No Responsibility for Psychological Violence in Ukraine

Psychological violence is a rather complex phenomenon in the former CIS countries’ legal fields. It is considered only as a component of the other violence types (physical, economic, sexual) qualification.

At the same time, common global court practice is based on numerous conventions and protocols ratified by member states. This makes possible the use of clear definitions, including medical ones, which describe the psychological consequences for the individual. This is a consistent practice of humanitarian law, which takes into account both the conditions of a peaceful society and armed conflict. Besides, the benefits of the European Court of Human Rights (ECHR) case-law addresses not only legal regulation but also the common social attitude to the psychological violence issue. This is what Ukraine and the former CIS countries lack today.

Independent expert Sarah Fulton said that the European Court regulations do not cover all possible threats. According to the European Court of Human Rights case-law, the ill-treatment can have a psychological impact under several conditions:

• detention, when a detainee is vulnerable and/or had not received normal guarantees;
• imprisonment in an individual cell;
• situations of constant emotional and psychological suffering/anxiety (such as imprisonment without a sentence, secret detention, ill-treatment outside the official place of detention).

Psychological torture itself must reach a certain level, which is assessed by the European Court, that then determines whether an act is considered sufficient to assess it as a violation of Article 3 of the Convention against Torture.

The insufficient development of the psychological violence definition stems from the difficulty to describe it. This is caused by the subjectivity of each person’s perception of different moral violence signs. For example, for a person who regularly serves a sentence, psychological pressure by the staff already gets a “habitual phenomenon” and does not always damage. While, for a person who is detained for the first time and has not been in captivity before, a psychological pressure can cause significant trauma.

The consequences of psychological violence are difficult to predict and time-bound. For example, mental trauma can manifest itself in a few years, while bodily injury can be assessed immediately after the violence. This leads to the fact that Ukrainian legislation does not develop the practice of prosecuting for psychological violence. Until recently, this category was generally perceived as something abstract. In Ukraine, the first attempt to implement this was the Law of Ukraine “On Prevention and Counteraction to Domestic Violence.”

Interestingly, the latency of this type of violence was traditional in the former CIS countries and the situation has begun to change only recently. Therefore, the principle of zero intolerance and antagonism against psychological violence does not fully work in Ukrainian society. As a result, the relevant area of ​​legislation is not developed, as the legal system regulates only those aspects that are obvious. Recently, the problem of psychological violence urgency has increased significantly due to the conflict in Donbas.

In practice, the process of documenting such violence is very painstaking and complicated due to a person’s reluctance to return to traumatic events. Then insufficient development of the evidencing (collection of evidence, independent examination of psychological consequences, etc.) harms judicial practice. As a result, it is almost absent in Ukraine, while the psychological element only accompanies other types of violence and torture.

Even as an optional part, psychological violence does not find a proper procedural assessment, since there are no clear criteria for determining the negative impact on a person’s mental state at the regulatory level. Though some changes took place recently, in particular, draft laws that can improve criminal legislation and bring it to EU standards. However, so far, these are only design decisions. That is why Ukrainians are forced to seek the truth in the European Court, whose practice is more progressive and developed.

Psychological inviolability

The legislation of most European countries is based on the category of “personality” and not “person,” as Ukrainian law is. Personality implies that people are not just biological beings, but society members. They are endowed with feelings, preferences and beliefs. As a result of this positioning, the legislation of developed countries takes into account psychological inviolability and demonstrates it as an integral part of human legal status. Therefore, European Court judges have efficient legal tools to qualify psychological violence, namely, humiliation, inhuman treatment, and so on. However, as already mentioned, humiliation or inhuman treatment must “reach a definite level” to be considered harmful to an individual.

The legislation of European countries has a developed system of legal grounds for classifying certain actions as psychological violence. Thus, it believes that the death of a family member can be psychological violence in itself and requires satisfaction from the perpetrators. This can be seen in the “Suheyla Aydin v. Turkey.”

The actions of officials can be considered psychological violence in the case of pressure on witnesses and ineffective investigation of the crime. The European Court considers that inaction in itself can cause psychological trauma. An example is the “Maslov and Nalbandov v. Russia” case. The ECHR receives a legal basis for assessing the perpetrators’ actions as psychological violence. The European Court case-law stipulates that even an unfair court can be considered a violation of human rights and cause moral suffering (an example is the “Tangiev v. Russia” case). The ECHR also considers that the illegally served sentence is also psychological violence, as the “Kuznetsov v. Ukraine” case demonstrated.

Another noteworthy case is “Selmouni v. France,” in which the ECHR sided with the applicant and acknowledged that he had been subjected to psychological violence. The actions the applicant had complained of were aimed at instilling of a sense of fear and his own worthlessness in him to humiliate him and possibly break him physically and morally. The court ruled that the case provided sufficient grounds to conclude that the detainee had been treated inhumanely and humiliatingly.

However, in this case, the court tried to find out whether the “pain and suffering” inflicted on Selmouni could be described as “cruel” within the meaning of Article 1 of the UN Convention against Torture. The Court believed that this “measure of cruelty” was relative, like the “minimum cruelty” for the application of Article 3. It depends on case circumstances, such as the duration of the ill-treatment, its physical or mental consequences and, sometimes, a gender, age and state of health of a victim. However, the ECHR found the fact that the physical and mental violence against the applicant had been particularly cruel and humiliating established. Such treatment should be considered acts of torture as understood in Article 3 of the Convention.

Anton Moroz, public organization “Forpost”