The Dissertation is a comprehensive research study of the international principles of legal regulation of activities on the prevention of ill-treatment treatment of persons deprived of their liberty.
The research reveals the legal content of the concepts of ill-treatment, torture, inhuman treatment or punishment, treatment or punishment that degrades human dignity. The origin of the above-mentioned concepts was studied from the perspective of the decisions of European judicial authorities – the European Court of Human Rights and the European Commission of Human Rights.
The author gives several types of classifications of the State's obligations under the human rights treaty, which are common in the contemporary doctrine of international law. The most used are the dichotomous division of such obligations into negative (to refrain from actions) and positive (to act) rights and the trichotomous division of such obligations and dependence on the functions of the State into obligations to respect rights, obligations to protect and obligations of the State to fulfill human rights. The dissertation research supports a dichotomous division of the State’s obligations to prevent ill-treatment.
The research examines the nature of soft law, which regulates activities on the prevention of ill-treatment, analyzes different approaches to understanding soft law. It is proposed to depart from the conventional perception of international law as a system of the rules of generally binding nature created by the international entities, with consideration to postmodern trends in the transformation of the national legal systems.
The dissertation research reveals the nature of the universal mechanism for the prevention of ill-treatment through the lens of the activities of UN bodies – the UN Human Rights Council, the Office of the High Commissioner for Human Rights, the International Criminal Court, the Committee against Torture. The activities of the UN Subcommittee on the Prevention of Torture and the importance of the national preventive mechanisms in the system of the Optional Protocol to the UN Convention Against Torture were studied. Special attention was given to the regional (European) mechanism for the prevention of ill-treatment.
The influence of human-centered right-wing ideology on the modernization of national legislation in the field of prevention of ill- treatment was studied.
The dissertation examines the influence of soft law acts of bodies on the legislation of Ukraine. Prospects for the development of soft law in the researched area were defined.
Article 127 of the Criminal Code of Ukraine was analyzed for compliance with the practice of the ECHR, the Convention against Torture, acts of soft law of quasi-judicial institutions, namely acts of the UN and the Council of Europe, which feature a distinction between the concepts of ill-treatment, inhuman treatment and punishment, treatment or punishment that degrades human dignity, the concept of torture, etc. The author refers to a number of weaknesses of the mentioned article, in particular, the weaknesses of the objective aspect – a lack of inaction, as well as the failure to specify the special subject of the crime, namely – an official. It is proposed to supplement Article 127 of the Criminal Code of Ukraine with a special rule that establishes the responsibility of officials for committing torture and increases responsibility for committing torture.
