Despite recent scholarship in this area, the associations between internal and external procedural justice, and the intervening mechanisms at play, are still not well understood.

Using survey data from new police officers in England and Wales, we test the direct association between internal and external procedural justice, and indirect connections through self-efficacy, job satisfaction, and well-being.

Self-efficacy, but not job satisfaction or well-being, was found to partially mediate the relationship between internal and external procedural justice. In other words, perceived internal procedural justice promoted external procedural justice through (in part) cultivating greater confidence in officers’ abilities to perform their job effectively.

It would seem then that there is a need for police and other interested parties to think more clearly and deeply about the harms to trust, legitimacy and a wide range of other outcomes that everyday police activity can perpetrate, particularly in relation to those minoritised and marginalised communities that often experience most policing.

This is not to argue that police should never behave in ways that might, in the short-run, damage trust, as for example, when rapid decisions need to be made without the time to explain them to all those affected. Such instances are fundamental to the nature of police work.

But it is to argue that at various levels of tactics, strategy and policy, the service remains too closely wedded to a range of behaviours that, while entirely legal and often situationally justifiable, damage the relationship between police and public that all concerned claim is central to their vision of policing.

Yet, because trust and police legitimacy are bound up with the wider set of processes that reproduce, or undermine, social order, it is not enough to think simply about what police can ‘do’ to rebuild trust.

The relationship between police and public is also shaped by the activities of other actors.

This is not to say that other institutions and agencies should be tasked with helping police in this matter, but rather that in order to repair something, one needs to understand how it works.

Or, to put it another way, if we are to address the questions of trust and legitimacy that currently face policing, it seems likely that these need to be considered within a wider understanding of the issues currently facing individuals and groups who are dealing with the attenuation of other services and challenges to their ability to live well, or at least bearably, in their neighbourhoods and communities.

Refocussing on the police, we close by noting that lower trust in police might actually be a good thing. The 1962 Royal Commission on Policing conducted a public survey that identified what by modern standards were extraordinarily high levels of trust among the public.

Yet, it is well evidenced that policing at the time was racist and misogynistic — even by contemporary standards—and remarkably corrupt, not to mention ineffective and barely subject to external oversight.

Trust enables the trustee to act as they see fit, and unwarranted or misplaced trust can dampen the trustor’s propensity to identify fault and misbehaviour. It is plausible to argue that right up to the present day, excessive public trust has allowed systemic racism, sexism, misogyny and homophobia—not to mention multiple scandals and failed investigations — to, if not exactly flourish, then at least continue without adequate checks and interventions.

It is naïve to assume bad actors won’t be attracted to police power, that policing can somehow be ‘done’ exactly right, and to rely too much on public trust and too little on mechanisms of transparency, accountability and robust governance.

Now that trust can no longer be taken for granted, but must be continuously re-earned, we need to think harder about how to do so, and about how to put robust mechanisms inside as well as around the service that, for example, open it up to further external oversight and enable genuine community input into its priorities, processes and practices.

In its 12th General Report published in 2002 (Developments concerning CPT standards in respect of police custody), the CPT directly focuses on the issue of training of police officers (§34, §49).

In its 20th General Report published in 2010 (Electrical discharge weapons), the CPT focuses again on the issues of training of police officers (§65, §78, §79).

In its 28th General Report published in 2019 (Preventing police torture and other forms of ill-treatment – reflections on good practices and emerging approaches), the CPT focuses that professional policing goes hand-in-hand with adequate training on the use of force in compliance with the principles of lawfulness, necessity and proportionality. Training should also provide opportunities to acquire appropriate investigative skills, taking due account of the age, gender, state of health, any disability or any other circumstances which may render certain persons under investigation particularly vulnerable. Moreover, no significant change can be expected without strong police leadership and management, which scrupulously supervise the observance of procedural safeguards and convey firm and unambiguous messages of zero tolerance of police ill-treatment (§71).

The CPT finds it positive that the police services cooperate with universities, and academic courses provided by universities form part of the syllabus for university training programmes for police officers (§76).

Considering that the Project is focused on training of police officers in procedural justice skills and de-escalation techniques, it should also be mentioned that the CPT encourages police practices which avoid common pitfalls associated with relying on preconceived conclusions. The CPT recommends the police services go outside ‘tunnel vision’ or ‘confirmation bias’ (§76). Further, the development of adequate initial and ongoing professional training is key in the effective implementation of any such framework for police interviewing (§80). Therefore, such an approach goes in line with Project which is focused on dialogue between the police and citizens in contrast to any punitive approaches.

Moreover, the CPT makes a special focus that introducing designated custody officers could also strengthen the practical implementation of various procedural and other safeguards. The police officers with the powers of arrest should be trained properly to pose the appropriate questions and to recognise and record indicative signs of a person in need of particular support and care. This is clearly good practice (§85).

Many cases of the European Court of Human Rights focus attention on the need of the European states to improve national systems of training of police officers in the area of prevention of harm and de-escalation techniques (Saso Gorgiev v. the FYRM, §47; Krastanov v. Bulgaria, §53; Mikhalkova and Others v. Ukraine, §36; Guliani and Gaggio v. Italy [GC], § 249; McCann and Оthers v. the UK [GC], §150; Soare and Others v. Romania, §129; Armani Da Silva v. the UK [GC], §247; Andronicou and Constantinou v. Cyprus, §194; Gül v. Turkey, п.§84-86; Ergi v. Turkey, §72; Nachova and Others v. Bulgaria [GC], §§ 95, 102, 106-108; Celniku v. Greece; Saso Gorgiev v. the FYRM, §49; Emars v. Latvia, §87; Gorovenky and Bugara v. Ukraine, §31-39).

In Celniku v. Greece, the ECtHR stated that Article 2 of the Convention related not only to the direct actions of police officers or security forces, but also to the planning of an operation or even the training of the relevant law enforcement personnel, if it can be proven that the law enforcement officers did not receive adequate training or that the level of their training was not commensurate with the complexity of the tasks assigned to them. One of the possible reasons for the killing of the applicants’ relative was the lack of proper practical training of the police officers.

In Saso Gorgiev v. the FYRM (§51), Abdullah Yilmaz v. Turkey (§§56-57), and Enukidze and Girgvliani v. Georgia (§284), the ECtHR focused that States had to set high professional standards for their law enforcement systems and ensure that persons serving in such bodies meet the established requirements. In particular, when equipping police forces with firearms, care should be taken to provide appropriate special training for police officers.

However, traditional training methods can be time-consuming and costly, eating up budgets and taking officers off the streets when they’re needed most. On top of that, it’s almost impossible to recreate the kind of intense situations law enforcement regularly faces in a training environment.

To that end, more and more agencies are turning to VR police training to fill those gaps.

Virtual reality technology provides immersive training content that more thoroughly prepares police officers for the realities of the job.

Police VR training has numerous benefits for both officers and the communities they serve, making it a worthwhile investment for any forward-thinking law enforcement agency.

The state of VR police training

If the words “virtual reality” bring to mind bulky headsets, action-heavy video games and old sci-fi movies, it’s time to take another look.

Modern VR headsets are lightweight and intuitive, using high-definition visuals to fully immerse participants in simulated scenarios.

Meanwhile, VR police training scenarios are typically created in consultation with law enforcement experts and use innovative teaching methods to increase recall and speed up skill development.

Police VR training is effective at all levels of law enforcement experience, from rookies to longtime veterans of the force.

Key benefits of police VR training

Saves time and money

Budget and scheduling are the two biggest challenges law enforcement agencies face when trying to provide their teams with the training they need.

Improves crisis management skills

There’s no telling what situations officers will find themselves in during a “typical” day — or when these situations could escalate. Crisis management is a core skill that every law enforcement professional must learn, but it’s difficult to accurately represent the tension and urgency of these scenarios in traditional training methods.

VR police training, on the other hand, gives officers multiple perspectives to consider: their own and those of the people in crisis.

Fosters empathy for diverse viewpoints

Crisis preparation is not the only way police VR training exposes officers to different perspectives. VR training offers a wide range of virtual scenarios designed to help officers better understand community members who might be experiencing a mental health episode. This raises awareness and empathy, which can be used to de-escalate tense situations and resolve them amicably.

Creates more realistic scenarios

One of the most-cited benefits of police VR training is the heightened realism of training scenarios.

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].

[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.

Liberal theories of justice consider the process, or outcome, of individuals’ free actions to be just except insofar as this depends on factors, in the form of personal characteristics, which are considered to be morally arbitrary.

In the present context these factors may be individuals’ preferences, their abilities, and their holdings of land. Such theories may, then, be categorized according to which of these factors each theory deems to be morally arbitrary.

1. A Taxonomy

a. A Simple World

We begin with a simple hypothetical world in which there are a number of individuals and three commodities: a natural resource, called land; a consumption good, called food; and individuals’ labour. There is a given amount of land, which is held by individuals, but no stock of food: food may be created from land and labour. An individual is characterized by his preferences between food and leisure (leisure being the obverse of labour); by his ability, or productivity in transforming land and labour into food; and by his holding of land.

Liberal theories of justice consider the process, or outcome, of individuals’ free actions to be just except insofar as this depends on factors, in the form of personal characteristics, which are considered to be morally arbitrary. In the present context these factors may be individuals’ preferences, their abilities, and their holdings of land. Such theories may, then, be categorized according to which of these factors each theory deems to be morally arbitrary.

Equality has various interpretations in this simple world: these correspond to the theories discussed below. Liberty has two aspects: self-ownership, that is, rights to one’s body, one’s labour, and the fruits thereof; and resource-ownership, that is, rights to own external resources and the produce of these. Theories that fail to maintain self-ownership may be divided into those that recognize personal responsibility in that the extent of the incursions that they make are independent of how people exercise these (for example, in being industrious or lazy), and those that do not.

In a liberal context there is (as is justified below) no basis for comparing one individual’s wellbeing with another’s, so that theories of justice which require such comparisons cannot be accommodated. Accordingly, the theories of utilitarianism, which defines a distribution to be just if it maximizes the sum of each individual’s wellbeing, and of equality of welfare, which defines a distribution to be just if each individual has the same level of wellbeing, are not considered.

Four theories of justice are discussed:

• Rawlsian egalitarianism, or justice as fairness;
• Dworkinian egalitarianism, or equality of resources;
• Steiner-Vallentyne libertarianism, or common ownership;
• Nozickian libertarianism, or entitlements.

The following specification of the theories sets out, for each theory: its definition of justice; the personal characteristics that it considers to be arbitrary and therefore makes adjustments for; the nature of the institution under which this may be achieved; the justification of any inequalities which it accepts; and the extent to which it is consistent with liberty.

Justice as fairness defines a distribution to be just if it maximizes the food that the individual with the least food receives (this is the “maximin” outcome in terms of food, which is the sole primary good). It adjusts for preferences, ability, and land holdings. It is achieved by taxes and subsidies on income (that is, on the consumption of food). Inequalities in income, subject to the maximin requirement, are accepted because of the benefit they bring to the individual with the least income; all inequalities in leisure are accepted. Rights to neither self-ownership nor resource-ownership are maintained, and responsibility is not recognized.

Equality of resources defines a distribution to be just if everyone has the same effective resources, that is, if for some given amount of work each person could obtain the same amount of food. It adjusts for ability and land holdings, but not for preferences. It is achieved by taxes and subsidies on income. Inequalities in both food and leisure are accepted because they arise solely from choices made by individuals who have the same options. Rights to neither self-ownership nor resource-ownership are maintained, but responsibility is recognized.

Common ownership theories define a distribution to be just if each person initially has the same amount of land and all transactions between individuals are voluntary. It adjusts for land holdings, but not for preferences or abilities. It is achieved by a reallocation of holdings of land. Inequalities in both food and leisure are accepted because these arise solely from people having different preferences or abilities. Rights to self-ownership are maintained but rights to resource-ownership are not.

An entitlements theory defines a distribution to be just if the distribution of land is historically justified, that is if it arose from the appropriation by individuals of previously unowned land and voluntary transfers between individuals, and all other transactions between individuals are voluntary. It makes no adjustments (other than corrections for any improper acquisitions or transfers) and thus requires no imposed institution to achieve it. All inequalities are accepted. Rights to both self-ownership and resource-ownership are maintained.

As is apparent, the first two theories emphasize outcomes while the second two emphasize institutions. These four theories form a hierarchy, or decreasing progression, in terms of the personal characteristics that they consider to be morally arbitrary, and thus for which adjustments are made. The first theory adjusts for preferences, ability, and land holdings; the second only for ability and land holdings; the third only for land holdings; and the fourth for none of these (other than the corrections noted above). The four theories form a corresponding hierarchy, or increasing progression, in terms of the liberties (self-ownership, with or without personal responsibility, and resource-ownership) that they maintain: the first maintains neither, and does not recognize responsibility; the second maintains neither, but does recognize responsibility; the third maintains self-ownership but not resource-ownership; and the fourth maintains both self-ownership and resource-ownership.

These corresponding hierarchies are illustrated schematically in the table below (from Allingham, 2014, 4).

The remainder of this survey develops these theories of justice. It demonstrates that they also form a third hierarchy in terms of equality (of outcome), with Rawls’s justice as fairness as the most egalitarian, followed by Dworkin’s equality of resources, then common ownership in the Steiner-Vallentyne vein, and finally Nozick’s entitlements theory as the least egalitarian. The order in which these theories are discussed differs from that of the decreasing progression in terms of what they consider to be arbitrary: specifically, the discussion of entitlements precedes that of common ownership. The reason for this is that common ownership theories follow temporally, and draw on, Nozick’s entitlements theory.

b. Liberalism

The theories of justice considered are liberal in that they do not presuppose any particular conception of the good. They subscribe to what Sandel calls deontological liberalism: “society, being composed of a plurality of persons, each with his own aims, interests, and conceptions of the good, is best arranged when it is governed by principles that do not themselves presuppose any particular conception of the good” (1998, 1).

The importance of deontological liberalism is that it precludes any interpersonal comparisons of utility. As Scanlon (who supports interpersonal comparisons) accepts, “interpersonal comparisons present a problem insofar as it is assumed that the judgements of relative well-being on which social policy decisions, or claims of justice, are based should not reflect value judgements” (1991, 17).

And Hammond, who also supports interpersonal comparisons, accepts that such comparisons “really do require that an individual’s utility be the ethical utility or worth of that individual to the society” (191, 237).

If we are not prepared to take a position on someone’s worth to society then we cannot engage in interpersonal utility comparisons. It is in the light of this that Arrow notes that “it requires a definite value judgement not derivable from individual sensations to make the utilities of different individuals dimensionally compatible and a still further value judgement to aggregate them”, and accordingly concludes that “interpersonal comparison of utilities has no meaning and, in fact, … there is no meaning relevant to welfare comparisons in the measurability of individual utility” (2012, 9-11).

2. Justice as Fairness

Justice as fairness, as developed by Rawls, treats all personal attributes as being morally arbitrary, and thus defines justice as requiring equality, unless any departure from this benefits everyone. This view is summarized in Rawls’s “general conception of justice”, which is that “all social values – liberty and opportunity, income and wealth, and the social bases of self-respect – are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage”: injustice “is simply inequalities that are not to the benefit of all” (1999, 24).

a. Two Principles

Rawls’s interpretation is made more precise in his two principles of justice. He proposes various formulations of these; the final formulation is that of Political Liberalism:

1. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (2005, 5-6).

b. A Social Contract

Rawls justifies his two principles of justice by a social contract argument. For Rawls, a just state of affairs is a state on which people would agree in an original state of nature. Rawls seeks “to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant”, and to do so in a way “that it is no longer open to the more obvious objections often thought fatal to it” (1999, xviii).

Rawls sees the social contract as being neither historical nor hypothetical but a thought-experiment for exploring the implications of an assumption of moral equality as embodied in the original position. To give effect to this Rawls assumes that the parties to the contract are situated behind a veil of ignorance where they do not know anything about themselves or their situations, and accordingly are equal. The intention is that as the parties to the contract have no information about themselves they necessarily act impartially, and thus as justice as fairness requires. As no one knows his circumstances, no one can try to impose principles of justice that favour his particular condition.

c. The Difference Principle

Rawls argues that in the social contract formed behind a veil of ignorance the contractors will adopt his two principles of justice, and in particular the difference principle: that all inequalities “are to be to the greatest benefit of the least advantaged members of society”. This requires the identification of the least advantaged. There are thee aspects to this: what constitutes the members of society; what counts as being advantaged; and how the advantages of one member are to be compared with those of another.

It would seem natural in defining the least advantaged members of society to identify the least advantaged individuals, but Rawls does not do this. Instead, he seeks to identify representatives of the least advantaged group.

The wellbeing of representatives is assessed by their allocation of what Rawls terms primary goods. There are two classes of primary goods. The first class comprises social primary goods, such as liberty (the subject matter of the first part of the second principle of justice) and wealth (the subject matter of the second part of that principle). The second class comprises natural primary goods, such as personal characteristics. Justice as fairness is concerned with the distribution of social primary goods; and of these the difference principle is concerned with those that are the subject matter of the second part of the second principle of justice, such as wealth.

Rawls’s primary goods are “things which it is supposed a rational man wants whatever else he wants”: regardless of what precise things someone might want “it is assumed that there are various things which he would prefer more of rather than less”. More specifically, “primary social goods, to give them in broad categories, are rights, liberties, and opportunities, and income and wealth”. These fall into two classes: the first comprise rights, liberties, and opportunities; and the second, which is the concern of the difference principle, income and wealth. The essential difference between these classes is that “liberties and opportunities are defined by the rules of major institutions and the distribution of income and wealth is regulated by them” (1999, 79).

The construction of an index of primary social goods poses a problem, for income and wealth comprise a number of disparate things and these cannot immediately be aggregated into a composite index. Rawls proposes to construct such an index “by taking up the standpoint of the representative individual from this group and asking which combination of primary social goods it would be rational for him to prefer”, even though “in doing this we admittedly rely upon intuitive estimates” (1999, 80).

d. Choice Behind the Veil

Each contractor considers all feasible distributions of primary goods and chooses one. Because the contractors have been stripped of all distinguishing characteristics they all make the same choice, so there is in effect only one contractor. The distributions that this contractor considers allocate different amounts of primary goods to different positions, not to named persons.

The contractor does not know which position he will occupy, and as he is aware that he may occupy the least advantaged position he chooses the distribution that allocates the highest index of primary goods to that position. That is, he chooses the distribution that maximizes the index of the least advantaged, or minimum, position. Rawls thus considers his “two principles as the maximin solution to the problem of social justice” since “the maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others” (1999, 132-133).

A major problem with Rawls’s theory of justice is that rational contractors will not, except in a most extreme case, choose the maximin outcome. Despite Rawls claiming that “extreme attitudes to risk are not postulated” (1999, 73) it appears that they are, and thus to choose the maximin distribution is to display the most extreme aversion to risk. In global terms, it is to prefer the distribution of world income in which 7 billion people have just $1 above a widely accepted subsistence income level of $365 a year to the distribution in which all of these except one (who has $365 a year) have the income of the average Luxembourger with $80,000 a year. It is to choose a world of universal abject poverty over one of comfortable affluence for all but one person. As Roemer expresses it, “the choice, by such a [representative] soul, of a Rawlsian tax scheme is hardly justified by rationality, for there seems no good reason to endow the soul with preferences that are, essentially, infinitely risk averse” (1996, 181).

Rawls appreciates that “there is a relation between the two principles and the maximin rule for choice under uncertainty”, and accepts that “clearly the maximin rule is not, in general, a suitable guide for choices under uncertainty”. However, he claims that it is a suitable guide if certain features obtain, and seeks to show that “the original position has these features to a very high degree”. He identifies three such features. The first is that “since the rule takes no account of the likelihoods of the possible circumstances, there must be some reason for sharply discounting estimates of these probabilities”. The second is that “the person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule”. The third is that “the rejected alternatives have outcomes that one can hardly accept” (1999, 132-134). However, none of these three features appears to justify the choice by a rational contractor of the maximin distribution. Accordingly, Roemer concludes that “the Rawlsian system is inconsistent and cannot be coherently reconstructed” (1996, 182).

e. Summary

The strength of Rawls’s theory of justice as fairness lies in its combination of the fundamental notion of equality with the requirement that everyone be better off than they would be under pure equality.

However, the theory has a number of problems. Some of these may be avoided by inessential changes, but other problems are unavoidable, particularly that of identifying the least advantaged (with the related problems of defining primary goods and the construction of an index of these), and that of the supposedly rational choice of the maximin principle with, as Harsanyi puts it, its “absurd practical implications” (1977, 47 as reprinted).

3. Equality of Resources

Equality of resources, as developed by Dworkin, treats individuals’ abilities and external resources as arbitrary, but makes no adjustments for their preferences. The essence of this approach is the distinction between ambition-sensitivity, which recognizes differences which are due to differing ambitions, and endowment-sensitivity, which recognizes differences that are due to differing endowments.

a. Initial Resources

Dworkin accepts that inequalities are acceptable if they result from voluntary choices, but not if they result from disadvantages that have not been chosen. However, initial equality of resources is not sufficient for justice. Even if everyone starts from the same position one person may fare better than another because of her good luck, or, alternatively, because of her lesser handicaps or greater talents.

Dworkin motivates his theory of justice with the example of a number of survivors of a shipwreck who are washed up, with no belongings, on an uninhabited island with abundant natural resources. The survivors accept that these resources should be allocated among them in some equitable fashion, and agree that for a division to be equitable it must meet “the envy test”, which requires that no one “would prefer someone else’s bundle of resources to his own bundle” (1981, 285). The envy test, however, is too weak a test: Dworkin gives examples of allocations that meet this test but appear inequitable.

To deal with such cases Dworkin proposes that the survivors appoint an auctioneer who gives each of them an equal number of tokens. The auctioneer divides the resources into a number of lots and proposes a system of prices, one for each lot, denominated in tokens. The survivors bid for the lots, with the requirement that their total proposed expenditure in tokens not exceed their endowment of tokens. If all markets clear, that is, if there is precisely one would-be purchaser for each lot, then the process ends. If all markets do not clear then the auctioneer adjusts the prices, and continues to adjust them until they do.

b. Fortune

Dworkin seeks to make people responsible for the effects of their choices, but not for matters beyond their control. To take account of the latter, he distinguishes between “option luck” and “brute luck”. Option luck is “a matter of how deliberate and calculated gambles turn out”. Brute luck is “a matter of how risks fall out that are not in that sense deliberate gambles” (1981, 293). People should be responsible for the outcomes of option luck, but not of brute luck.

Dworkin’s key argument concerning luck is that “insurance, so far as it is available, provides a link between brute and option luck, because the decision to buy or reject catastrophe insurance is a calculated gamble”. Then because people should be responsible for the outcomes of option luck they should be responsible for the outcomes of all luck, at least if they could have bought insurance.

Accordingly, Dworkin amends his envy test by requiring that “any resources gained through a successful gamble should be represented by the opportunity to take the gamble at the odds in force, and comparable adjustments made to the resources of those who have lost through gambles” (1981, 293-295).

c. Handicaps

Insurance cannot remove all risks: if someone is born blind he cannot buy insurance against blindness. Dworkin seeks to take account of this through a hypothetical insurance scheme. He asks how much an average person would be prepared to pay for insurance against being handicapped if in the initial state everyone had the same, and known, chance of being handicapped.

He then supposes that “the average person would have purchased insurance at that level” (1981, 298), and proposes to compensate those who do develop handicaps out of a fund that is collected by taxation but designed to match the fund that would have been provided through insurance premiums. The compensation that someone with a handicap is to receive is the contingent compensation that he would have purchased, knowing the risk of being handicapped, had actual insurance been available.

Accordingly, the auction procedure is amended so that the survivors “now establish a hypothetical insurance market which they effectuate through compulsory insurance at a fixed premium for everyone based on speculations about what the average immigrant… would have purchased by way of insurance had the antecedent risk of various handicaps been equal” (1981, 301).

This process establishes equality of effective resources at the outset, but this equality will typically be disturbed by subsequent economic activity. If some survivors choose to work more than others they will produce, and thus have, more than their more leisurely compatriots. Thus at some stage the envy test will not be met.

This, however, does not create a problem because the envy test is to be applied diachronically: “it requires that no one envy the bundle of occupation and resources at the disposal of anyone else over time, though someone may envy another’s bundle at any particular time” (1981, 306). Since everyone had the opportunity to work hard it would violate rather than endorse equality of resources if the wealth of the hardworking were from time to time to be distributed to the more leisurely.

d. Talents

The essential reason why differential talents create a problem is that equality of resources at the outset will typically be disturbed, not because of morally acceptable differences in work habits, but because of morally arbitrary differences in talents.

Requiring equality of resources only at the outset would be what Dworkin calls a starting-gate theory of fairness, which Dworkin sees as being “very far from equality of resources” and strongly rejects: “indeed it is hardly a coherent political theory at all”. Such a theory holds that justice requires equality of initial resources, but accepts laissez-faire thereafter. The fundamental problem with a starting-gate theory is that it relies on some purely arbitrary starting point. If the requirement of equality of resources is to apply at one arbitrary point, then presumably it is to apply at other points.

If justice requires a Dworkinian auction when the survivors arrive, then it must require such an auction from time to time thereafter; and if justice accepts laissez-faire thereafter, it must accept it when they arrive. Dworkin requires neither that there be periodic auctions nor that there be laissez-faire at all times. His theory does not suppose that an equal division of resources is appropriate at one point in time but not at any other; it argues only that the resources available to someone at any moment be a function of the resources available to or consumed by him at others.

Dworkin’s aim is to specify a scheme that allows the distribution of resources at any point of time to be both ambition-sensitive, in that it reflects the cost or benefit to others of the choices people make, but not be endowment-sensitive, in that it allows scope for differences in ability among people with the same ambitions. To achieve this, Dworkin proposes a hypothetical insurance scheme that is analogous to that for handicaps. In this scheme it is supposed that people know what talents they have, but not the income that these will produce, and choose a level of insurance accordingly. An imaginary agency knows each person’s talents and preferences, and also knows what resources are available and the technology for transforming these into other resources. On the basis of this it computes the income structure, that is, the number of people earning each level of income that will emerge in a competitive market. Each person may buy insurance from the agency to cover the possibility of his income falling below whatever level he cares to name. Dworkin asks “how much of such insurance would the survivors, on average, buy, at what specified level of income coverage, and at what cost?” (1981, 317) and claims that the agency can answer this question.

This, however, is not clear. Consider four very weak requirements of such a scheme: it should distribute resources in such a way that not everyone could be better off under any alternative scheme; an increase in the resources available for allocation should not make anyone worse off; if two people have the same preferences and abilities then they should be allocated the same resources; and the scheme should not damage those whom it seeks to help. As is shown by Roemer, there is in Dworkin’s framework no scheme that satisfies these requirements, so that “resource egalitarianism is an incoherent notion” (1985, 178).

e. Summary

The strength of Dworkin’s equality of resources theory of justice is that it seeks to introduce ambition-sensitivity without allowing endowment-sensitivity. To the extent to which it succeeds in this it thus, in Cohen’s words, incorporates within egalitarianism “the most powerful idea in the arsenal of the anti-egalitarian right: the idea of choice and responsibility” (1989, 933).

However, it is not entirely successful in this endeavour. There are a number of problems with Dworkin’s auction scheme: for example, it is not clear that the auctioneer will ever discover prices at which there is precisely one would-be purchaser for each lot. However, these may be avoided by adopting the intended outcome of the auction, that is, as a free-market outcome in which everyone has the same wealth, as a specification of justice in its own right. But the problems with the insurance scheme are deeper, as Roemer’s argument (presented above) demonstrates.

4. Entitlements

Nozick’s entitlements theory (as an extreme) treats no personal attributes as being arbitrary, and thus defines justice simply as laissez-faire, provided that no one’s rights are infringed. In this view “the complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution” (1974, 151).

a. The Basic Schema

Nozick introduces his approach to “distributive justice” by noting that the term is not a neutral one, but presupposes some central authority that is effecting the distribution. But that is misleading, for there is no such body. Someone’s property holdings are not allocated to her by some central planner: they arise from the sweat of her brow or through voluntary exchanges with, or gifts from, others. There is “no more a distributing or distribution of shares than there is a distributing of mates in a society in which persons choose whom they shall marry” (1974, 150).

Accordingly, Nozick holds that the justice of a state of affairs is a matter of whether individuals are entitled to their holdings. In Nozick’s schema, individuals’ entitlements are determined by two principles, justice in acquisition and justice in transfer:

If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2. (1974, 151).

However, the world may not be wholly just: as Nozick observes, “not all actual situations are generated in accordance with the two principles of justice in holdings”. The existence of past injustice “raises the third major topic under justice in holdings: the rectification of injustice in holdings” (1974, 152).

b. Patterns

Nozick distinguishes entitlement principles of justice from patterned principles. A principle is patterned if “it specifies that a distribution is to vary along with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions”. A distribution that is determined by peoples’ ages or skin colours, or by their needs or merits, or by any combination of these, is patterned. Nozick claims that “almost every suggested principle of distributive justice is patterned” (1974, 156), where by “almost” he means “other than entitlement principles”.

The fundamental problem with patterned principles is that liberty upsets patterns. As Hume expresses it, “render possessions ever so equal, men’s different degrees of art, care, and industry will immediately break that equality” (1751, 3.2). Nozick argues this using his famous Wilt Chamberlain example.

Suppose that a distribution that is (uniquely) specified as just by some patterned principle of distributive justice is realized: this may be one in which everyone has an equal share of wealth, or where shares vary in any other patterned way. Now there is a basketball player, one Wilt Chamberlain, who is of average wealth but of superior ability. He enters into a contract with his employers under which he will receive 25 cents for each admission ticket sold to see him play. As he is so able a player a million people come to watch him. Accordingly, Mr Chamberlain earns a further $250,000. The question is, is this new distribution, in which Mr Chamberlain is much better off than in the original distribution, and also much better off than the average person, just? One answer must be that it is not, for the new distribution differs from the old, and by hypothesis the old distribution (and only that distribution) was just. On the other hand, the original distribution was just, and people moved from that to the new distribution entirely voluntarily. Mr Chamberlain and his employers voluntarily entered into the contract; all those who chose to buy a ticket to watch Mr Chamberlain play did so voluntarily; and no one else was affected. All holdings under the original distribution were, by hypothesis, just, and people have used them to their advantage: if people were not entitled to use their holdings to their advantage (subject to not harming others) it is not clear why the original distribution would have allocated them any holdings. If the original distribution was just and people voluntarily moved from it to the new distribution then the new distribution must be just.

c. Justice in Acquisition

Acquisition of material is considered to be just if what is acquired is freely available and if acquiring it leaves sufficient material for others. Giving an operational meaning to this requires the specification of what acquisition means, what is freely available, and how leaving sufficient material for others is to be interpreted. In these, Nozick, albeit with reservations, follows Locke.

Locke interprets “acquiring” as “mixing one’s labour with” (1689, 2.5.27). I own my labour, and if I inextricably mix my labour with something that no one else owns then I make that thing my own. However, as Nozick points out (without proposing any resolution of these) there are a number of problems with this interpretation. It is not clear why mixing something that I own with something that I do not own implies that I gain the latter rather than lose the former. In Nozick’s example, “if I own a can of tomato juice and spill it in the sea … do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” Further, it is not clear what determines how much of the unowned resource I come to own. If I build a fence around a previously unowned plot of land do I own all that I have enclosed, or simply the land under the fence? In Nozick’s example, “if a private astronaut clears a place on Mars, has he mixed his labor with (so that he comes to own) the whole planet, the whole uninhabited universe, or just a particular plot?” (1974, 174-175).

Locke interprets “freely available” as being “in the state that nature hath provided”, and Nozick (without any argument) follows Locke in equating “freely available” with “unowned”. There are however, other possibilities. Virgin resources may be seen as being owned in common, or as being jointly owned in equal shares.

Locke interprets leaving sufficient for others as there being “enough, and as good, left in common for others” (1689, 2.5.27); this is the famous Lockean proviso. There are two possible interpretations of this: I may be made worse off by your appropriating a particular plot of land by no longer being able to appropriate it myself, or by no longer being able to use it. Nozick adopts the second, weaker, version.

d. Justice in Transfer

The essence of Nozick’s principle of justice in transfer is that a transfer is just if it is voluntary, in that each party consents to it. Justice in transfer also involves the satisfaction of the Lockean proviso. This is both indirect and direct. It is indirect in that I cannot legitimately transfer to you something that has been acquired, by me or by anyone else, in violation of the proviso, for that thing is not rightfully mine to transfer. But the proviso is also direct, in that I may not by a series of transfers, each of which is legitimate on its own, acquire property that does not leave enough, and as good, for others.
e. Justice in Rectification

Nozick’s basic schema applies to a world that is “wholly just”. However, the world may not be wholly just: people may have violated the principle of justice in acquisition, for example, by appropriating so much of a thing that an insufficient amount is left for others; or they may have violated the principle of justice in transfer, for example, by theft or fraud. Then, as Nozick observes, “the existence of past injustice (previous violations of the first two principles of justice in holdings) raises the third major topic under justice in holdings: the rectification of injustice in holdings”. Nozick identifies a number of questions that this raises: if past injustice has shaped present holdings in ways that are not identifiable, what should be done; how should violators compensate the victims; how does the position change if compensation is delayed; how, if at all, does the position change if the violators or the victims are no longer living; is an injustice done to someone whose holding which was itself based upon an injustice is appropriated; do acts of injustice lose their force over time; and what may the victims of injustice themselves do to rectify matters? However, these questions are not answered: as Nozick admits, “I do not know of a thorough or theoretically sophisticated treatment of such issues” (1974, 152).

f. Summary

The strength of Nozick’s entitlements theory of justice is that it uncompromisingly respects individual liberty, and thus avoids all the problems associated with patterned approaches to justice. However, by avoiding patterns it introduces its own problems, for in asking how distributions came about, rather than in simply assessing them as they are, Nozick necessarily delves into the mists of time. Here lie the two most significant, and related, problems with Nozick’s theory: that of the relatively unsatisfactory nature of the principle of justice in initial acquisition, and that of the predominantly unexplained means of rectifying any injustice resulting from that.

5. Common Ownership

Common ownership theories in the Steiner-Vallentyne vein treat individuals’ holdings of external resources as arbitrary, but (at least directly) make no adjustments for their preferences or abilities. Such theories are diverse, but they all have in common the basic premise that individuals are full owners of themselves but external resources are owned by society in common. The theories differ in what they consider to be external resources, and in what is entailed by ownership in common.

a. A Framework

Common ownership theories, as entitlement theories, emphasize institutions, or processes, rather than outcomes. In essence, they consider an institution to be just if, firstly, it recognizes the principle of self-ownership and a further principle of liberty which may be called free association, and secondly, it involves some scheme of intervention on the holding or transmission of external resources that results, if not in common ownership itself, in a distribution of resources that shares some of the aspects of common ownership.

The principle of self-ownership, as Cohen’s expresses it, is that “each person enjoys, over herself and her powers, full and exclusive rights of control and use, and therefore owes no service or product to anyone else that she has not contracted to supply” (1995, 12). I have full ownership of myself if I have all the legal rights that someone has over a slave. Since a slaveholder has the legal rights to the labour of his slave and the fruits of that labour, each person is the morally rightful owner of his labour and of the fruits thereof.

The motivation for introducing a principle of free association is that what is legitimate for you and for me should be legitimate for us, subject to the satisfaction of the Lockean proviso (if relevant). Allingham proposes the principle that “each person has a moral right to combine any property to which he is entitled with the (entitled) property of other consenting persons (and share in the benefits from such combination in any manner to which each person agrees) provided that this does not affect any third parties” (2014, 110).

Schemes of intervention on the holding or transmission of property may take the form of absolute restrictions or of taxes on the holding or transfer of property.

b. The Transfer of Property

It might be thought that my rights to my property are empty if they do not permit me to do what I will with it (provided that this does not affect others), and in particular to give it to you. On the other hand, the passing down of wealth through the generations is one of the less intuitively appealing implications of this right. There are three ways of reconciling these two positions: restrictions or taxes on all gifts, on bequests, and on re-gifting.

The first proposal is based on Vallentyne’s claim that the right to transfer property to others does not guarantee that others have an unencumbered right to receive that property, and that, accordingly, the receipt of gifts may legitimately be subject to taxation. This would be to say that (the donor) having control rights in the property, and in particular the right to give it to someone, does not imply (the donee) having income rights in the property, and in particular the unencumbered right to enjoy it.

The motivation underlying the second proposal is, in Steiner’s words, “that an individual’s deserts should be determined by reference to his ancestor’s delinquencies is a proposition which doubtless enjoys a degree of biblical authority, but its grounding in any entitlement conception of justice seems less obvious” (1977, 152). Steiner’s argument in support of this position is that, contrary to Nozick’s view, bequests are fundamentally different to gifts inter vivos. Put simply, dead people do not exist, so cannot make gifts. Accordingly, the recipients of all bequests are to be taxed.

A third proposal is that people have rights to make and receive gifts, but not that these rights last for ever. More precisely, Allingham proposes that a scheme that “adopts the position that each person has a moral right to make any gifts (inter vivos or by bequest) to any other person (which person has a moral right to receive such gifts), but that any gifts that are deemed to be re-gifted may be subject to taxation” (2014, 120). If the gifts a person makes are less than those he receives then the former are deemed to be re-gifted; if the gifts he makes are greater than those he receives then the latter are deemed to be re-gifted. Thus I may freely give to you anything that I have created or earned but not consumed, but if I pass on anything that I myself have been given then this may be taxed.

c. The Holding of Property

Interventions on the holding of property may be seen as falling into three classes. One seeks to impose taxes on land by virtue of the fact that it is God-given, one on all natural resources by virtue of the fact that they are natural, and one on all property by virtue of the fact that it is property.

The claim that land, by natural right, belongs to all, like the claim that a person belongs to himself, is made by Locke: “God … hath given the world to men in common” (1689, 2.5.26). The claim is developed by a number of the nineteenth-century writers, and is most notably associated with George. As any improvements are not due to God it is only unimproved land, not developed land, which is relevant. In a typical contribution scheme proposed by Steiner, each “owner owes to the global fund a sum equal to the site’s rental value, that is, equal to the rental value of the site alone, exclusive of the value of any alterations in it wrought by labour” (1994, 272-273).

Land is not the only natural resource: what other property is to count is not clear. As Steiner notes, in any intervention scheme involving natural resources everything “turns on the isolation of what counts as ‘natural’” (1994, 277). There are many candidates. These, as summarized by Fried, include “gifts and bequests from the preceding generation; all traditional public goods (laws, police force, public works); the community’s physical productive capacity; and well-functioning markets” (2004, 85-86). Under these schemes all natural resources would be taxed in the same way as is land.

There are three possible justifications for taxing property per se: extending the concept of bequests; removing one of the incidents of ownership; and requiring a fee for protection. The first is based on a deemed lack of personal continuity over time: that “I tomorrow” am not the same person as “I today”. If this position is adopted then “I am holding property overnight” really means “I today” am bequeathing property to “I tomorrow”; the property is a bequest not a gift inter vivos as “I today” cease to exist at midnight. The second involves limiting the rights of ownership in external objects, that is, acknowledging only less than full ownership, specifically by excluding the incident of the absence of term, that one’s rights to property do not expire. If the incident of the absence of term is excluded then I have no unencumbered right to continue my ownership in some property from today until tomorrow. If I do so, the state may legitimately require that I pay for that privilege. The third justification distinguishes between the rights to enjoy and to hold through time. The former does not involve the state in any way, other than in non-interference, but the latter may, through the need for protection. If the state is to provide this protection it may legitimately charge a fee for this, and this fee may take the form of a tax on the holding of property.

d. The Social Fund

As common ownership theories typically involve the imposition of taxes, they need to determine how the social fund created by these taxes is to be applied. One natural way to do this is to specify that the social fund be distributed to everyone in equal shares. As an alternative, Nozick, with respect to the case where the social fund is collected explicitly to rectify historical injustices, suggests that the fund be distributed in such a way that the end result is close to Rawls’s difference principle.

A radically different way of dividing the social fund would be to use it to compensate those with unchosen disadvantages, as would be justified, for example, by the argument that such disadvantages were morally arbitrary. There is, however, something perverse about any proposal to apply the social fund in a way that compensates for unchosen personal endowments when all means of collecting the taxes that form that fund have, because of an adherence to the self-ownership principle, ruled out taxing people on that basis. As Fried expresses it, “schemes, which judge the tax and transfer sides of fiscal policy by wholly different distributive criteria, seem morally incoherent” (2004, 90).

e. Summary

The strength of common ownership theories is that, as Fried puts it, they “have staked out a middle ground between the two dominant strains of contemporary political philosophy: the conventional libertarianism of those such as Robert Nozick on the right, and the egalitarianism of those such as Rawls, Dworkin, and Sen on the left” (2004, 67). However, the open question remains as to whether such theories are, in Fried’s terms, “just liberal egalitarianism in drag” (2004, 84).

Conclusions

As regards internal consistency, Dworkin’s equality of resources theory may have the greatest problems. Some of the problems with Dworkin’s auction construction may be avoided by adopting its outcome, of an equal wealth equilibrium, as a specification of justice in its own right. The insurance scheme, however, has more serious and unavoidable problems. The fundamental flaw is that shown by Roemer: that no Dworkinian scheme can satisfy four very weak consistency conditions, so that “resource egalitarianism is an incoherent notion”.

Rawlsian justice as fairness fares a little better, but, if it is to be grounded in choice from behind a veil of ignorance, has the serious flaws of that construction. Some of these can be avoided by inessential changes, but other problems are unavoidable, particularly those of identifying the least advantaged (with the related problems of defining primary goods and the construction of an index of these), and of the supposedly rational choice of the maximin principle with its “absurd practical implications”.

Common ownership theories, being diverse, are harder to assess as a group. Theories that involve interventions of the transfer of property have a variety of arbitrariness problems, and typically violate some aspect of the principle of free association. Those that involve interventions on the holding of property have, on the whole, some serious arbitrariness problems, particularly as regards the definition of property.

Nozickian entitlements theory may have the fewest problems of consistency. But although they may be few they are not trivial, particularly those relating to justice in initial acquisition, and to the rectification of past injustice.

It is not clear that it is useful, let alone possible, to identify some most satisfactory theory of justice, and thus identify some most appropriate point in the liberty-equality spectrum. Since self-ownership is a cornerstone of liberty, the problem is given specific focus in Cohen’s claim that “anyone who supports equality of condition must oppose (full) self-ownership, even in a world in which rights over external resources have been equalized” (1995, 72).

In an absolute sense, it seems hard to disagree with Cohen. There may, however, be some room for compromise. From one end of the spectrum, equality of resources moves in that direction, particularly in making Rawlsian egalitarianism more ambition-sensitive without at the same time making it more endowment-sensitive. From the other end, some versions of common ownership also move in that direction. This is particularly the case for versions that embody rectification of past injustice: as Nozick accepts, “although to introduce socialism as the punishment for our sins would be to go too far, past injustices might be so great as to make necessary in the short run a more extensive state in order to rectify them” (1974, 231).

If an accommodation is to be found, it will be found towards the centre of the liberty-equality spectrum, that is, in equality of resources or in common ownership theories. Given the greater internal problems of the former, the latter may prove to be the more fruitful. However, common ownership theories are diverse, so this does not provide a complete prescription. But as Nozick reminds us, “there is room for words on subjects other than last words” (1974, xii).

7. References and Further Reading

• Allingham, M. (2014) Distributive Justice, London, Routledge.
• Arrow, K. J. (2012) Social Choice and Individual Values (third edition), New Haven: Yale University Press.
• Cohen, G. A. (1989) “On the currency of egalitarian justice”, Ethics, 99: 906-944.
• Cohen, G. A. (1995) Self-Ownership, Freedom, and Equality, Cambridge: Cambridge University Press.
• Dworkin, R. (1981) “What is equality? Part 2: equality of resources”, Philosophy & Public Affairs 10: 283-345.
• Fried, B. (2004) “Left-libertarianism: a review essay”, Philosophy and Public Affairs, 32: 66–92.
• Hammond, P. J. (1991) “Interpersonal comparisons of utility: why and how they are and should be made”, in Interpersonal Comparisons of Well-Being (editors J. Elster and J. E. Roemer) Cambridge: Cambridge University Press, 200-254.
• Harsanyi, J. (1977) “Morality and the theory of rational behavior”, Social Research, 44; reprinted in Utilitarianism and Beyond (editors A. Sen and B. Williams) Cambridge: Cambridge University Press, 39-62.
• Hume, D. (1751/1998) An Enquiry Concerning the Principles of Morals, edited by T. L. Beauchamp, Oxford: Oxford University Press.
• Locke, J. (1689/1988) Two Treatises of Government, edited by P. Laslett, Cambridge: Cambridge University Press.
• Nozick, R. (1974) Anarchy, State, and Utopia, Oxford: Blackwell.
• Rawls, J. (1999) A Theory of Justice (revised edition), Oxford: Oxford University Press.
• Rawls, J. (2005) Political Liberalism (expanded edition), New York: Columbia University Press.
• Roemer, J. E. (1985) “Equality of talent”, Economics and Philosophy, 1: 151-187.
• Roemer, J. E. (1996) Theories of Distributive Justice, Cambridge MA: Harvard University Press.
• Sandel, M. J. (2009) Justice: What’s the Right Thing to Do?, Allen Lane: London.
• Scanlon, T. (1991) “The moral basis of interpersonal comparisons”, in Interpersonal Comparisons of Well-Being (editors J. Elster and J. E. Roemer) Cambridge: Cambridge University Press, 17-44.
• Steiner, H. (1977) “Justice and entitlement”, Ethics, 87: 150-152
• Steiner, H. (1994) An Essay on Rights, Cambridge, MA: Blackwell.

Author Information

Michael Allingham
Email: michael.allingham@magd.ox.ac.uk
Oxford University
United Kingdom

Procedural justice refers to the fairness and equity in the processes used to make decisions and administer justice. In the context of law enforcement, it means ensuring that police officers follow the law and adhere to ethical standards while carrying out their duties.

Procedural justice is important because it promotes trust and legitimacy in the eyes of the community. When people believe that the police are fair and just, they are more likely to comply with the law and cooperate with law enforcement.

To achieve procedural justice, law enforcement officers must be trained in the principles of procedural justice and commit to following them consistently.

Section 2: The Four Pillars of Procedural Justice

The four pillars of procedural justice are voice, neutrality, respect, and trustworthiness. Voice means giving individuals a chance to be heard and participate in the process. Neutrality means being impartial and unbiased. Respect means treating everyone with dignity and showing empathy. Trustworthiness means being honest and transparent.

By following these four pillars, law enforcement officers can ensure that their actions are perceived as fair and just.

For example, officers can give individuals a chance to explain their side of the story, remain neutral in their decision-making, show respect for the rights and dignity of all individuals, and be transparent about their actions.

Section 3: Police Legitimacy and Trust

Police legitimacy refers to the public’s perception of the police as a legitimate authority. When the public trusts the police and perceives them as legitimate, they are more likely to comply with the law and cooperate with law enforcement.

Procedural justice is crucial in building police legitimacy and trust. By treating individuals fairly and justly, law enforcement officers can demonstrate that they are worthy of the public’s trust and respect.

Conversely, when individuals perceive the police as unfair or illegitimate, they are less likely to comply with the law and may even engage in criminal behavior.

Section 4: Bias and Procedural Justice

Implicit biases are unconscious attitudes or stereotypes that affect our behavior and decision-making.

Everyone has implicit biases, and law enforcement officers are no exception.

Procedural justice can help mitigate the effects of bias by promoting fairness and impartiality in decision-making. By following the principles of procedural justice, officers can ensure that their biases do not influence their actions.

Training in cultural awareness and implicit bias can also help officers recognize and overcome their biases.

Section 5: Procedural Justice in Practice

Procedural justice requires law enforcement officers to be mindful of their actions and decisions at all times. It involves treating all individuals with respect and dignity, regardless of their race, ethnicity, gender, or socioeconomic status.

One way to promote procedural justice is through community policing, which involves building positive relationships with the community and working collaboratively to solve problems. Community policing can help build trust and legitimacy between law enforcement and the community.

Another way to promote procedural justice is through transparency and accountability. Officers should be held accountable for their actions and be transparent about their decision-making processes.

Section 6: Procedural Justice and Use of Force

The use of force by law enforcement is always a sensitive issue. Procedural justice requires officers to use force only when necessary and to apply it in a fair and consistent manner.

Officers must be trained in the appropriate use of force and be held accountable for their actions. They must also be transparent about their use of force and be willing to explain their decisions to the public.

Procedural justice can help reduce incidents of excessive force and promote trust between law enforcement and the community.

Section 7: Procedural Justice and Policing Reform

Procedural justice is a key component of policing reform efforts. Police departments across the country are implementing procedural justice principles to improve their relationships with the community.

Reforms such as body-worn cameras, community policing, and implicit bias training can help promote procedural justice and build trust between law enforcement and the community.

Procedural justice is not a one-time initiative but rather an ongoing commitment to fairness and equity in the administration of justice.

Section 8: Barriers to Procedural Justice

There are several barriers to implementing procedural justice in law enforcement. One of the biggest barriers is resistance from officers who may not see the value of procedural justice or who may feel threatened by changes to the status quo.

Another barrier is lack of resources or training. Procedural justice requires specialized training and ongoing support from leadership, which can be costly and time-consuming.

Finally, institutional policies and practices can also be a barrier to procedural justice. Policies that are biased or discriminatory can undermine the principles of procedural justice and erode trust between law enforcement and the community.

Section 9: Conclusion

Procedural justice is a critical component of effective law enforcement. By promoting fairness, equity, and transparency in decision-making, law enforcement officers can build trust and legitimacy with the community.

Procedural justice requires a commitment from law enforcement leadership to provide training and support to officers and to hold them accountable for their actions. It also requires a willingness to listen to the community and to work collaboratively to solve problems.

By incorporating the principles of procedural justice into their policies and practices, law enforcement agencies can improve their relationships with the community and enhance public safety.

Source and text