A Crime against Humanity

On January 23-24, 2014 online resources and central TV channels published a video where a man was cruelly and publicly tortured by law enforcement authorities in Ukraine. The event consisted of the following actions: during the confrontation on Hrushevskoho street in Kyiv, “Berkut” riot police officers took one of the protesters, Mykhailo Havryluk, hostage. Havryluk is a citizen of Ukraine, from the Khotyn district of Chernivtsi Oblast. He was dragged through the snow covered street and taken to another part of Hrushevskoho Street which was controlled by the “Berkut” riot police and internal security troops, by whom Mykhailo was cruelly beaten. Afterwards, with the temperature at minus 10-15 Celsius, he was stripped of his clothes and beaten again while he was lying on the ground naked and helpless.

He was beaten all over his body, including his head. As can be seen from the published video and photo materials, the riot police forced the naked and beaten Mykhailo Havryluk to pose for them so that they could take pictures and make videos of him while they continued to hit him and humiliate him verbally. Official representatives of Internal Affairs forced Mykhailo Havryluk to hold an ice pick in his hands, and took pictures while they stood next to him and mocked him. He was then hustled into a prison truck.

In addition, Havryluk himself reported the following to the media: when he was seized by the “Berkut” officers they took his hat and threw it down on the ground. They then dragged him through the snow and loudly shouted sarcastically: “Look, we seized the Cossacks chieftain Mamay.” Then he was thrown to the ground and beaten, kicked, and jumped on for a long time. The officers took pictures of themselves stepping on his head. Afterwards they stripped his clothes off and continued beating him while he was completely naked, putting their feet on his naked body and head while taking pictures. In addition, he was brought to his knees by force and gripped tightly as they cut off his forelock of hair with a knife. Then they continued beating and torturing him, while taking pictures of him naked and beaten. They also took pictures standing next to him while he was naked and beaten. They forced him to hold an ice-ax pick and voice his support of the law enforcement authorities. They hustled him naked into a prison truck. In accordance with the national legislation of Ukraine and international criminal law, the abovementioned actions are qualified as torture, which is an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person who is deprived of liberty.

In particular, the international legal requirements in this field are recognized in the Declaration of the Rights and Liberties of Man and of the Citizen (1948), the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the International Covenant on Civil and Political Rights (1966), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1979), the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), and additional OSCE documents and other international legislation.

According to international criminal law, torture is recognized as an act aimed encouraging the victim or a third person to perform certain actions, or to perform an act without a specific purpose or reason.

According to the practice of application of the provisions of international criminal law, the above-mentioned act performed by the Internal Affairs officials in this form and with these features can be qualified as a crime to which the limitation of action does not apply.

For an international legal assessment of a criminal act in the form of torture, all of the circumstances of the case should be taken into account, in particular the duration of the torture, as well as the cruelty of the inflicted pain and suffering.

Hence, there is no doubt that Internal Affairs officials committed a crime against Mykhailo Havryluk which can be qualified as torture. In other words – actions were committed that can be qualified as a crime against humanity under the provisions of international criminal law. Because of the actions committed by the Internal Affairs officials, it is obvious that an excess of power was in place which was accompanied by violence and painful actions that insulted the personal dignity of the victim (art.365 of the Criminal Code of Ukraine). Under the provisions of international criminal law it is explicitly provided that state officials or other persons acting as official representatives carry personal criminal liability for torture.

Some of the Internal Affairs officials who stood nearby and observed the torture without making any attempt to prevent it also committed a crime that can be qualified as the neglect of duty, as provided for by art. 367 of the Criminal Code of Ukraine. According to the provisions of international criminal law, not only those officials who directly committed the crime, but also those who had knowledge of it and gave their silent agreement to the torture bear criminal liability.

The torture of Mykhailo Havryluk was combined with actions aimed at humiliating national dignity. In particular, among all those who were seized, a person who had a noticeable appearance with certain notable features was chosen for torture.  Myklailo Havruly wore a hairstyle called a forelock or chupryna, and clearly represented the image of an ethnic Ukrainian (the forelock or chupryna is a man’s hairstyle that features a lock of long hair on a shaved head. According to historical facts, the Grand Prince of Kyiv, the ruler of Rus from 964 to 972, Sviatoslav Igorovych (son of Prince Igor and Princess Olga, father of Volodymyr the Great and grandfather of Prince Yaroslav the Wise) had the same haircut. The chupryna was also a common man’s hairstyle during the times of the Ukrainian Cossacks. Additionally, kobzar musicians, who according to the ancient traditions were treated as the singers of the Ukrainian soul, also wore the hairstyle “chupryna”, and are an unquestioned authority of the Ukrainian nation (Grygorii Skovoroda signed his works as “Elder Varsava”, Taras Shevchenko is known as a Great Folk Minstrel)).

During his torture, the internal affairs officials brought Mykhailo Havryluk to his knees by force on the snow, and he was gripped extremely tightly while the riot police cut off his forelock with a knife. They also took pictures of Mykhailo Havryluk while the temperature was minus 10-15 Celsius, as internal affairs officials forced him to hold an ice-ax pick which appears to be a stick around one meter in length with a metal pick at the end. By this they wanted to create an image of a “naked Ukrainian Cossack soldier”. They took pictures of him while insulting and beating him.

It can be clearly seen that discrimination on the basis of nationality, ethnic and political origin took place. Knowing that in Ukraine different political techniques have been used in the past decade in order to separate the country into two parts, with the purpose of creating a feud between the Eastern and Western parts of the country, the Internal Affairs officials deliberately violated articles 3, 4, 5, 11, 15, and 24 of the Constitution of Ukraine and committed a crime qualified under art. 161 of the Criminal Code of Ukraine (breach of the equality of rights of citizens depending on their ethnic and national origin) when they humiliated the national dignity of Mykhailo Havryluk and emphasised the image of the Ukrainian-Cossack, .

The public torture of Mykhailo Gavryliuk in front of thousands of coercers by Internal Affairs officials (including commanding Generals of the specialized internal affairs departments and the internal security troops) is considered to be a criminal violation of the law enforcement system of Ukraine, as well as a direct breach of the oath taken by the internal affairs officers and the internal security troops.

The ways in which Mykhailo Havryluk was tortured by internal affairs officials demonstrated an emphasis on the image of a Ukrainian, which includes both national memory and traditions, and is qualified as a deliberate humiliation of the national dignity of the whole Ukrainian nation and is considered to be a criminal aggression towards the foundations of the constitutional system of Ukraine, the Ukrainian nation, its historical consciousness, traditions and culture.

Moreover, the internal affairs officials did not limit their actions to the public torture of Mykhailo Havryluk. All of them took pictures and made videos of the torture, and afterwards published it online to make it available on the internet in order to spread fear and as a humiliation of the national dignity of the whole population of Ukraine.

General legal position regarding the abovementioned circumstances and their legal consequences

Torture is a crime against humanity according to international criminal law, and is a criminally punitive action regardless of whether it is considered to be an offence in accordance with national law.

Regarding this particular crime – international criminal law has absolute universal legal force without any territorial or time limits. Therefore, in accordance with the provisions of international criminal law, the adoption of laws which decriminalize such actions and relieve those who commit torture (a crime against humanity) from liability have no legal meaning due to the following:

  • firstly, provisions of international conventions ratified by the Verkhovna Rada of Ukraine are in force (pacts, treaties, conventions on the prevention of torture and liability of the state in this field), which do not allow the opportunity for internal affairs officials or state officials or organizations and companies to be relieved from criminal liability for crimes such as torture;

  • secondly, international legal provisions which regulate criminal liability for officials on torture are universal and have direct effect. In case there is a collision between national and international legal provisions, the international provisions prevails.

Mykola Siryi, PhD, Attorney-at-law

Fellow of the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine

 

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