UN attention to arbitrary detention-2
The UN Working Group on Arbitrary Detention is concluding its mission to Ukraine, which took place from 22 October to 5 November 2008. The members of the Group, Mr. Malick Sow (Senegal), Vice-Chair of the Working Group and Rapporteur, and Ms. Shaheen Sardar Ali (Pakistan/United Kingdom of Great Britain and Northern Ireland), a member of the Group, noted with appreciation the comprehensive cooperation provided by the Government of Ukraine during the visit.
The following information serves as an addendum to the Working Group’s press release of 5 November 2008. At the same time, the findings below represent only the preliminary results of the Working Group’s visit and cannot be considered complete or final. The Working Group reserves the right to remove or add information not included in this document to the final report.
A positive aspect to be noted is the Government's openness regarding the Working Group’s visit and the constructive dialogue with representatives of the authorities at various levels across the country. Members of the Group noted that the legislative and institutional framework regulating various forms of deprivation of liberty in the country is robust but complex. It was also noted that a number of important legislative initiatives are in the development process and may, in the future, contribute to strengthening the protection of detained persons.
Part of such enhanced protection involves independent monitoring and oversight of procedures and practices, involving representatives of civil society. The initiatives of the Ministry of Internal Affairs concerning mobile monitoring groups at the regional level, as well as the engagement of stakeholders through Public Councils, are positive steps.
However, members of the group observed the existence of divergent views and perceptions regarding the effectiveness of the Ombudsman institution and recommend strengthening its efficiency. Regarding the control system, the members of the group welcomed the fact that the Government of Ukraine has ratified the Optional Protocol to the UN Convention against Torture. In particular, it was noted that the mobile groups of the Ministry of Internal Affairs serve as a good example that should be followed by other government institutions dealing with detention.
Over the last few years, a number of legislative initiatives worthy of support have been implemented. Specifically, reform of the Criminal Code has been carried out, and efforts within the framework of the Criminal Procedure Code have been made to reduce the burden on the penitentiary system. This will help address the problem of overcrowding in detention facilities by reducing sentences for less serious crimes, further exploring the possibility of introducing early release on probation, or finding alternatives to detention.
Furthermore, during several meetings, the importance of international and national human rights protection standards was emphasised. It is important that all parties involved in detention issues are aware of international and national human rights standards concerning the rights of persons subject to detention. It is necessary to raise the level of awareness regarding the rights of detainees, as provided by the Constitution, to utilise the relevant international and national complaint mechanisms.
Members of the group noted the frequency, which has decreased over the past years, of using pre-trial detention facilities to hold suspects accused of committing less serious crimes. Additionally, a lack of effective oversight by judicial authorities was observed, which often leads to unnecessary and prolonged pre-trial detention of individuals in difficult conditions. Combined with the existing restrictions on pre-trial detention, namely the prohibition of communication with families before the case is heard in court, the consequences of such measures are extremely negative for minors. This is especially true in situations where minors are kept together with adults and convicted prisoners.
In an institutional context, members of the group noted areas of cooperation among government agencies dealing with detention. However, the members of the group also drew attention to the existence of overlapping functions of institutions, which may also be a factor in arbitrary detention. The members of the group noted that regarding criminal cases, the Ministry of Internal Affairs and the police, as well as special agencies, namely the Security Service and the Department for the Execution of Sentences, may deal with detainees during the pre-trial period.
During the visit to Ukraine, members of the group repeatedly drew attention to the lack of trust in the main human rights protection institutions. This specifically applies to judicial authorities, the police, the Prosecutor General’s Office, and lawyers. While this may, in part, be caused by the very low and unacceptable level of remuneration for representatives of these agencies, it is also partially linked to collusion among certain individuals to ensure that pre-trial detention is the norm rather than an exception to the rule.
Regarding the independence of judicial authorities, members of the group noted that judicial decisions were often taken in the absence of, or even without informing, the accused. Given the transport schedule, cases were noted where detainees could not be present at a scheduled hearing, yet the case was still heard. The right to legal counsel is an essential right of which detainees must be informed at the time of arrest and throughout the trial, and which should not be violated by those holding the detainees in custody, including the right to appeal decisions on detention. The implementation of the right to request information about court decisions, as well as the opportunity to be present at the review of such decisions, was not always guaranteed. Likewise, the possibility of granting judges certain oversight functions regarding places of detention should be considered.
As for the judicial system itself, it is evident that the relevant institutions do not receive the necessary support to ensure their capacity to administer justice, which may thus lead to arbitrary detentions. It is necessary to pay attention to the importance of engaging judges throughout the process, which will guarantee their independence, integrity, and professional qualifications. Moreover, professional training for judges must be carried out on an ongoing basis to ensure compliance with national, international, and regional human rights protection standards, which should form the basis of judicial decisions. The members of the group met with judges of the Supreme Court, the Constitutional Court, and the Court of Appeal. Members of the group expressed regret regarding the inability to meet with first-instance judges – apart from a brief thematic discussion concerning juvenile justice during the first general meeting with government representatives at the beginning of the mission – considering their central role in the administration of justice, particularly regarding setting and extending the terms of pre-trial detention.
It is also necessary to consider the possibility of allowing judges of certain instances to exercise judicial supervision in cases where there are doubts regarding the credibility of certain cases. For example, members of the group received information about certain instances that received requests from the Prosecutor General’s Office regarding detention, even though there was strong suspicion that torture was used to obtain a confession.
Members of the group deem it necessary to draw attention to recurring, and often proven and evidence-based reports of ill-treatment and torture by the police aimed at obtaining confessions, which is encountered in all regions of the country. While the police face a difficult task and the problem of insufficient resources, including excessively low wages, this does not justify the use of torture. Torture, including that which involves inhuman and degrading treatment, is clearly prohibited by international and national law, and such a prohibition is inviolable. Any use of torture to obtain confessions must immediately lead to dismissal from any post, and in the case of torture, the perpetrator must be held criminally liable in any event. When addressing this problem at the state level, a policy of zero tolerance for such actions must be applied. As for law enforcement officers who expose their own superiors regarding the use of torture or other forms of ill-treatment, they must not be punished. Any ill-treatment in this context must be thoroughly investigated, and the relevant individuals held accountable.
Members of the Working Group highly appreciated the fact that since 1991, only courts can authorise pre-trial detention for a period longer than 72 hours from the moment of arrest. However, credible information was received that law enforcement agencies have a tendency to circumvent this requirement. For example, there are cases of recording in the detention report that individuals are being held on administrative charges, which, under conditions of insufficient judicial control, is used for the purpose of coercing confessions in criminal offences.
Investigators handling cases also have important responsibilities. Allegations of torture must be recorded and added to the case file. Similarly, the presumption of innocence must be applied until guilt is proven.
Members of the group were informed that in departments of the Ministry of Internal Affairs, there may be special quotas, the existence of which may be the reason for using force to secure confessions in criminal offences. Consequently, the Working Group declares the necessity of receiving guarantees from the Government that such a system of performance indicators will not be applied in the future.
Throughout the entire detention process, the role of the Prosecutor General’s Office is fundamental. The Prosecutor General’s Office must become an institution that ensures the rule of law in every case. Respect for court decisions must be unquestionable. Representatives of the institution must be impartial, professional, and rely on legal norms. They must not make subjective decisions and must not obstruct the administration of justice. Complaints received regarding ill-treatment or other issues that may lead to arbitrary detention must be pursued by the Prosecutor General’s Office through all instances. However, the role of the Prosecutor General’s Office, which currently combines the function of law enforcement and the function of oversight, should be reviewed. Possessing such power can potentially lead to a conflict of interest and reduce trust in this important institution.
5 November 2008