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The system of combating tortures and ill-treatment: what is the scale of works in Ukraine?

17.08.11 | Denys Kobzin, translated by Maria Kolokolova
Five years ago, on 21th of July 2006 Ukraine ratified the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This day was supposed to become the beginning of designating or establishing of the national preventive mechanism (NPM) independent body, aimed on monitoring places of detention and combating torture and ill-treatment. It was supposed to become, but unfortunately it did not. As it often happens, the State didnt go further declarations about intentions. Although specialists at enough high level were discussing a necessity of creating such body, its model, after all time spent on the establishment of the NPM, representatives of the UN Subcommittee on Prevention of Torture visited our country and stated failure by Ukraine its obligations. At the same time, debates over the necessity and form of the National Preventive Mechanism continues, and key issues still havent clear answer and appear at almost every working meeting dedicated on the realization of the Optional Protocol in Ukraine. The traditional question is: How could we determine that an institution is a subject to independent monitoring?. In other words what is the criterion, which allow us to separate people who really are in situation of detention from those who can manage themselves?
At first sight its easy to answer this question all places, where people are in custody should be monitored. Departments of the SPS of Ukraine (the State Penitentiary Service of Ukraine); temporary holding facilities and reception centers of the Ministry of Interior of Ukraine; custodies of the SSU (the Security Service of Ukraine) traditionally refer to these places in Ukraine. More captious look could attribute to such places various institutions, where irregular migrants as well as applicants for refugee status or asylum-seekers are in custody (such institutions are managed by the SMS (the State Migration Service) and the GBGS of Ukraine (the State Border Guard Service of Ukraine).
Indeed, people stay there against their will, in custody; their way of life, regime and communication with the outside world are regulated its a good, clear criteria by which a place can be classified to the category of under control. The fact that such places are subjects to independent monitoring is indisputable.
However, is the above-mentioned list exhaustive? The answer to this question is not so obvious, as it may seem. Thus, during the 2010 2011 Ukrainian society became a witness of unpleasant events, concerned with difficult situation which sometimes occurs in asylums for disabled children, geriatric and psycho-neurological shelters. Journalists and civil activists investigations showed that facts of unlawful violence and ill-treatment, forced labour, denial of medical care and even burials without examination take place here. And this is in spite of the fact, that such institutions are subject to regular monitoring by a whole series of public authorities, including Prosecutors Office.
Thus, although the staying of person in custody is very important reason for the selection of such place for visiting, it isnt only one criterion. Institutions which dont assume custody as such also can be named places of forced staying, because these or that rights of people holding there may be abused.
The Optional Protocol doesnt give clear list of places, which are subject to independent visiting, just using name places of detention. At the same time authors of the Protocol and Association for the Prevention of Torture deliberately hold to very wide interpretation of the notion in custody and dont limit the list of these places. Thus, list of places which are subject to visiting always stays incomplete, taking into account incoming information and developing society.
The most general criteria stay invariable - under states jurisdiction and control and by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. In addition, a special point of Art. 4 of the Protocol includes all places where persons deprived of their liberty may be held. Thus, the Optional Protocol extends potentially mandate of the preventive mechanism to visiting any place, where people, deprived of their liberty are staying. It should be noted, that in the same time, during the development of the Protocol the reasonability of inclusion of unofficial places of detention, where facts of tortures or other ill-treatment can take place was discussed. Part of the working group was against inclusion such places, suggesting that it would legalize their existence. However, a majority decided to include these places too. Thus, following to the idea of the Optional Protocol as the first criterion for definition place of non-liberty in Ukraine we can offer any place of forced staying where people are held or potentially may be held.
In addition, we share the opinion of experts of UN and APT (Association for the Prevention of Torture), which suggests, that objects under construction, where people may be held in future, are also subject to visiting. It will make possible to estimate conditions at building phase and to make recommendations which are easer to take into account than in already functioning places of non-liberty. Thus, for example the introductory visit to the temporary holding facility (THF) of the Mukachevo Border Detachment, which is being built, showed that windows in the rooms where irregular migrants will be held in the future are too small to provide acceptable natural lighting. We note that in this case the Optional Protocol doesnt make difference between state and private places of detention. It is directly related with the second criterion, which determines place of non-liberty like that where people are placed and held by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence.
Thus, the area of attention of the national preventive mechanism looks like a kind of field restricted by two axes the forced staying and by decision or with consent of public authority. All institutions, which are in this field, are subject to the independent monitoring, regardless of how severe their regime is, as well as how voluntarily people get there (or may get), and how long they stay there. And it means that such, it would seem, inoffensive places as orphanages, rehabilitation institutions for disabled get to the area of attention of the national preventive mechanism. No one argues that human rights are abused or human conditions are absent there. A question is in another field rights may be abused, and people who are held there cannot go away (because of the regime or because they simply can not walk).
Having defined criteria, we can begin the formation of a list of places which are subject to visiting by the national preventive mechanism. Expanding the criteria certainly leads to expansion of the list, and accordingly the volume of work. For the purpose of it and with the support of the International Renaissance Foundation we made an inventory list of places that fall under the criterion place of non-liberty and therefore are subject to monitoring. Based on our proposed criteria, we identified the following institutions belonging to different Ministries:
1. The Ministry of Education, Science, Youth and Sports (orphanages, boarding schools, secondary schools of social rehabilitation, training college of social rehabilitation) - 814 institutions;
2. The Ministry of Health (orphanages; psychiatric and psycho-neurological hospitals) - 134 institutions;
3. The Ministry of Social Policy (centers of professional rehabilitation for disabled; centers of social rehabilitation for disabled children; rehabilitation institutions for disabled and disabled children with mental deficiency; rehabilitation institutions for permanent residence of disabled with mental deficiency; boarding schools for children; social homes for old people and disabled; psycho-neurological homes) - 525 institutions;
4. The Ministry of Interior (custodies, placement centers, departments and administrations of all levels, wards in hospitals) - 895 institutions as well as special convoy vehicles;
5. The Ministry of Defence (guardrooms, disciplinary battalions, special chambers) - 10 institutions;
6. The Security Service of Ukraine (the custody in Kiev);
7. The State Border Guard Service of Ukraine (temporary holding facilities, special premises) - 81 institutions;
8. The State Migration Service (temporary accommodation centers for refugees; temporary staying centers for foreign citizens and persons without citizenship) - 4 institutions;
9. The State Penitentiary Service of Ukraine (penal institutions of all security levels) - 184 institutions as well as special cars for convoy and special carriages.
An inventory shows that a lot of work expects the preventive mechanism in Ukraine to be done. This is due to the fact that a significant number of places (around 2600) and therefore a huge number of people held there (at least 700.000 persons per year) should be monitored. It should be noted that we deliberately included in the list of objects for monitoring all departments and administrations of the Ministry of Interior, which, as experience shows, becomes a place of non-liberty for thousands of people every day. In addition, today it is clear that the list may be significantly expanded by the rooms of district militia officers, posts of public order (the Ministry of interior), as well as military units (the Ministry of Defence).
Significant differences in the purposes and procedures of placing, norms of residence and standards of treatment related to the fact that each place of non-liberty is focused on its own special contingent, may become the additional load for the national preventive mechanism. It means that it will be impossible to develop a single, universal algorithm of visiting. Anyway, one of the key issues which is on the agenda for the creation of the national preventive mechanism concerns the resources which it will have (both human and material).

The Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Guidance for prevention / The Inter-American institute on human rights. The Association for the Prevention of Torture. 2004.