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Ukraine’s anti-torture programme needs serious reform if it is to be effective

According to new research, Ukraine’s National Preventive Mechanism is not fulfilling its duties. RU

Tetiana Bezruk
28 February 2019

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Denys Kobzin. Source: archive of the Kharkov Institute of Social Research. All rights reserved.The Kharkiv Institute for Social Research recently presented the results of its evaluation of Ukraine’s National Preventive Mechanism (NPM) against torture and ill-treatment in its penal and other closed establishments. The NPM mandates certified activists, together with the Ombudsman’s office, to inspect places of detention, monitor conditions and make recommendations on prevention of ill-treatment.

The Institute’s research covers the NPM’s work since its inception in 2012, and how its work has changed since the outbreak of armed conflict in eastern Ukraine.

Here, Denys Kobzin, the Institute’s director, outlines the main difficulties faced by NPM monitors visiting closed establishments and the effectiveness of its work in terms of reactions to and prevention of torture and inhuman treatment in Ukraine.

What is Ukraine’s National Preventive Mechanism today? What government structure does it report to, how and where does it work?

The NPM works to prevent torture and cruel treatment in prison colonies, residential care facilities, psychiatric hospitals and other closed establishments in Ukraine. The document regulating its work was developed by international specialists over many years and sets out the country’s obligations under the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [ratified by Ukraine in 2006].

One of the Protocol’s compromise decisions (of which there are several) states that ratifying states must set up their own, independent bodies whose monitors will regularly visit places of detention to prevent torture taking place there and also review relevant laws and draft bills.

From its creation in 2012, Ukraine’s NPM is under the office of the Parliament Commissioner for Human Rights. This was logical for 2012, there was no other way of setting it up. But it is unclear how effective this structure has been, as the post of Ombudsperson is a highly political one here, which naturally weakens it considerably.

“The post of Ombudsperson is a highly political one here, which naturally weakens it considerably”

Now, after nearly seven years, the NPM formally consists of two parts – its department in the Parliament Commissioner for Human Rights and civil society activists who visit penal and other closed establishments. These have a formal right to unrestricted visits to any of Ukraine’s nearly 5,000 facilities, face-to-face conversations with inmates, visits to buildings and access to relevant documents. They also monitor thousands of establishments attached to ministries, from police stations to children’s homes, where people are being held under government control and at risk of abuse and infringement of their human rights.

Are all penal establishments accessible for monitoring?

The visiting system is not as simple as it seems. In the first place, the public have never had the right to independent visits and so the number of visits to closed establishments has always been limited to opportunities offered by the Parliament Commissioner. As a result, in the six years of its operations, there has never been a year when the NPM has been able to visit even 10% of these establishments. And this has consequences: most facilities have never been monitored, andmonitors end up losing their motivation as they have few opportunities for visits and simply don’t see their efforts having any effect.

In the second place, the Parliament Commissioner for Human Rights has to deal with an enormous number of complaints, including from inmates of closed establishments, and most of the NPM’s efforts go on responding to these. So its work is mostly reactive: it just records irregularities and chases them up, rather than preventing their occurrence.

Public involvement in the preparation, publication and progress of visitor reports is also minimal. The civil monitor is effectively a sidekick to a staff member from the Commissioner’s office — this person decides where and when to visit, organises the visit, writes it up and posts a press release, containing the basic facts of the meeting on the Commissioner’s website. Annual reports are also produced by the Commissioner’s staff – the role of members of the public is reduced to a minimum. The effectiveness of this system can be gauged by two things: the number of visits made to closed establishments and the NPM’s effect on the situation in them. Most facilities have still never been visited and most visits that have taken place have shown that the irregularities revealed seven years ago are still in force. What effects can we possibly talk about?

When does ill treatment turn into torture? Is there anything to regulate this apart from Ukraine’s Criminal and Procedural Code?

It turns into torture very easily. There are innumerable definitions of torture – in International Conventions, the Criminal Code and so on – but standards are changing, not least thanks to rulings by the European Court of Human Rights. To put it bluntly, in practice the distinction between ill-treatment and torture is not always clear – it’s a question of the degree of pain and suffering, and sometimes the intention of the given actions. The UN Committee against Torture has more than once made this point.

However, if you imagine yourself in the place of someone spending years bedridden and forced to soil themselves and compare that with someone shackled in handcuffs – it would be difficult to draw a distinction, probably because “torture and cruel and degrading treatment” has become a stock phrase in documents and specialist literature.

If the NPM monitors torture, who monitors the NPM? Is there any performance indicator for its work?

On the whole, it’s not monitored by anyone. For some reason, we have a positive view of it as an undisputedly successful mechanism — and that is not to be questioned. This is to a large extent connected to the fact that immense effort goes into the creation of this successful image – if any visits take place, this is already an achievement.

The NPM actually exists in at least two realities – the public perception and that of the Parliament Commissioner. They occasionally overlap during visits, at training sessions or at conferences, but their remits are totally different.

How do NPM monitors find out about cases of ill-treatment? How long is the information chain?

The monitors can get their information from all sorts of sources – from its victims, their families, the media or a complaint lodged with the Parliament Commissioner. The question is less about how they find out, than the many other factors that need to be taken into consideration: to visit the facility the information came from, or not; if so, when to visit, and whether it should be organised in advance or impromptu – all these decisions are taken by the Commissioner’s staff.

Have there been cases where people have been dismissed from their jobs because of complaints?

Yes, this has happened, and some people have faced criminal charges. But unfortunately, this is a drop in the ocean and does nothing to change the system. You can remove the person, but if everything else stays the same, their replacement will be no better. And how many people are you going to fire? All of them? At the present rate, it would take 20 years.

Moreover, the Commissioner’s NPM department has taken a weak position from the start, concentrating all its efforts on writing to ministries and other government bodies – but this is their field. There have been practically no cases of issues being aired in public through the media and social networks, which are today the most effective mechanisms for sparking an outcry and engaging public opinion and the international community.

The NPM remains split. There is the fieldwork, which despite the paucity of visits can at least collect enough incriminating material to treat any minister to a public lashing, and then there is the work of the Commissioner, who is disinclined to radical action and just sends letters to all and sundry. And all the fieldwork ends up, in effect, merged together. There has been no systemic change.

What’s currently happening in terms of torture and ill treatment in closed establishments in Ukraine?

This can vary enormously between one place and another, even within the course of a single year, depending on the situation. And that’s the problem with Ukraine’s NPM: it can’t react swiftly to issues.

When it began its work, for example, no one was interested in penal establishments belonging to the Armed Forces or the Security Service of Ukraine – there were hardly any inmates there. But everything changed at the start of 2014 – these two bodies started to arrest a considerable number of people – both legally and otherwise – and there was a spate of information about regulations being infringed.

“That’s the problem with Ukraine’s NPM: it can’t react swiftly to issues”

The amount of police violence dropped sharply in 2014 – they were just too afraid to use it – but since then it has gradually returned to its previous level.

Everything varies according to region, and depending on the distance from the regional centre and even the personality of whoever is in charge. Although that’s no different, it was just the same before. To see the big picture, you need a much larger scale of visits, analysis and reports. At present we’re just trying to find out what an elephant looks like by feeling its trunk.

According to research on the NPM conducted by your institute, only five-six percent of closed establishments are visited each year. Have the rest fallen into a black hole? Do we know anything about them?

There’s pretty much a black hole. There is information coming in from all over the place, of course, and the NPM is no longer the only body visiting closed facilities, but you can only trust well-documented accounts – people can say whatever they like to you. Logically speaking, similar closed establishments should have similar issues, but life has told us more than once that it ain’t necessarily so – and unfortunately, in most cases for the worse.

In places that aren’t visited regularly, there are opportunities for any kind of ill-treatment, and they are frequently used. Often nothing comes to light, or comes to light after some serious savagery that has led to death or permanent injury. Which is why these establishments need to be visited at least once a year, as a minimum. Only after this level of monitoring will we be able to see the overall picture.

And what about facilities left in the occupied territories? Does the NPM have some responsibility to communicate with these? Has the situation there changed because of the war and annexation?

No, the NPM has no access to these places. As far as I know, the Commissioner is in communication with the Russian occupying forces and “officials” of the pseudo-republics, but that all belongs in the diplomatic sphere and is not the work of the NPM. Although work of this type could easily fall within the NPM’s remit, the public sphere is not included in this process – there is no visiting of closed establishments in the occupied territories, and no information is being gathered by the NPM.

Unfortunately, it is journalists and international organisations that are doing the bulk of the work of analysing the situation there, and not the NPM, which has not published a single report on the plight of people in those territories.

Once again, looking at the results of your research, the question arises of whether the NPM is still needed in its present form. Or should it be incorporated in existing government structures?

The National Preventive Mechanism was necessary in its present form in 2012 and the start of 2013, but today we have to reject its activities as unsatisfactory. The programme of visits includes people who do want change, as do some in the NPM Department and the Commissioner’s office. But the system they are shackled to doesn’t allow for any initiative on their part – they will go on spinning like a hamster in a wheel, burning out emotionally after a visit to another place where people are treated like cattle but unable to change anything. They know that there will be another place like this tomorrow and yet another the day after. And at the same time, the NPM’s beneficiaries will still not be the inmates of closed establishments, but organisations that feel really good about their work running training and strategic planning sessions that won’t change a thing.

I think we need to move in two directions at once: to acknowledge the issues and change the NPM, and, at the same time develop other schemes for visiting closed establishments that would allow members of the public to visit independently. The only way we can regularly visit this black hole of prisons, pre-trial detention centres, closed facilities and psychiatric hospitals is to create a decentralised NPM, based on local initiatives, that would use the resources of specialist NGOs and give weight to visitors’ reports, comparing and discussing them.

The NPM should then reject the present straitjacket of the Ombudsperson’s office and become a platform for a range of initiatives that would independently and confidently implement the changes that are needed.

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