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Non-liberty places vs. places of deprivation of liberty

31.10.11 | Andrew Chernousov
The Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment appeals to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. For the purposes of the Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.
The term places of deprivation of liberty is widely used in the contemporary legal practice. It can be defined by the Criminal Code of Ukraine, art. 63, which refers to the fact that deprivation of liberty is a one type of punishment that lies in isolation of convicted person and his placement to penal institutions on a certain term. According to this, we can name as places of deprivation of liberty such institutions, where persons serve exactly this type of punishment. As we see, these two terms dont coincide by volume, because deprivation of liberty is only one of isolation types or forced placement and according to the Ukrainian law it is a type of punishment. But in interpreting of the Protocol a deprivation of liberty can be considered not only as a punishment. So its necessary to address to the procedural law the Code of Criminal Procedure of Ukraine. Thus, the peculiarities of using of such preventive measure as custody is explained in the Criminal Code of Ukraine, art. 155. A custody (arrest) is exceptional and the most severe preventive measure, which is used only when there are reasons to believe that other, less strict preventive measures can not provide the implementation by the suspect all procedural obligations and proper behavior.
All above-mentioned concern only those persons which are suspected in a crime and/or have already been convicted for committed a crime and have been serving punishment in places of deprivation of liberty. The Optional Protocol requires from member states a wider interpretation of the term places of detention. And then we can use a term non-liberty place, which is not quite habitual for a contemporary criminal justice, but is very convenient for quick localization of the issue, specifically when it comes to monitoring of such places in order to prevent ill-treatment and tortures. In addition this term allows to overcome places which do not refer to criminal justice system by monitoring: psychiatric hospitals, boarding houses, special schools and specialized schools.
We should refer to authentic text of the Optional Protocol stated in English in order to formulate our own definition of the term places of non-liberty. Thus, there is following formulation public or private custodial setting in the Art. 4 of the Protocol, where it comes to definition of such places, which our legislator translated during ratification as place of detention that is, in our opinion, too narrow and such that does not correspond to the general Protocol spirit.
Actually, if we apply to translation of the term custody, which is initial for definition from the Art. 4 of the Protocol custodial setting, we will see that translation of this term means:
guardianship, care, supervision, protection, safety;
imprisonment, receiving into prison, deprivation of freedom;
Concern for information keeping.
The last definition can be not taken into consideration because it is not refer to the describing problem. Two others are completely relevant, but Ukrainian legislator chose just second one ignoring the first one, which, in our opinion, is more capacious and initial to all above-mentioned definitions. Exactly guardianship, control, supervision, guarding are the responsibility of boarding institutions of the Ministry of Social Policy and the Ministry of Education and Science, Youth and Sport. Indeed they can not be classified as such where people deprived of their freedom, but in the same time they can not leave these public institutions by will, on own discretion because of their age, mental or physical condition.
In the work of public agencies, which are all non-liberty places in Ukraine, the necessity is interest which is guarded by the Law and State. In places of imprisonment (prisons and remand prisons) there is providing of serving the punishment for persons, whom a court had sentenced for committed crimes. In places of temporary deprivation of liberty: temporary holding facility, special placement centre, placement centre for children under the system of the Ministry of Interior of Ukraine and temporary holding facility under the State Border Guard Service there is a temporary measure to provide interest, which is defended by the law. Such interest can be following: ensuring the proceeding in a case on administrative offences, placing the child into placement centre to further address his destiny and so on. Everything is clear with places of imprisonment (prisons and remand prisons) and places of temporary deprivation of liberty (temporary holding facilities) they must maintain a work of administrative bodies and bodies of criminal justice system.
More difficult situation is with places of non-liberty in social sphere: medical institutions, boarding institutions for providing social services for different vulnerable groups, educational institutions for children. At first glance it is too hard to attribute them to places of non-liberty, but if we consider them in Hegels interpretation of liberty and we take into account a liberty in individual and cultural development sphere it becomes obvious, that individual liberty in such places is limited and they can be classified as places of non-liberty.
Except only philosophical interpretation of this classification, a limitation of liberty, liberty of choice, development are also completely pragmatically legal categories. Person is placed at such institutions according to the decision of judicial or administrative body, that completely corresponds to requirements for places, which must be monitored (the Art. 4 of the Optional Protocol). Moreover, our own monitoring experience (for example boarding schools for children and psycho-neurological homes) shows that holding and treatment conditions with clients in such places allow to classify them in full as places of non-liberty.
One of the main factors which, in our opinion, give an opportunity to understand an essence of limitations in social institutions is a term of clients holding. A child, who has intellectual and/or mental deviation, can stay under state guardianship all his/her life (!). A child, placed to boarding school for disabled children from 3 years old can live in it to 18 years, and after attainment of majority he/she can go to psycho-neurological homes or will stay at the same institution to 35 years, if there is a youth department. It is not difficult to count 32 years under a state guardianship, in our opinion, is enough argument in order to refer such category of institutions to places of non-liberty. For comparison a maximum term of imprisonment, excepting an life term imprisonment , makes up 15 years. When we talk about reference of such places to the list of non-liberty institutions, we dont maintain that there is ill-treatment in such places, but a long term staying under state jurisdiction can become a seduction for a staff, that increases a risk of such treatment. In addition clients of such institutions can not complain on ill-treatment (a part of them are recognized by a court as incapable), their contacts with outside world are limited because of their mental state and physical distance from people.
Thus, we offer a such definition of a place of non-liberty: it is a place where person is held (placed) by order of any judicial, administrative or other body or at its direction, and with its consent and acquiescence (official and unofficial places of detention) in public or private institution in custody / imprisonment or under guardianship, and which this person can not leave by own will or dont have an opportunity to realize this will (because of physical or financial state).