National mechanisms for safeguarding human rights in Ukraine

K. Levchenko, doctor of law, PhD, State Deputy, President of the International women’s human rights organization  “La Strada – Ukraine”[1]

Ladies and gentlemen!

The problem of safeguarding human rights remains as relevant as ever. Even the 10-year anniversary of the adoption of the Constitution of Ukraine, which proclaims the entire spectrum of human rights in compliance with the Universal Declaration of Human Rights, gives grounds for the conclusion that in all areas of our life problems exist relating to the non-observance, violation and neglect of human rights.

Unfortunately, for many people human rights are an abstract category, and for many political figures – something to be manipulated and speculated upon.

I welcome the organizers of this seminar, the Kharkiv Human Rights Protection Group and the Kharkiv Institute of Social Research, which, joining theoretical and practical experience, have for many years been active in defending, researching, promoting and teaching about human rights, and building support. I would like also to thank the organizers for their selfless work in this area.

I will present some data reflecting both the level of violation of human rights by the Ukrainian police and the lack of openness about these violations.

According to data from the Internal Security Department of the Ministry of Internal Affairs, in 2005 more than 17 thousand complaints against illegal actions of police officers were received by the sub-units of internal security. As a result of checks, 2,208 cases were confirmed, this being 13% of their total number. As many as 4.1 thousand files were directed to agencies of the prosecutor’s office and the SBU (Security Service), and 353 criminal investigations were instituted, 144 protocols on corrupt activities were compiled, charges were  laid again 2,072 individuals and 190 out of them were dismissed from law enforcement agencies. Overall in the past year, 685 criminal investigations were launched against police officers on material from internal security sub-units, this being 3.1 times more than in the previous year (221). 146 former officers were convicted.

Last year 93 criminal investigations were launched on material from the same sub-units regarding violations of constitutional civil rights while police officers were carrying out their work. Among these cases 72 concerned misuse of power or authority, 5 – torture, 1 – illegal deprivation of power and 1 -  negligence.

The most frequent violations were

-  infliction of bodily injuries – 53 cases;

-  illegal detention – 13;

-  illegal holding in administrative rooms – 11;

-  unsanctioned searches and examinations – 8.

The greatest number of criminal investigations in such cases were initiated in the Donetsk region – 10, Crimean Republic – 9, Kyiv – 8, the Odessa region – 8 and the Chernihiv region – 6.

The mentioned violations of rights and freedoms are specific, first of all, to officers of detective inquiry, district stations, road police, investigation departments, departments for fighting the illegal circulation of narcotics and organized crime.

So what does such data show?  Is it very much or not, and is it a real reflection of the situation? The questions are rhetorical, because everybody knows that the real situation with violation of human rights is different. If one views the facts impartially, one must acknowledge that mechanism for preventing such crimes do not work.

I have thus reached the topic of my speech – national mechanisms for safeguarding human rights in Ukraine.

There are three main subjects for consideration:

- National mechanism for safeguarding human rights;

- Law draft No. 0003 of 25 May 2006, submitted to the Verkhovna Rada on behalf of the President of Ukraine, on ratifying the Optional Protocol to the UN Convention against torture, other cruel, inhuman or degrading treatment and punishment (OPCAT)t.

- the authority of the Human Rights Ombudsperson in implementing provisions of the above-mentioned Protocol.

These three subjects are interrelated and they are topical in the context of our seminar.

We frequently use the term “national mechanism” regarding this or that direction of state policy, but at that we rarely think about the meaning of this term. It would therefore be sensible, before discussing such mechanisms in Ukraine to provide a definition of the term  “national mechanism”. It should also be stressed that safeguarding human rights is a significant and fundamental part of state policy and (must be) a component of any policy.

Ukrainian authors often use the term about gender policy, but they concentrate on describing activities in forming and implementing the policy, as well as the analysis of international legal tools

Let us consider world experience in interpreting national mechanisms for implementation of some political course. Since for many years I have studied forming and implementation of gender policy at international and national levels, where the term “national mechanism” is used very actively, I will use the method of comparative analogy.

The role of national mechanisms is complex and involves developing and introducing a specific political course. They must be formed and work to develop, encourage, implement, enforce, monitor and  assess, as well as enabling propaganda and mobilization of support for a specific direction of policy.

We should now look at this problem from another angle. The existence of one institution, one national agency, one subject of policy and state body is not sufficient to carry out complex work: it is necessary to create a national mechanism.

Even etymological analysis of this term gives the grounds to affirm that “a mechanism implies the presence of at least two components, which interact with each other”. This principle of interaction is very important, and can be actually be definitive for a national mechanism.

Let us read farther: “A national mechanism, along with its function to join the development of legislation with its implementation (i.e. legislative and executive branches of power), must provide the conducting of studies, training courses, development of special projects and programs of actions. Thus, non-governmental organizations are a part of this mechanism” [1, p. 10].

The main demands from a national mechanism:

1.  To be subordinate to a state official at the highest possible level.

2.  To implement decentralized planning, execution and control in order to involve the public

3.  To be provided with necessary human, financial and material-technical resources.

The central structure of a national mechanism can exist:

1.  at the parliamentary level.

2.  at  the level of organs of central executive power.

3.  as an independent structure.

In this case, the committees and councils (interdepartmental and parliamentary) can only be considered as the central component of a national mechanism, when the provisions on their activities envisage the need for involving third (outside) agencies and organizations to develop and implement the plans.

“The structural components of a national mechanism depend on the tasks they were created for. It is clear that the mechanism is not only in the independent existence of institutionalized structures, but also the in the interaction between them, their cooperation, which is not restricted with the relations of subordination. Contrary to the process of government, where vertical interrelations between vertical subjects of government are established distinctly, a national mechanism includes organizations, establishments and agencies, which are not subordinate to each other, but which work in one direction. This is why it is urgently necessary to adjust and coordinate their activities and efforts. Besides, non-governmental and international organizations, research and scientific establishments and mass media are integral parts of a national mechanism too” [1, p. 10].

Components of the national mechanism for safeguarding human rights in Ukraine

The Verkhovna Rada Committee on Human Rights, National Minorities and Interethnic relations 

Other committees of the Verkhovna Rada on ensuring and safeguarding human rights (legislative provision of law enforcement activities) 

The Human Rights Ombudsperson

The Prosecutor General’s office

Institution of lawyers (for rendering legal aid) 

The Ministry of Internal Affairs of Ukraine (in forming and developing interdepartmental monitoring over prevention of torture) 

The Ministry of Justice of Ukraine (in particular, the National Office on the Observance of the European Convention of Human Rights and Freedoms)  

Other central organs of executive power (in the part of provision and protection of human rights)

Human rights organizations (national and international)  

Scientific research establishments

Mass media

Basic components of the national mechanism are:

-  The Prosecutor General’s office[2].

-  Supreme Council Committee in charge of human rights, national minorities and interethnic relations.

-  Other committees of the Supreme Council in the sphere of activities for provision and protection of human rights (legislative provision of law-enforcing activities).

-  Human rights ombudsperson, according to the Law of Ukraine “On ombudsperson”.

-  Institution of lawyers (institution of rendering of legal aid).

-  The MIA (in the part of forming and development of interdepartmental control over prevention of torture).

-  The Ministry of Justice of Ukraine (in particular, the National Bureau in charge of observance of the European Convention of human rights and freedoms)

-  Other central organs of executive power (in the part of provision and protection of human rights).

-  Human rights protecting organizations (national and international).

-  Scientific-research establishments.

-  Mass media.

I have presented this list of components but would not wish to suggest that this list is complete and exhaustive.

Protection from torture and other cruel, inhuman or degrading treatment and punishment in Ukraine is implemented on the basis of several normative-legal acts, such as the Constitution of Ukraine, Criminal Code of Ukraine, Criminal Procedure Code of Ukraine, the Penal Code, the Law “On the prosecutor’s office”, the Decree of the President of Ukraine “On Provisions regarding  the State department for the execution of sentences” of 31 July 1998 No. 827.

In addition, the following international agreements are binding for Ukraine: the Convention against torture and other cruel, inhuman or degrading treatment and punishment of 10 December 1984, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

of 26 November 1987, and Protocols Nos. 1 and 2 to the latter of 4 November 1993.

Normative-legal provision, together with information and scientific and methodological backup are an integral part of the document mechanism. Therefore, in considering national mechanisms for safeguarding human rights in Ukraine, I propose moving away from a  purely institutional approach (when a mechanism is considered as the activity of only one institution), but to use a system approach, which makes it possible not only to make a comprehensive analysis, but also to consider the interrelated components of the mechanism.

Undoubtedly, an important step in the process of development and strengthening of Ukrainian national mechanisms will be Ukraine’s ratification of OPCAT [3], the main goal of which is to create a system and mechanisms for national control, carried out by independent national and international bodies of penal institutions to protect people against torture, cruel, inhuman or degrading treatment. As the explanatory note to the draft Law  “On ratification of the Optional Protocol to the UN Convention against torture, other cruel, inhuman or degrading treatment and punishment, “ratification of the Protocol will confirm firmness of Ukraine’s position regarding the safeguarding of and respect for the rights and fundamental freedoms of all people, in particular, the right of persons deprived of their liberty. Ratification should also create the legal conditions needed for coordination and cooperation between Ukraine and other states in the protection of people deprived of their liberty from torture and ill-treatment.  The Protocol makes it possible to strengthen such protection on the basis of non-judicial preventive measures. Efforts to eliminate torture should be first of all directed at prevention, this requiring the use of measures involving education and the uniting of various legislative, administrative, judicial and other measures.

According to the provisions of the Protocol, every member state must establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

 The Protocol therefore seeks to introduce the European system of control at world level.

The Protocol contains provisions envisaging the creation within the UN system of a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture and stipulates its functions and authority. This Subcommittee acts as a coordinating body.

In addition the Protocol binds all member states set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment. 

The system of visits should thus become an element of the national mechanism for safeguarding human rights. This means that the mechanism refers to the system and not any specific body set up to carry out such visits.  The issue of who the responsible body is remains very important.

Article 18 § 1 and 2 of the Protocol point to the functional independence of the national preventive mechanisms, as well as the independence of their personnel.

The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanism have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.

Article 19 states the following:

The national preventive mechanisms shall be granted at a minimum the power:

(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

(c) To submit proposals and observations concerning existing or draft legislation.

Member states undertake to publish and disseminate the annual reports of the national preventive mechanisms (Article 23).

All of this concerns the provisions of the international document. Now let us consider the draft Law on ratifying the Protocol, or more exactly, the explanatory note.

Paragraph 5 of the note clearly states that “participation of Ukraine in the Protocol does not entail any financial obligations”. So, the support of national visiting bodies for the prevention of torture can be achieved without expense.  I want to point out that this provision of the draft law contradicts paragraph 3 of Article 18 of the Protocol, which reads: “State-members are obliged to make available the necessary resources for the functioning of the national preventive mechanisms”.

1.  The fact that expenditure is not allowed for can mean:

-  that financing implementing the provisions of the protocol must be achieved in the framework of funds allotted for the year to the specific body;;

-  the wish to get the document past financial institutions;

-  a formal approach to the process of ratification.

2.  Implementation of the Protocol will be provided by the Human Rights Ombudsperson..

Should we accept this scheme? Maybe separate, absolutely independent should be created, as the protocol demands? In order to answer these questions one must reread the Law of Ukraine “On the Human Rights Ombudsperson of Ukraine”.

The Human Rights Ombudsperson has very wide authorities. So, according to Article 13 of the Law, he/she has the right to visit at any time places where people are detained, temporary detention centres, penal institutions and institutions for mandatory medical treatment and re-education, psychiatric hospitals; to question people there and to obtain information about their conditions; to monitor the observance of rights and freedoms by the corresponding authorities, including bodies carrying out investigative operations.

A person deprived of liberty can address a written complaint to the Ombudsperson or his/her representatives. In this case restrictions on correspondence are not applied. Such complaints are sent on within 24 hours. Letters sent to the Ombudsperson or his/her representatives from those in custody, places of mandatory  treatment, as well as other citizens of Ukraine, foreign nationals and stateless individuals, regardless of their address, are not liable to any kinds of censorship and checks (Article 21).

State authorities, bodies of local self-government, citizens’ associations, establishments, enterprises and organizations, regardless of their form of property, and their state and public officials who violated through their actions (omissions) human rights and civil liberties, to whom the ombudsperson turns, are obliged to cooperate and render all necessary assistance: 1) ensuring access to material, including those which normative acts classify as state or official secrets; 2) providing information and explanations about the actual and legal basis for their actions and decisions (Article 22).

During the first quarter of every year the Ombudsperson presents to the Verkhovna Rada an annual report on the observance and protection of human rights and freedoms by state authorities, bodies of local self-government, citizens’ associations, establishments, enterprises and organizations, regardless of their form of property and their state and public officials who violated through their actions (omissions) human rights and civil liberties as well as on shortcomings identified in legislation on protection of rights and civil freedoms (Article 18). The annual report must give information about any cases of violation of human rights and freedoms, regarding which the Ombudsperson has taken necessary measures, on the results of checks carried out during the year, conclusions and recommendations aimed at improvement of the state of provision of citizens’ rights and freedoms.

In case of need the ombudsperson can submit to the Verkhovna Rada of Ukraine a special report (reports) on separate issues involving the observance in Ukraine of rights and civil liberties. The Ombudsperson takes part in preparing reports on human rights made by Ukraine for international organizations pursuant to international agreements, where the Verkhovna Rada agreed to make these agreements binding (Article 19). A consultative council can be founded at within the Ombudsperson’s office for consultation, research and to study proposals for improving protection of human rights and freedoms. The council would include people with experience of work in the sphere of protection of human and citizens’ rights and freedoms.

As to the independence of the Human Rights Ombudsperson, Article 8 of the relevant Law reads: “The Human Rights Ombudsperson cannot be a people’s representative, occupy any other posts in the bodies of state power, fulfil other paid or unpaid work in the bodies of state power, bodies of local self-government, citizens’ associations, establishments, enterprises and organizations, regardless of their form of property, except teaching, scientific or other creative activities. He or she may not be a member of any political party”. Thus, the principles of independence, impartiality and non-membership in parties must be fundamental to the activities of the Human Rights Ombudsperson. .

Yet, the authorities stipulated by law are not sufficient without the effective mechanism for their application. From our viewpoint, this means that a corresponding working body (department, workgroup, sector) should be created in the Ombudsperson’s office, which will assume such obligations, or a special representative must be appointed in the Secretariat of the Ombudsperson, who will be occupied only with these questions.

Article 11 of the Law of Ukraine on the Human Rights Ombudsperson states that the Ombudsperson has the right to appoint representatives within the limits of the funds allotted by the Verkhovna Rada of Ukraine. The Resolution on representatives of the Ombudsperson is approved by the Ombudsperson.

In addition, the lack of such representatives in the regions, not to mention towns, complicates the fulfilment of this task. In the eight years that the office of Ombudsperson has existed, this system has not been created despite allocation by international organizations of funds for these activities.

Without doubt, under the conditions of rather low efficiency of work of the Human Rights Ombudsperson, in particular, on the level of coordination and consolidation of efforts, the question arises about efficiency of work in the newly created direction.

According to data from the MIA Internal Security Department, during 2005 not a single request or proposal was received from the Ombudsperson on carrying out joint checks of activities of law enforcement agencies, although such form of work is envisaged by the Agreement on cooperation between the MIA and the Ombudsperson, this involving visits to places of deprivation of liberty.

  In addition, we have the situation where the current Ombudsperson has become a member of a political party, thus violating the principles of non-membership and impartiality.

One more question, which is very important in my opinion, is participation of the human rights community in the work of national preventive mechanisms.

The experience of the mobile groups in questions of observance of human rights in work of the MIA, which can be regarded as a part of the mechanism for internal control, and whose activities imply active cooperation with public human rights organizations, give grounds for stressing the importance and need for such joint work. On 6 July 2005 Order No. 536 of the Ministry of Internal Affairs “On the creation of permanently functioning mobile groups for monitoring observance of human rights in the work of law enforcement agencies and approval of the Resolution on these groups” was issued. The mobile groups do not replace the national mechanism for prevention of torture, but they can be regarded as a part of a future national mechanism for prevention of torture, which must be created after ratification of OPCAT. At the initiative of the Public Council for the Observance of Human Rights,, this Order has now been improved taking into account negative and positive experience and should be approved in July 2006.

The experience of creation and work of the Public Council for the Observance of Human Rights also should be taken into consideration during the creation of national institutions.

However, the Protocol does not contain the provisions on involvement of society in such work.

We suggest the following measures for forming efficient mechanisms for the protection of human rights in Ukraine, in particular, the right to freedom from torture and cruel treatment:

1.  Within the Ombudsperson’s Secretariat to create the post of separate representative responsible for the observance of OPCAT.

2.  To immediately form representative offices of the Human Rights Ombudsperson in the regions to carry out monitoring work and visiting places where people are deprived of their liberty..

3.  To develop and introduce the information, scientific and methodology backup for  the work connected with such visits.

4.  To engage in this work civic human rights organizations.

5.  To adapt the experience of the Ministry of Internal Affairs with mobile groups in issues involving the observance of human rights and the Public Council for the Observance of Human Rights under the MIA.

Doubtlessly, it is necessary to take other steps too. All questions, which have been considered in my speech, all ideas and propositions, must be discussed. I invite all participants of the seminar to join this discussion..

Thank you for your attention.

[1] From September 2005 to May 2006 K. Levchenko worked as a Advisor to the Minister of Internal Affairs on human rights and gender issues. She is a member of the MIA Public Council for the Observance of Human Rights.

[2]  According to Article 18 of the Regulations temporary detention of individuals suspected of a crime under Article 106-1 of the Criminal Procedure Code, supervision over observance of laws in the places, where suspects are held, is the responsibility of the Prosecutor General of Ukraine and prosecutor’s offices pursuant to the Law of Ukraine “On the prosecutor’s office”. Article 22 of the Law of Ukraine “On pretrial detention” reads that supervision over observance of laws in pretrial detention centres is undertaken by the Prosecutor General of Ukraine and prosecutor’s offices pursuant to the same law. According to the Law of Ukraine “On the police”, control of the activities of police is carried out by the Cabinet of Ministers of Ukraine, within the limits of authorities of the Council of State Deputies (Article 26); supervision over observance of laws by police is carried out  by the Prosecutor General of Ukraine and prosecutor’s offices (Article 27).

[3] Optional Protocol to the UN Convention against Torture (OPCAT, ratified by 20 countries of the world, came into force on 22 June 2006