Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to the former Yugoslav Republic of Macedonia undertaken from 23 to 29 April 2017: observations and recommendations addressed to the national preventive mechanism
Report of the Subcommittee * , **
II.National preventive mechanism3
III.Recommendations to the national preventive mechanism4
A.Recommendations relating to legal, institutional and structural issues4
B.Recommendations on methodological issues relating to visits6
IGovernment officials and other persons with whom the Subcommittee on Prevention of Torture met11
IIPlaces of deprivation of liberty visited by the Subcommittee13
IIIPlaces of deprivation of liberty visited jointly by the national preventive mechanism and the Subcommittee14
1.In accordance with its mandate under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, members of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment visited the former Yugoslav Republic of Macedonia from 23 to 29 April 2017.
2.The Subcommittee members who conducted the visit were Aisha Shujune Muhammad (Head of delegation), Mari Amos, Sir Malcolm Evans and June Lopez.
3.The Subcommittee was assisted by two human rights officers from the Office of the United Nations High Commissioner for Human Rights (OHCHR), two security officers and four local interpreters.
4.The State party acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 12 December 1994 and ratified the Optional Protocol on 13 February 2009. On 11 April 2011, the State party designated the Ombudsman as the national preventive mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.
5.The main objectives of the visit were: (a) to provide advisory services and technical assistance to the national preventive mechanism, in accordance with article 11 of the Optional Protocol, with the aim of identifying and addressing the challenges and difficulties faced by the mechanism, taking into account the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5); and (b) to help the State party to fully implement its obligations under the Optional Protocol, thereby strengthening its ability to protect persons deprived of their liberty and addressing the challenges relating to penitentiary facilities and, in particular, to persons on remand.
6.The Subcommittee held meetings with government officials and other stakeholders (see annex I) and visited places of detention (see annex II). Meetings held with members of the national preventive mechanism permitted the Subcommittee to discuss the mandate and working methods of the mechanism and to explore ways of strengthening and increasing its effectiveness. In order to better understand how the mechanism works in practice, the Subcommittee also visited, together with representatives of the mechanism, a place of deprivation of liberty that had been chosen by the mechanism (see annex III). That visit was led by the members of the mechanism, with the members of the Subcommittee as observers.
7.The present report sets out the Subcommittee’s observations and recommendations to the national preventive mechanism. The recommendations are made in accordance with the Subcommittee’s mandate to offer training and technical assistance and to advise and assist the mechanism, in accordance with article 11 (b) (ii) and (iii) of the Optional Protocol. The report remains confidential unless the mechanism decides to make it public, in accordance with article 16 (2) of the Optional Protocol.
8.The Subcommittee draws the attention of the national preventive mechanism to the Special Fund established under article 26 of the Optional Protocol. Recommendations contained in visit reports that have been made public can form the basis of an application for funding specific projects through the Fund, in accordance with its rules.
9.The Subcommittee wishes to express its gratitude to the national preventive mechanism for its assistance and cooperation in the planning and undertaking of the visit.
II.National preventive mechanism
10. On 11 April 2011, the State party designated the Ombudsman as its national preventive mechanism. The Ombudsman was established by Law No. 60/2003, amended by Law No. 114/2009. The mechanism commenced its activities, including visits to places of detention, in April 2011.
11.The designation of the Ombudsman as its national preventive mechanism and the creation of the national preventive mechanism unit within the Office of the Ombudsman were not accompanied by any additional financial or human resources. At the time of the mission, the mechanism consisted of the head of the mechanism, one core staff member and four consultants funded by the Office of the United Nations High Commissioner for Refugees (UNHCR).
12.The national preventive mechanism issues reports and recommendations following each visit to a place of detention and also conducts follow-up visits to assess the level of implementation of its recommendations. An annual report, including its recommendations, is published in Macedonian, Albanian and English and is sent to the Government, and presented by the Ombudsman to and discussed in the parliamentary assembly. The recommendations are also discussed with the relevant ministries, including the Ministry of Justice, the Ministry of the Interior and the Ministry of Labour and Social Policy. The mechanism also presents comments and suggestions to the ministries concerning pertinent legislation. While the recommendations of the mechanism are generally welcomed by the governmental authorities, implementation appears to be limited.
13.Despite the shortage of staff and resources, the national preventive mechanism has been able to undertake a significant number of visits to places of detention each year since its establishment, ranging from 25 in 2012 to 7 regular visits in 2015. Since 2012, it has undertaken follow-up visits in order to assess the practical implementation of its previous recommendations. It has also visited a wide range of places of deprivation of liberty, such as educational-corrective institutions, police stations, penitentiary facilities, transit centres for migrants and asylum seekers, psychiatric hospitals and institutions for persons with disabilities.
III.Recommendations to the national preventive mechanism
A.Recommendations relating to legal, institutional and structural issues
Structure and independence
14.As a general observation, the Subcommittee notes that the national preventive mechanism could benefit from an identity that is more distinct from that of the Ombudsman in relation to its functions, its institutional framework and guarantees of independence.
15.In particular, the Subcommittee is concerned about the lack of functional independence of the national preventive mechanism within the Office of the Ombudsman. While the Optional Protocol does not provide for a single model of a national preventive mechanism structure that is compliant with the Optional Protocol, it is imperative that the mechanism be structured and carry out its mandate in accordance with the principles of the Optional Protocol, as reflected in the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5) and in the compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms annexed to its ninth annual report (CAT/C/57/4, annex). Experience suggests that when the mandate of the national preventive mechanism is located within an institution with a more general remit (such as an ombudsman office) it is most effectively exercised when located within a separate unit and with a head who can act in his or her own capacity. That is only partially the case in the State party.
16. The Subcommittee recommends that the national preventive mechanism take the necessary steps, legislative or otherwise, to ensure that it is independent within the Office of the Ombudsman, with its activities and functions clearly differentiated from those of the Ombudsman and with a mandate to act in its own capacity.
17.The Subcommittee is concerned that a lack of financial resources presents a major obstacle to the sustainability of the national preventive mechanism and to its effective and efficient functioning. The designation of the Ombudsman as the national preventive mechanism of the State party has not been followed by the allocation of the appropriate additional resources necessary to allow it to undertake this additional role. The Subcommittee also notes that the continuous problem of insufficient resourcing has been regularly raised by the mechanism, including in its reports, emphasizing that only through solving the financial problem will the State party be able to create the necessary preconditions for an effective national preventive mechanism and, as such, fulfil its obligations under the Optional Protocol.
18. The Subcommittee recommends that the national preventive mechanism evaluate its financial needs to more effectively fulfil its mandate under the Optional Protocol, including the need for external experts and other staff as necessary, along with the need for staff training, and that it submit proposals to the governmental authorities concerning its financial needs, as a matter of priority. The Subcommittee draws the attention of the mechanism to its views on the organizational issues of national preventive mechanisms forming part of a national human rights institution and encourages the mechanism to continue raising the financial challenges it faces in its dialogue with the State party (see CAT/C/57/4, annex).
19.The Subcommittee is concerned that there is only one core staff member dedicated to the mandate of the national preventive mechanism, apart from the head of the mechanism and four externally funded consultants whose contracts will expire in 2019. The Subcommittee is also concerned that the autonomy of the mechanism may be compromised if it must rely on international donors to be fully functional and questions the long-term sustainability of such arrangements in relation to workplans and programmes. The Subcommittee notes with appreciation the regular involvement and engagement of representatives from civil society and external medical experts in its visits and activities. The current staffing situation, however, affects not only the ability of the mechanism to fulfil its mandate but also its functional independence and operational autonomy, and makes a systematic and strategically planned approach to its functions throughout the year challenging. The Subcommittee acknowledges the recruitment challenges and notes with appreciation the efforts made by the mechanism to mitigate them, as set out in its annual report of 2015.
20. The Subcommittee recommends that the national preventive mechanism consult directly with the States party authorities on clearly identifying the nature and extent of its needs, including ensuring that its staffing arrangements are under its own control. It also recommends that it continue to raise with the State party its need for more dedicated staff.
Visibility and awareness
21.The Subcommittee noted that some of the authorities and rights holders it met with had little knowledge about the national preventive mechanism, highlighting a lack of visibility and a lack of understanding of its role and work. It appeared that persons deprived of liberty and civil society organizations did not fully understand the preventive mandate of the mechanism and its nature, as distinct from the Ombudsman. The Subcommittee is of the view that this lack of visibility as a separate institution may have a detrimental effect on the efficiency and credibility of the mechanism and therefore on the prevention of torture and ill-treatment. The Subcommittee is also concerned about the confusion between the roles of the mechanism and the Ombudsman, particularly since the Ombudsman has its own mandate to visit places of deprivation of liberty.
22. The Subcommittee recommends that the national preventive mechanism enhance its institutional visibility through public awareness campaigns and other promotional activities with a broad spectrum of stakeholders, including by elaborating and distributing material on its mandate and activities in places of deprivation of liberty, to the relevant public authorities, civil society, lawyers, the judiciary and the general public. That should include wider distribution of its reports in general. The mechanism should clearly be identified as such in all its meetings, written communications with the authorities and visits to places of deprivation of liberty. A full presentation to the authorities during visits, especially on the mandate and objective of the visit will contribute to the visibility and effectiveness of the mechanism. In addition, the visiting team should be clearly identified as being from the mechanism, (for example wearing badges or vests) and should provide an information leaflet to the authorities concerned.
B.Recommendations on methodological issues relating to visits
23.In order to advise and assist the national preventive mechanism on its task of protecting persons deprived of their liberty, the Subcommittee makes the following recommendations concerning preparations for visits to places of detention, the methods to be used during such visits and the steps to be taken following their completion. In general, the Subcommittee compliments the mechanism for its visit methodology.
Prior to the visit
24.The Subcommittee notes that since April 2010, the national preventive mechanism has had an agreed methodology, but considers that it is not sufficiently comprehensive.
25. While acknowledging the challenges faced by the national preventive mechanism, as mentioned above, the Subcommittee recommends that it update its methodology to reflect current best practices, as specified by the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules). That could include how to conduct private interviews, how to deal with vulnerable groups and how to assess registers, when to conduct individual or group interviews, the handling of security issues, ensuring confidentiality, defining the role of each member of the visiting team and the handling of reprisals.
26. While recognizing that under its 2010 methodology, conversations with persons deprived of their liberty are confidential, the Subcommittee is concerned that the national preventive mechanism does not have clear guidelines for maintaining the confidentiality of conversations with detainees and other sources of information. The principle of confidentiality in relation to the work of national preventive mechanisms is outlined in article 21 (2) of the Optional Protocol, which indicates that confidential information collected by national preventive mechanisms shall be privileged and that no personal data shall be published without the express consent of the person concerned.
27. The Subcommittee recommends that the national preventive mechanism develop guidelines for maintaining the confidentiality of conversations with the detainees concerned and any other source of information, in accordance with the compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms (CAT/C/57/4, annex).
28. While the Subcommittee recalls that the State party has the primary responsibility for ensuring that no one who comes into contact with the national preventive mechanism suffers reprisals, sanctions or intimidation, it is concerned at the lack of clear guidelines for protecting persons deprived of their liberty against reprisals.
29. The Subcommittee recommends that the national preventive mechanism develop guidelines on reprisals, in line with the policy of the Subcommittee on reprisals in relation to its visiting mandate (CAT/OP/6/Rev.1), which could include an information note that could be handed out during visits and the appointment of a focal point on reprisals for each visit.
30.The Subcommittee noted that the availability and quality of health care provided in places where people might be deprived of their liberty, which is an important indicator when assessing risks of torture or cruel inhuman and degrading treatment, was not taken sufficiently into account by the national preventive mechanism during preparations for visits.
31. The Subcommittee recommends that the national preventive mechanism design its own health-care assessment tool in light of the Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) to ensure comprehensive coverage of health-care issues as an element in the exercise of its preventive mandate.
During the visit
32.While the national preventive mechanism conducted a thorough inspection of the material conditions in the place of detention it visited during the visit of the Subcommittee, including the state of living spaces, community grounds and medical care facilities, less attention was paid to preventive safeguards. However, the Subcommittee acknowledges that in a short visit it may not have seen the full range of practices of the mechanism.
33. The Subcommittee recommends that the national preventive mechanism direct additional focus to the development and effectiveness of preventive safeguards and the effective operation of protective procedures at those points of the detention process where there is a heightened risk of torture and ill-treatment, including in relation to medical care, with a particular focus on availability, records, medical screening and the reporting of injuries.
34. The Subcommittee is concerned about what it considered to be intrusive searches, including the examination of documentation and being required to undergo pat-down examinations, which both members of the visiting Subcommittee delegation and the national preventive mechanism were subjected to prior to accessing several places of detention. While it is accepted that essential basic security measures are to be complied with for the benefit of all concerned, the practices described are inappropriate, not in keeping with the spirit of the Optional Protocol and contrary to the privileges and immunities governing United Nations experts on mission. It is equally important that those working for the mechanism are not in any way restricted in their work and should not feel that they may be subjected to any form of pressure (see CAT/C/57/4, annex).
35. The Subcommittee recommends that the national preventive mechanism remind the State party to ensure that members of the mechanism enjoy such privileges as are necessary for the independent exercise of their functions (see CAT/OP/12/5, para. 26). Routine body searches and pat-downs contravene the spirit of the Optional Protocol. The Subcommittee further recommends that if subjected to such searches or pat-downs, the mechanism raise the issue with the director of the place of detention and make a note of it in the visit report (specifically) and in the annual report presented to the parliament (generally).
36.The Subcommittee observed that little information concerning the national preventive mechanism and the objectives of the visit was provided to those interviewed. Furthermore, it observed that the principle that interviews should be confidential and voluntary was not always fully respected. The Subcommittee believes that an accurate and sufficiently full presentation of the mandate and objectives of a national preventive mechanism facilitates communication and trust-building and thus improves the quality and outcomes of interviews.
37. The Subcommittee recommends that at the beginning of an interview, visitors should introduce themselves, explain clearly the reason for their presence, what they can and cannot do, and emphasize the confidential nature of the interview. In that regard, the national preventive mechanism could prepare a leaflet that describes its mandate and working methods, explains the concept of informed consent and provides contact information. The Subcommittee further recommends that the location of where one-to-one interviews take place should be carefully chosen to ensure that the content of the interview remains confidential, which also helps ensure that the “ do no harm principle ” is respected in all cases. In addition, the mechanism should also indicate and encourage those interviewed to report any reprisal they might face following the visit and, if necessary, it should conduct follow-up visits. It is further recommended that the mechanism prepare a leaflet concerning reprisals that can be distributed to those with whom it speaks.
38.The Subcommittee has observed that the national preventive mechanism tends to focus on dealing with individual issues or requests (such as the reasons for detention and requests for release) and the material conditions of detention and less on the prevention of torture and ill-treatment. As a result, procedural and systematic problems, as well as related substantive issues, do not figure prominently in its work. The Subcommittee recalls that the mandate of the mechanism differs from that of other bodies working against torture and is characterized by its preventive approach, which involves identifying patterns and detecting systemic risks of torture and ill-treatment. While understanding the difficulties in keeping interviews focused on its mandate, the Subcommittee reminds the mechanism that this should be the primary focus of an interview.
39. The Subcommittee recommends that members and staff of the national preventive mechanism undertake capacity-building exercises, including training on interview techniques, visiting procedures, the skills necessary to detect signs and risks of torture and ill-treatment and the Istanbul Protocol, to develop working methods and a comprehensive visiting methodology that will highlight institutional and systematic challenges, including those affecting vulnerable populations in places where persons are deprived of liberty. The Subcommittee recommends that rather than seeking to investigate or resolve individual complaints, the mechanism should advise detainees on how and to whom individual complaints should be addressed and seek to ensure the effectiveness of complaints mechanisms as a means of prevention rather than attempting to resolve such problems themselves.
Debriefing the head of the institution
40.The Subcommittee noted that the national preventive mechanism did not notify the authorities of the institution at the end of its visit that any form of intimidation or reprisals against persons deprived of their liberty constitutes a violation of the State party’s obligations under the Optional Protocol. The Subcommittee underlines the need to always seek to protect those interviewed from possible reprisals, even when there appears to be little risk.
41. The Subcommittee recommends that the national preventive mechanism always consider that there may be a risk of intimidation, sanctions or reprisals and therefore take steps to address that risk. In addition to the precautions previously mentioned (see paragraphs 25, 28, 29 and 37 above), the mechanism should warn the authorities that any kind of reprisal is impermissible and will be reported, and that it will follow up on any such concerns in order to satisfy itself that if such an action has occurred, those responsible have been identified and subjected to appropriate penalties. The Subcommittee notes that initial introductions and debriefings (both short) go a long way to building trust and confidence and visits should be approached in this fashion.
After the visit
42.While the Subcommittee notes that reports of visits are prepared and submitted to the authorities, a clear policy concerning the systematic post-visit follow-up on recommendations to the authorities is not in place.
43. The Subcommittee recommends that the national preventive mechanism develop a clear strategy for following up on its recommendations after they have been transmitted to the authorities and that it uses the report as a platform for dialogue with both the authorities of the institution visited and with the appropriate administrative and governmental authorities, including the Ministry of Health when appropriate.
44. The Subcommittee recommends that the annual report of the national preventive mechanism be made public and that it be publicly discussed in the parliament and widely publicized. The annual report should include strategic, short- and longer-term plans, including the setting of future priorities for its work.
45.The Subcommittee observes that the national preventive mechanism emphasizes its visiting mandate. Although important, that focus should not mean that its other functions under article 19 (c) of the Optional Protocol concerning the submission of proposals and observations on existing or draft legislation are sidelined. The Subcommittee also notes that the mechanism has not yet put together comprehensive strategies for carrying out its activities, as prescribed by international instruments such as the Optional Protocol and the Paris Principles.
46. The Subcommittee recommends that the national preventive mechanism achieve a better balance between its different functions, focusing not only on visiting but also on other proactive and preventive activities, including capacity-building, advocacy and public engagement. It also encourages the mechanism to develop an annual plan of work, which should include all preventive activities, such as commenting on draft legislation, awareness-raising and training activities.
47. In light of the serious lack of human and financial resources available to the national preventive mechanism, the Subcommittee recommends that it increase its international cooperation with other national preventive mechanisms in order to reinforce its capacities, share information and best practices and develop its working methods, so as to improve its ability to discharge adequately its responsibilities under the Optional Protocol.
48.The Subcommittee regards its visit and the present report as the commencement of a constructive dialogue with the national preventive mechanism. It stands ready to provide technical assistance and advice, in order to reinforce the capacity of the mechanism to prevent torture and ill-treatment in all places of deprivation of liberty in the State party and to translate the common goals of prevention from commitments into reality.
49.In conclusion, the Subcommittee is aware that the national preventive mechanism is facing complex challenges regarding its legal, institutional and structural framework . It recommends that the mechanism take a proactive attitude and undertake a thorough internal evaluation of its requirements in order to fulfil its mandate under the Optional Protocol adequately. It should submit proposals to the authorities to revise its legal, institutional and structural framework, including within the Office of the Ombudsman, and submit proposals, as a matter of priority, on the financial and human resources it needs to carry out its mandate.
50. The Subcommittee also encourages the national preventive mechanism to transmit its annual reports to the Subcommittee and reaffirms its readiness to help achieve the shared aim of prevention of torture and ill-treatment and ensure that commitments are translated into action.
Government officials and other persons with whom the Subcommittee on Prevention of Torture met
Ministry of Defence
Mr. Panche Stefanovski, Advisor for ESDP Cooperation at the Department for International Cooperation
Ministry of Foreign Affairs
Ms. Elena Kuzmanovska, State Secretary
Mr. Igor Djundev, Director for Multilateral Relations
Ms. Svetlana Geleva, Deputy Director for Multilateral Relations
Ms. Elena Bodeva, Desk Officer/Second Secretary at the Directorate for Multilateral Relations (governmental focal point)
Ministry of the Interior
Mr. Agim Nuhiu, Minister of Interior of the Republic of Macedonia
Mr. Jordan Lamanovski, Assistant Minister for Public Relations
Ms. Ljubica Jakimovska, State Counsellor, Cabinet of the Minister
Ms. Merita Shehi, Counsellor, Cabinet of the Minister
Mr. Igor Radeski, Senior Counsellor for Multilateral Affairs, Sector for International Cooperation
Mr. Sashko Gerasimov, Head, Sector for Crime Scene Investigations, Department for Internal Control, Criminal Investigations and Professional Standards
Mr. Nikola Mirchevski, Head, Sector for Border Operations
Ms. Vesna Isajlovska, Head, Unit for Normative and Legal Affairs, Sector for Legal Affairs
Mr. Sashko Kocev, Head, IPA Sector
Ms. Zhaklina Prosaroska, Senior Police Counsellor, Unit for Strategic Planning, Standards and Quality Control
Ms. Danica Dimitrovska, Chief Inspector, Sector for General Police Affairs, Uniformed Police Department
Ministry of Health
Mr. Nasuf Ipçja, State Secretary
Dr. Nikica Panova, Deputy Head, Sector for Secondary and Tertiary Healthcare and Professional Education of the Medical Staff
Ministry of Justice/Directorate for Execution of Sanctions
Ms. Lidija Gavriloska, Director, Directorate for the Execution of Sanctions (MoJ)
Ms. Ana Pletvarec, Counsellor, Directorate for the Execution of Sanctions (MoJ)
Ms. Tanja Kikerekova, Head, Unit for Human Rights
Ministry of Labour and Social Policy
Mr. Gjoko Velkovski, Head, Unit for Internal Audit
Ms. Elena Grozdanova, State Counsellor for Equal Opportunities
Ms. Sofija Spasovska, Deputy Head, Department for Social Protection and Social Policy
Ms. Lidija Shterjov, Department for Social Protection and Social Policy
Ms. Nahida Zekirova, Unit for the Implementation of the Strategy for the Roma
B.National preventive mechanism
Ms. Slavica Dimitrievska, State Counsellor
Ms. Snežana Teodosievska-Jordanoska, State Counsellor (acting Head, national preventive mechanism)
Ms. Irina Aceska, Legal Officer
Mr. Aleksandar Trenkoski, Legal Officer
Ms. Merita Aliu-Alili, Counsellor
Ms. Vaska Bajramovska-Mustafa, Deputy Ombudsman
Macedonian Young Lawyers Association (MYLA)
Macedonian Helsinki Committee
Dr. Vladimir Ortakovski
Ms. Sonja Bozinovska Petrusevska, Head of Office, and Ms. Ivona Zakoska, International Organization for Migration
Ms. Silva Pesic, OHCHR
Ms. Louisa Vinton, United Nations Resident Coordinator/UNDP Resident Representative
Ms. Valentina Ancevska, Research and Liaison Officer, United Nations Office on Drugs and Crime
Ms. Sonja Tanevska, Assistant Representative, United Nations Population Fund
Mr. Dejan Kladarin, Senior Protection Officer, Office of the United Nations High Commissioner for Refugees
Ms. Elspeth Erickson, Deputy Representative, United Nations Children’s Fund
Council of Europe
Organization for Security and Cooperation in Europe
Places of deprivation of liberty visited by the Subcommittee
Skopje reception centre for foreigners “Gazi Bab”)
Tetovo educational and correctional institution, Ohrid
Temporary transit centre Vinojug
Kichevo police station
Bit Pazar police station
Gevgelija police station
Skopje police station
Jesuit Refugee Service safe house, Skopje
Places of deprivation of liberty visited jointly by the national preventive mechanism and the Subcommittee