How Ukraine is protecting its citizens against torture
I addressed this issue two years ago in the newspaper “Holos Ukrainy” [“Voice of Ukraine”]. At that stage Ukraine had just ratified the Optional Protocol to the UN Convention against Torture [OPCAT] which come into force on 22 June 2006. The President had signed the ratification law and everybody was waiting for implementation of the provisions, particularly given the fact that the problem of torture, especially by the law enforcement agencies was and remains a serious problem.
Failure to meet challenges in the sphere of human rights
In 2005 the European Court of Human Rights handed down 100 judgments against Ukraine; in 2006 – 119; in 2007 – 120, whereas from 2001 to 2004 there were only 23 judgments. The numbers are rising catastrophically and are expected by experts to increase still further.
One of the likely reasons for this is the failure of State policy to meet demands with regard to human rights, including over the prohibition against torture and ill-treatment.
Perhaps specifically in order to improve the situation, Ukraine did not make use of the right which participating members have to, according to Article 24 of the Protocol, to postpone implementation of their commitments. This means that not later than one year after the Protocol comes into force, the State Party shall maintain, designate or establish one or several independent national preventive mechanisms for the prevention of torture at the domestic level. More than two years have passed since the Protocol became binding on Ukraine and what has been done?
The Protocol states that each State Party shall:
a) set up a system and mechanisms of national control over places of deprivation of liberty, carried out by independent domestic and international bodies;
b) create a global system for regular visits carried out by independent domestic and international bodies.
For this purpose, within the UN system, a Subcommittee on Prevention of Torture is created which acts as coordinating body. Yet in Ukraine at state level it has not been resolved where and how a body to coordinate the national preventive mechanism against torture should be created.
Discussions have been continuing for more than two years. A lot of hope was pinned on the Human Rights Ombudsperson with whom the ratification law placed responsibility for implementing the Protocol. Indeed of the present options, the most acceptable is that of creating such an institution within the Secretariat of the Human Rights Ombudsperson.
The Ombudsperson has very broad powers (including with regard to places of detention, pre-trial imprisonment and penal institutions, as well as institutions where people are made to undergo treatment, re-education, psychiatric hospitals, and so forth). The Ombudsperson is obliged to provide the Verkhovna Rada with an annual report on how human rights and civil liberties are being observed and defended in Ukraine. In fact the most recent of these was from summer 2005, and in breach of the law, none has been presented since.
At the same time other countries which have signed or already ratified OPCAT, are demonstrating progress in protecting their citizens from torture. At the beginning of October 2008, at the invitation of the
OSCE Project Co-ordinator in Ukraine, the Ministry of Internal Affairs and civic organizations, as well as the Kharkiv Institute for Social Research, representatives from the UK, Romania, Finland, Moldova, Bulgaria, Switzerland, Slovenia and Ukraine shared their experience of running national preventive mechanisms.
Bulgaria has yet to ratify the Protocol, although is preparing to do so. Since 2005 the Open Society Institute and the National Police Directorate have been carrying out a project of visits to places of deprivation of liberty by specially trained volunteers in accordance with provisions on national preventive mechanisms. Members of the Bulgarian Helsinki Committee, on the basis of an agreement with the Ministry of Justice, carry out independent monitoring of penal institutions. They have special passes allowing them to enter prisons accompanied by an officer, talk with people detained, and see prison documentation. They prepare annual reports with recommendations on improvements to legislation.
In Slovenia the tasks and powers involved with national preventive mechanisms are vested with the Ombudsperson, as well (which is interesting) with civic organizations registered in the country.
In Poland the Commissar for the Defence of Civil Rights is in charge of national preventive mechanisms.
In Moldova a consultative council with 11 members has been created attached to the Human Rights Centre which is headed by one of the three Ombudspersons. Ten members are elected from representatives of civic society. The Council began monitoring work in April 2008.
The list of examples can be continued.
As for Ukraine, for the present the only prototype of national preventive mechanisms and visits are the mobile groups on monitoring human rights in the work of the law enforcement agencies created within the MIA system, in cooperation with civic organizations.
What are these visits and why is the importance of creating a system of visits stressed in international documents? According to Article 3 of OPCAT, “Each State Party shall 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 (hereinafter referred to as the national preventive mechanism.”
Why is it so difficult to overcome opposition both within the police system and outside it to mobile groups? According to domestic legislation, access to places of deprivation of liberty and people held there is available to the Prosecutor, the Human Rights Ombudsperson and investigators. Yet they are all public officials who go there in connection with their official duties. Representatives of civic organizations, local communities and human rights groups cannot get access to closed institutions. Yet it is known that closed institutions prepare the ground for violations, brutal forms of treatment and the use of torture. To break down this situation, a system for regular independent visits of all places of deprivation of liberty, as well as those where a person is dependent on personnel (psychiatric hospitals, childrens homes, homes for the elderly, army subdivisions, etc).
The idea behind such visits is set down in the European Convention against Torture according to which international experts from the European Committee against Torture [CAT] carry out regular visits to member states. The time of such visits is announced, but the places which the experts are to visit is kept secret. Positive European experience was taken into account when preparing the Optional Protocol to the UN Convention against Torture. The system of visits was thus turned into a global mechanism of monitoring of human rights in closed institutions.
The creation of human rights mobile groups was based on the need to counter human rights abuse by police officers. At the time that these were created in Ukraine, only the UK had similar experience. In 2006-2007 such forms of public monitoring appeal in Moldova, Armenia and Romania. The work of the mobile groups is based on the principles of lawfulness, humanity, objectivity, impartiality and non-interference in the operational and official activities of Internal Affairs bodies. The participation of civic organizations is mandatory. The conclusions contained in monitoring reports are of an advisory nature but in accordance with regulations must be taken into account by MIA bodies.
Since 2006, mobile groups have made more than 400 visits (including 85 just in August 2008) and have examined approximately 80 percent of all temporary holding facilities [ITT]. Their work has been facilitated thanks to the creation of a Department for Monitoring Observance of Human Rights by MIA bodies and the work of Human Rights Advisors to the Minister.
The following main systematic violations by police officers before a criminal investigation is formally initiated and during the administrative process were identified by the monitoring:
The use of administrative procedure (administrative detention) in order to gather evidence regarding the possible involvement by the person in criminal activities;
The use of physical force during detention, even where these measures were not absolutely necessary, according to the law;
A formal approach to explaining to suspects what their rights are, boiling down to simply signing a protocol that this explanation has been given in accordance with legislation;
Obstructing participation by a defender in the criminal and administrative processes;
Unwarranted refusals to allow applications from the defender or the suspects or accused themselves;
Infringement of the procedure enabling interested parties to become familiar with the material of the criminal file;
The lack of opportunity to engage a free defender up to the trial; even when a person is brought in, this is often of a merely formal nature;
The infringement of existing procedure for detention on suspicion of committing a crim;
The non-compliance of conditions in which those arrested are held even with domestic norms (space per person, sanitary and hygienic conditions, food, mistakes in filling in documents sometimes leading to a person “being lost”, etc.
The initiative by the MIA, civic and international organizations on creating and developing mobile groups monitoring observance of human rights in the bodies and subdivisions of the MIA can be considered a positive attempt by one enforcement body to carry out monitoring and preventative work, while also formulating a model which can be used at the national level. Mobile groups do not however substitute national preventive mechanisms and do not remove the need to create the latter.
The success of the experience with mobile groups has been recognized by international organizations and the world community. They were noted during Ukraines reporting to the UN Human Rights Committee in May 2008 as a serious achievement. Council of Europe Human Rights Commissar Thomas Hammerburg has supported this common initiative by the police and civic society. There are thus grounds for predicting that this activity will be extended to other law enforcement bodies responsible for places of deprivation of liberty. This would be first and foremost the State Department for the Execution of Sentences, as well as other State structures which have institutions involving certain restriction of liberty – the Ministries of Health, Defence, Employment and Social Policy, of Education and Science, etc. This is appropriate since Article 4 states that “deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”
This work should be carried out bearing in mind the principles of openness, discussion, involvement of the institutions of civic society, scholars, international and non-government organizations. As recommended by the Subcommittee on Prevention of the UN Committee against Torture, “national preventive measures should be created publicly with the participation of all agents of civic society on prevention of torture and on a transparent basis”. Knowing the experience and reality in Ukraine, one can predict that it is specifically transparency and public openness which will present the greatest challenge to our government.
Kateryna Levchenko, Doctor of Law, Professor and Advisor to the Minister of Internal Affairs
Slightly abridged from the original at www.golos.com.ua