Monitoring of places of deprivation of liberty in international documents

International experts have long since concluded that the openness of places of deprivation of liberty and public oversight of the administration of these institutions are essential components of any system based on the principles of the rule of law. This should be particularly evident in the supervision of the state's powers when depriving individuals of their liberty. International practice in the field of human rights increasingly confirms that monitoring places of detention through regular, unannounced visits is one of the most effective ways to prevent torture and ill-treatment of persons in custody and to ensure the observance of their rights.
Visits may be carried out within the framework of various international mechanisms, such as the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the UN Committee against Torture, established in accordance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; however, these must be supplemented by visits at the national level.
At the same time, it should be noted that the visiting of places of deprivation of liberty by international bodies and formations is a relatively recent development. These include, in particular:
- the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment;
- the UN Special Rapporteur on extrajudicial, summary or arbitrary executions;
- the UN Working Group on Enforced or Involuntary Disappearances;
- the UN Working Group on Arbitrary Detention.
The aforementioned authorised persons and formations act on the basis of resolutions of the UN Commission on Human Rights, with their activities carried out based on prior agreement with the states concerned. The visits they conduct are ad hoc, and the recommendations provided on the basis of information transmitted to the rapporteur and subsequently verified, or made after visits to the respective state, are not legally binding on the states. In addition to preparing recommendations, they also present public reports at the sessions of the Commission on Human Rights.
Under Article 20 of the European Convention for the Prevention of Torture, the European Committee for the Prevention of Torture is empowered to monitor places of deprivation of liberty. However, the Committee only conducts visits:
- on the territory of the states party to the Convention;
- in cases of ‘systematic torture’;
- in the event of receiving authorisation from the respective state.
The Committee’s activities are confidential.
Thus, international authorised persons and formations operating within the UN framework determine the reliability of reports regarding the use of torture or ill-treatment on the ground. Authorisation for visits is granted by the state. At present, only the European Committee for the Prevention of Torture is authorised to visit all places of deprivation of liberty within the territory of the countries party to the European Convention for the Prevention of Torture at any time.
At the national level, monitoring of conditions of detention, conducted through regular, unannounced visits, is one of the most effective measures for preventing torture and ill-treatment. Such monitoring should be carried out by national independent institutions; however, non-governmental organisations (NGOs) should also be granted access to places of deprivation of liberty.
Monitoring of conditions of detention is, first and foremost, the responsibility of national authorities, who bear accountability for persons deprived of their liberty.
For instance, the ‘UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’ (Principle 29, §1) establishes: ‘In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment. A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with paragraph 1, subject to reasonable conditions to ensure security and good order in such places.’
Currently, most states have established their own mechanisms for overseeing places of deprivation of liberty and have incorporated them into national legislation and administrative rules. Most often, these are internal control mechanisms that form part of the penitentiary system. In many countries, there are also additional external mechanisms, which should not replace internal control mechanisms but complement their activities.
The necessity for national-level oversight of places of deprivation of liberty by independent bodies is recognised by the Optional Protocol to the UN Convention against Torture. The document obliges states parties to ‘set up, designate or maintain […] at the domestic level one or several visiting mechanisms for the prevention of torture at the national level’ (Article 17). This document was adopted by the UN General Assembly in December 2002.
Why is it necessary to involve non-governmental organisations in the monitoring of detention conditions, especially when various types of control already exist and, theoretically, operate at the national level? Among possible visiting mechanisms, local non-governmental human rights organisations (NGOs) possess a number of advantages, the most important of which is their independence from the authorities.
NGOs carrying out the monitoring of places of detention can simultaneously fulfil the role of civil society representatives in overseeing the actions of the authorities and contribute to the respect for the human dignity of those held in custody.
Public monitoring committees, human rights advisory boards, or professional civil monitoring can become instruments for observation and data collection and, in this way, will contribute to the observance of international standards.
It should be noted that monitoring by civil society is not only a guarantee of human rights observance but also strengthens democracy, as it requires accountability and ‘transparency’ from all state institutions, including places of detention. Thus, the monitoring of places of detention by civil society should become an integral part of the democratisation process. However, it should not replace the state’s obligation to conduct its own official inspections of places of detention to ensure the observance of human rights.
Other reasons for this necessity are as follows:
 State inspections/control of state bodies are necessary but, by definition, are not independent;
 External control systems are not always effective or sufficiently consistent and, consequently, do not always fulfil the primary role of regulatory mechanisms;
 Inspections are sometimes superficial, as priority is given to formal and bureaucratic aspects rather than to questions of organisation and the treatment of persons deprived of their liberty (i.e., issues that are more difficult to control and resolve);
 Inspections conducted by international bodies, although necessary, lack proper stability.
International bodies working in this field recognise the importance of involving NGOs in the monitoring of places of deprivation of liberty. Some international organisations have recently expressed support for granting national NGOs access to places of deprivation of liberty.
For instance, the Organisation for Security and Co-operation in Europe noted at the Supplementary Meeting on Inhuman Treatment on 27 March 2000 in Vienna: ‘NGOs should receive training, support and authorisation to carry out the monitoring of places of deprivation of liberty, including places of pre-trial detention.’
A similar opinion is contained in the Report of the Special Rapporteur on torture to the UN General Assembly (A/56/156, 3 July 2001, § 39 (e)): ‘Regular inspections of places of detention, especially those conducted as part of a system of periodic visits, are one of the most effective measures in the fight against torture. Independent non-governmental organisations should be granted unrestricted access to all places of deprivation of liberty, including police stations, places of pre-trial detention, places of administrative detention and prisons, for the purpose of monitoring the treatment of persons deprived of their liberty and the conditions of their detention. During inspections, members of the monitoring group should be able to conduct confidential interviews with prisoners. The group should make public a report of the results of its visit. (…)’
The EU Guidelines on EU Policy Towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 9 April 2001 stipulate: ‘In its fight against torture, the European Council encourages third countries to take, among others, the following measures:
a) Authorise the activities of national visiting mechanisms;
b) Authorise qualified representatives of civil society to conduct visits to places of deprivation of liberty.’
At the OSCE Supplementary Human Dimension Meeting on ‘Prison System Reform’, held in Vienna on 8–9 July 2002, it was stated that: ‘OSCE participating states are encouraged to conduct comprehensive monitoring by civil society of all places of detention’; ‘…OSCE participating states should consider providing a legal basis for NGOs to monitor places of detention, including places of pre-trial detention and police stations. In the absence of a clear legal basis, the authorities are obliged to exercise their discretionary power and provide for monitoring by civil society.’
Thus, according to international documents, inspections can take various forms. However, there exists an important method of verification at an informal level, which is characteristic of those places of detention where regular contacts have been established between the place of deprivation of liberty and public organisations.
It is precisely this kind of independent oversight that is referred to in Rule 93.1 of the European Prison Rules, adopted in January 2006 by Council of Europe Recommendation Rec(2006)2. It provides, in particular, that an independent authority or authorities shall inspect or monitor the conditions of detention and the treatment of prisoners, with the results reported publicly. At the same time, cooperation between such an independent monitoring body (or bodies) and those international agencies authorised by law to visit penal institutions is encouraged.
As foreign practice shows, in situations where representatives of civil society regularly visit a prison, the likelihood of misconduct by the administration decreases, and the likelihood that citizens from the community will understand what is happening inside the prison increases. Public inspectors are generally not inspectors in the literal sense of the word; however, their presence usually evolves into a certain type of informal inspection. It is also important that they can express a point of view different from that of the staff of the places of deprivation of liberty.
Some administrations have given a more formal status to representatives of the local community by using a system of observation by independent non-professionals. Local monitoring bodies have effectively taken on responsibility for more formal oversight of the prison’s work and for reporting the results to the prison management and, in some cases, to the local community.
Despite the fact that international documents on public oversight and monitoring generally contain only a few general phrases, they clearly stipulate that all prisons and places where detained persons are held must be subjected to a system of inspections that are independent of the power structure responsible for the management of prisons. These documents grant prisoners the right to full and confidential access to inspectors, provided that legitimate security measures are observed.
Existing practice allows us to identify a number of definitions of the concept of ‘monitoring’ as a type of sociological research:
Monitoring (preventive, protective) – a system for regular measurement of changes occurring in society or any of its subgroups, provided that the same sampling principles and the same instrumentation for data collection are applied regularly.
Socio-political monitoring – constant, systematic collection of information for the purpose of observing and controlling the progress of a socio-political phenomenon or process and predicting its development.
Case study – a study of individual cases of the phenomenon under investigation and their intensive analysis, including interviewing an individual, studying documents of their life or the case that happened to them, analysing the social situation in light of the problem posed, and formulating main conclusions and recommendations for resolving the arisen problem.
Human rights monitoring can include all these concepts and use all these research methods in various combinations. Its most well-known definitions are:
Monitoring/verification/observation – an active and interactive process in society aimed at improving the situation in the field of human rights in general, which may pursue two tasks:
Diagnostic monitoring – clarifying the situation, the reasons for its existence, and prescribing necessary measures;
Human rights monitoring – is a planned, systematised, and scheme-based study of a chosen area of social reality for the purpose of achieving changes without the use of violence.
The main goal of monitoring is the improvement of the human rights situation.
Tasks of monitoring:
Active, planned collection and processing of as exhaustive data as possible on the state of human rights in a specific area for the purpose of analysing the situation;
Comparison of the actual state with the legislation formally adopted in the state and the norms of international law, and research into their practical observance in the given area;
Determination of the causes of violations and the search for reasonable solutions to change the situation;
Accumulation of materials necessary for further activity in the chosen direction.
Key principles of monitoring:
Detail and accuracy of the collected information, its further verification, and report preparation;
Confidentiality of information and sources;
Objectivity and impartiality;
Attention to the physical and social safety of victims, witnesses, and other sources.
Functions of monitoring:
Cognitive function – diagnosis of the situation (diagnostic monitoring) – is conducted in cases where we do not exactly know which human rights violations prevail or the extent of their violation (e.g., human rights monitoring in Russia);
Function of supporting actions for the benefit of society – collection of arguments to convince the authorities and fellow citizens of the need for changes – transmitting information to higher authorities or partners – is conducted in cases where we exactly know which human rights violations we want to prevent (monitoring of the working conditions of district courts, monitoring of the right to freedom from torture);
Preventive function – or observation and control over public authority, where presence itself is a method of influence (election monitoring, court hearing monitoring, monitoring of police actions during a demonstration...).
Summing up everything that has been said, it should be noted that the identification of public oversight with independent monitoring of the observance of human rights in places of deprivation of liberty is common to most countries. It is precisely such monitoring that is recognised as the primary form of public oversight. And not just a form, but a sufficiently effective one.
Representatives of the public, unlike officials, have a fresh perspective on things and are capable of noticing what, on the one hand, is clearly not benefiting the cause and, on the other, is in most cases overlooked by representatives of ‘state’ control. With a certain level of trust and appropriate agreements, the positive effect of such cooperation is undoubted and mutual. The department resolves arising problems and violations in a timely manner and ‘without noise’, and human rights defenders receive a concrete result with improved observance of human rights in the institutions.
It is precisely on the development of such a form of public oversight, like the monitoring of places of deprivation of liberty, that, in our opinion, the attention of legislators and practitioners should be focused.