CAT/OP/ARM/2
Subcommittee on Prevention of Torture and OtherCruel,
Inhuman or Degrading Treatment or Punishment
ADVANCE UNEDITED VERSION
Visit to Armenia undertaken from 3 to 6 September 2013: observations and recommendations addressed to the national preventive mechanism
Report to the National Preventive Mechanism[*]
Contents
Paragraphs Page
I.Introduction...... 1-113-4
II.The national preventive mechanism...... 12-214-5
III.Recommendations to the national preventive mechanism...... 22-615-10
A.Recommendations relating to main legal, institutional and structural issues..22-365-7
B.Recommendations on main methodological issues relating to visits...... 37-617-10
IV.Final recommendations...... 62-6611
Annexes
I.List of Government officials and other persons with whom the Subcommittee on
Prevention of Torture met...... 12-14
II.List of places of detention jointly visited by the national preventive mechanism and the
Subcommittee on Prevention of Torture...... 15
I.Introduction
1.In accordance with its mandate set forth in the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the Optional Protocol” or OPCAT), members of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the SPT”) visited the Republic of Armenia(hereinafter referred to as “Armenia”) from3to 6 September 2013.
2.The SPT was represented by the following members: Ms. Mari Amos (Head of the delegation), Mr. Victor Madrigal-Borloz and Mr. Miguel Sarre Iguíniz.
3.The SPT was assisted by two human rights officers from the Office of the High Commissioner for Human Rights (OHCHR), as well as four local interpreters.
4.The primary objective of the visit was to provide advisory services and technical assistance to the national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment of Armenia(hereinafter referred to as ”the NPM”), in accordance with article 11 (b), subparagraphs (ii) and (iii), of the Optional Protocol. The visit was intended to assist in strengthening the capacity and the mandate of the NPM, and in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment in Armenia. Another objective of the visit was to assess the strategies to address the current challenges and difficulties faced by the NPM, taking due account of the SPT “Guidelines on the national preventive mechanisms.”
5. For these objectives, a number of meetings were held with the members and staff of the NPM, i.e. both the Department for the Prevention of Torture and Violence of the Human Rights Defender’s Office as well as the Expert Council on the Prevention of Torture and Violence (hereinafter referred to as “Expert Council”). This permitted the SPT to discuss the NPM’s working methods and to explore ways of strengthening and increasing its effectiveness, as explained below. To observe how the NPM applies its working methodology, the SPT also visited, together with the NPM, places of detention. The SPT wishes to express its gratitude to the NPM for its cooperation and the facilitation of the visit.
6.During the visit, the SPT also met with officials from the General Prosecutor’s Office, Ministry of Healthcare, the Standing Committee on State and Legal Affairs of the National Assembly, Ministry of Education and Science, Ministry of Justice, Ministry of Foreign Affairs, Police, Special Investigation Service, Ministry of Defence, Military Police, and the State Migration Service of the Territorial Management Ministry. It also met with representatives of the three public monitoring groups, as well as an additional civil society organization (Annex I).
7.This report sets out observations and recommendationsto the “Department for the Prevention of Torture and Violence within the Human Rights Defender’s Office”, (NPM), charged with the fulfilment of the HR Defender’s NPM mandate.These recommendations are made in line with the SPT mandate to offer training and technical assistance and to advise and assist NPMs, in accordance with article 11 (b), subparagraphs (ii) and (iii), of the Optional Protocol.
8.The planning of the SPT advisory visit was a joint undertaking, as both the NPM and the SPT agreed in advance on the agenda of the joint meetings. Those meetings allowed the SPT to understand the achievements and challenges as well as the legal, structural and institutional obstacles faced by the NPM, along with its working methods.
9. During the course of the visit, joint site visits to three places of detention were conducted (annex II). The places of deprivation of liberty were chosen by the NPM. This permitted the SPT to analyse the methodology of the visiting teams of the two components of the NPM, the NPM itself and the Expert Council. During the joint visits, members of the SPT adopted a role of observers, while members of the NPM and the Expert Council led the visits.
10.This report is being sent to the NPM on a confidential basis; it will be for the NPM to decide whether or not to make it public.
11.The SPT will send a separate confidential report to the Armenian authorities in which it will make recommendations to the State Party.
II.The national preventive mechanism
12.Armenia acceded to the Convention against Torture on 13 September 1993 and acceded to the OPCAT on 14 September 2006. On 8 April 2008, Parliament designated the Human Rights Defender’s Office (hereinafter referred to as HRDO) as NPM, through an amendment to the 2003 Human Rights Defender Act. Article 6.1 of the Act, introduced in 2008, states that the Human Rights Defender is designated as an ‘independent national mechanism’ under the OPCAT. The amendments provide no further detail on the functioning of the Ombudsman's Office as NPM.
13. The tasks and powers of the NPM therefore derive from the OPCAT, in particular articles 19 and 20, and have been further elaborated in the Internal Regulation of the NPM.
14.From 2009-2011, the NPM’s functions were carried out by a team of 3 HRDO staff and 4 NGO representatives, selected by the Human Rights Defender. Visits to places of detention were carried out on the condition that delegations comprised at least one HRDO staff member and that the Human Rights Defender was informed of every visit beforehand. Funding came from the 3-year project under the European Instrument for Democracy and Human Rights.
15.In 2011, the Human Rights Defender established the Department for the Prevention of Torture and Violence within the Human Rights Defender’s Office, which was charged with the fulfilment of the HR Defender’s NPM mandate. The Department consists of 4 professionals (the head of the department, a psychologist, a lawyer and a doctor), which partake in the visits of the NPM. As of August 2013, the position of psychologist was vacant. As to the filling of these posts, the NPM indicated to the SPT that this will depend on the budget allocations of 2014.
16.The involvement of NGOs in the NPM was formalized in 2010 with the establishment of the Expert Council on the Prevention of Torture and Violence (the Expert Council), by the Order of the Human Rights Defender (Order N 002-L). Based on article 26 of the Law on the Human Rights Defender’s Office, the Human Rights Defender may establish Expert Councils composed of individuals with respective background in human rights and fundamental freedoms, who shall be involved on a voluntary basis and perform their activities without any compensation. The Expert Council members support the HRDO in carrying out its activities as NPM through taking part in visits and compiling relevant documents on those visits, which are later included in the NPM report. The Expert Council functions in accordance with the “Regulations” confirmed by the Defender. It cannot publish its own reports, as it was established by and adjunct to the HRDO.
17.Thus, the NPM is a de facto ‘Ombudsman plus’ model (not de jure since the involvement of civil society in the work of NPM rests upon the Order of the Public Defender). The involvement was further regulated through a Memorandum of Understanding, signed in June 2011 between the Human Rights Defender and seven civil society organisations.
18.As of end March 2013, the Expert Council was composed of 11 members (7 NGO representatives, 3 independent experts who have expertise in psychology, sociology and law, and 1 international expert from the EU Advisory Group). Members are appointed by the Human Rights Defender. However, there may be up to 20 members, which means that there are vacant positions.
19.In February 2012, the Order was amended with the effect that the Expert Council is to perform its functions totally independently and without administrative support from the HRDO. Under the Order of Procedure of February 2012, the reports of the Expert Council are to be sent to the HRDO Department on the Prevention of Torture and Violence for review and possible additions. The reviewed reports are then returned to the Council for adoption. However, the Order of Procedure clearly states that any information received by the Expert Council is at the exclusive disposal of the Human Rights Defender.
20.The amendment to the Order in 2012 was introduced as no funding was available to pay for the expenses of the members of the Expert Council. The Expert Council continued its visits in March and April 2012 in a supporting capacity to the NPM but discontinued functioning from May/June 2012 due to a continued lack of funding.
21.The SPT welcomes the fact that NPM has been operational for more than four years and has conducted numerous visits to a variety of places of deprivation of liberty.
III.Recommendations to the national preventive pechanism
A.Recommendations relating to main legal, institutional and structural issues
22.While the Optional Protocol leaves the decision regarding the institutional format of the NPM to the State Party, it is imperative that the mechanism be structured and that it carries out its mandate in accordance with the Optional Protocol, as reflected in the SPT Guidelines on national preventive mechanisms.[1]
23.As a general observation, the SPT notes that the NPM does not have a distinct identity from the HRDO, not only as to its legal framework but also as to its functions, its institutional framework and guarantees of independence. The same applies to the members of the Expert Council while carrying out all NPM related activities.
24.The SPT also notesthat current normative deficiencies, including a clear mandate, format and structure for the NPM, generate tensions between the NPM Department of the HRDO and the Expert Council. The SPT has witnessed the complex interaction between the NPM and its Expert Council, which does not create a complete team spirit in the NPM activities undertaken. The SPT believes that this fact undermines the functioning of the institution, jeopardizes the institutional credibility of the NPM and is not conducive to the establishment of a credible, visible and effective performing mechanism of torture prevention in Armenia.
25. However, the SPT believes that the opportunity created by the necessary amendments to the legal framework of the NPM, irrespective of the format it will take, as a separate piece of legislation or an amendment to the current one, is able to provide a definitive solution to the current legal and operational ambiguity.
26.Therefore, the Subcommittee recommends that the NPM take proactive steps to submit proposals and comments concerning its legal, institutional and structuralframework. In conformity with the Guidelines on the national preventive mechanisms[2], the SPT recommends clearly separating the activities and functions of the NPM from those of the Human Rights Defender’s Office.
Visibility and identification
27.The SPT observed that the visibility of the NPM could be improved, as a completely separate institution from the HRDO, especially as persons deprived of liberty as well as the civil society do not perceive the NPM as a separate body from the HRDO. The Subcommittee is of the view that the mechanism’s lack of visibility may have a detrimental effect on the efficiency and credibility of the NPM.
28.The SPT is also concerned about the confusion between the roles of the NPM and those of NGOs composing the Expert Council. The NPM should be clearly identified as such in all visits, meetings, written communications with the authorities, places of detention and other institutions. All members of NPM as well as experts participating in the NPM activities should refrain from taking up any other role than the ones they are supposed to according to the NPM mandate.
29. The Subcommittee recommends that the NPM enhance its institutional visibility through public awareness campaigns and other promotional activities. The Subcommittee recommends elaborating and distributing material on NPM’s mandate and activities in the places of deprivation of liberty, and to the civil society at large, clearly identified as the NPM. Finally, the NPM should disseminate its annual reports, including by transmitting them to the Subcommittee, as provided for the purposes set out in the Optional Protocol.[3]
Resources
30. The lack of financial resources, despite not being the NPM’s responsibility, is a major obstacle for itsefficient functioning.
31.In that regard, the SPT would recommend that the evaluation of the financial needs of the NPM takes into account all its mandated activities under OPCAT. In this connection, the continuous problems of insufficient resources, including the lack of staff, will be raised by the SPT in the final report to the State party, highlighting that only through solving those problems connected with resources, the State party will be able to create the necessary pre-conditions for an effective NPM and, as such, fulfil its obligations under the OPCAT.
Working methods
32. A clear normative framework of the NPM and adequate resources are not the only aspects that will improve the efficiency of the NPM. A coherent practical functioning NPM entails, from the outset, the adoption of clear working methodologies for all its functions, in accordance with the OPCAT and the Paris Principles.Better communication and an improved coordination between the NPM and the Expert Council is also a key element for them to work efficiently as a collegial body.
33.While recalling that the Optional Protocol envisages the NPM as a collegial body of experts[4], the Subcommittee urges the members of the NPM to improve information sharing through regular meetings and other channels of communication in a collaborative attitude as well as to adopt clearly defined working methods for all its functions.
Draft and existing legislation
34.The Subcommittee notes the very limited role of the NPM in terms of observations and recommendations to the authorities, including commenting on existing and draft legislation, especially the one pertinent to its mandate in accordance with article 19 (c) of the Optional Protocol. One of the reasons for this may be the lack of clear legal basis for the mechanism to comment on draft laws, and the lack of human resources within the NPM to effectively carry out this function.
35. In order to fully discharge its mandate in accordance with article 19 (c) of the Optional Protocol,the SPT recommends that the NPM take proactive steps to submit proposals and comments regarding existing or draft legislation that relates to the prevention of torture and other forms of ill-treatment. To that end, it should have a proactive strategy,based on a comprehensive analysis of the problem detected, for setting priorities and should follow up on its comments and recommendations.[5]
36.In addition, the SPT also recommends to the NPM to regularly publish the results of its work, be it through its annual report, thematic report, or visits report, as well as to make public its observations with regard to existing or draft legislation.
B.Recommendations on main methodological issues relating to visits
37.In order to assist and advise the NPM in its task of protecting persons deprived of their liberty, the Subcommittee is making the following recommendations concerning preparations for visits to places of detention, the methods to be used during such visits and steps to be taken following their completion.
Prior to visits
Strategy
38.The SPT notes that the NPM, as a collegial body of experts, could have a better defined strategy and should agree and establish a long-term strategy of its activities as well as a subsequent annual plan of work, which would include unannounced and follow-up visits, eventually to all places of detention under the State’s jurisdiction where persons are or may be deprived of liberty, in accordance with articles 4 and 29 of the Optional Protocol.
39.The Subcommittee recommends that the NPM develop collectively criteria for selecting the facilities to be visited that will ensure that they are all visited periodically. These criteria should be based on the type and size of the institutions and the severity of the human rights issues of which the mechanism is aware, while not excluding any type of institution or any geographic area.