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Lack of Medical Assistance as a Barrier to Effective Investigation of Complaints against Ill-Treatment

19.08.11 | Andrew Chernousov
Access to a doctor, to include the one, which is alternative to the doctor offered by law enforcement authorities, is a part of so called good treatment minimal standard, which was set and is supported by the European Committee for Prevention of Tortures and Cruel, Inhuman or Degrading Treatment or Punishment. The importance of the right to medical assistance and possible ways of its implementation are really topical for the contemporaneous law enforcement practices of Ukrainian militia. Unfortunately, numerous examples provided by interviewed victims of tortures and ill-treatment confirm these facts.
Standards of the right to access to a doctor serve two main purposes:
They guarantee ways to transfer information concerning ill-treatment from the detainee to the doctor; and;
They have key importance for collecting evidence.
European Committee for Prevention of Tortures and other Cruel, Inhuman or Degrading Treatment or Punishment (CPT) has clearly expressed its position stating that any requests of detainees to see a doctor shall be satisfied in all cases, that the detainees under custody shall be examined by a doctor of their own choice and that all medical examinations shall be conducted out of hearing and seeing of the police, unless the doctor requests for otherwise. CPT recommends that the dossier to be prepared by the prison doctor based on the results of medical examination of a new prisoner contain the following data: 1) full record of statements made by such person with regard to the medical examination (including description of his/her health condition and any complaints with respect to ill-treatment); 2) full list of objective medical opinions developed on the basis of thorough medical examination, and 3) with consideration of doctors opinions in the light of Points 1 and 2, the conclusion concerning the degree of consistency of the statements made by the person with the objective medical conclusions. In all cases, when any bodily harm consistent with the statements concerning ill-treatment is documented, such information shall be systemically brought to attention of the respective authorities. Besides, results of all examinations including the aforementioned statements and doctors opinion shall be made available to the detainee and his/her defense lawyer.
Another problem when a person is conveyed to militia units in any status (conveyed or detained person), is that there is practically no procedure for examination of such person by a medical specialist (doctor). Such examination should become a serious guarantee against tortures and ill-treatment, since it would accurately document persons physical condition. Case law of the European Court underlines that the State is expected to provide well-grounded explanation with regard to eventual bodily harm, which a person had after release from a Police facility (Ribish vs. Austria). Such guarantees of physical immunity of a person while he/she is held by police/militia can be granted only provided that such person is first (before he/she is delivered to the police station) examined by a medical doctor. Unfortunately, militia does not have a clear and validated procedure of medical examination of the persons detained and conveyed to militia. Moreover, such procedure is not set in any special order or instruction of MIA of Ukraine, which would clearly describe how, when and what should be done during the medical examination.
In our view, absence of practices of compulsory medical examinations of persons delivered to militia station can be explained by several reasons and we will mention the most significant ones.
1. Historic determination of administrative and criminal procedural measures. Unfortunately, Ukrainian militia inherited many aspects from its predecessor, Soviet militia, starting from its name and ending with its operating methods. The Soviet militia was so closed that one would not even talk about a medical examination of the detained or conveyed persons. Of course, there were extraordinary accidents with the detained or invited persons, and militia was solving them in private, without making such event public, in tight cooperation with the health authorities, which were also tied by the same chain with the militia. So, it did not make any sense to regulate medical examinations of the conveyed persons by a law.
2. Ukrainian domestic legislation has a low level of adaptation to standards of European Court of Human Rights. Although Ukrainian legal practices have many developments from the point of view of judgments against Ukraine (Afanasiev vs. Ukraine, Yakovenko vs. Ukraine, Shabelnik vs. Ukraine and other), but still, this number of cases is not enough to have a significant influence over the militias law enforcement practices. Even after the Law of Ukraine On Enforcement of Judgments and Application of Practices of European Court of Human Rights became effective in 2006, the situation with violation of the right to medical aid (examination by a doctor) did not improve. We incline to tie up the weak influence of the case law of the European Court of Human Rights with the officials whose acts (omissions) caused violations of human rights. We still do not have a clear procedure of recourse to collect the money from the person, who is culpable of violation of a human right and of losses incurred by the State to pay the satisfaction.
3. Level of legal conscience of the public is very low. The situation when the public is not aware of their rights in case of detention by militia, ignorance of simple guarantees under a threat of ill-treatment leads to widely spread practice of ignoring medical aid (examination by a doctor) during or right after visits to militia stations. This entails delays or failures in visiting doctors, and hence, proving unlawful treatment and tortures by Militia officers becomes complicated or even impossible.
4. High level of institutionalization of unlawful practices during preliminary and pre-trial investigations. Achievement of the result of detection of a crime by any means is acceptable for the whole system of criminal justice: from militia and prosecutors office and up to judicial authorities. Although during the recent years the system of criminal justice is subject to changes in favor of humanization, it is still based on the law on procedure as of 1960(!). During this time, almost everything has changed: political regime, forms of governance, ideology, new generation of Ukrainians has grown, but guidelines for administration of justice documented in the CCP have remained desperately obsolete. This will certainly influence the content, rights and obligations of participants of the proceedings dominated by the tandem of militia and prosecutors.
The practice of visits of mobile groups for monitoring of constitutional rights and freedoms to territorial bodies of militia demonstrates quite an interesting approach to provision of medical assistance (examination by a doctor) to persons, who are conveyed to militia station. Thus, with respect to a detained or conveyed person, when there are grounds to believe that he/she has become a victim of physical violence (from any side), a blank form Record of medical examination to establish the fact of use psychotropic substances or intoxicated condition No. 129/ approved by Order of Ministry of Health as of 27 December 1999 No. 302 On Approval of Forms of Statistical Documentation Used in Policlinics (Outpatients Departments) is filled in. But we think what is surprising is not only the fact that validity of such record was cancelled by the Order of Ministry of Health as of 26 October 2009 No. 774 On Amendments to Order of MoH of Ukraine as of 27 December 1999 No. 32, but the name and content of such record. The whole record is dedicated to examination of a person to confirm intoxication condition, and the bodily harm found during the examination has just a complementary role. It appears that the bodily harm, the documenting of which is a priority task during examination of a detained or conveyed person, becomes an optional task during the examination. Respectively, the attitude to the bodily harm and to description of such harm is not extremely important.
Contemporaneous joint medical-militia practices have also preserved another anachronism of the Soviet era: so called doctors certificates confirming that the detainees health condition allows to hold him/her in conditions of temporary detention/pre-trial detention facility. In most cases such certificate is issued by the ambulance doctors, which are called and, after a superficial examination, make such conclusion. Nobody is even speaking about more or less thorough examination with proper tests, etc. This means that if the detainee is conscious and is not bleeding, then he/she is automatically fit for being held in conditions of such facilities. Such certificate becomes in principle doctors basis of refusal from their patient, because such person is a detainee just for militia, while for the doctors he/she is a patient. Thus, European Court of Human Rights, in the case Hurtado v. Switzerland, noted that although Art. 3 of the Convention cannot be viewed as a foundation for the States general obligation to release a detainee on the grounds of medical indications, it still imposes on the State an obligation to protect physical well-being of the person deprived of his/her freedom by ensuring, for example, to such person medical aid. In the light of prohibition of ill-treatment and in view of the right to life, police authorities have the respective obligation to satisfy persons needs in urgent medical aid (threat to life and health in general, pain and other complications), as well in treatment of chronic or other diseases including those, which require regular treatment (Saraban vs. Moldova). All of the mentioned examples from the case law of European Court of Human Rights lead to a conclusion that even when issuing the certificate of fitness for being held in conditions of TDF/PTDF, the State, in this case represented by a Militia body or official, is not released from the obligation to provide for medical aid and even to treat the detainee, if necessary.
Absence of the special examination procedure and of a paper form for documenting its results can be explained, first of all, by a very high latency of phenomena related to beating up of detained and conveyed persons. Besides, the old Soviet militia-medical system was not prepared to work with beaten conveyed persons and, respectively, was concealing this phenomenon and, as they say, was taking care of it. In addition, such complaints, even if we hypothetically assume their existence, did not just have any procedural prospects.
The principal act, which confirms existence of a persons bodily harm is an opinion of forensic medical examination (FME), which is conducted according to the Law of Ukraine On Forensic Examination and Code of Criminal Procedure of Ukraine. Besides, Art. 7 of the mentioned Law establishes the States monopoly for FME, namely, forensic medical examinations related to criminalistic, forensic medical and forensic psychiatric examinations shall be conducted exclusively by the State specialized institutions. Art. 75-76 and 196 of CCP of Ukraine define cases, sequence and procedure to conduct examinations to include forensic medical ones. Since the examination is an investigative act, it can be conducted only after criminal proceedings have started. Thus, Art. 196 of CCP of Ukraine established procedure to conduct the examination: When an examination is necessary, investigator shall prepare a motivated order, where grounds for the examination, name of expert or name of the institution whose experts are ordered to conduct the examination, questions, on which an expert is expected to give an opinion, items to be examined and materials to be given to an expert shall be indicated.
Also, Art. 76 of Code of Criminal Procedure of Ukraine established the cases of compulsory examination, which, in particular, include identification of the nature and graveness of the bodily harm. CCP does not leave any alternative for lawful recognition of existence and graveness of the bodily harm. We think that such situation in practice consolidates the influence of the militia-prosecutors conglomerate over all links involved in ordering and conducting of the examinations and in provision of experts opinions. Without the investigators permission, it is practically impossible to have a referral for FME or to receive the FME results: such procedure was established by the Order of MoH of Ukraine as of 17 January 1995 No. 6 Rules of Definition of Degree of Graveness of Bodily Harm by Forensic Medical Experts, where Point 4.15 reads that the document can be handed to the examined person only by a written permission of investigative-judicial bodies.
The victim of unlawful violence from the side of militia can go to any medical institution, and in this case the valid document will be the Guideline On Procedure of Registration of Cases when the Citizens having Bodily Harm of Criminal Nature Request Help from Medical Institutions and Local Bodies of Internal Affairs approved by the joint Order of MIA and MoH of Ukraine No. 307/105 as of 10 May 93. The Guideline obliges the directors of hospitals, clinics, outpatient hospitals, first aid facilities and other medical institutions to inform without delay the bodies of internal affairs on all cases when person injured by firearms or knives or persons having other injuries seek medical aid, if there are grounds to believe that such injuries result from a crime. If it is found out that such injuries were caused by the contact with militia officers, of course, militia will pay a special attention to such information. The victim again gets into the medical-militia trap, which does not offer any legal way out, if the officers intend to conceal the fact of causing the bodily harm. Although, in practice, every citizen has the right to seek assistance from FME Office at his/her own initiative. But more often in practice the medical and law enforcement personnel ensure full mutual agreement and coordination of their activities.
Such practice is absolutely inconsistent with requirements of European Committee for Prevention of Tortures and Cruel, Inhuman or Degrading Treatment or Punishment, which, in its Report on Visit to Albania in 2005, indicated that there should not be any barriers between forensic medical experts and persons alleging ill-treatment, no matter whether any officials of investigative service of prosecutors office or other authorities were or were not requesting services of forensic medical experts.
The only way to solve this problem is to implement the institution of independent medical experts, which would be accredited by Ministry of Health and Ministry of Justice of Ukraine and would not have any lines of subordination to MIA and/or MoH.
Thus we can securely believe that even when a victim of unlawful violence by militia has desire and will to collect evidence, where the opinion of a forensic medical expert is one of the main points, it becomes an extremely complicated task. And if we assume that militia does not recognize or does not want to recognize the fact of unlawful violence, it becomes just impossible to achieve the level of judicial review of such case.