DAY 5 - VADYM CHOVGAN Vadym Chovgan* “Ukrainian life sentences based on torture: is there a way out of prison?” *Legal consultant at Danish Institute against Torture – DIGNITY Introduction Ukraine is Europe’s champion according to the number of life sentenced prisoners who have no realistic prospect of release. There are over 1500 such persons in Ukrainian prisons. Many of them claim that they were tortured during investigation to confess about the crimes they did not commit. They alleged torture during trial, but it did not influence their final verdicts. Once convicted, it became close to impossible for them to prove and exclude evidence that was tainted by torture. I. Dark 90s and 2000s After the abolition of the death penalty in Ukraine in 1997-98, for over a decade more than 100 life sentences were passed every year. In recent years, there have been 15-20 such sentences per year. To some extent the drastic decrease could be explained by a reduction in crime rates. But mostly it appears to be caused by a more lenient approach of judges to penalties and their more critical assessment of evidence, particularly in the case of alleged torture. That was not the case in the past – torture was a common instrument to prove crimes, especially if it was about an aggravated murder punishable by a life sentence. National human rights organizations claim that up to 10% of lifers’ cases raise reasonable doubts as to their lawfulness. Such cases would involve torture and self-incrimination. However, there are no realistic mechanisms to correct these alleged mistakes of the past. II. Mechanism for “old” lifers Until 2012, lifers were sentenced according to the Code of Criminal Procedure of 1960, which was mostly developed during the Soviet times. The provisions of the old code did not contain proper guarantees against accepting evidence obtained through torture. Confession-based verdicts were a norm, even after 1991 when Ukraine became independent. Further, the proportion of acquittals remained around 0.2-0.3%. In 2012, a new Code of Criminal Procedure was adopted. It was generally considered compliant with the respective international standards such as the ECtHR case law. The exclusionary rule of the new code was taken seriously in practice, which contributed to the above-mentioned reduction in the number of life sentences. The new code clearly stated that evidence cannot be based on selfincrimination, which significantly reduced incentives for torture in the practice of law enforcement bodies. “Old” lifers, e.g. those who were tried under the old Code, attempted to apply to national courts in order to get their sentences reviewed based on the new standards. They used the extraordinary circumstances clause that allows reviewing definite verdicts in case of “forging evidence” or “abuse” on the part of investigators, prosecutors or judges. However, the courts have consistently refused to admit such applications. The main reason has been that the claimed circumstances were not extraordinary (literally ‘newly discovered’ (нововиявлені)). 47