A/HRC/45/CRP.9
the national police or SBU. In private interviews, detainees told OHCHR that they made these
self-incriminating statements as a result of torture, ill-treatment or intimidation by SBU
officers.
89.
In one such case, a woman whose video confession of being linked to the armed
groups of the self-proclaimed ‘republics’ was published by the SBU114 told OHCHR she was
beaten until she agreed to “confess” on camera. OHCHR notes that in her video confession,
the woman has abrasions on her face and was visibly reading a prepared text.115
90.
In addition to violating the prohibitions against torture and ill-treatment and against
compelling one to testify against oneself, by publishing the video confessions, the
Government may also be violating the presumption of innocence, as guaranteed by article
14.2 of the ICCPR and Ukrainian law.116 The publishing of video confessions of persons
detained in relation to the armed conflict may also amount to humiliating and degrading
treatment under international humanitarian law, in violation of the prohibition of outrages
upon personal dignity.
91.
OHCHR is concerned that, where torture and ill-treatment complaints were lodged by
the victims, these were not effectively investigated. Conflict-related detainees told OHCHR
that the Government’s lack of effort to duly address allegations of forced confessions
contributed to their state of duress.
92.
OHCHR notes that the armed conflict has presented a number of challenges for the
judicial system, which has not adopted a uniform approach to the status of the self-proclaimed
‘republics’. Individuals linked with the self-proclaimed ‘republics’ have thus been prosecuted
on charges of membership in a terrorist organisation or in an unlawful armed formation,
crimes which carry different punishments. The prosecution used its discretion to classify the
crime to pressure defendants to confess; those who cooperated with the investigation were
prosecuted for the more lenient crime of membership in an unlawful armed formation rather
than facing terrorism charges.117 OHCHR recalls that the Special Rapporteur on Terrorism
and Human Rights recommended that States ensure their national counter-terrorism
legislation defines terrorist groups with sufficient clarity to distinguish them from ordinary
criminal groups, and that there is no undue investigative or prosecutorial advantage in
criminal cases due to confusion with terrorist cases. 118
93.
OHCHR observed that the automatic pre-trial detention of persons charged with
conflict-related crimes and the protracted nature of their trials as outlined above often resulted
in defendants’ guilty pleas. Some defendants complained to OHCHR that the prosecutor
threatened further delays and continued pre-trial detention if they did not plead guilty,119
114
115
116
117
118
119
20
The video confession was published on 19 December 2014.
Video confession on SBU website available at
www.youtube.com/watch?v=2ad8r4X_2TY&feature=emb_logo.
See Opinion No. 83/2017 concerning Mahmoud Hussein Gommaa Ali (Egypt) adopted by the
Working Group on Arbitrary Detention at its eightieth session, 20-24 November 2017, para. 79.
Lack of statutory regulation on classification of crimes and guidance by the Supreme Court on the
legal status of self-proclaimed ‘republics’ results in them being either classified as criminal
organisations (article 256 Criminal Code - possible punishment from three to five years in prison, e.g.
verdict of Krasnoarmiiskyi town-district court of Donetsk region of 12 September 2018, available at
reyestr.court.gov.ua/Review/76422313); unlawful armed formations (article 260 of the Criminal Code
- possible punishment from three to eight years in prison, e.g. verdict of Oktiabrskyi district court of
Poltava of 28 November 2014, available at reyestr.court.gov.ua/Review/42209113); or terrorist
groups (article 2583 Criminal Code - possible punishment from eight to fifteen years in prison; e.g.
verdict of Kostiantynivskyi town-district court of Donetsk region of 6 September 2018, available at
reyestr.court.gov.ua/Review/76272295). In these cases, those convicted were prosecuted for
collecting information regarding the movement of Ukrainian armed forces and sharing it with selfproclaimed ‘republics’. The Supreme Court failed to ensure the consistency of case law, instead
advising first-instance courts to decide on a case-by-case basis whether the armed group in question is
terrorist or not, and classify the crime of membership or links with them accordingly.
Final report of the Special Rapporteur on Terrorism and human rights Kalliopi K. Koufa - Specific
Human Rights Issues: New Priorities, in Particular Terrorism and Counter-Terrorism
(E/CN.4/Sub.2/2004/40), para. 74.
OHCHR interviews, 26 April 2015, 28 August 2019.
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