This Book Has Been Published Within the Framework of the European Union / Council of Europe

/
Council of Europe European Union
Conseil l'Europe Union européenne /
Organisation for Security and Cooperation in Europe
Project Co-ordinator in Ukraine
Joint Programme between the Council of Europe and the European Union
“Combating ill-treatment and impunity”
in South Caucasus, Moldova and Ukraine
Kharkiv Institute for Social Researches
Third East European Conference
on
National Preventive Mechanisms,
Combating and Investigating Ill-Treatment
SPEECHES COMPENDIUM
Recommendations
2-3 November, 2010
Odessa, Ukraine

ODESSA, 2010

This book has been published within the framework of the European Union / Council of Europe Joint Programme "Combating ill-treatment and impunity"

The views herein expressed are solely those of the author and contributors and do not necessarily reflect the official position of the OSCE Project Co-ordinator in Ukraine.

The opinions expressed in this publication are those of the authors and also do not engage the responsibility of the European Union or the Council of Europe, or the institutions the authors work for. They should not be regarded as placing upon the legal instruments mentioned in it any official interpretation capable of binding the governments of member States, the European Union's or the Council of Europe's statutory organs, or any organ set up by virtue of the European Convention on Human Rights.

Judiciary Division

Legal and Human Rights Capacity Building Department
Directorate of Co-operation
Directorate General of Human Rights and Legal Affairs
Council of Europe
F-67075 Strasbourg Cedex

Responsible for the edition Andrew Chernousov

© Kharkiv Institute for Social Researches, 2010

© Council of Europe, 2010

© Serhiy Kolesnyk, translation

TABLE OF CONTENTS:

SPEECH / Page
FOREWORD, Artashes Melikyan / 4
National prevention mechanism in Ukraine: status of development,
Kateryna Levchencko / 6
Association for legal intervention, Dawid Cegielka / 10
HMP Isle of Wight – Governance and Making sure individuals are not lost in the system, Barry Greenberry / 16
Combating and investigation of ill-treatment: the UK NPM,
Mat Kinton / 21
European Conventions on Human Rights and prevention of torture or inhuman and degrading treatment or punishment,Henry Lovat / 27
Importance of the effective investigation for combating ill-treatment and impunity and its place in the preventive framework,Eric Svanidze / 29
The role of the IMB, Lesley Harvey / 31
Through the gate. A joined up approach to resettlement, Angela Clay / 33
Patient’s confidants: monitoring psychiatric institutions through ex-users in the CzechRepublic, Zuzana Durajová / 36
Judicial control over respect for human rights at stages of preliminary investigation and investigations of allegation of ill-treatment: experience of Republic of Moldova, Raisa Botezatu / 38
General overview of investigations of ill-treatment in Ukraine
in the context of case law of European Court of Human Rights: compliance with European standards, shortcomings and prospects, Vitaliy Kasko / 41
Investigation of Tortures and Ill-Treatment in Georgia, Natia Imnadze / 44
Interaction of National and International Legal Mechanisms in Combating Tortures, Nelly Garutunyan / 48
Recommendations / 50

FOREWORD

The right to freedom from torture and inhuman or degrading treatment or punishment is an imperative norm of international law. According to major international human rights instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights and others, no derogation (no exception) is allowed from this fundamental human right.

European standards for combating torture, ill-treatment and impunity were developed on the basis of the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the case law of the European Court of Human Rights. According to the Court’s case law and the general standards of the CPT, applicable in all Council of Europe (CoE) member states, effective investigations, capable of leading to the identification and punishment of those responsible for ill-treatment, are essential to give practical meaning to the prohibition of torture and inhuman or degrading treatment or punishment. Therefore, the European Convention on Human Rights imposes several major obligations on the CoE member states, including refraining from and preventing acts of torture and inhuman or degrading treatment or punishment, as well as effectively investigating such acts and bringing those responsible to justice.

The European Court of Human Rights continues to make a significant number of judgments as regards violations of this fundamental right. For example, in 2008, in addition to 140 substantive breaches of this right in different CoE member states, there were 55 findings of violation of the procedural aspect, which requires states to effectively investigate allegations and other indications of ill-treatment. The CPT highlighted this problem particularly in its 14th General Report and in many of its visit reports.

With the aim of assisting the CoE member states to address these significant shortcomings, the European Union and the CoE launched a Joint Programme entitled ‘Combating ill-treatment and impunity’. The programme covers Armenia, Azerbaijan, Georgia, Moldova and Ukraine and addresses a number of key issues of the case law of the European Court of Human Rights, the findings of the CPT, as well as the country reports of the CoE’s Commissioner for Human Rights as regards the structures and processes which should be in place in all CoE member states to respond to any allegations of ill-treatment. The Joint Programme supports the development of national capacities for the effective investigation of complaints against the law enforcement agencies concerning allegations of ill-treatment, based on European standards.

In the course of the Third East European Conference on National Preventive Mechanisms, Combating and Investigating Ill-Treatment, organised jointly by this Joint Programme, OSCE Project Coordinator in Ukraine and Kharkiv Institute for Social Researches, all substantive and procedural components of combating ill-treatment and its effective investigation, including the regulatory and institutional frameworks, were discussed by the national delegations from all five beneficiary countries of the Joint Prorgamme, as well as by international consultants and visitors. During the conference, the trends, challenges, as well as practical aspects of implementing the OPCAT in the CIS and East European countries were also discussed and examined in-depth.

Mr Artashes Melikyan, Administrator,

Legal and Human Rights Capacity Building Department
Directorate of Co-operation

Directorate General of Human Rights and Legal Affairs
Council of Europe

National prevention mechanism in Ukraine: status of development

Kateryna Levchencko, People’s Deputy of Ukraine of 5th Convocation, President of the InternationalWomenRightsCenter “La Strada-Ukraine”

Optional Protocol to UN Convention against Torture and other Cruel, Inhuman or Degrading Forms of Treatment or Punishment was signed on behalf of Ukraine on 23 September 2005 and ratified on 21 July 1996. Execution of the Protocol according to the ratification law was entrusted to the Authorized Agent of Verkhovna Rada for Human Rights.

In Ukraine, institution of the Authorized Agent for Human Rights was introduced in 1998 after Law of Ukraine “On Authorized Agent of Verkhovna Rada for Human Rights” became effective, and on 14 April of the same year Verkhovna Rada elected the first Authorized Agent for Human Rights. The Law vested the institution of the Authorized Agent with status of an independent constitutional controlling body for extra-judicial protection, which promotes restoration of human rights violated by State authorities or local self-governments; vested the Authorized Agent with sufficiently wide jurisdiction, which covers both governmental authorities and local self-governments; with independence from any public authority or local self-government; with freedom of actions with regard to initiation of proceedings in any case, etc.

The Law contains guarantees of independence of Ombudsperson; the Ombudsperson’s right to prompt and unlimited access to any information required to investigate allegations; the Ombudsperson’s right to start investigations at Ombudsperson’s own initiative; the right to refer Acts of Actions to the Government; the right to make submissions to the Constitutional Court.

Thus, according to article 13 of Law of Ukraine “On Authorized Agent of Verkhovna Rada of Ukraine for Human Rights”, Authorized agent may, at any time, visit detention facilities, pre-trial detention facilities, establishments where convicted persons serve their sentences and establishments for coercive medical treatment and reformation, psychiatric hospitals, to interview persons held there and to obtain information concerning conditions of their custody; to check compliance with the established rights and freedoms of persons and citizens by respective public authorities including those, which conduct search and detective operations.

Any person deprived of their liberty may address in writing the Authorized Agent or his/her representatives. In this case no restrictions on correspondence shall apply. Such person’s application shall be referred to the Authorized Agent within twenty four hours. Correspondence addressed to the Authorized Agent and to his/her representatives from persons, which are detained, arrested, under custody, at establishments of deprivation of liberty and at establishments for compulsory detention or treatment, as well as from other citizens of Ukraine, foreigners and persons without citizenship, no matter where such persons are held, shall not be subject to any censorship or control (Article 21).

Public Authorities, local self-governments, associations of citizens, enterprises, establishments and organizations of any form of ownership, officials and employees addressed by the Authorized Agent have an obligation to cooperate with the Agent and to render to him/her any required assistance, in particular: 1) to ensure access to materials and documents, including on the basis of principle established by regulatory acts concerning protection of State and agency secrets; 2) to provide information and explanations concerning factual and legal grounds for their acts and decisions (Article 22).

According to the effective legislation, Authorized Agent of Verkhovna Rada of Ukraine for Human Rights has wide scope of powers. Among them, the following are worth to be mentioned: the right to be received without delay by President of Ukraine, Speaker of Verkhovna Rada of Ukraine, Prime Minister of Ukraine, Heads of Constitutional Court of Ukraine, Supreme Court of Ukraine and of High specialized Courts of Ukraine, by Prosecutor General of Ukraine, heads of other public authorities, local self-governments, associations of citizens, enterprises, establishments and organizations of any form of ownership, by their officials and employees; the right to be present at sessions of Verkhovna Rada of Ukraine, meetings of Cabinet of Ministers of Ukraine, Constitutional Court of Ukraine, Supreme Court of Ukraine and High specialized Courts of Ukraine, Collegium of Prosecutors of Ukraine and other collective bodies; to make to the Constitutional Court of Ukraine submissions dealing with rights and freedoms of persons and citizens; to visit without any restrictions public authorities, local self-governments, enterprises, establishments and organizations of any form of ownership and to be present at their meetings; the right to review documents including secret documents; the right to refer to the respective authorities Acts of Actions of the Authorized Agent in cases when violations of rights and freedoms of persons and citizens have been uncovered in order for such authorities to take measures; to check compliance with the established rights and freedoms of persons and citizens by the respective public authorities including those engaged in search and detective operations, etc[1].

Within the first quarter of every year, the Authorized agent has to present Verkhovna Rada of Ukraine with annual report concerning status of compliance with and protection of rights and freedoms of persons and citizens in Ukraine by public authorities, local self-governments, associations of citizens, enterprises, establishments and organizations of any form of ownership and by their officials and employees, which have violated with their actions (omissions) rights and freedoms of persons and citizens, and also concerning flaws indentified in the legislation with regard to protection of rights and freedoms of persons and citizens (art.18). When necessary, the Authorized Agent may present Verkhovna Rada with special report (reports) on specific issues on compliance with rights and freedoms of persons and citizens in Ukraine.

In the meantime, according to the opinion of L. Koval based on analysis of Law of Ukraine “On Authorized Person of Verkhovna Rada of Ukraine for Human Rights”, Ukrainian legislation is by less than 50% compliant with the requirements set forth in Paris Guidelines and Recommendations of PACE No.615 (2003). The requirements, within the scope of which the Ukrainian legislation fully fails to meet the international standards, include: Ombudsperson’s educational activities; Ombudsperson’s cooperation with non-governmental organizations; lack of the right to legislative initiative; lack of Ombudsperson’s regional representations contemplated in the Law; election to the office by qualified and not simple majority of votes. Ukrainian legislation does not have provisions concerning Ombudsperson’s control over harmonization of Ukrainian legislation with the international law, over compliance of national regulations and practice with international instruments on human rights. Ukraine has no practice of wide promulgation of Ombudsperson’s decisions, of notices by Ombudsperson with regard to his/her concern with specific problems. According to the Law on Authorized Agent, public authorities have a duty to respond to Ombudsperson’s requests within one month. But the Law places no obligation over the officials to implement Ombudsperson’s resolutions, opinions, proposals and recommendations or to render explanations of the reasons why they cannot be implemented, etc.

Four years after ratification of the Protocol, the Authorized Agent of Verkhovna Rada of Ukraine fails to perform these functions and, moreover, the Ombudsperson’s representative made a public statement refusing to perform them yet in December of 2006, during the Round Table on aforementioned issues organized by Committee of Verkhovna Rada for legal support to law enforcement activities and by Kharkiv Human Rights Group, the fact of which was recorded in the respective repot.

In 2009-2010, Ministry of Justice, together with independent experts, drafted a Lawcontemplating establishment of a special institution, which would perform the role of NPM on the grounds of cooperation with non-governmental human rights organizations. The draft law was referred for approving cycle to the central executive authorities and underwent public hearings. But in August of 2010 a new draft law developed by the Ministry of Justice in order to amend Law of Ukraine “On Authorized Agent of Verkhovna Rada of Ukraine for Human Rights” appeared; this draft Law entrusted functions of the national torture preventive mechanism to the Ombudsperson.

This draft Law suggests that the Authorized Agent of Verkhovna Rada of Ukraine for Human Rights shall “conduct regular visits to the facilities for pre-trial detention, penalty execution establishments and establishments for coercive medical treatment and reform, psychiatric hospital, interview persons held there and obtain information concerning conditions of detention in order to ensure compliance with human rights and to prevent tortures …».

The mentioned draft law fails to take into account all facilities for restriction of liberty; in other words, some of them will remain beyond the monitoring. Also, it contains alleged reference to the lack of need in additional appropriations from the State Budget in support of control over such facilities. It fails to take into account the principles of NPM activities, as they have been described in the Optional Protocol.

Another question arises from the fact that the draft Law does not require consent of the Ministry of labor and social policy, which controls facilities for persons with disabilities, who, with the best will in the world, are unable to leave such facilities due to their physical condition, thus remaining in fact under full control of the government. So, adoption of such Draft Law requires public hearings, as opposed to what is stated in the explanatory note.

If such draft Law is passed, Ukraine will have a NPM model, which may be called “Ombudsperson”. In the meantime, analysis of various models of NPM existence and operations shows that the model “Ombudsperson +” is more efficient, providing for cooperation with non-governmental human rights organizations. For this purpose, different arrangements can be used: advisory councils, establishment of special consulting bodies and public participation in monitoring visits. So the powers established in the law are not sufficient without and effective mechanisms of their implementation. From our view, this entails the need to establish, within the Agent's structure, a respective working arm (section, working group, sector), which would undertake such duties, while within the Agent’s Secretariat a special representative needs to be appointed, who would deal exclusively with these issues. This is what Article 11 of the Law on Authorized Agent of Verkhovna Rada for Human Rights provides for: “the Authorized Agent has the right to appoint his/her representatives within the limits of the funds approved by Verkhovna Rada of Ukraine”. The Regulation on Representatives of the Authorized Agent of Verkhovna Rada of Ukraine for Human Rights is subject to approval by the Authorized Agent. Besides, the actual absence of the Authorized Agent’s representatives in the Oblasts without speaking of the level of cities, makes it more difficult to perform the task. There are representatives in several regions; these positions were introduced after 2006. Under the circumstances of quite poor efficiency of the work of the Authorized Agent of Verkhovna Rada for Human Rights, which is noted by representatives of civil society and independent experts, in particular, at the level of coordination and cohesion of efforts, there is a reasonable question concerning efficiency of the work in this newly created area.

Hence, in order for the Authorized Agent of Verkhovna Rada for Human Rights to perform NPM functions, the Agent needs to implement the following steps: not only to arrange for a position of a separate representative responsible for compliance with the Optional Protocol, but also to establish an autonomous section; to ensure work with human rights organizations and to be open for criticism from their side; to establish representations of the Authorized agent for Human Rights in the Oblasts in order to carry out the monitoring activities and to visit facilities of deprivation of liberty.