UN Working Group on Arbitrary Detention concludes visit to Ukraine
5 November 2008. Kyiv, Ukraine - At the invitation of the Government of Ukraine, the United Nations Working Group on Arbitrary Detention undertook a mission to the country commencing on 22 October which concludes today. The Members, Mr. Malick Sow (of Senegal), Vice-President and Ms. Shaheen Sardar Ali (of Pakistan), Member, welcomed the full cooperation of the Government of Ukraine in the conduct of its mission.
The mission involved meetings and visits to places of detention in Kyiv, Donetsk, Simferopol, Sevastopol, Lviv, Chop, Mukhachevo and Uzhhorod. The Working Group recognized the challenges faced in addressing matters related to detention and noted the progress the Government is making in this regard.
Ms. Shaheen Ali stated “The Cooperation with the Government of Ukraine was excellent with the Working Group having unfettered access to all places where people are deprived of their liberty – prisons, pre-trial, immigration, police, military, juvenile, and in relation to psychiatric patients. We were particularly pleased that we could meet with all types of detainees in personal interviews – some 138 - including those already convicted of offences. This is an example that other countries should follow. Only people who have courage and confidence will lay themselves open to public scrutiny.” In addition 100 collective interviews were undertaken by the Working Group. The detention facilities visited were under the authority, respectively, of the Ministry of Interior - including the police; State Security Service; State Department for the Execution of Sentences; State Border Guard Service; Ministry of Defence; and Ministry of Health. The Working Group encouraged authorities to be equally open to other monitoring elements including those of civil society. The Working Group also met with the First Lady of Ukraine, the Ombudsperson, Justices of the Supreme Court, Appellate Courts and the Constitutional Court, the Prosecutor Generals Office, lawyers, relatives of detainees, representatives of civil society, and international organizations.
The Working Group welcomes the monitoring committees and the Public Councils established under the Ministry of Interior as well as the posts in each oblast of human rights advisors to the Minister of Interior as good practices. With regard to monitoring, the Working Group encourages the State to determine the National Preventive Mechanism(s) as called for under the Optional Protocol to the United Nations Convention against Torture, taking into consideration the existing proto-types already utilized at the national level.
“A new opening on the part of the State to different methods of dealing with alleged crimes including potential alternatives to detention is applauded by the Working Group” said Malick Sow, welcoming new legislative efforts to enhance the protection of the rights of persons in relation to detention and which will assist in addressing some of the concerns of the Working Group. “Each little step forward will help protect the rights of detainees despite continued challenges faced for persons deprived of their liberty. Arbitrary detention has no place in a democratic structure and must be addressed effectively.”
Notwithstanding the positive steps taken the Working Group has a number of concerns including:
access to justice by detainees;
the right to a fair trial;
a lack of independence, and therefore confidence, in lawyers and the judiciary;
the perceived subjective approach to decisions of the Prosecutor Generals Office and the fact that it has both prosecution and oversight powers; and
repeated reports of abuse and torture in particular at the crucial stage of initial arrest and detention.
ANNEX TO THE PRESS RELEASE REGARDING THE WORKING GROUP ON ARBITRARY DETENTIONS COUNTRY VISIT TO UKRAINE
The United Nations Working Group on Arbitrary Detention concludes its mission to Ukraine, which was undertaken from 22 October to 5 November. The Members, Mr. Malick Sow (of Senegal), Vice-President and Rapporteur, and Ms. Shaheen Sardar Ali (of Pakistan), Member, welcomed the full cooperation of the Government of Ukraine in the conduct of its mission.
The following provides additional detail to the Working Groups press release of 5 November. It however only constitutes preliminary findings of the Working Group on its visit and should therefore not be seen as exhaustive. The Working Group reserves the right to withdraw or add elements to its final report which may not be covered here.
Of positive note was the openness of the Government to the Working Groups visit and constructive dialogue with various authorities across the country. The Working Group noted that the legislative and institutional framework in the country governing deprivation of liberty in the various forms it can take is well entrenched yet complex. It noted that a number of important legislative initiatives were underway which could assist in reinforcing the protection of persons in relation to detention.
Part of such reinforcement also refers to independent monitoring and oversight over procedures and practices, which should include the participation of civil society. The initiatives of the Ministry of Interior in relation to mobile monitoring clinics at each oblast level as well as the involvement of various stakeholders through the Public Councils are positive steps.
Notwithstanding this, the Working Group noted varied perceptions of the effectiveness of the institution of the Ombudsperson and recommend its further strengthening. Concerning oversight the Working Group welcomes the fact that the Government of Ukraine has ratified the Optional Protocol to the United Nations Convention against Torture. It notes that the mobile monitoring clinics of the Ministry of Interior can be a good example to be extrapolated upon through other Governmental departments dealing with detention.
In the past few years a number of legislative initiatives have been launched which are worthy of support. This includes the already finalised reform of the Criminal Code as well as efforts within the Criminal Procedural Code to reduce the burden on the penitentiary system. This would help address the overcrowding of detention facilities by reducing sentences for less severe crimes, further exploring the possibility of early releases on probation, or finding alternatives to detention.
Similarly, reference was made in a number of meetings to the importance of international and regional human rights norms. It is important that all those dealing with detention are aware of international and regional human rights standards which exist for the promotion of the rights persons in relation to detention. Awareness should be raised of the detainees right as entrenched in the Constitution to resort to proper international and regional human rights mechanism for submission of complaints.
The Working Group noted the frequency, if decreasing in recent years, of resort to pre-trial detention of suspects also for less grave crimes. It also noted the perceived lack of effective control by the judiciary, which often leads to unnecessary and prolonged detention on remand in difficult conditions. In combination with restrictions imposed upon pre-trial detainees, such as prohibited contact to their families until their trial commences in court, the effects of such measures are particularly severe for minors. This is particularly so when they are detained in the same vicinity as adults and convicts.
Institutionally, the Working Group noted a number of areas of cooperation between those Governmental bodies that deal with detention. However, the Working Group also found that there was a number of overlapping departmental regimes which could be contributing factors to arbitrary detention. The Working Group noted that with respect to criminal cases the Ministry of Interior including the police, as well as specialised authorities such as the State Security Services and the military, and the Department of the Execution of Sentences can deal with detainees during the various phases of the pre-trial period.
There were throughout the Working Group visit to Ukraine consistent references to a lack of confidence in key institutions relating to the protection of an individuals rights. These would in particular include the judiciary; the police; the Prosecutor Generals office, and lawyers. While some of this may also relate to very low and indeed unacceptable salaries for these professions, some also relates to a sense of collusion among individuals to make the principle of pre-trial detention as the norm rather than the exception.
Concerning the independence of the judiciary, the Working Group noted that judicial decisions were often taken without the presence and even knowledge of the accused person. Due to convoy schedules cases were noted whereby individuals could not be present at the time of the scheduled hearing and their case was nevertheless heard. The right to a lawyer is an important right which individuals need to be made aware of at the time of initial arrest and throughout the judicial process, and not to be obstructed by those holding the detainee in custody, including the opportunity to appeal decisions relating to detention. The right to themselves be seized of decisions being undertaken by the judiciary and to also be present where such decisions were considered was not always exercised. Similarly consideration may wish to be given to provide the opportunity for judges to have some oversight functions in relation to places of detention.
Within the judiciary itself it is clear that this institution does not receive the requisite support to ably execute justice which can in itself lead to arbitrary detention. This would include the importance that justices are recruited through a process which guarantees their independence, integrity and professional qualifications. In addition, training of justices is a continual process if one wishes to ensure that national, international and regional human rights norms form the foundation for judicial decisions. The Working Group met with Justices at the Supreme Court, Constitutional Court and Appellate Court levels. It regrets that it was unable to meet with judges of the first instance – except for a brief thematic discussion focussing on juvenile justice during the initial collective meeting with Government authorities at the beginning of the mission – given their central role in the administration of justice and in particular in relation to authorising and extending periods of detention in the pre-trial period.
Consideration also needs to be given to empowering judges in certain instances to be able to exercise judicial review where there is doubt as to the manner in which, or veracity of, certain cases. For example, the Working Group was made aware of instances where continued requests for detention by the Prosecutor Generals office were made, even though there was strong suspicion of torture having been undertaken to ensure a confession.
The Working Group wishes to highlight the repetitive and often convincing reports of ill-treatment and torture at the hands of the police throughout the country to extract confessions. While the police have a difficult task and are not properly resourced, including through very low remuneration, this is no excuse to permit torture. Torture including that which constitutes inhuman and degrading treatment is explicitly prohibited under international and national law and is non-derogable. Any use of torture in extracting confessions should immediately lead to dismissal of any deposition and any use of torture at any time should lead to criminal action against the perpetrator(s). There must be zero-tolerance in such action if this issue is to be addressed at the national level. With respect to law enforcement officials who denounce their supervisors, in relation to torture or other abuses of law by their superiors, they should not be penalised. Any abuse in this regard should be properly investigated and those responsible should be held accountable.
The Working Group notes with appreciation that since 1991 only courts shall be competent to sanction pre-trial detention no later than 72 hours after arrest. It has, however, received credible information that law enforcement authorities have a tendency to circumvent this requirement. For example, they are reported to resort to detention for administrative offences, involving reduced court control, to extract coerced confessions related to criminal offences.
The investigator in any case under review also has important responsibilities. Where there are allegations of torture these should be noted and included in the case file of the alleged perpetrator. Similarly there should be a presumption of innocence until proven guilty and not the inverse
The Working Group was informed that quotas may exist within the police departments under the Ministry of Interior which could lead to a use of force by officials in order to ensure confessions of a criminal nature. The Working Group requests assurances from the Government that such a system of indicators is no longer applied.
The role of the Prosecutor Generals office is key in the entire detention process. The Prosecutor Generals office must be the institution which upholds the law in all circumstances. Respect for the decisions of the courts is absolute. The individuals representing the institution must be impartial, professional and rely on the law. They should not make subjective decisions nor be seen as an impediment to the execution of justice. Complaints received on treatment or other matters which may lead to arbitrary detention should be followed up by the Prosecutor Generals office in all instances. Nevertheless, the role of the Prosecutor General having both an enforcement and oversight role should be revisited. Having such power can potentially lead to a conflict of interest and reduce confidence in this key institution.
Access to a lawyer is critical. No action should be taken by any authority to dissuade an individual from accessing such a person which is a right proscribed by law. It is often investigators who propose a lawyer to criminal suspects. Such lawyers must be independent and at arms length from the investigator and law enforcement officials. Those who defend human rights should be independent from those who were involved in the investigative or prosecution process. Lawyers also need to have their rights protected and ensure that they are able to effectively carry out their work. Hence draft legislation which will try and provide clarity in this area is welcomed.
The legal profession and remuneration when acting as public defenders must be strengthened in order to put such persons in a position to actually act in the defence of their clients. The Working Group notes that at this stage there is no overall bar association in Ukraine. There may be a need for a strong and effective bar association which can ensure effective legal support to all persons including those under either pre-trial detention or when imprisoned. The professionalization of the legal profession is a necessity if confidence is to be built in the legal system. It therefore welcomes draft legislation is under preparation in relation to such a bar association.
In order that detention not be arbitrary and that there is a fair judicial process, respect for periods of detention as prescribed by law must be assured. Extensions for detention must be made only by a judicial authority and cannot be undertaken by authorities within detention facilities themselves. Where such a court order is provided the detention facility officials must legally oblige. Complementary investigative measures must not be a pretext for prolonged detention.
Similarly in order to protect the rights of detained persons it is critical that their whereabouts are known at all times in a clear and transparent manner, especially to their relatives. The registers maintained in institutions under the authority of the Ministry of Interior were generally of a good quality and permitted the Working Group the ability to determine in a speedy manner the process concerning a given detainee. Those however maintained in the institutions under the Department on the Execution of Sentences, namely the CIZO, were often opaque and required reference to a variety of sources. The Working Group would like to stress the importance of ensuring that all persons detained, for whatever period and in whatever detention facility, be properly registered. The Working Group has been made aware of detention which has not been registered.
The protection of mental health is an important component in any human rights regime. The Working Group draws the attention to the State of the International Convention on the Rights of Persons with Disabilities. Detention should not be used to assess the psychiatric nature of an individual. Such detention without legal cause can be constituted as arbitrary.
The Working Group would like to highlight its position that solitary confinement of individuals in pre-trial detention could constitute cruel, inhuman and degrading treatment and therefore has taken the position that it should not be used. Where a State determines its use necessary those in confinement must also have a right as prescribed by law to contest such action through judicial processes. It is noted that such provisions exist within Ukraines national legislation.
About The United Nations Working Group on Arbitrary Detention: The former Commission on Human Rights established the Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of administrative custody of immigrants and asylum-seekers. The Human Rights Council assumed the Working Groups mandate and extended it for a further three-year period by resolution 6/4 adopted on 28 September 2007.
The Working Group has carried out fact-finding missions to Angola, Argentina, Bahrain, Belarus, Bhutan, Canada, China, Colombia, Ecuador, Equatorial Guinea, Honduras, Indonesia, Iran, Latvia, Mauritania, Mexico, Nepal, Nicaragua, Norway, Peru, South Africa, Turkey and Viet Nam. Concerning the issue of immigrants and asylum seekers, it has visited Australia, Romania and the United Kingdom of Great Britain and Northern Ireland.