ukraine was also found to have failed to discharge its obligations under article 38 § 1 (a) of the Convention, which provides that “[i]f the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities…”.

Judge Villiger wrote a valuable concurring opinion, clarifying that in his opinion the treatment amounted to torture, while the majority did not go beyond applying the generic term “ill-treatment”.

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