How Ukraine ensures the protection of citizens against torture
Two years ago, Ukraine ratified the Optional Protocol to the UN Convention against Torture, which itself entered into force on 22 June 2006. The President signed the ratification law, and everyone expected the implementation of the Protocol’s provisions, especially since the problem of the use of torture, particularly by law enforcement agencies, was and remains very acute. However, this problem has not lost its relevance even now.
Inconsistency with challenges in the field of human rights
In 2005, the European Court of Human Rights delivered 100 judgements against Ukraine; in 2006, 119; in 2007, 120; from 2001 to 2004, a total of 23 judgements were delivered. The number of cases considered by the Court against Ukraine is increasing catastrophically, and according to experts, this trend will intensify. One of the probable reasons for this is the inconsistency of state policy with the challenges in the field of ensuring and respecting human rights, in particular in the field of freedom from torture and the prohibition of cruel, inhuman or degrading treatment and punishment.
Perhaps, with the aim of correcting the situation as quickly as possible, Ukraine did not take advantage of the right granted to participating countries in accordance with Article 24 of the Protocol: to postpone the implementation of its obligations. This means that no later than one year after the entry into force of this Protocol, the country must maintain, designate, or establish one or several independent national preventive mechanisms for the prevention of torture at the national level. More than two years have passed since it entered into force, and what has actually been done during these years?
Let us recall that in accordance with the Protocol, countries that have ratified it must:
a) establish a system and mechanisms for national control, carried out by independent national and international bodies, over places of detention;
b) create a global system of regular visits, carried out by independent international and national bodies, to places where persons are deprived of their liberty, with the aim of preventing torture.
For this purpose, a Subcommittee on Prevention of Torture is being established within the UN system, which acts as a coordinating body.
However, in Ukraine, it has not yet been decided at the state level where and in what way the institution that will coordinate the activities of the national preventive mechanism for the prevention of torture should be formed. Discussions around this have been ongoing for more than two years. Many hopes were placed on the Ukrainian Parliament Commissioner for Human Rights, since the ratification law assigned responsibility for the implementation of the Protocol to this structure. Indeed, the most acceptable position among the existing ones is the idea of creating such an institution within the secretariat of the Ukrainian Parliament Commissioner for Human Rights.
The Parliament Commissioner has very broad powers (including regarding places of detention, pre-trial detention, institutions where convicts serve their sentences, institutions for compulsory treatment and re-education, psychiatric hospitals, etc.). The Commissioner is obliged to submit an annual report to the Verkhovna Rada of Ukraine on the state of observance and protection of human and civil rights and freedoms in Ukraine. Admittedly, the last one was considered in the summer of 2005, and, contrary to the law, no more reports have been submitted.
Prevention mechanisms
In the meantime, neighbouring countries that have signed or already ratified the Optional Protocol against Torture are demonstrating progress in the field of protecting their citizens from torture. In early October 2008, at the invitation of the OSCE Project Coordinator in Ukraine, the Ministry of Internal Affairs of Ukraine, and the non-governmental organisation ‘Kharkiv Institute for Social Research’, participants of national preventive mechanisms for the prevention of torture from the United Kingdom, Romania, Finland, Moldova, Bulgaria, Switzerland, Slovenia, and Ukraine gathered in Ukraine to exchange experience of work in this field.
In Bulgaria (which has not yet ratified the Protocol but is preparing to do so), the Open Society Institute and the National Police Directorate have been implementing a project since 2005 for visiting places of deprivation of liberty by specially trained volunteers in accordance with the provisions on national preventive mechanisms. Members of the Bulgarian Helsinki Committee, based on a special agreement with the Ministry of Justice, carry out independent monitoring of penal institutions. They have special identification cards that grant them the right to enter prisons accompanied by an officer, conduct interviews with detainees, and familiarise themselves with prison documentation. Annually, they compile reports with recommendations on improving legislation.
In Slovenia, the tasks and powers of national preventive mechanisms are implemented by the Ombudsman, as well as, with his consent (which is very interesting), by civil society organisations registered in Slovenia.
In Poland, the Commissioner for Human Rights Protection has been chosen as the national preventive mechanism.
In Moldova, an advisory council of eleven people has been created under the Centre for Human Rights, headed by one of the three Moldovan Ombudsmen. Ten members of the council are elected from representatives of civil society. The council began its monitoring work in April 2008.
Finland approached the ratification of the Protocol, which it signed back in 2003, very cautiously. An intergovernmental working group on the ratification of the Protocol was created there, which already at its first meeting concluded that the Parliamentary Ombudsman of Finland is the most suitable institution to perform the functions of a national preventive mechanism. Ratification of the Protocol by the Parliament of Finland is planned for the end of October.
In Romania, visits to places of deprivation of liberty are coordinated by the Coordinating Committee of the Civil Inspection Service.
In the United Kingdom, there are more than thirty national preventive mechanisms. One of them is the work of the Association of Independent Monitoring Boards, which has been operating for more than ten years. The Association is a non-governmental organisation that cooperates with the police, police authorities, local communities, and government bodies. The goal of the association’s activity is to improve mutual understanding between the police and the community. Independent prison monitors are members of local communities who visit police stations without notice to check the conditions of detention and the treatment of detainees. The organisation of independent visits is a duty of every police authority jointly with the Chief Constables.
Similar examples could be continued.
As for Ukraine, the only current precursors to preventive mechanisms and visits are the mobile groups for monitoring human rights compliance in the activities of internal affairs bodies, created within the system of the Ministry of Internal Affairs of Ukraine in cooperation with civil society organisations.
Overcoming resistance
What is a visit? Why is the creation of a system of visits emphasised in international documents? Yes, Article 3 of the Protocol against Torture directly states that each State Party shall establish, designate or maintain at the national level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.
Why is it so difficult to overcome the resistance both within the police system and outside it, through which supporters and ideologues of mobile groups are making their way? According to national legislation, prosecutors, the Ukrainian Parliament Commissioner for Human Rights, and investigators have access to places of deprivation of liberty and the persons held there. But they are all officials who enter there in connection with the performance of their official duties. Representatives of civil society organisations, local communities, and human rights defenders could not enter special institutions. However, it is known that closed conditions create a basis for violations, cruel treatment, and the use of torture. To break such a situation, a system of regular independent visits to all places of deprivation of liberty was proposed, as well as those where a person is dependent on staff (psychiatric hospitals, children’s boarding schools, nursing homes, army units, etc.).
The ideology of visiting places of deprivation of liberty was laid down in the European Convention for the Prevention of Torture, according to which every two years a group of international experts from the European Committee for the Prevention of Torture carries out regular visits to the participating countries. The time of such visits is communicated to the country, but the places where the experts will go are kept secret, which corresponds to the principle of surprise. The positive European experience was taken into account during the preparation of the Optional Protocol to the UN Convention against Torture — thus, the system of visits turned into a global mechanism for monitoring human rights compliance in closed institutions.
The creation of mobile groups for human rights compliance was necessitated by the need to counter human rights violations by police officers. At the time of the creation of mobile groups in Ukraine, there was no similar experience in other European countries, except for the United Kingdom. In 2006—2007, similar forms of public monitoring appeared in the Republic of Moldova, the Republic of Armenia, and Romania.
The work of mobile groups is based on the principles of legality, humanism, objectivity, impartiality, and non-interference in the operational and official activities of internal affairs bodies, professionalism, and accessibility for broad segments of the public and the media. Participation of civil society organisations is a mandatory condition for the departure of a mobile group. The conclusions contained in the monitoring reports are advisory in nature and, according to the regulations, must be taken into account by internal affairs bodies. During 2006—2008, mobile groups carried out more than 400 visits (85 of them in August 2008 alone) and inspected approximately 80 per cent of temporary detention facilities. Their work, thanks to the creation of the Department for Monitoring Human Rights Compliance in the Activities of Internal Affairs Bodies and the activities of the Minister’s assistants on human rights, has been established in all regions of Ukraine. Among the main systematic human rights violations by internal affairs officers at the stage of initiating criminal proceedings and in administrative proceedings, the following are recorded during monitoring: the use of administrative procedure (administrative detention) for collecting evidence regarding a citizen’s involvement in committing a criminal act; the use of physical force during detention, even when such measures are not strictly necessary as indicated by law; formalism in explaining rights to suspects of a crime, which is reduced to signing a protocol on the explanation of rights in accordance with current legislation; obstruction of the participation of a defence lawyer in criminal and administrative proceedings; unjustified refusals to satisfy motions of defence lawyers and suspects/accused persons themselves; violation of the procedure for familiarising interested parties with the materials of a criminal case; the lack of opportunity to involve a free defence lawyer in the process; even when such involvement takes place, it is very often nominal in nature; violation of the existing procedure for detention on suspicion of committing a crime; non-compliance of conditions of detention of arrested persons even with national standards (area per person, sanitary and hygienic conditions, nutrition; errors in maintaining documentation, which sometimes leads to the ‘disappearance’ of a person, etc.).
Mobile groups
Initiatives of the Ministry of Internal Affairs of Ukraine, civil society, and international organisations regarding the creation and development of the activities of mobile groups for monitoring human rights compliance in bodies and units of the Ministry of Internal Affairs can be viewed as a positive attempt by one law enforcement agency to carry out monitoring and preventive activities, and on the other hand, as the formation of a model that can subsequently be used at the national level. At the same time, mobile groups do not replace a national preventive mechanism and do not negate the necessity of its creation.
The success of the experience of the work of mobile groups is recognised by international organisations and the world community. Thus, during Ukraine’s reporting at the UN Human Rights Council in May 2008, representatives of twenty-three countries noted the creation and activity of mobile groups as a serious achievement in their speeches regarding its report. Council of Europe Commissioner Thomas Hammarberg also supported the joint initiative of the Ukrainian police and the public. This conclusion provides grounds to predict the possibility of extending such activities to other law enforcement agencies that have places of deprivation of liberty within their jurisdiction, first of all, the State Department of Ukraine for the Execution of Sentences, as well as other state structures that include institutions where staying is a certain limitation of freedom — the Ministries of Health, Defence, Labour and Social Policy, Education and Science of Ukraine, etc. Moreover, Article 4 defines that deprivation of liberty means not only any form of detention or imprisonment, but also the placement of a person in a public or private place of detention which that person is not permitted to leave at will.
Such work must take place with consideration of the principles of openness, discussion, and the involvement of civil society institutions, scientists, and international and non-governmental organisations, as recommended by the Subcommittee on Prevention of the UN Committee against Torture: ‘national preventive mechanisms should be established publicly, with the participation of all civil society agents for the prevention of torture, and on a transparent basis’. Knowing the experience and realities of Ukraine, it can be predicted that transparency and publicity may become the greatest challenge in this area for our state.
19.01.2009,
Holos Ukrainy