Krassimir Kanev Evaluation report Of the project of the Penal Reform International “Strengthening institutions and building civil society capacity to combat torture in nine CIS countries”

Contents

Executive summary

1. Introduction 2. Methodology 2.1. Analysis of documents 2.2. Interviews 2.3. Focus groups 3. PRI’s theory of change and its sharing by the implementing partners 4. Main findings on political and legal developments related to detention monitoring and the role of PRI in them 4.1. Georgia 4.2. Russia 4.3. Kazakhstan 5. PRI activities related to detention monitoring 6. Analysis of target outcomes 6.1. Acknowledgment of the existence of torture and ill‐treatment 6.2. Establishment of independent monitoring mechanisms 6.3. Reporting, publications and advocacy 7. Effectiveness 8. Conclusions and recommendations 8.1. General recommendations 8.2. Country‐specific recommendations

Annex

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Executive summary

The project “Strengthening institutions and building civil society capacity to combat torture in nine CIS countries” was implemented by the Penal Reform International in partnership with several other organisations. It aimed at strengthening and developing a range of mechanisms to combat torture; strengthening the capacity of the civil society to monitor places of detention and advocating for holistic rehabilitation programs. The project was implemented through the PRI offices in Tbilisi (Georgia), Moscow (Russia) and Astana (Kazakhstan). The present evaluation focuses on the effective preventive monitoring in three target countries – Georgia, Russia and Kazakhstan.

In view of the big number of project activities and the fact that the project outcomes became targets of activities of many other actors, the approach of the evaluation is to place

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the PRI contribution in the general context of political and legislative developments in preventive monitoring in the three target countries. The evaluation methodology includes analysis of documents, focus group discussions and interviews with key stakeholders during my visits to Tbilisi, Moscow and Astana in September‐October 2013.

PRI’s theory of change presupposes government acknowledgement of the existence of torture and other ill‐treatment and taking adequate measures to combat it through criminalization, preventive monitoring and rehabilitation of victims. The project also aims at increasing the capacity of the civil society to take part in this process.

In Georgia PRI’s major contribution to the prevention of torture through the project was in its advocacy for the reestablishment of the civil society monitoring of places of detention, which was abolished under the Saakashvili government in 2007. While at present the Georgian government still does not allow NGO monitoring, PRI continues to pressure at both national and international levels and has some prospects for success. PRI also contributed to the expansion of the possibilities for civil society representatives to participate in the work of the national preventive mechanism, the only independent structure involved in detention monitoring. In the spring of 2013 the Georgian NPM underwent important reforms, which included, among other things, also a substantial increase of the number of experts, which the Ombudsman’s office may involve during the NPM monitoring visits to paces of detention. PRI played an important role in mobilizing civil society in advocating for the reopening of places of detention and in allowing NGOs to reestablish their presence in them for other type of work, such as the rehabilitation of victims of torture. Activities implemented in the framework of the project at the national and at the regional level – round tables, conferences, consultations and trainings, provided important forums to discuss prevention of torture by all stakeholders. The office in Tbilisi was intensively involved in lobbying different governmental institutions and international organisations and contributed to their understanding of the major faults of the Georgian torture prevention system. The publications, which PRI produced in the framework of the project, served as important capacity‐building resources and were very much appreciated by both governmental and non‐governmental stakeholders.

In Russia PRI worked in difficult conditions created after the promulgation of the July 2012 amendments of the Non‐Profit Organisations Act. According to these, all NGOs which are involved in “political activity” and get funding from foreign donors have to register as “foreign agents”. The term “political activity” is broadly defined in law as any attempt to influence government policies or public opinion. Thus, it became impossible for human rights NGOs to engage in any advocacy with funds from foreign donors. Although the amendments did not affect PRI directly, they undermined the possibilities of many of the organisation’s NGO stakeholders to engage in effective advocacy. In Russia there are no plans at the official level to ratify OPCAT and to establish a National Preventive Mechanism in compliance with international standards. It is not likely to see positive developments in

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that regard in the near future. In these circumstances the PRI office in Moscow focused its work on strengthening the capacity of the civic oversight commissions (COC), the only independent detention monitoring bodies established with the 2008 act on public control for protection of human rights in places of detention. PRI trained members of COC and other stakeholders. Its trainings contributed, albeit not substantially, to the effective civil society monitoring of places of detention. With regard to expanding the scope of the civil society monitoring, PRI advocacy activities had a limited scope, could not reach out to political levels with effective decision‐making power and thus made no significant difference.

In Kazakhstan PRI’s work related to the establishment of independent monitoring mechanisms in the framework of the project was very successful. It was well targeted, consistent and focused on both governmental and non‐governmental monitoring mechanisms. It involved successfully key decision‐makers at the governmental level, as well as all relevant civil society actors. PRI’s work in Kazakhstan was appreciated specifically because of its contribution to the adoption of the legislation establishing the country’s National Preventive Mechanism. Top government officials and non‐government actors, which strongly opposed government human rights policies, were unanimous that PRI played a key role in this process. At the same time, PRI was active in supporting Kazakhstan’s COCs, the only available non‐governmental monitoring mechanism established by a governmental decree in 2004. It opposed attempts at their removal at the initial stage of the discussions around the establishment of the NPM and supported the publication of their reports. It continues to endorse their role as a civil society monitoring body and to oppose the continuing challenges to their existence.

All PRI offices in the target countries made serious efforts to increase the level of interaction between government and civil society on torture prevention. This was done through the roundtables, annual regional forums, international advocacy trips and the cross‐regional conference in Tbilisi in June 2012. In Georgia and in Kazakhstan PRI activities were the only forums where government agencies and civil society organisations involved in torture prevention could meet and hold discussions. PRI’s mediation between government and civil society was particularly successful in Kazakhstan.

One of the deficiencies of the project was the lack of a cross‐regional perspective. The only forum where government stakeholders and civil society activists from all target countries met in the framework of the project was the June 2012 conference in Tbilisi. Almost everybody who took part or was familiar in any other way with this event expressed strong appreciation for it, as well as regret that it was the only one of its type. The conference served as a forum for the exchange of experience and learning in a new and rapidly developing sphere of standard‐setting and practice, something unprecedented in the history of the region.

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Many stakeholders in Tbilisi, Moscow and Astana appreciated very much some of the publications produced by PRI in the framework of the project. This was particularly the case with the training manuals and the tools/standards related to detention monitoring and rehabilitation of victims of torture. To a lesser extent this has also been the case with the baseline studies. The most important publication in the framework of the project was the bilingual electronic newsletter “Together against Torture”. It became a hub, which gave publicity to all anti‐torture activities in the nine target countries. The newsletter received a warm welcome among everybody involved in project activities and with torture prevention in general. It is certainly an outcome which is worth maintaining in the future.

My general recommendations focus on the need for PRI to continue to call for the acknowledgement by the target governments of the problem of torture; to design and implement intervention strategies on how to achieve progress in the realm of detention monitoring; to make civil society monitoring of places of detention a specific focus of its work in Eastern Europe and the former Soviet Union; to pay specific attention to and implement activities which focus on the exchange of country and regional experiences and to continue to publish its bi‐lingual electronic newsletter “Together against Torture”.

In addition to the general recommendations, I formulate a number of country‐specific recommendations. For Georgia I recommend that PRI makes its priority the reestablishment and the expansion of civil society monitoring of places of detention. In Russia I recommend that PRI focuses on advocating for the inclusion of more human rights NGO representatives as members of the civic oversight commissions. In Kazakhstan PRI should focus on advocacy for the preservation of the civic oversight commissions, as well as on building of the capacity of the national preventive mechanism to monitor places of detention, including through the involvement of human rights NGO representatives and independent human rights activists in its operation.

1. Introduction

In July 2013 I was tasked with evaluating the project “Strengthening institutions and building civil society capacity to combat torture in nine CIS countries”. The project was implemented by Penal Reform International (PRI), an independent non‐governmental organisation that develops and promotes fair, effective and proportionate responses to criminal justice problems worldwide. The project was funded for three years (November 2010 – October 2013, with an extension granted until December 2013) by the European Commission. PRI’s formal partners in the project were Bristol University (replaced in the second year by the Association for the Prevention of Torture) and the Freedom from Torture (previously Medical Foundation for Care of Victims of Torture).

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The project was implemented in nine CIS countries – Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Ukraine. Its overall objective was to contribute to the eradication of torture in prisons and other places of detention. The specific objectives include:

 Strengthening, supporting and developing a range of mechanisms, including, where appropriate the National Preventive Mechanisms (NPM) and institutions to combat torture;

 Developing and strengthening civil society capacity to monitor places of detention and closed institutions, and to interact effectively with government bodies;

 Advocating for holistic and comprehensive programmes of rehabilitation based on existing models of international good practices.

The project was implemented through the PRI regional offices in Tbilisi (Georgia), Moscow (Russia) and Astana (Kazakhstan). Throughout the course of the project these field offices involved dozens of institutions, national human rights institutions, international organisations, NGOs and individual experts in the nine target countries.

According to my Terms of Reference (ToR) I was tasked with evaluating the impact and the effectiveness of the project. More specifically, based on the theory of change adopted by PRI, I have been asked to assess the extent to which the targeted outcomes outlined in the theory of change actually occurred and to describe the mechanisms through which this happened. This also includes a description of PRI’s specific role in the process. With regard to effectiveness, I have been asked to assess the extent to which the project’s strategies have been appropriate and robust and what lessons can be learned from it for the future.

The project implemented a large number of activities in four different areas. These were:

1. Activities related to the improvement of prison conditions, targeting specifically institutions where persons are deprived of their liberty. Although the project targets all types of such institutions, in reality its main focus has been on institutions functioning within the framework of the criminal justice system.

2. Activities related to the establishment of viable and effective systems of preventive monitoring in the target countries. This includes both monitoring by independent state institutions in compliance with the Optional Protocol to the UN Convention against Torture (OPCAT) and by civil society.

3. Activities related to the establishment of systems for effective investigation and seeking accountability from the perpetrators of torture in the criminal justice system.

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4. Activities related to advocating a holistic approach to the rehabilitation of victims, including through the provision of psychological, legal and social support by non‐ governmental actors and the establishment of appropriate institutional frameworks at the governmental level for the provision of holistic redress.

Given the time and resource constraints, the focus of this evaluation, according to the ToR, is on the effective preventive monitoring, i.e. on the second stream of activities. As a matter of fact, this is the main component of the project where most of the activities have taken place on the ground. It also provides greater scope for internal learning for PRI. Looking into other areas, such as the relevance, efficiency and sustainability of the action is of secondary importance. While I have looked at all the targeted outcomes of the project as they may influence and reinforce each other, for the present evaluation I have focused on the preventive monitoring outcomes, including those affecting the work of the independent monitoring bodies at the national level and civil society organisations. These outcomes include but are not limited to:

‐ Recognition by governments of the problem of torture and of the need to monitor its incidence by independent monitors;

‐ Establishment of independent monitoring mechanisms by governments;

‐ Allowing civil society organisations to access and monitor human rights in all places for deprivation of liberty;

‐ Modalities of access of both official and civil society monitors, including ability to access all places of detention, to freely choose subjects for monitoring, to move freely inside places of detention, to have access to documents related to detention and to talk with detainees in private;

‐ Publications by the monitoring organisations of reports and recommendations for improvement of conditions of detention;

‐ Advocacy activities by official and civil society monitors at both national and international level.

Again, in view of the time and resource constraints, the geographical scope of the evaluation was limited. It does not include all nine target countries but is focused on Georgia, Kazakhstan and Russia. These are the countries which saw important legislative and institutional developments in the sphere of preventive monitoring over the past several years, and are also the countries where PRI has regional offices.

Given the big number of project activities and the fact that some of them were implemented with participants from several countries, it is impossible to determine the impact of each and every activity in achieving the project outcomes. It has to also be stressed that the project outcomes, to the extent they were achieved, became targets of

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activities of many other actors, which makes delineating of the specific contribution of PRI extremely difficult. My approach therefore will be to place the latter in the general context of political and legislative developments in the sphere of preventive monitoring in the three target countries. I will trace them separately and will then try to analyze the place of the project activities in the process.

2. Methodology

In view of the scope of the work and its thematic focus, the methods of data collection used were all qualitative. These include analysis of documents, interviews with key informants and focus groups.

2.1. Analysis of documents

Three groups of documents were reviewed:

 Documents related to the project design, including the original project proposal, schemes outlining theories of change at PRI, as well as at the regional level, action plans, contractual agreements with partners;

 Reporting documents, including mid‐term reports, reports from round tables, workshops and forums, and interim evaluation reports;

 Documents related to project outcomes, including manuals, publications of partner organisations, baseline studies, internet websites, e‐newsletters.

Overall I read more than 3000 pages of different documents in the course of the evaluation. My focus in the analysis of documents was on the theories of change they contain, on the progress of the project activities, on the quality of the work of the project partners at the regional level, on the manner in which change was implemented and on self‐assessment of actors.

2.2. Interviews

In the period 17‐19 September and 2‐9 October 2013 I visited Tbilisi, Moscow and Astana. There I conducted interviews with PRI staff and with representatives of all target groups. A list of persons interviewed can be found in the Annex. These include government officials in position to implement general policies relevant to the subject‐matter of the project, officials from agencies working directly with persons deprived of their liberty, NGO representatives of civil society organisations involved in prevention of torture, representatives from national human rights institutions, academics and research institutions, medical professionals, journalists, and others. I reached out and interviewed both representatives of institutions and organisations, which were involved in the implementation of the project, and ones

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which were not. Interviewees were asked different questions depending on their specific roles in torture prevention, their knowledge of political and institutional developments, and their role in the project, if any. In particular questions inquired about:

 Recent developments in torture prevention and in preventive monitoring specifically;

 The informant’s role in these developments;

 The informant and their institution/organisation’s theory of change;

 The informant’s observations of other stakeholders’ role in these developments;

 The informant’s assessment of the effectiveness of torture prevention and of preventive monitoring specifically;

 The informant’s vision of what could be done differently/more effectively;

 The informant’s experience from participation in the forums and conferences at the national and regional level.

In addition, I solicited preliminary information by email from some key informants regarding their experience of the project and their assessment of its major outcomes. In the period 17‐20 October I had the opportunity to interview several additional stakeholders from Armenia during my participation in two training sessions of civil society activists and prison officers on monitoring detention facilities.

2.3. Focus groups

In Tbilisi and in Astana I conducted two focus group discussions. Several groups of relevant stakeholders took part in the focus groups. These include persons who:

‐ Had knowledge of the situation regarding the incidence of torture in their countries;

‐ Had knowledge of the activities of key institutions and civil society organisations in torture prevention;

‐ Knew or took part in some of the project activities, or at least in significant parts of them, and were able to assess their impact on the country situation.

My aim during the group discussions was to:

‐ Reconstruct the theory of change adopted by the stakeholders at the national level;

‐ Assess the overall dynamics of the situation of torture and with the detention monitoring;

‐ Identify salient causal explanations offered;

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‐ Identify the role of PRI in the process;

‐ Identify the specific impact achieved by the project activities.

In Georgia the focus group discussion was organised at the end of my visit, whereas in Astana it was conducted at the beginning, which gave the two discussions a different dynamic. PRI project staff took part in the focus group discussion in Tbilisi but not in Astana.

3. PRI’s theory of change and its sharing by the implementing partners

Figure 1 below illustrates the theory of change adopted by PRI and used to structure its interventions and outputs in all three regions of project implementation. The overall goal of the project – reduction of torture and ill‐treatment ‐ is to be achieved through three targeted types of action:

• Improved prison conditions, which is to be achieved through training of prison staff and other relevant actors, implementation of international standards for treatment of prisoners by prison authorities, and legislative reform. • Effective preventive monitoring, which includes ratification of OPCAT and the establishment of national preventive mechanisms, civil society monitoring of places of detention and building capacity for monitoring in both NPM and civil society. Independent monitoring by these bodies identifies causes and risk factors for torture, issues relevant recommendations and follows up on their implementation. • Bringing perpetrators to justice through effective investigations and prosecutions. This presupposes the existence of the requisite tools in criminal law and procedure, such as criminalisation of torture and adequate legal procedures to be followed, so that the investigation of cases is thorough, independent and impartial.

Government acknowledgement of the existence of torture and ill‐treatment is a precondition for any actions aiming at the improvement of prison conditions and the establishment of an effective monitoring system. Following that, the three separate types of action above are mutually reinforced through the “horizontal” influence of their elements. Thus, identification of causes and risk factors helps to implement international standards for treatment of prisoners and in legislative reform. In general, effective monitoring helps in improving prison conditions. And vice versa, improved prison conditions means there is more scope and opportunities for effective monitoring.

The project also aims at increasing the capacity of local civil society to monitor and advocate for the establishment of an effective system of investigation and punishment of torture, as well as for the holistic rehabilitation of victims. Holistic rehabilitation of torture victims is a

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separate component of the project. It aims at increasing the capacity of civil society to offer psychological, social and legal support to victims and to advocate for the establishment of government rehabilitation services.

This theory of change was shared entirely by the implementing partners on the ground. All partners, as well as the local PRI staff stressed in particular the importance of the effective monitoring. Activities aiming to achieve improvements in that regard were considered by all PRI local offices and their partners as the most important contribution of the project to reduction of torture and ill‐treatment in places of detention. They outweighed the other project components. The reasons for this were mostly objective, stemming from important developments in almost all target countries in the three regions. In Russia the project operated in a formative period of the civic oversight commissions established with the 2008 Federal Law on Public Control of the Protection of the Rights of Detainees. In Georgia the project operated in the formative years of the establishment of Georgia’s National Preventive Mechanism and in a period when civil society monitoring of places of detention was seriously challenged by authorities. In Kazakhstan the last years of the project operation coincided with the establishment of the country’s National Preventive Mechanism and with battles for the legitimacy of civil society monitoring.

Thus, the focus on those project outcomes related to the monitoring mechanisms in the present evaluation is quite right. It grasps the bulk of the project activities and is in tune with the implementing partners’ understanding of the major driving force of change. Their theories of change incorporated an understanding that change in the system is to be achieved predominantly through the establishment of effective monitoring mechanisms of places of detention at both governmental and civil society levels.

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Figure 1: Theory of Change

Reduction of torture and ill-treatment in places of detention Access to justice for victims

1 - Improved prison conditions 4 - Rehabilitation is provided to victims in a holistic way

2 - Effective preventive 3 - Perpetrators are held to monitoring account Training of prison staff and Government Psychological, other relevant actors (eg ensures social and healthcare personnel) redress legal support Independent monitoring body Independent judiciary identifies causes and risk factors prosecutes perpetrators for torture and issues Civil recommendations and follows- society up on them advocates Implementation of Torture Torture cases international standards for offense in the treatment of prisoners are investigated criminal law independently, Capacity and preventive in line with methodology developed thoroughly and UN bodies effectively influence Standards are updated updated are Standards

Review of legislation and OPCAT ratified and NPM Independent practice in places of designated in line with monitoring body detention OPCAT requirements established - Media access to all reports places of detention

Capacity of local civil society increased Government acknowledges existence of torture and ill-treatment (including detention conditions amounting to torture)

Research Advocacy Training and capacity- Information sharing Civil society strategy Small grants building 11

4. Main findings on political and legal developments related to detention monitoring and the role of PRI in them

The project operated in nine countries of the former Soviet Union. While all of them carry the legacy of one of the most repressive criminal justice systems in the world, 20 years after the fall of the communist regime the prison situations in these countries differ significantly. They differ in terms of treatment of detainees, in material conditions of detention and in possibilities for independent detention monitoring. In the latter respect, as maybe in all other respects, we have the worst situation in Belarus where the criminal justice system exhibits to a large extent the tenets of that under the soviet regime. Slightly but not much better is the situation in Russia, in Kazakhstan, and in Tajikistan. Then come Ukraine, Azerbaijan and Georgia. These three countries have established functioning national preventive mechanisms, which have conducted visits to places of detention and have published reports. The overall situation in Armenia, including in terms of possibilities for independent detention monitoring by the civil society in addition to the functioning NPM, looks the best compared to the other project countries. Needless to say, these diverse situations require different approaches to achieve the aims of the project and different positioning of the actors, including PRI, vis a vis the authorities. Hereby I will sum up the major developments in the sphere of detention monitoring in the three target countries (Georgia, Russia and Kazakhstan). On the basis of this I will analyze the target outcomes in the framework of the project and the specific contribution of PRI.

4.1. Georgia

Up until 2007, human rights NGOs in Georgia enjoyed access to detention facilities for monitoring purposes and for other human rights work (legal protection, rehabilitation of victims of torture and human rights education). This access was provided through the regulations on the “public oversight commissions” established at the regional level, whose members were predominantly local human rights activists. Members of the commissions could visit detention facilities at any time, including in emergencies. They could move freely inside the facility and to talk with prisoners in private. According to Nana Kakabadze from the Association of Political Prisoners for Human Rights, this had a very positive effect on torture prevention in those facilities, which were subject to frequent visits. As of 2003 there were no recorded instances of torture in Georgian prisons. There had been some other, milder forms of ill treatment, but these occurred rarely.1

1 Interview with Nana Kakabadze, Tbilisi, 19 September 2013. 12

In 2004, when Mikhail Saakashvili took power as President of Georgia, membership of the oversight commissions was changed. They were filled with singers, artists and other intellectuals who were faithful to the new government but who had no capacity and willingness to visit detention facilities. Thus, between 2004 and 2008 many of them existed only on paper and their activities decreased. With the ratification of OPCAT and the establishment of the NPM as part of the Ombudsman’s Office, the oversight commissions were abolished. The Ombudsman’s Office became the only body which could visit places of detention for the purpose of monitoring torture and other ill treatment. This marked the end of civil society monitoring of places of detention in Georgia. Other NGO work in places of detention was prohibited too. In 2010 Empathy, an NGO which used to provide legal, medical and psychological rehabilitation to victims of torture was forced to close its last centre in one of Georgia’s prisons. According to all my Georgian interlocutors, the only possibility for NGO activists to visit places of detention was in their individual capacity as experts of the newly created NPM if and when they were invited.

At the same time, due to the Saakashvili government’s anti‐corruption policies and the extensive use of imprisonment by the criminal justice system even for minor offences, Georgia’s prison population increased drastically during his term in office. While in 2004 the country’s prison population was 7867 (i.e. still higher than the European average measured per 100 000 of the population), it reached 23 684 in 20102 and continued to grow in 2011. Overcrowding became unbearable. Conditions of detention, including health care, hygiene and relations between staff and inmates deteriorated significantly. In 2010 alone some 142 persons died in custody, 43 of them of tuberculosis.3 Prison management relied on different types of repression, including frequently on torture. Prisoners’ right to communicate with the outside world was severely restricted.4 There was widespread use of psychotropic drugs to calm violent behaviour and as a means of coping with the abstinence syndrome of drug users. According to Empathy, at least 30% of prisoners were administered different types of tranquillisers.5

In September 2012, in advance of the parliamentary elections, several video footages were smuggled out of the Gldani prison and shown on some national TV channels. It showed graphic cases of torture and rape of prisoners by staff. This footage came as a shock not only to local, but also to international observers. They sparked widespread protests throughout Georgia, which calmed only after Saakashvili’s party lost the elections. Although previous Ombudsman reports indicated that ill‐treatment was common in some prisons, they never went as far as to describe something so brutal that was practiced on a systematic basis. Nor did the 2010 CPT report on the Committee’s visit earlier the same year to Gldani prison,

2 Figures are from the International Center for Prison Studies, available at: http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=122, accessed 20 October 2013. 3 Tea Topuria, “Georgia’s Crammed Prisons”, IWPR, 1 April 2011, available at: http://iwpr.net/report‐ news/georgias‐crammed‐prisons, accessed 20 October 2013. 4 Interview with Nato Gugava, Deputy Head of Penitentiary Department, Tbilisi, 18 September 2013. 5 Interview with Georgi Berulava, psychiatrist, member of the board of Empathy, 13

although it mentioned that “uncommon silence reigned in the prisoner accommodation blocks at Gldani”.6

The elections of 1 October 2012 resulted in a clear victory for the opposition. President Saakashvili conceded his party’s defeat. Soon after that a new government was formed with Bidzina Ivanishvili as Prime Minister. The new Parliament started a series of amnesties of prisoners and their number in Georgia’s prisons fell dramatically. For four months it decreased more than twice and at the end of April 2013 they numbered 10 202.7 Their number continued to fall and was around 8000 at the time of my visit. Many prisoners lodged complaints about ill‐treatment by staff to the Prosecutor’s Office. At the time of my visit there were 7000 – 8000 such complaints.8 Several prison guards were brought to justice and sentenced. Inspections of the prisons at all levels of government intensified. The new management of the Ministry of Corrections and Legal Assistance dismissed 60 prison officers. Many others left voluntarily.9 Additionally, all prison staff is supposed to pass attestations soon.10 The Ministry started several programs for improvement of health care and psycho‐social rehabilitation in prisons.

These positive improvements in prison management were however not followed by similarly positive developments in civil society involvement in monitoring prisons. The new government continued the policies of the previous one on excluding civil society monitors from prisons with similar arguments – that they will duplicate the work of the NPM; that some monitors in the past abused prisoners’ rights and that the participation of the civil society experts in the NPM (increased in number with the new recruitment in the spring of 2013) is enough.11

PRI’s office in Tbilisi followed closely the developments in Georgia throughout the course of the project. Its presence in all types of consultations at every level of government and among civil society was very much appreciated by all interlocutors. PRI was unaware of the extent of abuse, including torture, in Georgian prisons over the past years, which is unsurprising given the facts described above about the prohibition of civil society monitoring. Its staff was shocked by the revelations at the end of 2012, as was every other external observer for that matter. It pushed vigorously for accountability and for remedial actions immediately after they became public. One of the focuses of PRI’s work in the second half of 2012 and throughout 2013 was advocacy for the reestablishment of civil

6 CPT, Report to the Georgian Government on the visit to Georgia from 5 to 15 February 2010, Strasbourg, 21 September 2010, para. 49. 7 International Center for Prison Studies, available at: http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=122, accessed 21 October 2013. 8 Interview with Tinatin Uplisashvili, project manager in the CoE/EU representative office in Georgia, 18 September 2009. 9 Interview with Nato Gugava, Deputy Head of Penitentiary Department, Tbilisi, 18 September 2013. 10 Ibid. 11 Interview with Sopo Japaridze, Deputy Minister of Corrections and Legal Aid, 18 September 2013; Interview with Nato Gugava, Deputy Head of Penitentiary Department, Tbilisi, 18 September 2013; Interview with David Managadze, Senior Legal Advisor of the Office of Public Defender of Georgia, 17 September 2013. 14

society monitoring of places of detention. PRI asserted the need for this at all the events it organised in Georgia in the framework of the project and its lobbying activities.

4.2. Russia

There are several parallel systems of detention monitoring in Russia. Each incorporates specific structures with different degrees of independence and varying capacities to conduct visits to places for deprivation of liberty. These include the Human Rights Council at the President’s Office, the Public Chamber of the Russian Federation, the internal inspection systems of the Ministry of Interior, Ministry of Justice and other ministries, as well as the newly established Civic Oversight Commissions (COC). Of these, the latter are by far the most important as they are in theory semi‐independent of the state and enable civil society participation in monitoring. The period of the project’s operation in Russia coincided with the formative years of operation of the COCs. They were established with the 2008 Federal Act “On the Public Control for Protection of Human Rights in Places of Detention and Assistance of Persons, Confined in Places of Detention” (henceforth Public Control Act or PCA). The PCA establishes a COC in each federal region of Russia. The commissions are to be composed of between 5 and 40 members. The upper limit of membership was expanded with the amendments of the PCA from 2011. Membership for each region is determined by the Public Chamber of the Russian Federation, a body appointed by the President. The Public Chamber approves also the Code of Ethics for COCs.

COCs are formed by the Council of the Public Chamber of the Russian Federation. Each member is appointed by the Chamber after a proposal is submitted by registered all‐Russian, inter‐regional and regional NGOs, which have human rights protection as a goal in their statutes. An NGO cannot propose more than two members for one COC.

A minimum of two COC members may visit a place of detention and talk with sentenced prisoners in private. However, they cannot talk in private with remand prisoners and with detainees in temporary detention facilities run by the police. They may also receive complaints from detainees, as well as information from the administration of places of detention. COC members can follow up on the complaints and other information they receive by addressing prison administrations, governmental institutions, prosecutors and other bodies inside Russia.

One of the major purposes of the law is to involve NGOs in supporting materially or through the provision of different types of services the improvement of the detention conditions. This is explicitly provided for in art. 22 of the PCA, which contains an exhaustive list of the forms of support NGOs may offer to detainees. The law also establishes forms of control over the work of COC members, which further undermines their independence.

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In sum, the 2008 Public Control Act is an attempt to establish some form of public control over places of detention and to allow some independent oversight of human rights in them. This attempt, crippled as it is by some of its deficiencies, can still be called a “revolutionary step”.12 This is the first attempt in the history of Russia, a country with one of the most repressive prison systems in the world, to allow an independent public eye into its insides.

It is therefore not surprising that the passing of the law and its subsequent implementation produced huge excitement and mobilisation among Russia’s fragile NGO community. Several organisations in Moscow tried to coordinate NGOs in the regions to propose candidates for COC members immediately after the law entered into force. These included the Moscow Helsinki Group, the Human Rights Movement of Lev Ponomaryov, the Civil Rights Committee of Andrey Babushkin and other, smaller networks. PRI too was actively involved in promoting human rights activists as COC members.

However, pro‐governmental structures also organised themselves in an attempt to fill up the COCs. As a result, not only human rights NGO activists, but many former prison officials, retired police and military officers, Afghan war veterans, scholars and municipal and regional‐level clerks managed to become COC members. In most regions COCs are heavily dominated by pro‐government members. I received different estimates of the number of the authentic human rights activists in the COCs. These ranged from 20‐3013 to 100,14 out of a total number of 800 COC members throughout Russia.

In addition to the introduction of public oversight through the work of the COCs, Russia’s prison system saw some reforms, which affected positively the life of prisoners. Among these the substantial reduction of the prison population should be mentioned in the first place. While in 1998 it was over one million or 688 per 100 000 population, in 2013 it went down to 681 600 or 475 per 100 000 population.15 Over the past ten years, or at least up until 2010, material conditions and medical care in prisons were gradually improving.16 There were a number of factors, which brought about these improvements – judgments of the European Court of Human Rights, CPT reports, recommendations of UN bodies, as well as the work of the COCs. With regard to the treatment of prisoners however, my Moscow interlocutors were not so unanimous. While according to some torture in places of detention

12 Interview with Valery Bazunov, Head of the Human Rights Department at the Ombudsman’s Office of the Russian Federation, Moscow, 4 October 2013. 13 Interview with Pavel Chikov, Director of the “Agora” association, member of the President’s Human Rights Council, Moscow, 3 October 2013. 14 Interview with Valentin Gefter, Director of the Human Rights Institute, Moscow, 3 October 2013. 15 Data is from International Center for Prison Studies, available at: , http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=118 accessed 28 October 2013 16 Interview with Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman, Moscow, 3 October 2013; Interview with Valentin Gefter, Director of the Human Rights Institute, Moscow, 3 October 2013. However, according to Nina Tagankina this trend reversed since three years ago, Interview with Nina Tagankina, Executive Director, Moscow Helsinki Group, Moscow, 3 October 2013. 16

in general was on the decline,17 others opined that over the past several years the situation in that regard had in fact worsened.18 Whatever the case, there is no doubt that huge problems with both the material conditions of detention and the treatment of prisoners in Russia continue to exist. A clear evidence of that is the September 2013 open letter of Nadezhda Tolokonnikova, one of the women sentenced in the “Pussy Riot” trial, which described horrible material conditions and overwork of the female prisoners in the Mordovia prison where she was serving her sentence.19 The recent improvements could, at best, only scratch the surface of the system, which has carried a burden of a wide range of problems ever since the time of the GULAG.

Since their establishment after the adoption of the 2008 law, the COCs have brought transparency and public attention to the situation in Russia’s prisons and other places of detention. Some of my interlocutors had no doubts that the improvements in prison conditions were, at least to some extent, due to their work.20 Many of them have become hubs where all problems with prison conditions and treatment of prisoners in their regions were directed and discussed publicly. They also became natural sources of information and comments for the media.

The work of the COCs varied from region to region due to the differences in the levels of professionalism of their members. Overall, their performance improved over the years and this has been the case not only where human rights activists from local NGOs dominated membership.21 As Pavel Chikov observed, the work of the COCs over the past years changed from marginal to mainstream.22 Yet, due to the constraints of the legal framework, especially with regard to the possibilities to conduct private interviews with remand prisoners, COCs are still unable to obtain reliable information on torture practices and to estimate the extent of torture and ill treatment in police custody. Even the COCs where representatives of authentic human rights NGOs dominate have been helpless in that regard over the past four years. In reality they could not and do not collect systematic information on torture and ill treatment in the pre‐trial stage.23 With the 2011 amendments of the PCA the commissions

17 Interview with Valentin Gefter, Director of the Human Rights Institute, Moscow, 3 October 2013. 18 Interview with Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman, Moscow, 3 October 2013. 19 During my interview with Bazunov he recognised that “almost everything Tolokonnikova said was true”, Interview with Valery Bazunov, Head of the Human Rights Department at the Ombudsman’s Office of the Russian Federation, Moscow, 4 October 2013. 20 Interview with Valery Sergeev, Deputy Director of the Center for Encouragement of the Criminal Justice Reform, Moscow, 4 October 2013. Pavel Chikov also underlined the role of COCs in the overall improvement of the material conditions, although indirectly, not as a result of their visits and recommendations, but due to the general effect of transparency and more public attention to prison conditions which their work has brought. 21 Interview with Nina Tagankina, Executive Director, Moscow Helsinki Group, Moscow, 3 October 2013; Interview with Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman, Moscow, 3 October 2013. 22 Interview with Pavel Chikov, Director of the “Agora” association, member of the President’s Human Rights Council, Moscow, 3 October 2013. 23 Interview with Valery Sergeev, Deputy Director of the Center for Encouragement of the Criminal Justice Reform, Moscow, 4 October 2013. Sergeev has been a member of the COC in Moscow for many years. 17

were not given the possibility to contact remand prisoners and detainees in police detention facilities. Other deficiencies in the monitoring methodology, which stem predominantly from the deficiencies of the legal framework, include the lack of financial resources to support the work of the COCs systematically ‐ by law the NGOs which propose their members have to support all their work; the lack of obligation on government institutions to take seriously the reports and the recommendations of the COCs; poor protection of COC members from repression and retribution, which has gone so far as murder (the example of Natalya Estimirova, member of the Chechen COC, is a case in point); and the poor logistical and technical equipment of the COCs, including the lack of secretariats.24

Another problem with the work of the COCs, mentioned by PRI Moscow’s director Vika Sergeeva, is the impossibility for human rights NGOs to do any meaningful monitoring work in prisons after the PCA entered into force. In practice, since then all communication between prison authorities and the external world has been directed towards the COCs. NGOs have been disregarded. For NGOs without COC members it became impossible to do any human rights work in places of detention. And even where they have members in the local COC, they have to abide by the mandate of the latter set out by law.25

One of the areas of focus of the project was advocating for the establishment of national preventive mechanisms in the target countries. Although the PRI office in Moscow did its best to lobby at different levels of government and civil society, this proved unrealistic in Russia in the current conditions. The Moscow office viewed this as their failure26 although it would be difficult to blame it specifically for this given the external circumstances and country context. The establishment of a federal oversight mechanism under the Ombudsman was considered as more realistic by some of my interlocutors,27 whereas others viewed it as entirely unrealistic, at least at the present moment.28

Civil society monitoring of places of detention in Russia and NGO work in prisons in general has been affected by the recent restrictions of funding imposed on NGOs by the government with the July 2012 amendments of the Non‐Profit Organisations Act. According to these, all NGOs which are involved in “political activity” and get funding from foreign donors have to register as “foreign agents”. The term “political activity” is broadly defined in law as any attempt to influence government policies or public opinion. Thus, it became impossible for human rights NGOs to engage in any advocacy with funds from foreign donors. At the same

24 Interview with Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman, Moscow, 3 October 2013. 25 Interview with Vika Sergeeva, Regional Director of PRI, Moscow, 4 October 2013. 26 Interview with Vika Sergeeva, Regional Director of PRI, Moscow, 4 October 2013. 27 Interview with Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman, Moscow, 3 October 2013. 28 Interview with Valentin Gefter, Director of the Human Rights Institute, Moscow, 3 October 2013. Bazunov was reluctant to discuss it but several other persons mentioned that the Ombudsman does not want to assume the responsibilities of a national preventive mechanism. 18

time, the Russian government established a fund of 200 million euros to support NGO work throughout the country.

As of the end of August 2013 some 22 Russian NGOs have been officially branded as “foreign agents”. The process of review of NGO activities by the government continues at present. Two were deregistered because of their alleged connections with “extremist groups”.29 Although several of my NGO interlocutors stated that the law is not likely to affect negatively their work in the COCs,30 I could sense its overall chilling effect, as well as some disorientation and uncertainty about the future in the entire community.

PRI project activities focused on detention monitoring and on the development of structures involved in monitoring. The latter include almost exclusively the COCs. PRI’s major contribution was in training COC members and in bringing to Russia international experiences and good practices from neighboring countries, mostly those involved in the project.31 The latter is however quite limited. Belarus had hardly anything to offer in that regard and the NPM in Ukraine became operational only at the end of 2012, more than six years after it became party to OPCAT. The first Ukrainian Ombudsman’s NPM report was released only at the end of June 2013. In addition to PRI, many other organisations were involved in building the capacity of the COCs along the same lines. It is therefore difficult to establish PRI’s specific contribution. There is however no doubt that choosing to work with the COCs in terms of both influencing their composition and in training their members was a right strategic decision in the Russian environment. Unlike the other detention oversight mechanisms, COCs are indispensable. They are the key players at present and will remain so in the future. It was also right for PRI to focus throughout the project on torture and to insist on civil society involvement in detention oversight.

4.3. Kazakhstan

In Kazakhstan the project was implemented in a controversial period for the country’s political development generally and of the penal executive system in particular. Over the past three years the human rights situation in the country deteriorated. The autocratic regime of President Nursultan Nazarbaev consolidated further. Both the presidential elections in 2011 and the parliamentary elections in 2012 were marred by serious irregularities. Freedom of expression was severely restricted through control of electronic media, harassment and assaults of journalists, blocking internet sites and criminal penalties for libel of public officials. A number of independent opponents to the regime – lawyers, human rights and trade union activists ‐ were arbitrarily detained and imprisoned. In

29 “22 Russian NGOs were branded as ‘foreign agents’”, Voice of America, 22 August 2013 (in Russian), available at: www.golos‐ameriki.ru, accessed 28 October 2013. 30 Interview with Nina Tagankina, Executive Director, Moscow Helsinki Group, Moscow, 3 October 2013; Interview with Valentin Gefter, Director of the Human Rights Institute, Moscow, 3 October 2013. 31 Interview with Sergey Shimovolos, Project Coordinator, PRI Moscow Office, 4 October 2013. 19

October 2011 an extremely restrictive religious law was adopted, which gave the authorities a free hand to persecute persons and groups branded as Muslim religious extremists. Many were imprisoned. In December 2011 police detained and tortured hundreds of workers and trade union activists who went on strike in the eastern city of Zhanaozen.

In August 2011 the prison administration system of Kazakhstan was placed back under the authority of the Ministry of Interior where it was under communism. This was a surprising move which followed an escape from a prison of several prisoners sentenced for extremist Islamist activities. It was justified by the lack of capacity in the Ministry of Justice to ensure proper supervision of the system. The act was unanimously condemned by local and international human rights monitors, as well as by members of the academic community.32 It led to the worsening of the situation in prisons.33 The government however has no plans to place the system back under the authority of the Ministry of Justice.

At the same time, the period of project implementation coincided with Kazakhstan’s preparation for the implementation of OPCAT. Throughout 2011 and 2012 extensive consultations were held to amend several laws in order to establish a national preventive mechanism (NPM). In July 2013 the law was finally promulgated. It will however enter into force in 2014 as several important decrees required by the law are yet to be adopted.

The law envisages the establishment of the NPM as part of the Ombudsman’s Office. Although very well‐funded as an institution by the state budget, this by itself is problematic as the Ombudsman in Kazakhstan is appointed by a decree of the President and is not independent. This is particularly the case with the present Ombudsman, Mr. Askar Shakirov, a long‐time official at different ministries and a person with a rather bureaucratic approach to human rights. He has never made a public statement on any controversial issue.34

As a result of international and local pressure, in order to create a more independent mechanism the powers of the Ombudsman to control the work of the NPM were somewhat reduced. NPM members are to be recruited among the members of the civic oversight commissions (COCs), human rights NGOs and other civil society activists by the specially formed Coordination Council at the Ombudsman’s Office. The Coordination Council is to be elected by a special ad hoc committee appointed by the Ombudsman. The law does not stipulate who should be its members, which creates some uncertainty as to the independence of the NPM.

32 Interview with Aydarkan Skakov, professor of criminal law and procedure at the Institute of Justice of the Academy of State Government, Astana, 7 October 2013. PRI also actively opposed the transfer. It took part in a joint press conference with other civil society organisations, brought the issue to the OSCE and held two meetings with the Chief Prosecutor’s Office to express its concerns. See report on the press conference at: “Bringing Prisons under the MI – a Sign of a Police State”, Radio Azattyk, 9 August, 2011, available at: http://rus.azattyq.org/content/prisons_police_kazakhstan/24291596.html, accessed 2 November 2013. 33 Interview with Anara Ibraeva, director of the Astana office of the Kazakh Bureau of Human Rights and the Rule of Law, Astana, 9 October 2013; Interview with Saule Mektepbaeva, Regional Director of PRI, Astana, 7 October 2013. 34 Interview with Ardak Zhanabilova, Chairperson of the COC in Almaty Region, Astana, 7 October 2013. 20

One of the important issues that has to be regulated by a decree are the modalities of the NPM’s work and more specifically, the possibilities for its members to conduct private interviews with detainees. The version of the decree I was presented with35 allowed for wide discretion by the prison authorities to decide on issues related to personal security of the NPM members during their visits. This can be used as a pretext to prevent them from meeting detainees in private.

Another controversial issue at present is the fate of the COCs, bodies established by a governmental decree in 2004 in each region of Kazakhstan with a similar mandate and composition to those in Russia. Since their formation COCs have been staffed with NGO activists, lawyers and academics, as well as with persons belonging to pro‐government circles. Their members have powers to visit prisons, although they have to announce their visits in advance. They can only visit during working hours. With regard to being able to talk with detainees in private, the situation differs from region to region.36 COCs were established initially in 15 regions. In 2012 two chairpersons of COCs suspended the activities of their commissions but the latter were subsequently reopened and restructured.

My Kazakh interlocutors drew different pictures of the work of the COCs over the past three years. According to some, their work has improved, they have started visiting institutions more often, became more professional and their opinions have been taken more seriously by the authorities.37 Others however mentioned the exacerbation of problems with the COCs in this period, including the lack of training of their members to properly conduct monitoring and the tighter control of authorities over their membership and visits.38 One of the major problems with COCs’ operation in Kazakhstan has been the shortage of funding. While in the past PRI supported their operations financially, this is no longer the case.39

I read some of the reports of COC from different regions, which the PRI office in Astana published in the framework of the project. All of them were unimpressive and of a poor quality. They focused on “soft” human rights issues and only some of them dealt with torture and inhuman conditions of detention as one among many other issues.

When the NPM law was under preparation, the fate of the COCs was under discussion on several occasions. Initially there was a proposal to abolish COCs altogether when the NPM becomes operational.40 The idea was subsequently abandoned. At present COCs exist in law and are supposed to be a parallel system of detention monitoring, complementing the NPM. The President’s Human Rights Commission, an influential albeit consultative body, supports

35 That happened during my interview with Nurlybek Abdraimov and Daulet Razamanov, prosecutors from the Chief Prosecutor’s Office, Astana, 9 October 2013. 36 Interview with Svetlana Kovlyagina, Chairperson of the COC in Pavlodar Region, Astana, 7 October 2013. 37 Interview with Saule Mektepbaeva, Regional Director of PRI, Astana, 7 October 2013. 38 Interview with Ardak Zhanabilova, Chairperson of the COC in Almaty Region, Astana, 7 October 2013. 39 Interview with Saule Mektepbaeva, Regional Director of PRI, Astana, 7 October 2013. 40 Ibid. 21

the existence of COCs.41 Yet there still seems to be some uncertainty about their future. The Ombudsman was of the view that they will have to gradually die out and that their work should be incorporated in the future NPM.42 An influential MP expressed a similar attitude.43

Curiously enough, COCs’ legitimacy and future is challenged in Kazakhstan also at the civil society level. The country’s largest human rights organisation, the Kazakh Bureau for Human Rights and the Rule of Law, does not back COCs. In July 2013 its president, Yevgeni Zhovtis, wrote to the regional sections of the Bureau expressing concerns about the ineffective work of the COCs. He thought that the creation of the NPM presents an opportunity to overcome the deficiencies of the COCs and urged the heads of the sections to focus on participation in the NPM as a more effective and better resourced mechanism. I heard different explanations about this unreasonable move. In fact the Zhovtis’ appeal met with some resistance among the Bureau’s sections but also created tensions between the organisation and the COCs.44 The Bureau’s participation in COCs in the future is uncertain, which is a serious loss.

At present, all major acts related to the criminal justice system in Kazakhstan are under review. This includes substantial amendments to the Criminal Code, Criminal Procedure Code and Criminal Executive Code, or the drafting of completely new ones to replace them. The direction of this reform is not one‐dimensional. On the positive side, the Criminal Code is supposed to make a distinction between crimes and minor offenses and not provide for criminal sanctions for the latter.45 The Criminal Executive Code is supposed to regulate the legal status of detainees in pre‐trial detention and to provide for some standards for improvement of conditions of detention. On the negative side, the amendments in the Criminal Procedure Code make the status of a person in the initial stage of investigations unclear and fail to provide guarantees against arbitrariness. In the draft Criminal Executive Code the status of COCs is unclear. Several of my Kazakh interlocutors thought that there is a possibility that they are altogether excluded from the final version of that law.46

PRI’s office in Astana has established itself as an important player in all developments related to detention monitoring and in the reform of the criminal justice system. It took active participation in the process in the framework of the project through soliciting international expertise, advocacy and participation in consultations at all levels. This was

41 Interview with Tastemir Abishev, secretary of the President’s Human Rights Commission, Astana, 8 October 2013. 42 Interview with Askar Shakirov, Ombudsman of Kazakhstan, Astana, 8 October 2013. 43 Interview with Svetlana Bychkova, MP, secretary of the Parliamentary Legislative Committee, Astana, 8 October 2013. 44 Interview with Anara Ibraeva, director of the Astana office of the Kazakh Bureau of Human Rights and the Rule of Law, Astana, 9 October 2013. 45 Interview with Raisa Yurchenko, judge at the Supreme Court of Kazakhstan, Astana, 9 October 2013. 46 Interview with Askar Shakirov, Ombudsman of Kazakhstan, Astana, 8 October 2013; Interview with Aygul Solovyova, MP, Astana, 8 October 2013. 22

recognised and appreciated at the top governmental level.47 PRI has lobbied Parliament, the President’s Human Rights Commission and the Ombudsman. It has had a major role in the adoption of the law establishing the NPM, a process which faced many challenges at the initial stage.48 PRI invested a lot in providing international expertise and in exercising pressure through international organisations to overcome these challenges. At the same time PRI played a key role in mobilising civil society support for the reform efforts and through the project activities provided it with the tools and capacity required so that it can play a role in the process. Thus, it served as a mediator between institutions and civil society, a role that is appreciated by both sides and which the office is prepared to continue playing in the future.49

5. PRI activities related to detention monitoring

In the framework of the project PRI’s offices in Tbilisi, Moscow and Astana implemented a wide range of activities directed at detention monitoring. These include activities specifically envisaged by the project and organised exclusively by PRI staff on the ground, as well as participation in activities organised by other stakeholders. The project had a relatively large budget but in view of the fact that it operated in nine countries, the actual amount per country was often insufficient to allow for responding to rapidly developing situations. This is why in many cases PRI offices on the ground had to fundraise more than they have committed initially, to be able to implement important activities. The types of activities related to detention monitoring in the framework of the project can be summarised roughly as follows:

‐ Round tables at the country level aiming to mobilise stakeholders’ support and pressure the government

‐ Round tables at the regional level aiming at exchange of knowledge and experience, as well as for raising awareness on important developments at the international and at the regional level

‐ Conferences where the results of civil society monitoring of places of detention were presented and discussed

‐ Publications:

o The electronic newsletter “Together against Torture”

o Training manuals

47 Interview with Tastemir Abishev, secretary of the President’s Human Rights Commission, Astana, 8 October 2013. 48 Interview with Saule Mektepbaeva, Regional Director of PRI, Astana, 9 October 2013. 49 Ibid. 23

o Reports prepared by civil society monitors of places of detention

o Baseline studies

o Tools/standards related to detention monitoring and rehabilitation of victims of torture

‐ Working meetings discussing monitoring methodology and coordination between monitoring bodies

‐ Conferences discussing legislation, where civil society representatives present their proposals to the government

‐ Meetings for lobbying purposes

‐ Meetings facilitating NGO encounters with international bodies (e.g. the UN Special Rapporteur on Torture)

‐ Press conferences raising concerns about negative developments and restrictions to civil society monitoring activities

‐ Facilitating participation of civil society in the NPMs through lobbying or other actions

‐ Cross‐regional conference in Tbilisi in June 2012

‐ Building capacity of monitors through trainings

Most of these activities took place at the national level or in the regions where the respective PRI offices operated. The only cross‐regional event was the conference in Tbilisi in June 2012.

6. Analysis of target outcomes

6.1. Acknowledgment of the existence of torture and ill‐treatment

Acknowledgment of the existence of torture and ill‐treatment by the target governments as such was not an objective under the project. Yet, the starting point of PRI’s theory of change is that governments acknowledge the existence of torture as a precondition for taking action, including through independent monitoring. In this regard, the situation on the ground in the target countries poses two major challenges:

1. While all the governments admit the existence of torture, the full extent is not acknowledged and the frequency of its occurrence is downplayed.

24

2. The acknowledgement of the existence of torture is not in all cases related to an acknowledgement of the need to combat it through independent monitoring.

At present, the government of Georgia seems most open to acknowledging the problem. This acknowledgement is however limited to its incidence under the Saakashvili regime. The present government is even prepared to acknowledge its systematic nature at that time. It is however reluctant to talk of torture as an ongoing problem, existing also at present, and it tends to paint a rosy picture of the current situation.50

As to the government’s readiness to deal with the problem through independent monitoring, in this regard its approach is also limited. It is prepared to, and in fact took steps towards, strengthening the existing NPM through allowing the involvement of more civil society experts in it, but its approach to civil society monitoring remained restrictive and does in reality differ significantly from that of the Saakashvili regime.

In addition to NPM monitoring, the government has sought other means of dealing with the widespread abuses that took place in the past. These include for the most part criminal prosecution and disciplinary punishments of the staff involved in them, including dismissals. To a limited extent the government is also prepared to arrange for the rehabilitation of victims.

PRI’s office in Tbilisi had a limited role in unmasking the problem under the Saakashvili regime. The organisation did not contribute in any major way to the uncovering of its seriousness and was not even among the most vocal exponents of the need to prosecute the perpetrators after they were uncovered. The PRI office was however consistent in insisting on the need for civil society monitoring as a way to combat torture. It made this a major focus of its public advocacy in the framework of the project, as well as in its encounters with government officials. While PRI has not yet achieved positive results beyond the expansion of the civil society participation in the NPM, this is a battle which is by no means over and the cause is not lost. The organisation needs to continue to invest its resources and efforts in this in the future.

In Russia the government’s acknowledgement of torture has been and continues to be very limited, in sharp discrepancy with its actual incidence. The problem of torture is particularly acute in South Caucasus where it is practiced systematically in places of detention. The government is prepared to acknowledge that detention conditions are inhuman and degrading and has started a program for their improvement. It also acknowledges that overcrowding in Russian prisons contributes to these conditions and took measures to reduce the prison population. However, when it talks about torture, it tends to see its occurrence as incidental rather than systematic. It also does not view detention monitoring as a means for reducing torture. The establishment of COCs in 2008 with the Public Control

50 Interview with Nato Gugava, Deputy Head of Penitentiary Department, Tbilisi, 18 September 2013. 25

Act pursued different goals51 and the primary approach to combating what it views as the incidental occurrence of torture is through the criminal prosecution of perpetrators. To a limited extent it acknowledges the need to train staff in the criminal justice system in standards of treatment of detainees. Rehabilitation of torture victims has been a foreign concept in Russian society with no meaningful efforts at rehabilitation that are worth the name existing at either government or non‐government levels.

The PRI office in Moscow played a minor role in the acknowledgement of the problem of torture. The activities in the framework of the project, although targeting this outcome, were insufficient and were not well accepted by the government. They were also low profile. PRI activities, which aimed for the most part to strengthen the capacity of the COCs did not specifically underline the necessity for an official acknowledgement of torture. No joint advocacy campaigns or other activities at the NGO level were organised with that aim in mind.

In Kazakhstan the government’s acknowledgment of the problem of torture has also been limited although the Kazakh government seems to be more willing to acknowledge it than the Russian one. It is also more willing to recognise the system of independent monitoring as a tool to combat torture. The recent legislative changes aiming at the establishment of an NPM were at least partly motivated by the perceived need to monitor the incidence of torture. Yet, despite this, the Kazakh government stresses the bad conditions of detention as the most important problem. It also tends to be defensive when confronted with accusations of torture and downplays the allegations.52 With regard to inhuman and degrading conditions of detention, the government avoids assuming full responsibility by relying on the legacy of the GULAG.

The establishment of the COCs in 2004 and subsequently of the NPM was motivated to a certain extent by the belief that these mechanisms have a role in combating torture and other ill‐treatment. However, in the government’s approach and especially in its public expression, the system’s other problems dominate – inhuman and degrading conditions of detention, as well as other, “softer” violations of the law. The government’s reluctance to fully uncover the skeletons in its cupboard can be seen also in its reluctance to allow more freedom and to provide for better modalities for the existing monitoring teams.

Acknowledgment of torture by the government has not been a serious focus of the PRI office in Astana in the framework of the project. PRI in Kazakhstan pursues its objectives through cooperation rather than through confrontation. Bringing up the issue of torture and insisting that authorities should acknowledge its seriousness would have undermined its overall

51 See above at 4.2. 52 See: Written replies of the Government of Kazakhstan to the list of issues related to the consideration of its second periodic report to the Committee against Torture, 4 November 2008, CAT/C/KAZ/Q/2/Add.1; Replies to the list of issues (CCPR/C/KAZ/Q/1) to be taken up in connection with the consideration of the initial periodic report of the Republic of Kazakhstan (CCPR/C/KAZ/1), 4 November 2010, CCPR/C/KAZ/Q/1/Add.1. 26

strategy. This is why the office made independent monitoring the major focus of its advocacy.

6.2. Establishment of independent monitoring mechanisms

The approaches of the three target governments to establishing independent monitoring mechanisms at the government and the civil society levels differ significantly. The underlying raison d’etre of these efforts is the need to follow what they perceived as an important development at the international level following the ratification of OPCAT. Beyond this however the reasons underlying the reform efforts and their goals differed.

In Georgia the government was determined to allow detention monitoring only in the framework of the National Preventive Mechanism, which acts under the Ombudsman’s mandate, and continues to refuse NGO access to places of detention. Civil society involvement in monitoring can take place through the experts at the regional level who may be invited by the NPM to serve during a specific visit. Thus, the experts can only undertake specific tasks under the Ombudsman’s auspices and only within the framework of his/her mandate, which is narrowly defined. Their advocacy possibilities are restricted – they can contribute to the Ombudsman’s report, but they cannot publish reports of their own, cannot make public statements, talk to the media, or let alone assist victims of torture in litigation.

The PRI office in Tbilisi raised the issue of NGO restrictions to visit places of detention on numerous occasions in the framework of the project. It however failed to make its voice heard by the government. It is hard to determine what the factors behind the government’s resistance were and whether it would have been possible to achieve the reversal of this policy with more persistence, stubbornness and diversification of advocacy approaches. In my encounters with top government officials I found that the arguments in favor of civil society monitoring have not been made sufficiently strongly and consistently by anybody in Georgia.53

In Russia there are no plans at the official level to ratify OPCAT and to establish a National Preventive Mechanism in compliance with international standards. It is not likely to see positive developments in that regard in the near future. The recent attacks against independent NGOs through the amendments of the Non‐Profit Organisations Act from July 2012 and the recent efforts to fund their activities through a government fund stifles the possibilities for a consistent, robust and coordinated civil society campaign for the ratification of OPCAT. NGOs, including PRI, have been doomed to limiting themselves to low profile activities in the near future.

PRI’s efforts to build capacity in the COCs are one such low profile activity which, although with some undoubted results, contributes little to the effective civil society monitoring in

53 Interview with Sopo Japaridze, Deputy Minister of Corrections and Legal Aid, 18 September 2013. 27

Russia, given the narrow framework of the trainings. PRI advocacy activities had a limited scope, could not reach out to political levels with effective decision‐making power and thus made no significant difference.

In contrast, PRI’s work related to the establishment of independent monitoring mechanisms in Kazakhstan is a remarkable success story. It was well targeted, consistent and focused on both governmental and non‐governmental monitoring mechanisms. It involved successfully key decision‐makers at the governmental level, as well as all relevant civil society actors. All this happened in the framework of the project, although for some activities the PRI office in Astana had to solicit additional funding from other donors.

Most of my interlocutors in Astana mentioned specifically the contribution of PRI in the adoption of the legislation establishing the country’s National Preventive Mechanism. Top government officials54 and non‐government actors, which strongly opposed government human rights policies,55 were unanimous that the PRI office in Astana played a key role in this process.

At the same time, PRI was active in supporting COCs, the only available non‐governmental monitoring mechanism. It opposed attempts at their removal at the initial stage of the discussions around the establishment of the NPM, offered financial support for their work and supported the publication of their reports. It continues to endorse their role as a civil society monitoring body and to oppose the continuing challenges to their existence.

In Kazakhstan both the NPM and the COCs face challenges and uncertainties. The major uncertainty with regard to the NPM is about its establishment as an independent body. Potentially in the future it could face problems with its capacity to effectively monitor detention facilities. With regard to COCs, a continuous challenge is the legal restriction on the modalities of their monitoring work (announced visits and the impossibility in some cases to interview detainees in private) and the poor quality of their monitoring and reporting. PRI has an important role to play in the process of strengthening the capacity of these monitoring bodies in the future.

6.3. Reporting, publications and advocacy

My interlocutors in Tbilisi, Moscow and Astana appreciated very much some of the publications produced by PRI in the framework of the project. This was particularly the case with the training manuals and the tools/standards related to detention monitoring and rehabilitation of victims of torture. To a lesser extent this has also been the case with the

54 Interview with Tastemir Abishev, secretary of the President’s Human Rights Commission, Astana, 8 October 2013. 55 Interview with Anara Ibraeva, director of the Astana office of the Kazakh Bureau of Human Rights and the Rule of Law, Astana, 9 October 2013. 28

baseline studies. In Georgia and in Kazakhstan they were well‐known and appreciated. In Russia there have apparently been some problems with the distribution of the baseline study. None of the persons I interviewed in Russia knew about it.

In Kazakhstan PRI supported the publication of the reports of the COCs. Although these were of a poor quality, this was worth doing since reporting on the findings should be an indispensable part of the monitoring. It increases transparency and avails the work of the monitoring body to public scrutiny.

The most important publication in the framework of the project was the bilingual electronic newsletter “Together against Torture”. It became a hub, which gave publicity to all anti‐ torture activities in the nine target countries. These include not only activities that were part of the project but also any NGO or government initiatives, which had to do with torture prevention. The publication had positive effects in a number of directions: in keeping track of all developments in the field at the international, governmental and NGO levels; in consolidating human and organisational resources in the region around the prevention of torture; in providing transparency to project activities; and in providing a forum for analytical, educational and advocacy work on torture prevention. The newsletter received a warm welcome among everybody involved in project activities and with torture prevention in general. It is certainly an outcome which is worth maintaining in the future.

Activities in the framework of the project gave rise to a number of publications at the national level in the three target countries. Of the three PRI offices in the region, the one in Kazakhstan has been by far the most active in the media. With that, the scope of the Kazakh office’s public interventions has been quite broad. The activities in this regard of the offices in Moscow and in Tbilisi have been more modest and low profile. This was a weakness in the implementation of the project.

Beyond publicity, the project involved many other advocacy activities using other approaches – round tables, conferences, coalition‐building, lobbying. These were used with different levels of success by each of the three offices, with the Kazakhstan office again being the most active and the most effective.

7. Effectiveness

The effectiveness of the project can be measured by the achievement of the estimated results. In the sphere of detention monitoring the project envisages achievements in four spheres:

1. Ratification of OPCAT in six out of the nine target countries;

2. Establishment and effective functioning of NPMs as a result of ratification;

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3. Increased level of interaction between government and civil society on torture prevention;

4. Strengthening capacity of civil society to monitor places of detention.

When the project started, six out of the nine target countries had already ratified OPCAT. These included Kazakhstan (2008), Kyrgyzstan (2008), Georgia (2005), Armenia (2006), Azerbaijan (2009) and Ukraine (2006). None of the remaining three target countries ratified it during the project’s implementation. By 2010 half of the countries which had ratified OPCAT had established national preventive mechanisms. PRI was effectively involved in advocacy for the establishment of NPMs in Kazakhstan, Kyrgyzstan and Ukraine. In Kyrgyzstan and in Ukraine the NMPs were established in 2012 and PRI played a certain (although not major) role in this. PRI’s role in the establishment of the Kazakh NPM was crucial.56 At present the NPM in Kyrgyzstan is not operational because it is not adequately financed by the government and the one in Ukraine is in its formative stage. The NPM in Kazakhstan is also not yet operational because the government has not yet adopted the required decrees. Thus, apart from Kazakhstan, PRI has had no serious involvement in strengthening the NPM systems in the target countries. No serious efforts were made to advocate for NPM ratification in Belarus, Russia and Tajikistan. PRI offices in Moscow and in Astana rightly estimated that, given the current political situation in these countries, investing in such efforts would be a waste of time and resources.

All PRI offices in the target countries made serious efforts to increase the level of interaction between government and civil society on torture prevention. This was done through the roundtables, annual regional forums, international advocacy trips and the cross‐regional conference in Tbilisi in June 2012. In Georgia and in Kazakhstan PRI activities were the only forums where government agencies and civil society organisations involved in torture prevention could meet and hold discussions. PRI’s mediation between government and civil society was particularly successful in Kazakhstan. In Russia the role of PRI in this process was modest. There were other, more active and more efficient players and forums where the interaction between government and civil society could take place.

Overall, as an international organization, PRI is particularly well‐positioned to achieve its goals in the target countries. This is especially the case in Kazakhstan and in Georgia where societies and governments are sensitive to messages, which come from such organisations. But even in Russia, where the political climate is generally hostile to foreign influence, the 2012 amendments of the Non‐Profit Organisations Act did not affect the work of international organisations thus allowing them more freedom of action.

One of the deficiencies of the project, which some of my interlocutors pointed out, was the lack of a cross‐regional perspective.57 The only forum where government stakeholders and

56 See 6.2. above 57 Interview with Saule Mektepbaeva, Regional Director of PRI, Astana, 9 October 2013. 30

civil society activists from all target countries met in the framework of the project was the June 2012 conference in Tbilisi. Almost everybody who took part or was familiar in any other way with this event expressed strong appreciation for it, as well as regret that it was the only one of its type. The conference served as a forum for the exchange of experience and learning in a new and rapidly developing sphere of standard‐setting and practice, something unprecedented in the history of the region. Indeed such events, although expensive and difficult to organise, are of great value in view of the common heritage, common problems, common language and common needs across the region. More such cross‐regional events would have enhanced the effectiveness of the project.

The project envisaged a number of activities directed at the strengthening of the capacity of civil society to monitor places of detention. These include publications and trainings at the national level. Many of the materials published by the electronic newsletter “Together against Torture” also contributed to the strengthening of the monitoring capacity of civil society actors. These activities were very much appreciated by my interlocutors in Tbilisi, Moscow and Astana. They were considered especially useful and effective in Kazakhstan.

Talking about effectiveness beyond the achievement of estimated results, it has to be mentioned that although the project design allows for some flexibility in the course of its implementation at the regional and at the national level, this was insufficient. Due to the requirements of the donor of a detailed plan of activities over a long period of time, important developments at the national level, such as the uncovering of the practices of torture in Georgian prisons in September 2012 and their follow up, could not be addressed with the requisite thoroughness in the framework of the project.

8. Conclusions and recommendations

The monitoring of places of detention is a new and rapidly developing sphere of human rights standard‐setting and practice. It is among the main components of penal reforms worldwide today, and it is not confined only to the institutions of the criminal justice system. Over the past two decades detention monitoring has become established as a practice across Eastern Europe, and there have been important developments especially as far as civil society monitoring is concerned. In the latter regard Eastern Europe presents particularly innovative approaches and standards, which can be successfully applied in other regions of the world, including Western Europe and North America. Civil society involvement in the national preventive mechanisms in many East European countries also presents innovative positive models.

Although some of the target countries involved in the project lag behind regional and international developments in detention monitoring, others have progressed and nowadays present legislative and institutional frameworks that are quite advanced. Overall, there is a good political momentum in the region and a lot of civil society interest in this type of

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human rights work. PRI should therefore try to seize this opportunity and make detention monitoring in Eastern Europe and the former Soviet Union its priority. The present project is a good first step but it should be followed up with a comprehensive strategy.

My recommendations below are divided in two parts: general recommendations related to all target countries and country‐specific recommendations.

8.1. General recommendations

 PRI should continue to call for the acknowledgement by the target governments of the problem of torture and other ill‐treatment in all their forms as a precondition for engaging in different types of preventive and rehabilitative actions.

 PRI should design and implement intervention strategies on how to achieve progress in the realm of detention monitoring in the region by taking a realistic account of developments at the political and civil society levels in each one of the target countries.

 PRI should make civil society monitoring of places of detention a specific focus of its work in Eastern Europe and the former Soviet Union.

 As a way of achieving strategic outcomes in detention monitoring PRI should pay specific attention to and implement activities which focus on the exchange of country and regional experiences.

 PRI should design intervention strategies that are more flexible and take account of the political and social dynamics in the target countries.

 PRI should continue to publish its bi‐lingual electronic newsletter “Together against Torture”.

8.2. Country‐specific recommendations

In Georgia:

 PRI should retain as a priority the reestablishment and the expansion of civil society monitoring of places of detention.

 PRI should be more active in establishing an effective system, capable of seeking accountability from government officials involved in torture.

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 PRI should pressure for the establishment of a comprehensive government‐funded program for rehabilitation of victims of torture, which should make appropriate use of the available civil society resources.

 PRI’s office in Tbilisi should make itself more visible and more active publicly both in Georgia and in the other countries of South Caucasus.

In Russia:

 PRI should make its priority advocating for the inclusion of more human rights NGO representatives as members of the civic oversight commissions.

 PRI should pressure for the acknowledgment of the problem of torture and other ill‐ treatment by the government, especially in some regions of the country, such as South Caucasus.

 PRI should be more active publicly and in building coalitions with other human rights NGOs, as well as with sympathetic forces within Russian governmental structures.

 PRI should be more active in collaborating with human rights and anti‐torture NGOs in the Russian regions.

In Kazakhstan:

 PRI should advocate for the preservation of the civic oversight commissions and for strengthening of their powers to monitor places for deprivation of liberty.

 PRI should build the capacity of civic oversight commissions to improve the quality of their monitoring and their reporting.

 PRI should advocate for the establishment of an independent National Preventive Mechanism and should take active role in building its capacity to effectively monitor places of detention. It should advocate for the involvement of human rights NGO representatives and independent human rights activists in its operation.

ANNEX

List of persons I interviewed in Georgia, Russia and Kazakhstan

Georgia

Tsira Chanturia, Project Director, Director of PRI, South Caucasus Regional Office Bekar Jikia, Torture Prevention Project Coordinator, South Caucasus Regional Office

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Nana Kakabadze, Chairperson, Association of Political Prisoners for Human Rights Nato Gugava, Deputy Head of Penitentiary Department Georgi Berulava, psychiatrist, member of the board of Empathy Tinatin Uplisashvili, project manager in the CoE/EU representative office in Georgia Sopo Japaridze, Deputy Minister of Corrections and Legal Aid David Managadze, Senior Legal Advisor of the Office of Public Defender of Georgia Guram Bedianishvili, NPM member Levan Meshkhoradze, government agent of Georgia before the ECHR Moris Shalikashvili, professor of law of Tbilisi and Hamburg Univerisities Nino Andriashvili, lawyer, Human Rights Center Temur Rekhviashvili, Georgian Center for Rehabilitation of Victims of Torture Kakha Mikadze, Empathy Tamara Gabiani, Youth for Justice Association Nikoloz Legashvili, Article 42 Association

Russia

Valery Bazunov, Head of the Human Rights Department at the Ombudsman’s Office of the Russian Federation Pavel Chikov, Director of the “Agora” association, member of the President’s Human Rights Council Valentin Gefter, Director of the Human Rights Institute Andrey Babushkin, Chairperson of the Civil Rights Committee, member of the Expert Committee at the Ombudsman Nina Tagankina, Executive Director, Moscow Helsinki Group Irina Sergeeva, lawyer, Moscow Helsinki Group Natasha Dzyadko, Director, Center for Encouragement of the Criminal Justice Reform Valery Sergeev, Deputy Director, Center for Encouragement of the Criminal Justice Reform Vika Sergeeva, Regional Director of PRI, Moscow Office Sergey Shimovolos, Torture Prevention Project Coordinator, PRI, Moscow Office

Kazakhstan

Saule Mektepbaeva, Regional Director of PRI Zhanna Malayeva, torture prevention project coordinator Aydarkan Skakov, professor of criminal law and procedure at the Institute of Justice of the Academy of State Government Anara Ibraeva, director of the Astana office of the Kazakh Bureau of Human Rights and the Rule of Law Nurlybek Abdraimov, prosecutors from the Chief Prosecutor’s Office Daulet Razamanov, prosecutors from the Chief Prosecutor’s Office

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Ardak Zhanabilova, Chairperson of the COC in Almaty Region Svetlana Kovlyagina, Chairperson of the COC in Pavlodar Region Tohniyaz Kuchukov, journalist Evgeny Golenduhin, former Chairperson of the COC in North‐Kazakhstan Region Tastemir Abishev, secretary of the President’s Human Rights Commission Ablayhan Akkulev, professor of law at the Eurasian Humanitarian Institute Askar Shakirov, Ombudsman of Kazakhstan Svetlana Bychkova, MP, secretary of the Parliamentary Legislative Committee Aygul Solovyava, MP Raisa Yurchenko, judge at the Supreme Court of Kazakhstan

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