Maryna Demura: The State of Compliance with Fundamental Human Rights Guarantees in Criminal Proceedings Under Martial Law

Access to a lawyer is an important guarantee of the right to a fair trial, the right to defence, the presumption of innocence and other fundamental rights. In Ukraine, representation in courts and public authorities is carried out exclusively by lawyers (advocates)[1].

Article 213 of the Criminal Procedure Code of Ukraine (CPC) obliges the official who carried out the detention to immediately notify the body authorised by law to provide free legal aid.

Pursuant to Article 52 of the CPC, the participation of a defence counsel is mandatory in cases of serious crimes – from the moment a person acquires the status of a suspect.

In other cases, the mandatory participation of a defence counsel is ensured in criminal proceedings:

• regarding individuals suspected or accused of committing a crime under the age of 18;
• regarding individuals subject to ‘compulsory educational measures’;
• regarding persons who, as a result of mental or physical disabilities are unable to fully exercise their rights;
• regarding individuals who do not speak the language of criminal proceedings;
• regarding individuals respecting whom ‘compulsory medical measures’ are envisaged;
• regarding the rehabilitation of a deceased person;
• regarding individuals subject to a special investigation or special court proceedings;
• in case of a plea agreement between the prosecutor and the suspect or accused.

In such situations, the investigator or prosecutor makes a request (decision), and the investigating judge or court passes a ruling. The decision or ruling is immediately sent to the relevant regional centre for free legal aid (FLA), which appoints a defence counsel to provide legal aid.

A defence counsel appointed by the legal aid centre shall arrive at the specified address for a confidential meeting with the detainee within 1 hour, and in exceptional cases, except for the issuance of the order for the provision of legal aid to a person subject to administrative detention, within 6 hours from the moment of issuing the order. If the appointed defence counsel is unable to provide legal aid, he/she shall immediately notify the centre, which shall appoint another defence counsel[2].

However, failure to comply with, improper or untimely execution of a decision or ruling on the appointment of a defence counsel entails liability established by law. This may include disciplinary liability for those responsible, or it may lead to the recognition of an investigative action conducted in the absence of a defence counsel as violating the rights of the suspect or accused, and, as a result, the inadmissibility of the evidence obtained.

With the introduction of martial law, the law ensured access of a lawyer to a client at any time of the day, including during curfew. Lawyers involved in the FLA system can move freely during curfew if they have the relevant documents[3].

In the majority of these cases, legal aid is provided to the suspect/accused at the expense of the state. Generally, the CPC does not provide such support for victims. A victim may be represented by a representative – a person who is entitled to be a defence counsel. In other words, the law requires mandatory representation of the victim’s interests by a professional lawyer in cases where the victim wishes to engage them. The payment for its services is entirely borne by the victim, which negatively affects the protection of victims.

In addition to sectoral legislation, the right to legal aid is also enshrined in the Law “On Free Legal Aid”, which defines the basic concepts, legal service providers and persons entitled to free legal aid[4].

Categories of persons entitled to free legal aid:

1) individuals whose average monthly total income does not exceed twice the subsistence minimum for able-bodied persons;

2) persons under administrative detention or arrest, regardless of their economic situation;

3) persons in respect of whom a preventive measure in the form of detention has been imposed;

4) persons subjected to violence, torture, cruel, inhuman or degrading treatment during detention;

5) individuals who have refugee status or have applied for it;

6) internally displaced persons, etc.;

7) other individuals specified by law.

There have also been developments in expanding the list of subjects entitled to free legal aid recently. Thus, in May 2022, two new categories of subjects entitled to free legal aid were added: 1) persons who do not have identity documents confirming their citizenship of Ukraine; 2) victims of sex сrimes, torture, or ill-treatment during hostilities or armed conflict[5].

Another Law in February 2023 added such subjects as citizens of Ukraine – in cases of loss (destruction) of documents, receipt (issuance) of documents, establishment of facts of legal significance in court if such a need arose as a result of hostilities, terrorist acts, sabotage caused by the armed aggression of the Russia against Ukraine (including to obtain compensation for damaged and destroyed real estate as a result)[6].

Another law passed in 2025 granted convicted prisoners subject to disciplinary sanctions the right to free legal aid. When imposing a disciplinary penalty on a convict, the prison administration is obliged to immediately provide them with the opportunity to notify their close relatives, lawyer, or other legal professionals who are legally entitled to provide legal assistance in person or on behalf of a legal entity. A prisoner is entitled to use the services of a lawyer of their choice in preparation for a disciplinary commission hearing. If a prisoner does not have access to a lawyer, the prison administration must provide them with the opportunity to seek legal assistance from entities providing such assistance. In such a case, the disciplinary commission is obliged to suspend the disciplinary proceedings until a copy of the decision to provide free legal aid is received. The suspension of disciplinary proceedings suspends the period for imposing disciplinary penalties[7].

Regarding the practical aspect of ensuring access to a lawyer, numerous violations of the right to defence were recorded during the National Preventive Mechanism visits in 2022, namely:

1) officials who carry out detention do not notify at all or notify after a long time the free legal aid providers;

2) the right of suspects to a confidential meeting with a lawyer is not ensured;

3) there is no proper record of the facts of informing, in particular, the logs of informing the centres for providing free legal aid to detainees, which should be kept in each police station, etc.

In addition, in a significant number of the visited territorial police units, there are no conditions to ensure the right to a confidential meeting between a detainee and a lawyer. In most of the visited police stations, there are no such rooms or they are not properly equipped. Most often, police officers inform that meetings between detainees and lawyers are held in the offices of investigators or other premises without ensuring confidentiality^[8].

In 2023, a visit by the Ombudsman to the Khmelnytskyi Pre-Trial Prison revealed that some prisoners did not receive legal aid from the Regional Centre for Free Legal Aid. In particular, the prisoners reported that the free aid lawyer assigned to them did not participate in court hearings, even despite the capability and availability of participating via video conference in a specially equipped room, and so, did not coordinate the legal position of the defence in the cases^[9].

At the same time, according to the CPT’s report on the 2023 visit, it was noted that, as a rule, the police are to promptly inform the relevant free legal aid centre. The majority of detainees confirmed that they were allowed to speak to their lawyer in private before the interview. In a few cases, detainees claimed that interrogation had begun before the lawyer arrived; however, none of them reported being forced to sign a confession or any other official statement without the presence of a lawyer and without prior opportunity to speak to a lawyer. In this regard, the CPT noted in the report that persons in police custody should, in general, never be interrogated without the presence of a lawyer. The CPT noted positive developments compared to the situation observed during the 2017 periodic visit^[10].

The state of ensuring the human right to access an independent doctor

One of the main issues in ensuring human rights compliance in the prison system remains inadequate medical care and insufficient staffing and equipment of medical units.

In 2017, the Ministry of Justice of Ukraine created a new public body independent of the prison system — the State Institution “Health Care Centre of the State Criminal Executive Service of Ukraine”, but this did not improve the situation with the provision of medical care to persons serving sentences in prisons^[11]. After the separation of the prison medical service into an independent body, the directors of prisons unreasonably abdicated their responsibility for the lives and health of prisoners. In practice, this attitude led to a situation where the prison does not accept applications, complaints, or requests from convicts, their relatives and lawyers regarding medical care.

In 2019, the Human Rights Centre ZMINA and the Expert Centre for Human Rights conducted a study of the practice of documenting torture, in particular in prisons, which included focus groups with medical staff^[12]. The results of the study indicated that medical staff in the prison system, although formally independent of the prison administration, cannot work if they have negative relations with their superiors.

Prisons do not pay sufficient attention to improving the diagnosis and treatment of generalised somatic and socially dangerous diseases (HIV, tuberculosis and viral hepatitis). There are violations of sanitary regulations, inadequate medical nutrition for people with chronic diseases, and virtually no walks or access to fresh air, especially for people who are unable to move independently. The quality and timeliness of medical care is affected by the availability of qualified medical staff in medical institutions. In most medical units at the institutions, as well as in the multidisciplinary and specialised hospitals of the Health Care Centre of the Prison Service, there is a lack of doctors of various specialisations. The understaffing of medical staff in penitentiary institutions and facilities is a long-term problem that remains acute from year to year. After Russia’s full-scale invasion of Ukraine, the situation worsened as some paramedics and doctors were mobilised.

According to the Special Report of the Ombudsman on the state of implementation of the national preventive mechanism in Ukraine for 2022, the majority of Health Care Centresdo not provide substitution maintenance therapy for people with mental and behavioural disorders due to opioid use under the Procedure for Substitution Maintenance Therapy for People with Mental and Behavioural Disorders Due to Opioid Use. During 2022, most of these prisoners were not referred to healthcare facilities where substitution maintenance therapy was implemented for registration. However, they were referred to healthcare facilities for detoxification, which violates their right to choose treatment methods under Article 38 of the Law of Ukraine “Fundamentals of the Legislation of Ukraine on Healthcare” (Kropyvnytskyi City Medical Unit No. 14 of the Branch of the Health Care Centre of the Prison Service in the Cherkasy and Kirovohrad regions).

During the visits, it was found that most of the institutions and facilities of the Health Care Centre of the Prison Service do not have proper infection control and epidemiological surveillance of tuberculosis.

In particular:

• no partitions with doors or airlocks are installed at the boundaries of clean areas and high-risk areas;
• isolation wards are used for more than one or two people;
• doors to the wards are not equipped with a sealed threshold, or seals around the edges; the wards are not equipped with a separate sanitary unit; there is no separate room in front of the entrance (gateway);
• there is no air circulation through mechanical ventilation. In some medical units, there are no separate isolation rooms for infectious patients, which makes it impossible to place tuberculosis patients and patients with other dangerous infectious diseases separately from each other and other convicts (Kropyvnytskyi City Medical Unit No. 14 of the Branch of the Health Care Centre of the Prison Service in the Cherkasy and Kirovohrad regions”)^[13].

At the same time, according to the CPT’s report on the 2023 visit, the situation with such a legal guarantee as access to a doctor has generally improved since the 2017 visit^[14].

The problem with the provision of medical care in prisons, which is coordinated and funded by the Ministry of Health. Over the years, the CPT has repeatedly recommended that medical care in prisons be transferred to the responsibility of the Ministry of Health of Ukraine. This recommendation remains unfulfilled. After analysing possible models for such a transformation and assessing the advantages and risks of each option, the Ministry of Justice of Ukraine, together with the Ministry of Health of Ukraine, decided to launch a pilot project in one prison aimed at integrating prison medicine into the general health care system, which is scheduled for implementation in 2025. In addition, it should be noted that the trend in European countries is for prison health services to be transferred, largely or completely, to the responsibility of the Ministry of Health. In this context, the CPT in the report on its visit to Ukraine in 2023, as well as in its recommendations to other countries, emphasizes that the active participation of the Ministry of Health in this area (in particular in matters of recruitment of medical personnel, their training, evaluation of clinical practice, certification and inspection) will help to ensure optimal medical care for prisoners and convicted persons, as well as the implementation of the general principle of equivalence of medical care in penitentiary institutions with medical care in society as a whole[15].

One of the main problems with the accountability of the medical system to officials in places of detention is the formal approach to documenting physical injuries. In 2024, the Ombudsman found that instead of careful documentation as required by current legislation, medical workers often limit themselves to formal records. There have been cases where law enforcement agencies have reported such incidents in violation of the established requirements of the law. In addition, physical injuries are still not properly photographed, and the documented information is not given to the victim.

Thus, during a visit to Kropyvnytskyi City Medical Unit No. 14, a branch of the Health Care Centre of the Prison Service in Cherkasy and Kirovohrad regions, the NPM group established that prisoner D. suffered bodily injury while in his cell, namely, “haemorrhage in the left eye, haematoma, soft tissue contusion, contusion of the left temple, haematoma of the scalp on the left side.” At the same time, medical workers did not take photos of the bodily injuries and, in violation of established requirements, only notified the prosecutor by telephone. In addition, the outpatient’s medical record does not contain any information about the medical care provided to the prisoner. In another case, it was found that medical workers only photograph minor bodily injuries in prisoners, while other injuries are not given proper attention. The photographs themselves are stored on the personal computers of medical staff and are not added to the patient’s medical records, as required by the current procedure. Despite the recommendations of the CPT, when documenting the presence of bodily injuries in convicted and imprisoned individuals, even when there is suspicion of ill-treatment, medical staff do not record their observations regarding the correspondence between any statements made by the victim and objective medical conclusions.

At the same time, the majority of people who have been subjected to ill-treatment report that they sustained bodily injuries through their negligence or refuse to name the cause of their injuries altogether, fearing negative consequences.

A review of medical records at one of the medical units revealed that in 2024, medical staff recorded 190 cases of bodily injury among convicts and detainees. According to the records in the logbook of bodily injuries found in individuals held in the institution, almost all prisoners reported that they had suffered bodily injuries due to their negligence or refused to explain the circumstances of the injury. In turn, medical staff often describe only the injury and whether medical assistance was provided, apart from the victim’s words. The lack of independent and objective documentation of injuries significantly complicates both the prevention of violence and the conduct of effective investigations. It also undermines trust in the prison system and creates an atmosphere of impunity for those who commit violence against individuals in prison.

Difficult access to doctors in pre-trial prisons remains a serious problem for prisoners. Those in need of medical care are forced to wait a long time before receiving a doctor’s consultation and necessary treatment. This significantly worsens their condition and can lead to complications, especially in cases where delays in providing medical care can have critical consequences.

For example, during a visit to the Zaporizhzhia City Medical Unit of the Health Care Centre of the Prison Service in Zaporizhzhia Oblast, the NPM group received numerous complaints from prisoners regarding obstruction of access to a doctor. In particular, prisoners held in cells are required to first obtain permission from the paramedic to visit the medical unit, explaining the reason for the appointment to other prisoners. In addition, in order to see a doctor, prisoners are required to submit a written request, which medical staff keep for about a day and then destroy. Some prisoners have to wait more than a week before receiving medical consultation.

Convicts who are being transferred to or returning from a prison hospital require special attention. Due to the significant distance between such facilities and the difficulties in organizing the escort of these patients, the process can take about a month. Given this factor, such individuals require careful medical observation and prompt response to possible changes in their health. At the same time, NPM teams received reports that while in transit facilities, convicts were not provided the opportunity to see a doctor from the medical unit, and visits by other medical personnel (paramedics) took place no more than once a week.

The right to providing information to relatives and family members

According to Article 213 of the CPC, the authorised official who carried out the detention is obliged to provide the detainee with the opportunity to immediately inform close relatives, family members or other persons of their choice about their detention and the location of their whereabouts. Despite the existence of the legal provision, there are currently isolated cases of its violation. In particular, in April 2024, during a visit by the National Preventive Mechanism to the temporary detention centre of the 31st Border Guard Detachment (Chernivtsi), among other violations, the failure to notify close relatives of a person’s detention was recorded, which is a violation of the right to respect for private and family life^[16].

At the same time, according to the CPT’s report on its visit in 2023, it was noted that the notification of detainees’ relatives or other third parties of their choice of detention was carried out properly and promptly in the vast majority of cases. Welcoming this, the Committee recommended that the Ukrainian authorities continue their efforts to ensure that all detainees can effectively exercise the right to be informed of their detention from the very beginning of their detention. Furthermore, measures should be taken to ensure that detainees receive systematic feedback on whether it has been possible to notify a close relative or other third party of their detention; this still does not appear to be the case in practice (Para. 21 of the Report)^[17].

The inadmissibility of ill-treatment during interrogations

Torture or other cruel, inhuman or degrading treatment in criminal proceedings has almost always been used to obtain incriminating testimony from a person. The rule on the inadmissibility as evidence in criminal proceedings of testimony obtained as a result of torture, cruel, inhuman or degrading treatment or threats of such treatment is set out in CPC[18], which came into force in 2012. In this legal act, the Ukrainian law established a mandatory prohibition on the use of such testimony and also removed from the list of sources of evidence such a source as a suspect’s or accused’s confession of guilt.

In addition to the exclusion of confessions from the list of sources of evidence, the CPC enshrines the principle of “direct examination of testimony, items and documents”, according to which:

– the court examines the evidence directly;

– the court receives the testimony of participants in criminal proceedings orally;

– information contained in testimony, items and documents that were not directly examined by the court cannot be recognised as evidence, except in cases provided for by the CPC. The court may admit as evidence the testimony of persons who do not give it directly in court only in cases provided for by the CPC of Ukraine[19].

The implementation of this principle in criminal proceedings means the impossibility of using the testimony of a suspect or accused (including those to which they plead guilty) and other participants without their direct examination by the court during the court hearing.

The quoted provisions of Parts 1 and 2 of Article 23 of the CPC contain rules on exceptions to the rule of direct examination of testimony.

These exceptions are

1) The possibility of obtaining testimony from a person at the stage of pre-trial investigation and their further use in court as evidence. This exception is related to the need to obtain testimony during the pre-trial investigation if there is a danger to the life and health of the person, their serious illness, or other circumstances that may make it impossible to interrogate them in court or affect the completeness or reliability of their testimony. To obtain testimony, the investigating judge at the pre-trial investigation stage may interrogate a person in court, including simultaneous interrogation of two or more persons already interrogated. In this case, the interrogation is carried out in court at the location of the court or the stay of the sick person in the presence of the parties to the criminal proceedings in compliance with the rules of interrogation during the trial (Article 225 of the CPC). Although this case is an exception to the principle of direct examination of testimony, it does not pose a risk of torture or other cruel, inhuman or degrading treatment, as the investigating judge conducts the interrogation in compliance with all the rules of the court session.

2) The possibility of using as evidence in criminal proceedings the testimony obtained at the stage of pre-trial investigation under martial law and recorded by video recording equipment. Law dated 14.04.2022 amended the CPC in connection with the introduction of martial law and established the following:

– Testimony obtained during the interrogation of a witness or a victim, including simultaneous interrogation of two or more persons already interrogated, in criminal proceedings conducted under martial law may be used as evidence in court only if the progress and results of such interrogation were recorded using available technical means of video recording;

– Testimony obtained during the interrogation of a suspect, including the simultaneous interrogation of two or more already interrogated persons, in criminal proceedings conducted under martial law may be used as evidence in court only if a defence counsel participated in such interrogation and the course and results of the interrogation were recorded using available technical means of video recording (art 11 of Article 615 of the CPC)^[20].

The aforementioned provisions indicate that martial law established a new exception to the principle of direct examination of testimony. Starting on 24 February 2022, martial law was introduced throughout Ukraine, which is extended by the relevant laws every 90 days, and at the time of preparation of this report, it was extended until 9 May 2025 and may be extended further^[21].

The Law establishes safeguards in the procedure of such interrogation: video recording and the participation of a defence lawyer, which should be positively noted as an attempt to prevent the use of testimony obtained as a result of torture. At the same time, video recording of the interrogation process alone does not guarantee that inadmissible types of treatment will not be applied to the interrogation. As for the defence counsel, during martial law, a provision was introduced to allow for remote participation of the defence counsel. Thus, Part 12 of Article 615 of the CPC stipulates that the inquirer, investigator, and prosecutor shall ensure the participation of the defence counsel in a separate procedural action, including in case of impossibility of the defence counsel’s appearance with the use of technical means (video, audio communication) to ensure the defence counsel’s remote participation. The possibility of remote participation of the defence counsel jeopardises the observance of human rights and the effectiveness of the defence. At the same time, the CPC does not contain a requirement to consider the opinions of the defence counsel and their client regarding the possibility of ‘remote defence’. These norms are of concern given such conventional requirements as practicality and efficiency (effectiveness) of professional legal aid, in particular in terms of confidentiality of communication with a lawyer. Moreover, human rights defenders have expressed concerns about the possibility of using audio communication as a form of involvement of a lawyer in criminal proceedings, since audio communication is not able to fully meet the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms^[22].

Another risk factor for the remote participation of a defence counsel is the lack of regulation of the method of ensuring the confidentiality of communication between the defence counsel and the client. Communication before a procedural action is aimed at forming a line of defence, choosing a common position, providing defence counsel with advice on how to behave during further procedural action, allowing the suspect to report violations of their rights, etc. Therefore, the incorporation of the above safeguards into the procedure for obtaining testimony at the stage of pre-trial investigation under martial law is not an effective counteraction to potential instances of torture, cruel, inhuman or degrading treatment[23].

Thus, the introduction of martial law has added new risks of violations of fundamental human rights and created a danger to Ukraine’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

3) Possibility not to hear the testimony of a suspect or accused in court if an agreement is concluded between the parties (on reconciliation — between the victim and the suspect or accused; on plea bargaining — between the prosecutor and the suspect or accused). If the parties reach an agreement, the court does not conduct a full trial, but only examines the content of the agreement and during the trial ascertains from the accused whether they fully understand that they have the right to a trial during which the prosecutor is obliged to prove each circumstance of the criminal offence of which they are accused, and they have the following rights to remain silent, and the fact of silence will not have any evidentiary value for the court; to have a defence counsel, including the right to receive legal aid free of charge in the manner and cases provided for by law, or to defend themselves; to question prosecution witnesses during the trial, to file a motion to summon witnesses and to present evidence in their favour, etc. (Part 4 of Article 474 of the CPC). The court is also obliged to make sure in court that the parties’ agreement is voluntary, i.e. not the result of violence, coercion, threats or the result of promises or any other circumstances other than those provided for in the agreement (Part 6 of Article 474 of the CPC). It is worth noting that in case of initiating a plea bargain between the prosecutor and the suspect or accused, the participation of a lawyer is mandatory (Paragraph 9 of Part 1 of Article 52 of the CPC). The suspect or accused may engage a lawyer independently or the state will provide one as part of free legal aid. The CPC was supplemented with this provision in 2015 by Law No. 198-VIII^[24]. That is, for almost three years since the CPC of Ukraine came into force in 2012, a suspect or accused person participated in such proceedings without a defence counsel, but now this rule is mandatory.

Thus, the CPC of 2012 enshrined a clear rule on the inadmissibility of evidence obtained as a result of torture and the possibility of using in court only those testimonies that were heard orally by the court. At the same time, the above provisions indicate the existence of three exceptions to the principle of direct examination of the testimony, which may potentially become a precondition for violations of human rights and fundamental freedoms, in particular the right to human dignity. The most complicated and the one that poses a real threat to the rule of law and human rights under martial law is the exception to the possibility of using a suspect’s testimony as evidence in criminal proceedings if it was recorded on video and a lawyer was involved to take such testimony (in person or remotely). This provision, enshrined in Part 12 of Article 615 of the CPC, has a negative impact on the observance of human rights and may lead to the use of inadmissible methods of obtaining testimony from a person under martial law. Additionally, the safeguards enshrined in the CPC against the use of torture during the investigation are insufficient to overcome this phenomenon.

The right to obtain compensation for damage caused by the state agents

According to Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, each State Party shall ensure in its legal system a redress for victims of torture and an enforceable right to fair and adequate compensation, including measures for the fullest possible rehabilitation. In the event of the death of a victim as a result of torture, the right to compensation shall be granted to the victim’s dependants.

Article 27 of the Constitution of Ukraine enshrines the inalienable right of everyone to life. Article 28 defines the right of everyone to respect their dignity.

In its decision on the petition of the Ukrainian Parliament Commissioner for Human Rights, the Constitutional Court of Ukraine determined^[25], that the analysis of Articles 27 and 28 of the Basic Law of Ukraine in systemic connection with its Article 3, as well as the legal positions of the Constitutional Court of Ukraine, gives grounds to assert that Articles 27 and 28 of the Constitution of Ukraine institutionalise not only the negative obligation of the state to refrain from acts that would violate human rights to life and respect for human dignity, but also the positive obligation of the state, which consists, in particular, in ensuring an adequate system of national protection of constitutional human rights by developing appropriate legal and regulatory frameworks; implementing an effective system of protection of human life, health and dignity; creating conditions for the exercise of fundamental rights and freedoms by a person; guaranteeing the procedure for compensation for damage caused as a result of violations of constitutional human rights; ensuring the inevitability of liability for violations of constitutional human rights.

The Constitutional Court of Ukraine considers that the positive obligation of the state to implement an appropriate system of protection of human life, health and dignity involves ensuring effective investigation of deprivation of life and ill-treatment, including concerning persons in places of detention under full state control.

The effectiveness of such an investigation is measured by its completeness, comprehensiveness, efficiency, independence, etc. The independence of the investigation of violations of the human rights to life and respect for human dignity in places of detention means, in particular, that from the perspective of an impartial observer, there should be no doubt about the institutional (hierarchical) independence of the state body (its officials) authorised to conduct an official investigation of such violations. In this respect, the independence of the investigation cannot be achieved if the competent state body (its officials) is institutionally dependent on the body (its officials) to which the system of places of deprivation of liberty is subordinated and which is responsible for its functioning.

Thus, based on Paragraphs 1 and 2 of Article 27, Paragraphs 1 and 2 of Article 28 of the Constitution of Ukraine in systemic connection with its Article 3, the state should implement legislation that would ensure effective investigation of applications, reports of violations of the constitutional rights to life and respect for human dignity in places of deprivation of liberty by the competent state body (its officials), which is not institutionally or hierarchically dependent on the state body (its officials) to which the system of places of deprivation of liberty is subordinated.

The issue of the effectiveness of investigations into human rights violations by state agents is discussed in a separate section of this report. National legislation should be considered concerning compensation for damage caused by violations of constitutional human rights.

In the Ukrainian law, the state’s obligation to compensate for damage caused by representatives of its bodies as a result of torture and other ill-treatment is enshrined in the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational and Investigative Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court”^[26]. This law dates back to 1994 and has more than 15 amendments to the supplementary text. This law does not specify the amount of compensation. However, it stipulates that the amount of compensation, depending on which body conducted the investigative (detective) actions or considered the case, is determined within one month from the date of the citizen’s application by the relevant bodies conducting operational and detective activities, pre-trial investigation, prosecutor’s office and court, and a ruling (decision) is issued. If the criminal proceedings are closed by a court when the criminal case is considered on appeal or cassation, these actions are carried out by the court that considered the case in the first instance. At the same time, in case of disagreement with the ruling (decision) on compensation for damage, a citizen may appeal the ruling to a court according to the provisions of civil procedure law, and the court’s decision to a higher court on appeal (Article 12).

The quoted provisions indicate that the bodies that determine the amount of compensation are the very bodies that caused the damage to the citizen, which creates a situation of absolute legal insecurity. Enshrining the possibility of appealing a decision or ruling on determining the amount of damage to a court is a positive norm, but it is significantto involve a lawyer or attorney to file such a complaint, which is not always possible for such a person.

In 2021, the Cabinet of Ministers of Ukraine submitted to the legislature a draft law on amendments to certain legislative acts on measures aimed at restoring the rights of convicted persons and persons in custody due to inadequate conditions of detention (No. 4093-IX of 21.11.2024)^[27]. The purpose of this act is to ensure that Ukrainian legislation complies with the Convention for the Protection of Human Rights, to create appropriate material and living conditions for detainees, and to introduce effective preventive and compensatory remedies in the national legislation in case of inadequate conditions of detention.

It was only at the end of 2024 that this draft law was adopted as a law (and came into force on January 1, 2025), which, among other things, stipulates that proper conditions of detention are those that meet the requirements of the Constitution of Ukraine, international treaties ratified by the Parliament, and other legislative acts, namely: 1) prevention of torture or inhuman or degrading treatment or punishment; 2) providing proper medical care; 3) providing adequate nutrition; 4) providing adequate living conditions (living space, free access to toilets, sufficient natural light, standard temperature conditions, ventilation of premises); 5) adherence to state medical and sanitary regulations^[28].

To implement the provisions of this law, commissions for reviewing complaints about inadequate conditions of detention in prisons are established. The Commission shall establish the fact and/or duration of detention in inadequate conditions in a prison. At the same time, the law stipulates that the measures of compensation for improper conditions of detention include: 1) reduction of the period from which parole may be applied, commutation of a court-ordered sentence to a lighter one, or removal of a criminal record according to the procedure provided for in the Criminal Code; 2) exemption from reimbursement of the cost of detention for the entire period of the established fact of detention in improper.

However, the text of the legislative acts regulating the activities of the Commissions is unclear, in particular, the question remains open as to what is the mechanism and algorithm for reducing the term from which conditional early release or the process of replacing the sentence imposed by the court with a more lenient one, or the removal of a criminal record, can be applied. At the same time, the mechanism for reducing the term for which conditional early release may be applied, replacing the sentence imposed by the court with a more lenient one, or expunging a criminal record, should come into effect after amendments are made to the Criminal Code, which has not been done. Therefore, in essence, the commissions have significantly limited opportunities to respond to cases of inappropriate conditions, and their activities remain more of a formality than a real mechanism for responding to cases of inappropriate detention.

These means of redress are not sufficient and appropriate given the content of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. After all, the damage caused by torture can hardly be compensated for through conditional release or the expungement of a criminal record, etc. This issue, unfortunately, remains unanswered and requires legislative resolution. The urgency of its resolution is also supported by the recommendations of the CPT and the Committee of Ministers of the Council of Europe on the need to take comprehensive measures to address the problem of conditions of detention and the absence of an effective remedy in national legislation. After all, the total number of ECtHR judgments relating to the problems of inadequate conditions of detention is about 1/7 of the total number of all cases under the control of the Committee of Ministers of the Council of Europe regarding Ukraine.

A special mention should be made of the right of victims of torture to compensation for moral damages.

As mentioned earlier, the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office and the Court” contains provisions on compensation for moral damages to a person who suffered it as a result of unlawful actions of pre-trial investigation bodies. This Law defines moral damages as the suffering caused to a citizen as a result of physical or mental impact, which led to deterioration or deprivation of opportunities to exercise their habits and desires, deterioration of relations with other people, and other negative moral consequences (Part 6 of Article 4). The sum of moral damages is determined considering the circumstances of the case within the limits established by civil law (Part 2 of Article 13)^[29].

A look at civil legislation (Chapter 82 “Compensation for Damage”) reveals a complex system for assessing the severity of moral suffering and a complicated procedure for victims of torture to apply to the relevant authorities for compensation for moral damages, which has not changed over the years and has been further complicated by the adoption of law enforcement acts, such as the resolution of the Plenum of the Supreme Court of Ukraine (e.g. “On Court Practice in Cases of Compensation for Moral (Non-Pecuniary) Damage”, 1995)^[30].

In Ukrainian law enforcement practice, there is a rule according to which a preliminary court decision recognizing such actions as unlawful is not required to compensate for moral damages for unlawful actions, as this legal fact is inherently part of the subject matter to be proven in a claim for damage compensation^[31].

In another decision, the Supreme Court established that the obligation to compensate for moral damages arises under the following conditions:

– the existence of moral damages;

– the unlawfulness of the behaviour of the person who caused the moral damages;

– the existence of a causal link between the unlawful behaviour of the person who caused moral damages and its result – moral damages;

– the fault of the person who caused moral damages.

If a specific person who caused moral damages is identified, the burden of proof is shared: a) The plaintiff must prove the existence of moral damages and causation; b) The defendant proves the absence of unlawfulness and guilt^[32].

In practice, courts determine the amount of compensation for moral damages in different ways, and there are no clear criteria for determining it.

For example, the Supreme Court, in its ruling of 10.06.2024 in case No. 642/4335/21, resolved the issue of the amount of compensation for moral damages for such actions as unlawful prosecution, unlawful detention and detention for nine months, torture and other unlawful actions. In this case, the court of first instance (Leninskyi District Court of Kharkiv) determined the compensation for moral damages in the amount of 2,4 million UAH. After review by the Kharkiv Court of Appeal, the amount of compensation for moral damages was set at 0,66 million UAH. The review of the case by the Supreme Court resulted in the cancellation of the decision of the Court of Appeal and upholding the decision of the court of first instance, which set the amount of compensation for moral damages at UAH 2,4 million UAH^[33].

In another case inter alia the plaintiff determined the amount of compensation for moral damages for torture, namely: being placed in so-called ‘pressure cells’, ‘black cells with general criminals’, cells with individuals in proceedings over which he had supervised the investigation, and cells where persons with active tuberculosis were serving their sentences, amounting to 0,5 million UAH. The total amount of moral damages claimed by the plaintiff was 10 million UAH. The Zhytomyr District Court of the Zhytomyr Region partially satisfied the claim and determined the amount of moral damages in the amount of 1,45 million UAH. The Zhytomyr Court of Appeal increased the amount of non-pecuniary damage from UAH 1,45 million UAH to 4 million UAH. The Supreme Court upheld the position of the court of appeal in determining the amount of compensation for moral damages in the amount of UAH 4 million UAH ^[34].

The examples given above demonstrate a subjective approach to determining the sum of moral damages, and unpredictability of the actual amount of compensation received by the person filing the relevant complaints, which negatively affects the observance of human rights and Ukraine’s implementation of international legal acts.

In conclusion, the provisions of the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court” and the Regulation on the Application of the mention above Law are outdated and require fundamental changes in the area of compensation for moral damages to citizens who have been victims of torture. The law enforcement practice of higher courts indicates the absence of a single mechanism for determining the sum of moral damages; different approaches to determining the sum of moral damages by courts of different instances, which together question the implementation of the principles of the rule of law, legality, legal certainty and others[35].

A special mention should be made of the right of victims of torture to compensation in the healthcare sector. According to Article 3 of the Law of Ukraine “Fundamentals of the Legislation of Ukraine on Health Care”, a rehabilitation service is a service provided to a patient by a rehabilitation facility, rehabilitation institution, healthcare, social protection or other legal entity that is entitled to provide rehabilitation care under the law and is paid for by its customer. The customer of the rehabilitation service may be the state, local government, legal entity or natural person, including the patient^[36].

According to Article 1 of the Law of Ukraine “On Rehabilitation in Healthcare”, rehabilitation care in healthcare is the activity of healthcare rehabilitation specialists, which involves the implementation of a set of measures aimed at optimising the functioning of persons who are or may be subject to limitations in their daily functioning in their environment. The same article defines psychological assistance in rehabilitation as an activity aimed at restoring and maintaining the functioning of a person in the physical, emotional, intellectual, social and spiritual spheres using methods of psychological and psychotherapeutic assistance in the forms of psychotherapy, psychological counselling or first aid. Psychological assistance in rehabilitation is provided by psychologists and/or psychotherapists as part of a multidisciplinary rehabilitation team^[37].

Despite the existing legal framework for psychological rehabilitation of victims of torture, there are no state rehabilitation programmes for victims of torture in Ukraine. There is currently no state-targeted rehabilitation programme for victims of torture, and such assistance is provided only by civil society organisations and volunteers. Non-governmental organisations took on the task of improving the condition of torture victims, reducing the symptoms of post-traumatic stress disorder, and working with the victims’ families, but their efforts, expertise, and resources are sorely lacking. This means that they can only support a very limited number of the total number of the torture victims that need assistance. As a result, most victims are denied their right to rehabilitation and with that essential support in rebuilding their lives and becoming active members of their community[38].

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[1] Subsection 11 of Section 16-1 of Chapter XV “Transitional Provisions” of the Constitution of Ukraine (as amended by Law of Ukraine No. 1401-VIII of 02.06.2016 “On Amendments to the Constitution of Ukraine (regarding Justice)”).

[2] On approval of the Procedure for informing free legal aid centres about cases of detention, administrative arrest or application of a preventive measure in the form of detention: Resolution of the Cabinet of Ministers of Ukraine of 28.12.2011 No. 1363.

[3] Cabinet of Ministers of Ukraine (2023). On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine on the Functioning of the Free Legal Aid System: Resolution of the Cabinet of Ministers of Ukraine of 24.06.2023 No. 630.

[4] Article 14 of the Law of Ukraine “On Free Legal Aid” of 02.06.2011 No. 3460-VI.

[5] The Law of Ukraine “On Amendments to Part 1 of Article 14 of the Law of Ukraine “On Free Legal Aid” to Expand the List of Persons entitled to Free Secondary Legal Aid’ No. 2238-IX of 03.05.2022.

[6] Law of Ukraine “On Compensation for Damage and Destruction of Certain Categories of Real Estate as a Result of Hostilities, Terrorist Acts, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine and the State Register of Property Damaged and Destroyed as a Result of Hostilities, Terrorist Acts, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine” of 23.02.2023 No. 2923-IX.

[7] Law of Ukraine “ On amendments to certain legislative acts of Ukraine regarding the right to free legal aid”.

^[8] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[9] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[10] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Para 22.

^[11] Order of the Cabinet of Ministers of Ukraine “On the Establishment of the State Institution “Health Care Centre of the State Criminal Executive Service of Ukraine” of 13.09.2017 No. 684-р.

^[12] Zmina NGO et al (2020). The practice of recording torture in places of detention: Report on the results of the research. Source: https://zmina.ua/wp-content/uploads/sites/2/2020/02/fixingtorture-web.pdf

^[13] The Ukrainian Parliament Commissioner for Human Rights (2023). Special report of the Ukrainian Parliament Commissioner for Human Rights on the state of implementation of the national preventive mechanism in Ukraine in 2022. The Ukrainian Parliament Commissioner for Human Rights. Source: https://ombudsman.gov.ua/storage/app/media/uploaded-files/spetsdopovid-npm-2022-na-druk-1compressed-1.pdf

^[14] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Source: https://rm.coe.int/1680af632a

[15] Zmina NGO et al (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P. 80.

^[16] The Ukrainian Parliament Commissioner for Human Rights (2024). A visit to the temporary detention centre of the 31st Border Guard Detachment (Chernivtsi). The Ukrainian Parliament Commissioner for Human Rights. April 1, 2024. Source: www.ombudsman.gov.ua/news_details/vidviduvannya-punktu-timchasovogo-trimannya-31-go-prikordonnogo-zagonu-im-general-horunzhogo-oleksandra-pilkevicha-m-chernivci

^[17] The European Committee for the Prevention of Torture (2023). Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 16 to 27 October 2023. The European Committee for the Prevention of Torture. Source: https://rm.coe.int/1680af632a

[18] Paragraph 2 of Part 2 of Article 87 CPC

[19] Parts 1, 2 of Article 23 of the CPC

^[20] The Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine on Improving the Procedure for Conducting Criminal Proceedings under Martial Law” of 14.04.2022 No. 2201-IX.

^[21] Law of Ukraine “On Approval of the Decree of the President of Ukraine “On Extension of the Martial Law in Ukraine” No. 12404 of 14.01.2025.

^[22] Hloviuk I., Drozdov O., Teteriatnyk H., Fomina T., Rohalska V., Zavtur V. (2022). Special regime of pre-trial investigation and court proceedings under martial law. Scientific and practical commentary on Section IX-1 of the Criminal Procedure Code of Ukraine. Edition 3. Electronic edition. Source: www.researchgate.net/publication/366684199_Glovuk_I_Drozdov_O_Teteratnik_G_Fomina_T_Rogalska_V_Zavtur_V_Osoblivij_rezim_dosudovogo_rozsliduvanna_sudovogo_rozgladu_v_umovah_voennogo_stanu_naukovo-prakticnij_komentar_Rozdilu_IX-1_Kriminalnogo_pr

[23] Zmina NGO et al (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P.80.

^[24] The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Activities of the National Anti-Corruption Bureau of Ukraine and the National Agency for the Prevention of Corruption” of 12.02.2015 No. 198-VIII.

^[25] Decision of the Constitutional Court of Ukraine in the case based on the constitutional submission of the Ukrainian Parliament Commissioner for Human Rights on the compliance of Part 6 of Article 216 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality) of 24 April 2018; case No. 1-22/2018 (762/17).

^[26] The Law of Ukraine ‘On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court’ of 01.12.1994 No. 266/94-VR.

^[27] Draft Law on Amendments to Certain Legislative Acts on Measures Aimed at Restoring the Rights of Convicted Persons and Persons in Custody Due to Improper Conditions of Detention No. 4093-IX of 21.11.2024.

^[28] The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Measures Aimed at Restoring the Rights of Convicted Persons and Persons in Custody Due to Improper Conditions of Detention” of 21.11.2024 No. 4093-IX.

^[29] The Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational Investigation Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court” of 01.12.1994 No. 266/94-VR.

^[30] On court practice in cases of compensation for moral (non-pecuniary) damage: Resolution of the Plenum of the Supreme Court of Ukraine No. 4 of 31.03.1995.

^[31] Resolution of the Supreme Court of 19.06.2024 in case No. 369/14404/17. Source: https://reyestr.court.gov.ua/Review/120006233

^[32] Resolution of the Supreme Court of 25.05.2022 in case No. 487/6970/20. Source: https://reyestr.court.gov.ua/Review/104539336

^[33] Resolution of the Supreme Court of 10.06.2024 in case No. 642/4335/21. Source: https://reyestr.court.gov.ua/Review/120370612

^[34] Resolution of the Supreme Court of 07.02.2024 in case No. 278/2621/21.

[35] Zmina NGO et al. (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P.80.

^[36] The Law of Ukraine “Fundamentals of the Legislation of Ukraine on Healthcare” of 19.11.1992 No. 2801-XII.

^[37] The Law of Ukraine “On Rehabilitation in the Field of Healthcare” of 03.12.2020 No. 1053-IX.

[38] Zmina NGO et al.  (2025). Alternative report to the UN Committee against Torture on the fulfilment by Ukraine of its international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kyiv, 2025. P. 80.