Three specialists have carried out an analysis of the latest draft law produced by the Ministry of Justice supposedly aimed at implementing the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [OPCAT], which Ukraine ratified on 21 July 2006.
According to the explanatory note to the draft law on ratification, implementation of the Protocol should have been included in the powers of the Human Rights Ombudsperson. Unfortunately, four years on, the Ombudsperson is not fulfilling this role, and in fact, during a round table in December 2006, her representative is recorded as stating that the Ombudsperson rejects this role.
Paragraph 5 of the Explanatory Note to the draft law states that: “Ukraine’s participation in the Protocol does not entail any financial commitments.” The authors point out that this fails to comply with Article 18 § 3 of the Protocol which obliges member states to provide the necessary means for the functioning of the National Preventive Mechanism [NPM].
Up till August 2010 the government had taken no significant steps towards implementing the ratified law.
A working group is still at the stage of preparing a draft Law “On a National Committee on Preventing Torture”.
As reported already, in August this year a draft law appeared “On amendments to the Law on the Human Rights Ombudsperson” prepared by the Ministry of Justice. This places responsibility for the National Preventive Mechanism on the Ombudsperson.
The following considers both draft laws from the point of view of compliance with OPCAT, Ukraine’s Constitution and legislation.
Relevant extracts from OPCAT:
Article 1
The objective of the present Protocol is 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.
Article 2.1
A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.
Article 3
Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).
Article 4.2
For the purposes of the present 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.
Article 11
1. The Subcommittee on Prevention shall:
(a) Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
(b) In regard to the national preventive mechanisms:
(i) Advise and assist States Parties, when necessary, in their establishment;
(ii) Maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance with a view to strengthening their capacities;
(iii) Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
(iv) Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;
(c) Cooperate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working towards the strengthening of the protection of all persons against torture and other cruel, inhuman or degrading treatment or punishment.
Article 17
Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.
Article 18
1. The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.
2. The States Parties shall take the necessary measures to ens ure that the experts of the national preventive mechanism have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.
3. The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.
4. When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.
Article 19
The national preventive mechanisms shall be granted at a minimum the power:
(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;
(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;
(c) To submit proposals and observations concerning existing or draft legislation.
Article 20
In order to enable the national preventive mechanisms to fulfil their mandate, the States Parties to the present Protocol undertake to grant them:
(a) Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;
(b) Access to all information referring to the treatment of those persons as well as their conditions of detention;
(c) Access to all places of detention and their installations and facilities;
(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information;
(e) The liberty to choose the places they want to visit and the persons they want to interview;
(f) The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.
Article 21
1. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.
2. Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.
Article 22
The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.
Article 23
The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.
Article 35
Members of the Subcommittee on Prevention and of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. Members of the Subcommittee on Prevention shall be accorded the privileges and immunities specified in section 22 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

1. Draft Law “On a National Committee on Preventing Torture”

Draft law norm OPCAT New version (the authors’ suggestions)
General provisions
This Law specifies the legal principles for activity of the National Committee of Ukraine on the Prevention of Torture (the National Committee) as an independent, permanent, collegiate supervisory state body with special status for carrying out regular visits to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level
In this Law the term “place of deprivation of liberty” means any place where people are held or may be held who are deprived of their liberty on the formal decision of a state body or on its instruction, or with its knowledge or tacit consent, the term “deprivation of liberty” means any form of restriction of liberty (detention, imprisonment, being held in specialized medical or other special institutions, irrespective of their form of ownership, at the ruling of a court, administrative body or other body of power or officials. For the purposes of the present 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 Proposed change: “In this Law the term “place of deprivation of liberty” means any state-owned or private place . The list of such places includes, but is not confined to, penal institutions, SIZO, ITT [temporary holding facilities] …”
Article 1. Status of the National Committee
The National Committee is an independent, permanent, collegiate supervisory state body with special status for carrying out regular visits to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism). «The National Committee is an independent,..»
. The Committee through regular visits examines the treatment of people held in places of deprivation of liberty in order to increase protection against torture and other cruel, inhuman or degrading treatment or punishment. «The Committee through regular visits examines the treatment of people held in places of deprivation of liberty…”
The National Committee is a legal entity, has a stamp with its own name and Ukraine’s State emblem The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel
Article 2. Scope of the Law
The Law’s scope covers the relations between state bodies, bodies of local self-government , their institutions and citizens of Ukraine, foreign nationals and stateless persons deprived of their liberty, as well as the relations linked with observance of human rights and freedoms with respect to prevention of torture and other cruel, inhuman or degrading treatment or punishment «..до яких застосовано позбавлення або обмеження волі..»
Article 3. Principles of work of the National Committee
The work of the National Committee is based on the principles of legality, independence, collegiate work, objectivity, transparency, accessibility for the public, consideration of universally recognized international norms and standards in human rights protection, full and comprehensive review of issues and good grounds for decisions taken”. Add “regular interaction with institutions of civic society”
Section II
Makeup, appointment, dismissal and termination of the powers of the National Committee
Article 4. Makeup of the National Committee
The National Committee comprises 8 members They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country The number makes it possible for decisions to be impossible where there is a 50-50 split. It is proposed to have nine, with the relevant gender balance and representation of ethnic groups
Members of the National Committee are appointed and dismissed by the Verkhovna Rada Not in line with the constitutional powers of the Verkhovna Rada. According to Article 85 of the Constitution, the members are appointed or dismissed by the President on the Verkhovna Rada’s submission
The National Committee is authorized to act with a quorum of at least 6 members
«Meetings of the National Committee are authorized …”
Article 5. Requirements for members of the National Committee
They must be Ukrainian citizens, over 30 on the day of their appointment, have higher education, speak Ukrainian, have high moral qualities, experience of human rights work of at least 5 years, have lived in Ukraine over the last 10 years and be under retirement age The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanism have the required capabilities and professional knowledge «…experience of activities in the area of human rights protection of no less than 5 years …»
A person with a criminal record who has not been rehabilitated may not be a member.
This is not in line with criminal law regarding the status of people with criminal records. It restricts the rights of those whose record has been cancelled or revoked.
Article 6. Legal safeguards for the independence of members of the National Committee
Members of the National Committee are category 3 civil servants.
Any intrusion in the activities of the National Committee not envisaged by this law is prohibited.
Any interference in the activities of a member of the National Committee linked with carrying out the powers designated by this law is prohibited
. The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel
A member of the National Committee may not be held to answer for actions carried out in order to fulfil the powers set out in this law. Not especially clear and too broad even in comparison with the status of a National Deputy (cf. Article 80 of the Constitution)
Article 7. The entry into force and termination of the authority of a member of the National Committee
The authority of a member of the National Committee begins on the day or his or her appointment «…on the day of his or her appointment and swearing in».
After the end of their term of office, a member of the authority of a member of the National Committee continues to serve until a replacement is appointed.
The norm makes it possible for a person to serve indefinitely, jeopardizing objectivity in their work
Article 8. Head of the National Committee
The term of office of the Head of the National Committee is determined by the members of the National Committee It is worth establishing a specific period, for example, 2 or 3 years
After the end of their term of office, the Head of the National Committee continues to serve until a replacement is appointed.
The norm makes it possible for a person to serve indefinitely
The Head of the National Committee may be dismissed in cases envisaged by Article 7 of this Law Article 7 speaks of suspension of powers, not of dismissal
Article 9. Deputy Head of the National Committee
The term of office of the Deputy Head of the National Committee is determined by the members of the National Committee. It is worth establishing a specific period
After the end of their term of office, the Deputy Head of the National Committee continues to serve until a replacement is appointed.
The norm makes it possible for a person to serve indefinitely
The Deputy Head of the National Committee may be dismissed in cases envisaged by Article 7 of this Law Article 7 speaks of suspension of powers, not of dismissal
Section III
Powers, rights and duties of members of the National Committee
Article 10. Rights of members of the National Committee
The members of the National Committee have the right to:
1) visit without obstruction state bodies and institutions, bodies of local self-government , civic organizations, enterprises, etc, irrespective of their form of ownership The national preventive mechanisms shall be granted at a minimum the power:
(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;
(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations Remove Item 1 as redundant
2) visit at any time any places of deprivation of liberty, question people held there and receive information about the conditions
3) to see in the established procedure documents including those which are secret, and receive copies in state bodies and institutions, demand and receive from public officials assistance in carrying out checks of the activities of bodies and institutions under their jurisdiction, delegate specialists to take part in carrying out checks, expert analyses and provide the relevant opinions
Stipulate documents relating to treatment of those people, and legal expert assessments

4) ask public officials and civil servants, Ukrainian nationals, foreign nationals and stateless persons for verbal or written explanations regarding circumstances checked in the case;
5) for a meeting without delay with the Speaker of the Verkhovna Rada, the Prosecutor General, heads of state bodies, bodies of local self-government , civic organizations, enterprises, etc regardless of their form of ownership, and their officials
6) be present at court sessions of all instances, including those behind closed doors, subject to the agreement of the party in whose interests the case is being heard behind closed doors
7) apply to the court to protect the rights of a person whose state of health or other causes make it impossible for them to act for themselves, as well as personally or through a representative take part in court proceedings as established by law «… checked in a specific case or situation».
8) send the relevant bodies orders from the National Committee where infringements have been found so that they take measures to stop it or prevent its recurrence Send recommendations
9) check the human rights observance by state bodies and institutions, including those carrying out investigative operations Remove Item 9 since it goes beyond the OPCAT standards and does not comply with the domestic legal system
10) ask for and receive information from the relevant bodies regarding enforcement of orders, requests for information, instructions, etc from the National Committee within their competence «…робити запити та отримувати…»
Article 11. Powers of members of the National Committee
These include
1) carrying out scheduled, regular visits to places of deprivation of liberty in order to prevent torture or other cruel, inhuman or degrading treatment or punishment Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment Add including without prior notification
2) carrying out unscheduled operational visits to places of deprivation of liberty; «…carry out unscheduled spot checks…»

Article 12. Acts of the National Committee
Members can pass orders mandatory within a specified period by state bodies and bodies of local self-government which have jurisdiction over the place of deprivation of liberty . Remove since it goes beyond OPCAT standards, and the legal status of the orders is not clearly defined
Article 13. and Article 18 – on the powers of the Head and Secretary of the National Committee
Article 19. Safeguards for the carrying out by the National Committee of its functions
It must have
1) access to any information about the number of people deprived of their liberty in places of custody, the number of such places and their location
2) access to any information about their treatment and conditions ;
3) access to places of where people are held
4) opportunity to have confidential meetings with people deprived of their liberty without witnesses, where necessary with a n interpreter, as well as with any other people whom the National Committee believes may have relevant information
5) opportunity to chose places to visit and people to speak with without obstruction

No body, institution or official may impose sanctions for providing the National Committee with information, whether correct or false, nor limit them in any other way

Confidential information gathered by the National Committee must not be divulged. Personal information can be published only with the person’s express consent In order to enable the national preventive mechanisms to fulfill their mandate, the States Parties to the present Protocol undertake to grant them:
(a) Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;
(b) Access to all information referring to the treatment of those persons as well as their conditions of detention;
(c) Access to all places of detention and their installations and facilities;
(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information;
(e) The liberty to choose the places they want to visit and the persons they want to interview;
(f) The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.
Article 21
1. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.
2. Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned «1) …about the number of people in places of deprivation of liberty,»

3.5 should stipulate that this is either planned or spot visits

Mechanical doubling up of OPCAT norms could lead to legislative clashes
Article 20. Annual report of the National Committee
During the first quarter of each year the head of the National Committee should make a report on the human rights situation in places of deprivation of liberty . The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms «…annual report on the work of the National Committee»
Section V.
Mobile inspection groups
Article 22. Powers of Mobile inspection groups
1) to visit places of deprivation of liberty without prior notification and consent of state bodies;
2) meet with people in places of deprivation of liberty 3) find out about the circumstances of detention, custody etc of people in places of deprivation of liberty
4) access to files of people in places of deprivation of liberty;
5) carry out other functions stipulated by the mandate of the National Committee
Section VI
Other issues
Article 23. Finding and reporting of the National Committee
The funding of the National Committee shall come from the State budget and be reviewed each year under a separate heading. The National Committee shall draw up, submit to the Verkhovna Rada for approval and make up an estimate of their expenditure. The Member states commit themselves to provide the necessary resources tof the function of the national preventive mechanisms
. Норма виходить за межі повноважень парламенту

The authors also suggest that:
1. Since the draft law does not specify that the National Committee should have specialists on medical issues, psychology, social provisions, the need arises to enlist such people for carrying out visits. They propose adding a separate article regarding inclusion of such experts.
This should stipulate: principles for selection (whether by tender, being seconded from relevant ministries by agreement, on a voluntary natures;
The need and possibility of enlisting members of civic organizations;
Conditions of pay;
Conditions of confidentiality by these people regarding information received;
Carrying out expert assessments.
2. They point to fairly weak construction of the draft law with respect to interaction with civic society and propose using a Consultative Council attached to the National Committee. As a consultative – advisory body this could present the interests of the strongest and most experienced NGOs specializing in monitoring of places of deprivation of liberty and protection of torture and ill-treatment victims.
The number of members, procedure for selection and rotation, their powers, etc should be added to the competences of the National Committee and stipulated in the law.
3. Assuming further development of national institutions for defending human rights, they propose adding Article 24 to the Final Provisions leaving the State the right to appoint other institutions as national preventive mechanisms as per the relevant legislative procedure.

2. Draft Amendments to the Law on the Human Rights Ombudsperson
The essence of these amendments is that the functions of NPM are vested with the Human Rights Ombudsperson. The law suggests that the Ombudsperson shall “carry out regular visits to places of detention; remand in custody; penal institutions and institutions for mandatory treatment or re-education, psychiatric institutions, question people there and receive information about the conditions in order to safeguard observance of human rights and prevention of torture”.
Such an approach has the following positive features:
it makes it possible to use the developed methods of work of the Ombudsperson;
it complies with Ukraine’s initial intentions regarding organization of NPM as recorded in the Explanatory Note to the draft law on ratifying OPCAT.
It requires potentially less expenditure from the budget as opposed to the creation of a new body.
At the same time the draft law does not take into consideration all places of confinement leaving a considerable number out of the range of monitoring. For example, the draft law does not require coordination with the Ministry of Employment and Social Policy which has jurisdiction over institutions for people with special needs who however much they may wish to cannot leave the institutions because of their physical condition, remaining effectively under the total control of the state.
One cannot agree with Item 8 of the Explanatory Note which states that the “draft law does not require consultation with the public”. We would note that world practice for organizing the work of National Preventive Mechanisms envisages maximum involvement of a broad spectrum of society not only in the process of drawing up and introducing these mechanisms, but also in the carrying out by them of their functions.
It is not quite correct to suggest amendments to Article 14 of the Law on the Ombudsperson stating that the latter “is obliged to adhere to the Constitution and laws of Ukraine, other legal acts, the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and Ukraine’s other international agreements”. In this way only one of the international documents in the area of human rights is highlighted which is against the logic of forming normative legal acts.
The draft law contains reference to the lack of need for additional expenditure from the State Budget for carrying out control over “places of non-freedom” which does not take into account the principles of work of NPM as formulated in OPCAT.
The results of a comparative analysis of the level of implementation in this draft law of the OPCAT provisions are presented below.
Norm of the draft Law on Amendments to the Law on the Human Rights Ombudsperson OPCAT norm Notes
Article 13. Rights of the Ombudsperson. The Ombudsperson has the right:
8) carry out regular visits to places of detention; remand in custody; penal institutions and institutions for mandatory treatment or re-education, psychiatric institutions, question people there and receive information about the conditions in order to safeguard observance of human rights and prevention of torture; Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).
According to Article 4 of the Law, the Ombudsperson is a public official, and not a body. The Protocol requires the creation of a body.
For the purposes of the present 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.
It would be expedient to supplement the list of places to be visited with a generalizing term which would make it impossible to not extend its scope to newly created institutions whose names did not exactly correspond to those directly listed in Article 13 § 8.
The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.
The right to visit being vested exclusively with the Ombudsperson makes it impossible to speak of the creation of a functionally independent NPM since the Ombudsperson alone is unable to ensure a system of regular visits.
The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanism have the required capabilities and professional knowledge.
This problem could potentially be resolved by using an institution of representatives of the Ombudsperson as NPM experts, however then it would be necessary in Article 11 to stipulate the number of such representatives in order to ensure funding of their activities and their specific powers.
They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country. Gender and other aspects are not regulated..
The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms The procedure for funding the activities of the Ombudsperson with regard to carrying out the role of NPM should be specified.
14) support regular contact with the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of the UN Committee against Torture, as well as other international and civic organizations. f) the right to establish contact with the Subcommittee on Prevention, sending it information and meeting with it. It is not specified what this “contact” with the Subcommittee consists of, whether it includes the concept of exchange of information and meetings. .
Article 14. The duties of the Ombudsperson.
The Ombudsperson is obliged to adhere to the Constitution and laws of Ukraine, other legal acts, the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and Ukraine’s other international agreements, rights and the legally protected human and civil interests and ensure implementation of the functions vested in her or him and fully use the powers given. Separate mention of the Protocol as an act which the Ombudsperson relies and observes is devoid of juridical meaning, declarative and an irrational rendition of the text of the law.

Conclusion
The authors are convinced that neither of the draft laws analyzed make it possible to fully implement the provisions of OPCAT in domestic legislation and ensure effective functioning of NPM.
One must however give a particularly negative assessment to attempts to pass such legislative initiatives without consultation with structures of civil society which their authors directly state in their Explanatory Notes. The authors consider wide public discussions of the drafts of such acts as vital mechanisms for ensuring proper enforcement by Ukraine of its international commitments.