TORTURE AND ILL-TREATMENT OF CHILDREN IN UKRAINE

Torture and ill-treatment of children in Ukraine4. Rather strange are the provisions of part 2, art. 492 CPC of Ukraine,which regulate the choice of preventive measure in the form of detentionof a child.So, the law stipulates that the arrest and detention can be applied to a minor,only if s/he is suspected or accused of committing a grave or especiallygrave crime provided that the use of other preventive measures cannot ensureprevention of risks referred to in article 177 of CPC of Ukraine. Article 177contains such list of risks: absconders, destruction or concealment or forgeryof any items or documents that are essential to establish the circumstances ofthe criminal offense, unlawful influence on the victim, witness, another suspect,accused, expert, specialist in the same criminal proceedings, obstructingcriminal proceedings in any other way, commission of another criminaloffense or continuation of a criminal offense, in which there is a suspected oraccused person.This list applies to all preventive measures and has no exceptions, theapplication of detention including. Consequently, the detention is an extrememeasure of restraint, and its use should be limited to really significantand valid concerns about the behavior of the suspect or defendant. But thelaw calls for no additional requirements to the possibility of its applicationand complicates optioning of this measure against children. In other words,both adults and children have almost equal “opportunities” to be placedin custody.Unfortunately, the legislator in the new CPC stepped away from theapproach stipulated in article 434 of the CPC of 1960, according to whichthe arrest and detention as a preventive measure were applied to a minoronly in exceptional cases related to the severity of the crime, in which s/hehad been accused of committing. The previous approach fully met the requirementsof article 13.1 of Beijing Rules: “The pre-trial detention is appliedonly as an extreme measure and for the shortest period of time possible.” The presence in the former CPC of the said position enabled the successfulchallenge of this practice against a minor as a preventive measure detentionin the absence of “exceptional reasons” in the ECHR, particularly in the caseKorneikova vs. Ukraine in which the ECHR found a violation of article 5 §1 (c): Minimum Standard Rules of the United Nations concerning the administration of juvenilejustice (the Beijing Rules), adopted by General Assembly resolution 40/33 of November 29, 1985,par. 13.1.80