Ukrainian Parliament Commissioner for Human Rights MONITORING OF CUSTODIAL SETTINGS IN UKRAINE: ccurrenturrent iimplementationmplementation ooff thethe nationalnational preventivepreventive mmechanismechanism 2012report Kyiv – 2013 УДК 342.7 (477) (042.3) ББК 67.9 (4УКР) 400.7 М 76 Monitoring of custodial settings in Ukraine: current implementation of М 76 the national preventive mechanism: report 2012 / Ukrainian Parliament Commissioner for Human Rights. – К., 2013. – p. ISBN 966-7855-00-7 In case of full or partial reproduction of the materials of this publication proper reference to this edition is obligatory Published with the support of International Renaissance Foundation © Secretariat of the Ukrainian Parliament ISBN 966-7855-00-7 Commissioner for Human Rights, 2013 3 CONTENT PREAMBLE by V. Lutkovska, Ukrainian Parliament Commissioner for Human Rights . SECTION 1. Implemenation of the national preventive mechanism in Ukraine: specifi c features. 1.1. Ukraine’s obligations with regard to Implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhu- man or Degrading Treatment or Punishment . 1.2. The background of establishment of the national preventive mecha- nism in Ukraine . 1.3. Characteristic features of the “Ombudsman +” NPM format . 1.3.1. Department for matters of NPM implementation . 1.3.2. Role of NGOs in NPM implementation . 1.3.3. Arrangements for monitoring visits to custodial settings and their conduct . SECTION 2. The results of NPM operation in Ukraine . 2.1. General information on NPM activities in Ukraine in 2012 . 2.2. Monitoring of institutions under The Ministry of Internal Aff airs of Ukraine: results . 2.3. Monitoring of institutions under The State Penitentiary Service of Ukraine: results . 2.4. Monitoring of institutions under The State Border Service of Ukraine: results . 2.5. Monitoring of institutions under The Ministry of Defense of Ukraine: results . 2.6. Monitoring of institutions under The Security Service of Ukraine: results . 2.7. Monitoring of institutions under The Ministry of Education, Science, Youth and Sport: results. 2.8. Monitoring of the institutions of The Ministry of Health Care of Ukraine: results . 4 2.9. Monitoring of institutions under The Ministry of Social Policies of Ukraine: results . 2.10. Cooperation with public authorities in performance of NPM func- tions: response to the ombudsman’s recommendations . 2.11. NPM department’s informational and awareness-raising activities in the area of prevention of torture and ill-treatment 2.11.1. Participation in round table discussions, seminars and conferences 2.11.2. Conducted trainings and workshops CONCLUSIONS . RECOMMENDATIONS . ANNEXES . Law of Ukraine "On the Ukrainian Parliament Commissioner for Human Rights" . Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . Draft Law of Ukraine “On the National Committee of Ukraine for Prevention of Torture”. 5 PREAMBLE In the present-day world torture and ill-treatment are shameful and appalling. For many decades the international community has tried to resolve this problem by adopting various legal instruments to counter torture and by way of establishing institutional mechanisms for compliance with such instruments. A relatively new instrument that, however, has already proved its effi ciency is the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), adopted on December 18, 2002. The principal idea of OPCAT is to set up in every state a system of regular independent visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. These visits are undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment. Monitoring visits of custodial settings by independent experts exercise a deterring eff ect on public authorities and, accordingly, minimize the risk of becoming a victim of torture. Ukraine ratifi ed the Optional Protocol on July 21, 2006. On August 9, 2012 the President of Ukraine submitted to the Verkhovna Rada the draft Law of Ukraine “On Amendments to the Law of Ukraine on the Ukrainian Parliament Commissioner for Human Rights with Regard to the National Preventive Mechanism” that vested NPM functions with the Ombudsman. The Parliament approved this Law on November 4, 2012. After a public debate with participation of well-known domestic and international experts it was decided to implement the “Ombudsman +” NPM model, which implies joint monitoring visits of custodial settings by the staff of the Offi ce of the Ombudsman of Ukraine and by civil society activists. On May 25, 2012 the Secretariat of the Ukrainian Parliament Commissioner for Human Rights got a new subdivision in its structure – the Department for implementation of the national preventive mechanism. The process of selection of the personnel for this Department lasted throughout the year, in order to staff the new unit, on competitive basis, with professionals of considerable practical experience in the sphere of monitoring of the respect of human rights and freedoms in the performance of closed institutions. 6 As of the fi rst days of its existence the NPM Department began active monitoring visits to diff erent parts of Ukraine, with development of the methodology and practicalities for monitoring of each type of custodial settings. Shortly after the passage of the above described legislative changes the monitoring missions integrated NGO activists. I want to express my gratitude to Denys Kobzin and Andriy Chernousov for their large contribution into the establishment of NPM in Ukraine. Back in 2008, at the First Eastern European Conference of national preventive mechanisms these two persons inspired me with the idea to initiate such mechanism. Since then this area has been a principal concern in my work. When serving at the Ministry of Justice I coordinated the drafting of the Law “On the National Committee Against Torture” and later, upon election to the position of the Ombudsman, I started to implement the national preventive mechanism, as one of my key priorities. I want to thank the UN Offi ce in Ukraine, Offi ce of the Council of Europe in Ukraine, OSCE Project Coordinator in Ukraine and the International Renaissance Foundation for their administrative, methodological and technical support for implementation of the national preventive mechanism in 2012. I also express my gratitude to the non-governmental organizations that enthusiastically supported this process – the Association of Independent Monitors, Association of Ukrainian Monitors on Law- enforcement, Ukrainian Helsinki Human Rights Union, Kharkiv Institute for Social Research, Kharkiv Human Rights Group, Center of Human Rights Information and M’ART public organization. Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights 7 SECTION 1 IMPLEMENATION OF THE NATIONAL PREVENTIVE MECHANISM IN UKRAINE: SPECIFIC FEATURES 1.1. UKRAINE’S OBLIGATIONS WITH REGARD TO IMPLEMENTATION OF THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT On July 21, 2006 the Verkhovna Rada as the independence of their person- (Parliament) of Ukraine ratifi ed OPCAT nel, to make available the necessary - the Optional Protocol to the Conven- resources for NPM functioning and, tion against Torture and Other Cruel, when establishing national preventive Inhuman or Degrading Treatment or mechanisms, to give due consideration Punishment (Law of Ukraine # 22-V, to the principles relating to the status of July 21, 2006). According to OPCAT of national institutions for the promo- provisions each State Party is obliged tion and protection of human rights. to set up, designate or maintain at the According to part one of Article 4 of domestic level one or several visiting OPCAT each State Party shall allow bodies for the prevention of torture NPMs to visit any place under its ju- and other cruel, inhuman or degrading risdiction and control where persons treatment or punishment (the national are or may be deprived of their liber- preventive mechanisms, or NPMs). ty, either by virtue of an order given The Optional Protocol contains no by a public authority or at its insti- provisions regarding the format and gation or with its consent or acqui- organizational structure of NPMs but escence. These visits shall be under- obligates the State Parties to guarantee taken with a view to strengthening, if the functional independence of the na- necessary, the protection of these per- tional preventive mechanisms as well sons against torture and other cruel, 8 MONITORING OF CUSTODIAL SETTINGS IN UKRAINE inhuman or degrading treatment or ment or the placement of a person in punishment. a public or private custodial setting which that person is not permitted to As stipulated in part two of OPCAT Ar- leave at will by order of any judicial, ticle 4, “deprivation of liberty means administrative or other authority.” any form of detention or imprison- For effi cient performance of their functions NPMs, under Article 19 of OP- CAT, are granted the following powers: (a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defi ned in article 4, with