Has the Human Rights Ombudsperson got sick of bothering about torture?
The European Committee against Torture put together reports following investigative visits to Ukraine in 1998, 1999, 2001, 2003 and 2005. In all of them it stressed that a number of tasks and recommendations made by the Parliamentary Assembly of the Council of Europe had not been acted upon. One of these was the lack of effective mechanisms for preventing torture.
On 21 July 2007 it will be a year since Ukraine ratified the Optional Protocol to the UN Convention against Torture [OPCAT]. That means that (in compliance with Article 17 of the Protocol) by that date Ukraine must create a national preventive mechanism for the prevention of torture, inhuman or degrading treatment or punishment.
At one time the Ukrainian Human Rights Ombudsperson was active in calling for ratification as soon as possible of OPCAT.
On 4 July 2005, she addressed an appeal to President Yushchenko “On the need for ratification by Ukraine of the Optional Protocol from 2002 to the UN Convention against Torture. Nina Karpachova then expressed concern at procrastination over ratifying it and at violations of the rights of prisoners. “People suspected of offences are systematically subjected to torture in police stations, usually to force a confession out of them. Police officers furthermore beat those detained over a prolonged period, hand them on metal bars, force gas masks on them blocking air and use electric shocks as forms of torture. As a result, many people have received serious injuries, some have died. Criminal investigations have been launched against hundreds of police officers on charges of effectively torturing people”, the Ombudsperson states in her appeal without referring to statistical data in its absence.
Then Nina Karpachova stressed that “the Optional Protocol is an important international agreement which envisages the implementation of specific preventive measures against the use of torture in places of imprisonment. Its ratification will ensure the creation in Ukraine of a new, significantly more effective system for countering such violations of human rights”.
9 months have passed since Ukraine ratified the Protocol however the preventive mechanisms have yet to be created.
According to European practice, in most European countries national preventive mechanisms against torture are created within the office of the Human Rights Ombudsperson. This is the case in France, Austria, Spain, Denmark, Norway, Poland and other countries.
The Subcommittee on Prevention of torture recommends including in such mechanisms committees on human rights, the office of the Human Rights Ombudsperson, parliamentary commissions which are not part of the executive branch of power, and which comply with the requirement for independence stipulated in Article 18 of OPCAT.
In Ukraine it is specifically the office of the Human Rights Ombudsperson which in its formal features best complies with the requirements of OPCAT for creating national preventive mechanisms. According to the Ombudspersons Counsellor [as he presented himself, since due to the lack of openness and transparency of the Ombudspersons office, we know nothing about its structure], “the relevant department has been created within the Office of the Human Rights Ombudsperson, with operational mobile groups to respond to various negative features. The groups are regularly in temporary holding rooms and holding centres [ITT], in remand centres, penal colonies, prisons, psychiatric and special hospitals and guardhouses, and the Ombudsperson personally takes part in such checks”.
It should be mentioned that when ratifying the Protocol, the Verkhovna Rada suggested placing the duties to implement it on the Ombudsperson.
On 21 December 2006, at the initiative of the Verkhovna Rada Committee on legislative backup for law enforcement work, the Kharkiv Human Rights Protection Group and the International Womens Human Rights Centre “La Strada – Ukraine”, a first roundtable was held on forming and developing national preventive mechanisms against torture. It was attended by representatives of the Ministry of Justice, the prosecutors office, the State Department for the Execution of Sentences, National Deputies, independent experts and representatives from human rights organizations.
It was stressed during this meeting that the situation as far as the rights and freedoms of prisoners and those detained remains far removed from generally recognized international norms. Recommendations were drawn up, including the proposal that the Human Rights Ombudsperson introduce a separate representative responsible for ensuring observance of the provisions of OPCAT and that representative offices of the Ombudsperson be set up without delay in the regions to carry out monitoring work and visits to places of imprisonment.
However the Ombudsperson who had been so concerned about the need to ratify the Optional Protocol refused to take on the functions envisaged by this Protocol. “We are ready to provide assistance in creating a special structure, to cooperate with it at a professional level, however it would be entirely unacceptable to impose the said functions in accordance with the Optional Protocol on the Human Rights Ombudsperson”, the same Counsellor to the Ombudsperson stated at the roundtable.
On 19 April 2007 a second roundtable was heard, but this time without the participation of representatives from the Human Rights Ombudspersons Secretariat.
The roundtable again highlighted the fact that Ukraine is still not adhering to European standards which stress that while a person may be deprived of certain rights, others, the right to life, health, justice and a fair trial, humane treatment, respect of dignity and protection from torture and ill-treatment, remain inalienable.
Among the positive moves which had taken place over the previous months, experts mentioned, were the more energetic cooperation between human rights organizations and State bodies, with Public Councils being created attached to the Ministry of Internal Affairs and mobile groups to visit places of deprivation of liberty.
The participants in the roundtable pointed to the total lack of activity from the office of the Human Rights Ombudsperson with regarding to creating national preventive mechanisms against torture. This threatened to delay by three years the beginning of legal force of the already ratified Protocol (foreseen in Article 24 of OPCAT) and damage to Ukraines international image which the same Human Rights Ombudsperson is supposedly concerned about.
Article 1 of the UN Convention against Torture defines torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.
According to the Head of the Verkhovna Rada Committee on legislative backup for law enforcement work, one in five complaints which the Committee receives concerns unlawful ways of getting testimony in the law enforcement agencies.
The use of torture by criminal investigation bodies is so widespread that the Supreme Court has stopped taking “voluntary confessions” into account as having been obtained through unprofessional means when passing judgment.
The Human Rights Ombudsperson states that up to 30% of prisoners are fairly regularly subjected to torture. As of the end of 2006 161.9 thousand people were being held in 182 penal institutions with 1,448 of these serving life sentences.
According to the Governments Representative on European Court of Human Rights affairs, applications to the European Court alleging improper conditions of imprisonment have become system. Just in 2006 11 judgments were passed by the Court in Strasbourg on Article 3 of the Convention (against torture and ill-treatment). As of March 2007, Ukraine had paid out over 58.5 thousand Euros over such conditions.
In the 20 years since Ukraine signed the UN Convention against Torture the problems regarding torture and ill-treatment have remained highly topical.
At the present time cases against Ukraine involving possible violation of Article 3 are under the control of the Committee of Ministers of the Council of Europe. This monitoring will continue until Ukraine eliminates not only specific violations, but the fundamental causes for their systematic nature.