TORTURE AND ILL-TREATMENT OF CHILDREN IN UKRAINE

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Torture and ill-treatment of children in Ukraineby the head of the criminal pre-trial inquiry body to conduct pre-trial investigationsof minors. Although the formal features of this regulation resemblesthe requirements of international regulations, it is still unclear andobscure.The nature of the new redaction of the Article 484 of the Criminal ProceduralCode of Ukraine does not permit unambiguous conclusion about thestatus of the investigator specifically authorized by the head of the criminalpre-trial inquiry body to conduct proceedings in relation to the child. The currentprocedural law actually allows for cases where the investigator may be“specifically authorized”, e.g., by the order of the chief law enforcement agencyto conduct proceedings concerning the child. The law specifies no requirementsfor training, qualifications, and experience of such officer. Such regulationof the specific proceedings against children cannot be considered acceptable,because, in fact, the law contains no specific requirements for themain subject of procedural relations.We believe that it would be true to follow uniform provisions in the regulationof such legal relationships. In particular, there should be standard requirementfor all officers and employees, who work with minor delinquents,determining mandatory existence of certain qualifications (maybe even postsecondarytraining) and experience of working with children. Based on theexperience of other countries, where such institutions are currently operating,one could argue that it will contribute to the quality of child treatment andprocedures for their prosecution.2. The Beijing Rules as one of the main international instruments regulatingthe legal status of children in the performance of criminal proceduresrepeatedly indicates that all proceedings and actions should be organized sothat they disturb as little as possible the normal way of child’s life. The newCriminal Procedure Code also reflects these regulations. The legislator in part2 art. 484 of the Criminal Procedure Code of Ukraine resorts to the instructionthat all procedural steps should be carried out in a way that minimally violatesthe normal way of life of a child and corresponds with her/his age and psychologicalcharacteristics.Given that the CPC is, so to speak, the final national regulator of criminalprocedural legal relations, such redaction of the law is inadequate. The furtherarticles of chapter 38 “Criminal proceedings against minors” do not containany provisions that would develop this general requirement, or clarify its practicalvalue for criminal judicial procedures.78
Section 1Analysis of legislation on prevention of torture and ill-treatment of children3. The overall impression from the provisions of chapter 38 of the newCriminal Procedure Code of Ukraine is that they are not aimed at protectingand safeguarding the interests of the child.The new act retains unchanged the regulation adopted during the Sovietera on the dominant and monopolistic role of the investigator in carrying outcriminal proceedings. For example, the question about the possibility of presenceduring the interrogation of a child under 16 years of age of her/his legalrepresentatives, pedagog, doctor remains at the discretion of investigator. Itis unlikely that this will take into account the opinion of the child and her / hisinterests.That is the ideology remains unchanged: criminal procedure remains primarilypunitive associated with state coercion and is not aimed at protectingindividuals; it is intended to ensure future punishment.Similar is the situation with participation in legal proceedings (includingtrial) of the representatives of criminal militia for children (Article 496 ofthe Criminal Procedure Code of Ukraine). This institute is also a rudiment ofSoviet criminal process, which stresses the fact that the penalty remains themain function and content of criminal procedures. Unclear is the requirementof participation of the criminal militia for children due to the fact thatthis body makes preliminary investigations in criminal cases against childrenand, therefore, provides forms and evidence base for prosecuting a child.Therefore the possible participation of a representative of the criminal militiafor children means that, in addition to the state prosecutor in court, therewill participate one more representative of the government that actuallytakes the side of prosecutor. This situation unnecessarily accentuates prosecution.The new CPC, like the same in 1960, does not provide for specializationof judges exercising criminal proceedings against minors. Currently it is stipulatedby art. 18 of the Law of Ukraine “On the Judicial System and Status ofJudges”, which was amended on 13.04.2012 with relevant provisions for localgeneral and appellate courts, under which a judge authorized to conductcriminal proceedings against minors can be elected, if s/he has experienceas a judge for at least ten years, or, in the absence of such, if s/he is the mostexperienced professional. In fact, today the official websites of general localand appellate courts contain no information about specialization of judgesauthorized to exercise criminal proceedings against minors.79
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DesignerBoris ZakharovOn the cover
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Науково-практичне
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TORTURE AND ILL-TREATMENT OF CHILDREN IN UKRAINE

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