Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to Mongolia undertaken from 11 to 20 September 2017: observations and recommendations addressed to the State party
Report of the Subcommittee * , **
Contents
Page
I.Introduction3
II.Implementation of the Optional Protocol3
III. Overarching issues6
A.Institutional framework6
B.Allegations of ill-treatment and torture7
C.Complaint mechanisms7
IV.Torture and ill-treatment8
A.Police8
B.Pretrial detention8
C.Prisons8
D.Isolation and disciplinary cells9
V.Police practice and procedure9
A.Fundamental safeguards during the initial stage of detention9
B.Issues relating to the legal regime of detention10
C.Material conditions of detention at police stations12
D.Health-care system12
VI.Places of deprivation of liberty: pretrial and sentenced12
A.Pretrial detention: general concerns12
B.Prisons: specific concerns13
C.Health-care system15
VII.National Centre for Mental Health18
VIII.Next steps19
Annexes
I.List of places of deprivation of liberty visited by the Subcommittee on Prevention of Torture21
IIList of officials and other persons with whom the Subcommittee on Prevention of Torture met22
I.Introduction
1.In accordance with its mandate under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture undertook its first regular visit to Mongolia from 11 to 20 September 2017.
2.The Subcommittee was represented by Malcolm Evans (head of delegation), Satyabhooshun Gupt Domah, Marija Definis-Gojanovic, Kosta Mitrovic, Margarete Osterfeld and Victor Zaharia. The Subcommittee was assisted by three human rights officers from the Office of the United Nations High Commissioner for Human Rights, two United Nations security officers and four interpreters.
3.During the visit, the Subcommittee conducted visits to police stations and penitentiary, health, rehabilitation, psychiatric and military detention facilities (see annex I). The Subcommittee held meetings with a range of authorities and officials of the Government of Mongolia and members of the National Human Rights Commission of Mongolia, civil society and the United Nations Office in Mongolia (see annex II).
4.At the conclusion of the visit, the delegation presented its confidential preliminary observations orally to government authorities and officials.
5.The present report sets out the observations and recommendations of the Subcommittee relevant to the prevention of torture and ill-treatment of persons deprived of their liberty in Mongolia.
6. The Subcommittee recommends that the State party distribute the present report to all relevant government authorities, departments and institutions, including but not limited to those to which it refers.
7.The present report will remain confidential until such time as Mongolia decides to make it public, in accordance with article 16 (2) of the Optional Protocol.
8. The Subcommittee recommends that the authorities of Mongolia request the publication of the present report, in accordance with article 16 (2) of the Optional Protocol.
9.The Subcommittee draws the State party’s attention to the Special Fund established under article 26 of the Optional Protocol. Recommendations contained in visit reports that have been made public may form the basis of an application for funding for specific projects through the Special Fund, in accordance with its rules.
10.The Subcommittee wishes to express its gratitude to the authorities of Mongolia for their help and assistance relating to the planning and undertaking of the visit.
II.Implementation of the Optional Protocol
11.Mongolia ratified the Optional Protocol on 12 February 2015 and should have established or designated a national preventive mechanism at the latest one year after its ratification of the Optional Protocol. Two years after ratification, the State party is still in the process of doing so.
12.The Subcommittee recognizes that the Government has conducted internal reviews and consultations to determine an appropriate model for its national preventive mechanism, and it is of the understanding that the current preference is to designate the National Human Rights Commission of Mongolia.
Mandate
13.As set out in article 3.1 of the Law on the National Human Rights Commission of Mongolia, the Commission’s mandate is to promote and protect the human rights and freedoms contained in the Constitution of Mongolia, national law and international treaties to which Mongolia is party. Article 13 of the Law provides that the Commission should put forward proposals on human rights issues, proposals and recommendations on legal and administrative amendments and proposals on implementing international human rights treaties, conduct research, collaborate with international, regional and national human rights institutions, raise awareness, promote human rights education and encourage accession to international human rights treaties.
Visiting powers
14.Since its establishment in 2000, the Commission has been monitoring human rights in places of detention by conducting both unannounced and announced visits, inquiries, research and monitoring. The Commission monitors juvenile correctional centres, closed and open prisons, pretrial detention centres and medical centres within prisons. Mental health centres are also within the Commission’s monitoring mandate. Since 2007, it has been monitoring the rights of persons receiving mental health-care treatment in the National Centre for Mental Health of Mongolia. It has also reported on a psychiatric nursing clinic, centre for addiction treatment and shelters for victims of domestic violence. The Committee against Torture has recommended that Mongolia strengthen the Commission’s independent and regular monitoring of places of deprivation of liberty, including those for persons with psychosocial difficulties and special care homes (CAT/C/MNG/CO/2, para. 20 (c)). During the visit, the Subcommittee was informed, however, that visits to places of detention by the Commission were not conducted systematically, and that it did not conduct individual interviews with detainees.
Selection of commissioners
15.As stipulated in the Commission mandate, the speaker of parliament nominates candidates for the Commission’s three commissioner positions on the basis of proposals from the President, the Parliamentary Standing Committee on Legal Affairs and the Supreme Court. In 2016, the Committee against Torture recommended that Mongolia develop a clear, transparent and participatory process of selection for positions in the Commission (CAT/C/MNG/CO/2, para. 34 (b)).
Funding
16.The Commission is funded under the State party’s consolidated budget, approved by the parliament. The Commission’s budget and personnel have decreased in recent years, and the Committee against Torture has expressed its concern about this (CAT/C/MNG/CO/2, para. 34 (a)).
Reporting and commenting on legislation and policy
17.The mandate of the Commission provides that commissioners should submit to the parliament annually a report on the human rights situation in Mongolia, which should also be issued in the State gazette. It also provides that the Commission should put forward proposals and recommendations on human rights issues and on whether laws and administrative decisions conform to the relevant treaty principles. The Subcommittee notes that the Commission has regularly made recommendations in relation to the right to be free from torture, in its annual reports to the parliament. In 2014, the Commission proposed the amendment of national legislation to bring the definition of the crime of torture in line with articles 1 and 4 of the Convention against Torture, and the enactment of a legal provision for the protection of victims of torture and the provision of reparations. Its recent recommendations have included regulating the period for which persons may be held in pretrial detention by amending the Code of Criminal Procedure. The Commission has also proposed establishing a working group to draft the legislative amendments relating to establishing the national preventive mechanism.
18.The Subcommittee notes that the State party has been developing a draft law to amend the law establishing the Commission so as to extend its mandate for the purposes of serving as the national preventive mechanism and that the amendment is due to be adopted by the parliament in the near future. The decision as to which legal framework best suits a national preventive mechanism is a matter for the State party to determine, however, it is imperative that the chosen mechanism be set up in full compliance with the Optional Protocol and the Subcommittee’s guidelines on national preventive mechanisms (see CAT/OP/12/5). The national preventive mechanism should be established through a public, inclusive and transparent process, involving civil society and other actors engaged in the prevention of torture in Mongolia. A similar process should be applied in the selection and appointment of the head and the members of the mechanism, which should be in accordance with published criteria.
19.Once established, the national preventive mechanism should carry out its functions in a manner which avoids actual or perceived conflicts of interest. All members of the national preventive mechanism should undergo training, including on interview techniques, visiting procedures and the detection of signs and risks of torture and ill-treatment. Working methods and a comprehensive visiting methodology should be developed to highlight institutional and systematic challenges, including those affecting vulnerable populations in places of deprivation of liberty.
20Furthermore, after its establishment, the State authorities and the national preventive mechanism should enter into a meaningful process of continuous dialogue, with a view to the implementation of the recommendations of the mechanism, with the aim of improving the treatment and conditions of detention of persons deprived of their liberty and preventing torture and other ill-treatment or punishment. The State party should publish and widely disseminate the annual reports of the national preventive mechanism.
21. The Subcommittee recommends that the Government of Mongolia comply with its obligations under the Optional Protocol by establishing its national preventive mechanism through the enactment, as soon as possible, of a law that grants the national preventive mechanism functional and operational independence, with due consideration to the principles relating to the status of national institutions (the Paris Principles), and that fully reflects the requirements set out in the Optional Protocol and the Subcommittee ’ s guidelines on national preventive mechanisms.
22. The Subcommittee recommends that the following elements, drawn from the Subcommittee ’ s guidelines on national preventive mechanisms, be taken into account by the authorities when designating or establishing an independent and effective national preventive mechanism:
(a) The national preventive mechanism should be established in accordance with the relevant provisions of the Optional Protocol and of the Paris Principles;
(b) The mandate and powers of the national preventive mechanism should be clearly set out in a constitutional or legislative text, and the operational independence of the mechanism should be guaranteed by law and in practice;
(c) The members of the national preventive mechanism should be independent and impartial and must have the requisite capabilities and professional knowledge, including medical, psychological and other related expertise to effectively fulfil its functions;
(d) The national preventive mechanism should have sufficient personnel to ensure that it can fulfil its functions under the Optional Protocol and that it has the operational capacity corresponding to the number of places of detention within the scope of its mandate;
(e) The necessary resources should be provided to permit the effective operation of the national preventive mechanism, and the national preventive mechanism should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol. Resources should be assured through a separate line in the annual budget and should be predictable, to allow the national preventive mechanism to develop its annual workplan and visits and plan its cooperation with other partners;
(f) The national preventive mechanism should complement rather than replace existing systems of oversight in Mongolia, and its establishment should take into account effective cooperation and coordination between preventive mechanisms in the country and not preclude the creation or operation of other such complementary systems;
(g) The State party should ensure that the national preventive mechanism is able to carry out visits in the manner and with the frequency determined by the mechanism. This includes the ability to conduct private interviews with those deprived of liberty and the right to carry out unannounced visits at all times to all places of deprivation of liberty, in accordance with the provisions of the Optional Protocol;
(h) The national preventive mechanism should play a prominent role in in the country ’ s system for prevention of torture and ill-treatment, with a high degree of institutional and public visibility. In that regard, the Subcommittee stresses the importance of increasing public awareness of the mandate and work of the mechanism and the need for it to be recognized as a key component in that system.
III. Overarching issues
A.Institutional framework
23.The Subcommittee notes that the State party has recently made wide-ranging reforms to its criminal justice system, including significant amendments to the Criminal Code and Code of Criminal Procedure. It is also aware that many places of detention have recently been renewed or refurbished and welcomes this as part of an ongoing programme. Although many of the resulting changes are commendable, problems remain. In particular, the Subcommittee is concerned that responsibility for policing, justice and health care in detention all lies with the Ministry of Justice and Home Affairs. This may result in serious conflicts of interest, can be detrimental to the effective management of the criminal justice and detention systems and is inappropriate in terms of prevention, because it omits the separation of powers.
24. The Subcommittee recommends that responsibility for policing and for justice be located in separate ministries and that responsibility for health-care and medical services in places of detention should be moved to the Ministry of Health.
B.Allegations of ill-treatment and torture
25.The Subcommittee emphasizes that public officials committing acts of torture or ill-treatment must be promptly brought to justice and, if convicted, punished with sentences which reflect the gravity of the offence and that victims must be provided with effective remedies, including health and rehabilitation services. Furthermore, the State party should ensure that judges, prosecutors, health workers and others working in spheres relating to the documentation and investigation of torture and ill-treatment receive adequate training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) and international standards relating to torture and ill-treatment, with particular attention given to the appropriate classification of cases of torture and to the performance of specialized medical examinations.
26.The Subcommittee is concerned that, in 2014, the special investigative unit, previously located within the General Prosecutor’s Office, was disbanded and its functions transferred to the Independent Authority against Corruption. The Subcommittee is concerned that the current model, whereby acts of torture and ill-treatment allegedly committed by public officials is now being investigated by public officials themselves, is more akin to a form of peer investigation, lacking in independence and impartiality and thus failing to ensure effective oversight.
27.The Subcommittee is concerned that this change has made it less likely that effective investigations will take place, thereby reducing the number of criminal cases brought and making it less likely that complaints will be lodged, which, taken together, increases the risk of impunity.
28.The statistical data appear to support those concerns, given that, since 2014, there has been a decline in the number of investigations initiated and only one public official has been convicted and imprisoned for ill-treatment of detainees. The Subcommittee shares the concern already expressed by the Committee against Torture on this point (CAT/C/MNG/CO/2, para. 17).
29. The Subcommittee recommends that the State party reinstate an independent investigation unit, within the General Prosecutor ’ s Office, that is responsible for investigating acts of torture and ill-treatment by public officials, including the police. The State party should also ensure that all investigations are independent, impartial and effective and free of any connection between the investigators and the alleged perpetrators (CAT/C/MNG/CO/2, para. 16).
C.Complaint mechanisms
30.The Subcommittee was informed by both detainees and officials that complaints of ill-treatment by detainees are first addressed and considered by staff working within the detention facility in question and are reviewed before being forwarded to the appropriate external complaint mechanisms. In practice, most letters are subject to a form of censorship, and the Subcommittee therefore takes the view that there is no effective means of submitting complaints for external scrutiny. This reflects the concern already expressed by the Committee against Torture (CAT/C/MNG/CO/2, para. 18 (a)), which the Subcommittee shares.
31. The Subcommittee recommends that the State party put in place effective mechanisms which will allow detainees to confidentially and directly submit complaints concerning ill-treatment, without any form of internal (or external) scrutiny or censorship, to independent, impartial and effective bodies with the power to investigate and trigger appropriate protective and remedial action.
32. The Subcommittee further recommends that the State party ensure that those submitting such complaints are not subjected to any form of sanction, including physical, disciplinary or administrative reprisals.
IV.Torture and ill-treatment
A.Police
33.The Subcommittee received allegations from numerous sources of instances of torture and ill-treatment being inflicted during the initial phase of arrest and investigation by police, especially in remote and in small police stations. The credibility of some of those allegations were supported by the Subcommittee’s own observations during their visits to certain places of detention.
34.The purpose of such ill-treatment appears to include, among other things, obtaining confessions and locating items of evidence, and includes beatings and, less frequently, the use of electroshocks. Forms of improper psychological pressure, which can amount to forms of torture or ill-treatment, are also used during initial interrogations, including threats to be sent to other police stations for the purposes of ill-treatment, threats against family members or making access to family members conditional upon a detainee confessing or providing other information.
35.Although most of the police stations visited now have rooms equipped with closed-circuit television (CCTV) or video- and audio-recording equipment, it is evident that initial questioning, during which ill-treatment is most likely to occur, tends to take place in the administrative offices of the police interrogators. The Subcommittee, recalling the recommendations of the Committee against Torture (CAT/C/MNG/CO/2, para. 16 (c)), considers that the failure to use the properly equipped interrogation rooms for all questioning of suspects significantly increases the risk of ill-treatment.
B.Pretrial detention
36.The Subcommittee received allegations of ill-treatment in pretrial detention facilities, including beatings with batons and with belts occurring in secluded areas of the pretrial detention facility, such as in pretrial detention facility No. 461 or the pretrial detention facility in Tuv, which are not covered by CCTV equipment, or at times when the detainee may be temporarily outside the detention facility.
C.Prisons
37.The Subcommittee did not receive any allegations from detainees of direct physical or psychological ill-treatment in the prisons it visited.
38. The Subcommittee recommends that:
(a) Training programmes for police, investigators and prison staff emphasize the absolute prohibition of torture and ill-treatment;
(b) Police, investigators and prison staff be made aware that those responsible for the infliction of any acts of torture, including psychological torture in the form of threats, and complicity or participation in acts of torture, will be punished, with penalties which reflect the grave nature of such acts;
(c) The confession-based approach to investigation and prosecution be replaced by an evidence-based approach;
(d) All interrogations take place in rooms officially designated and properly equipped for that purpose.
D.Isolation and disciplinary cells
39.The Subcommittee has a number of concerns about the abuse of disciplinary procedures in pretrial detention facilities and prisons. In some facilities, such as pretrial detention facility No. 461, detainees may be held in an isolation cell for up to three days while a decision on the disciplinary measure to be imposed is being taken. Given that the isolation cells are de facto the same as the disciplinary cells, the result is that detainees may be enduring disciplinary sanctions for longer than the maximum permitted period. In addition, in disciplinary cells, food is only provided once a day and, because mattresses and bedding are only provided at night, detainees have nothing to sit on during the day. There also appears to be no effective means of appealing against the imposition of a disciplinary sanction.
40.The Subcommittee is concerned that disciplinary cell registers indicate that, in some prisons, disciplinary solitary confinement had lasted for up to 45 days by consecutively imposing three instances of the current 15-day maximum period. The new law of July 2017 appears to permit periods of up to 90 consecutive days, without effective appeal.
41. The Subcommittee recommends that measures be put in place to allow detainees to appeal against the imposition of disciplinary sanctions. Isolation cells should only be used when strictly necessary, and time spent in isolation cells should count towards the period of disciplinary sanction. Isolation and disciplinary cells should be properly furnished, including with bedding during the day. Detainees in isolation or disciplinary cells should have the same entitlement to food as other detainees and be able to spend a minimum of one hour per day exercising in appropriate open-air facilities.
42. The Subcommittee recommends that the State party ensure that the maximum period of placement in solitary confinement not exceed 15 consecutive days and that such periods must not be imposed consecutively or in rapid succession.
V.Police practice and procedure
A.Fundamental safeguards during the initial stage of detention
43.The Subcommittee recalls that the Committee against Torture noted that fundamental preventive safeguards were not being enjoyed by all detainees from the outset of their detention (CAT/C/MNG/CO/2, para. 12; and CCPR/C/MNG/CO/6, para. 24 (c)). The Subcommittee observed that persons brought to police stations, especially in remote areas at the soum (county) level, are rarely informed of their rights or told why they have been taken there.
44.Although arrested persons have the right of access to a lawyer, in practice that right is rarely ensured. As a result, questioning routinely occurs without the presence of a lawyer, even if a request for a lawyer has been made. The high number of detainees reported to have waived that right is itself a cause for concern, from a preventive perspective. The Subcommittee was also informed that, even when the detainee is legally represented, the first meeting with the lawyer is often at the court hearing stage. Although legal aid is theoretically available, the systems are ineffective at ensuring that those deprived of liberty have prompt access to effective legal advice. Indeed, the Subcommittee is of the understanding that there are no legal aid lawyers available in some soums.
45.The Subcommittee notes that, in numerous cases, family members were not told by the police that their relative had been arrested. The Subcommittee is concerned that it was necessary for the detainee to “cooperate” before the detaining authorities would permit meetings with family members or next of kin.
46. The Subcommittee recommends that:
(a) All arrested persons be immediately informed of the reasons for their arrest and their rights as detainees;
(b) Persons deprived of their liberty must be able to contact, and have the right of access to, a lawyer of their choosing, unless there are legitimate grounds for preventing them from being in contact with a particular lawyer, in which case an alternative may be chosen;
(c) The system of legal aid be reviewed to ensure that timely and effective assistance is provided to all those who are deprived of liberty;
(d) All persons deprived of their liberty must be able to inform a family member or next of kin of their detention without delay. The exercise of this right must not be dependent upon the goodwill or decision-making of the detaining authorities, prosecutor or investigator or the administration of the detention facility.
B.Issues relating to the legal regime of detention
Police detention
47.The Subcommittee is concerned that, although the law limits the duration of time a person may be held in police custody for the purposes of questioning to 6 hours, in practice persons are held in police custody for periods which considerably exceed this time frame, without prosecutorial or judicial scrutiny. The Subcommittee also received information that, in exceptional circumstances, the police could extend that period to up to 48 hours, but that this was practised frequently, not exceptionally, including over weekends when investigators might be unavailable.
48.The Subcommittee is concerned that not all police stations, in particular those located in the countryside, keep a register of persons who are detained by the police for initial questioning. This means that, in effect, there may be no systematic records of who has been interrogated by a police investigator, given that registration often only takes place once such persons have been admitted to a temporary or pretrial detention facility or are transferred to a police station at theaimag (province) level.
49.The Subcommittee is concerned to have learned that those held in initial police custody, sometimes for up to 48 hours, are often held in inappropriate settings, such as in investigators’ offices or corridors. Moreover, they are often not provided with food or drink and may be denied unhampered access to toilets. Some detainees have been handcuffed throughout their period of initial investigation.
50.The Subcommittee is also of the understanding that the close relationship that often exists between the police and the prosecutors can give the impression that prosecutors tend to merely endorse, rather than evaluate, the cases presented to them by the police.
51. The Subcommittee recommends that:
(a) The period of initial detention by the police should not exceed that provided for by law, while ensuring that that period commences at the moment the person is first deprived of their liberty. Any extensions to that period must be authorized in accordance with the law by independent authorities;
(b) Initial police detention should be properly recorded in detention registers. Senior police officers should be responsible for the maintenance of registers, and all officers should receive appropriate training on the record keeping;
(c) Detainees should be offered food and, at a minimum, water during their detention and given proper access to toilet facilities;
(d) Detainees should be held in appropriate facilities while in police detention;
(e) The practice of sending detainees to temporary or pretrial detention facilities without prosecutorial or judicial scrutiny should cease forthwith;
(f) Prosecutors should act independently of the police when reviewing requests for the prolongation of initial detention or for temporary or pretrial detention.
Administrative detention and sobering-up units
52.The Subcommittee notes the steps taken to address alcohol abuse and domestic violence in the State party. It is concerned, however, that the processes of administrative detention applicable to such conduct run the risk of resulting in forms of arbitrary detention, without the benefit of legal safeguards or proper judicial oversight. It is also concerned that there appears to be no practical difference in the experience of those who have committed an administrative offence while intoxicated and those who have not, effectively making being intoxicated the offence. The Subcommittee is also concerned that domestic violence is treated as an administrative offence, rather than a criminal one.
53.The Subcommittee observed that some of those held in the sobering-up units and administrative detention centres were not informed of their rights or the length of their detention, nor were they medically examined, which is of particular concern with regard to those arriving at sobering-up units.
54. The Subcommittee recommends that:
(a) Persons suspected of committing administrative offences while under the influence of alcohol should be held separately from those detained in an intoxicated state and treated in manner appropriate to the reasons for their detention;
(b) Those detained for being under the influence of alcohol should have their blood alcohol concentration (BAC) measured immediately upon arrival at the detention unit and a consistent and appropriate BAC threshold should be applied;
(c) Persons held in sobering-up units must be informed of their rights and the reasons for, and duration of, detention, which must not exceed the maximum period provided for by law (24 hours). Those detained in such units must be allowed to inform a family member or the next of kin of their detention, be medically examined upon arrival and have access to a lawyer and a doctor, as necessary.
55.The Subcommittee notes with concern that detainees suspected of committing administrative offences were at times held for longer than the maximum period prescribed by law. Although judicial authority is involved in the placing of a person in administrative detention, it appears that the role of the judiciary in this regard is almost entirely formalistic. Moreover, administrative detainees reported that there were no practical means by which they might appeal against a decision to detain them, given that appeals do not have a suspensory effect on the implementation of those decisions and the period of detention will typically have elapsed before such appeals are considered.
56. The Subcommittee recommends that the State party ensure that temporary administrative detention does not exceed the maximum period prescribed by law. Orders for detention for administrative offences should be subject to full and proper judicial oversight, and all legal safeguards for detainees should be applicable and exercisable. An effective means of appealing against orders for administrative detention that delivers a practical outcome should be put in place.
C.Material conditions of detention at police stations
57.The Subcommittee was gravely concerned at the physical conditions in most of the temporary detention and sobering-up units visited. Many were located underground with a high level of humidity, poor ventilation and limited access to natural light. Although no overcrowding was observed, detention cells appeared to be very old and have inadequate bedding. Hygienic and sanitary conditions were uniformly poor. Food and water did not appear to be provided.
58. The Subcommittee recommends that the State party take immediate measures to improve the physical conditions of temporary detention facilities and sobering-up units, with a view to bringing them into compliance with international standards, including concerning ventilation, natural light and sanitation. Food and water should be provided to all those detained, on an appropriate basis.
D.Health-care system
59.The Subcommittee is concerned that health-care assistance is virtually absent at police stations.
60. The Subcommittee recommends that access to, and medical examination by, an independent doctor be guaranteed, conducted as soon as possible after initial detention and properly recorded. Medical records should be made available to detainees and/or their legal representatives upon detainees ’ request. All forensic medical staff should undergo training on the Istanbul Protocol, which is an indispensable tool for detecting, documenting and deterring torture and ill-treatment.
VI.Places of deprivation of liberty: pretrial and sentenced
A.Pretrial detention: general concerns
61.The Subcommittee welcomes the considerable decrease in the number of detainees held in pretrial detention, brought about by the new laws that entered into force on 1 July 2017, which, among other things, reduced the maximum period of pretrial detention from 24 to 18 months.
Legal regime
62.The Subcommittee is concerned that decisions to extend periods of pretrial detention are often communicated to detainees through the prosecutor and are not considered at a court hearing in the presence of detainees and their lawyers. The Subcommittee received information about one such case, in which a detainee was held in pretrial detention for 15 months without being brought before a judge. Such hearings are an important safeguard against torture or ill-treatment, since, during such hearings, detainees or their lawyers should be able to raise any concerns and the judge should be able to order an immediate independent and effective investigation if there is prima facie evidence of ill-treatment.
63. The Subcommittee recommends that the State party ensure that decisions to hold a person in pretrial detention and to extend periods of pretrial detention should be made by a judge who has heard from the detainee.
Outside activity and contact with outside world
64.The Subcommittee is very concerned that detainees held in pretrial detention have almost no out-of-cell time. Pretrial detainees were only allowed out of their cells once or twice per week for periods of between 15 and 30 minutes, which falls far short of the internationally recognized standard of a minimum of one hour of out-of-cell time per day. Moreover, during those short periods, detainees were confined in what are best described as open-air cages, which were too small to allow for any physical exercise; indeed, some barely permitted physical movement. In the pretrial detention unit in Tuv, detainees were handcuffed in pairs during their out-of-cell time.
65.This is compounded by the limited opportunities afforded to pretrial detainees for receiving visitors (twice per week for approximately 20 minutes). The Subcommittee is also concerned that, in pretrial detention facility No. 461, family visits are subject to the prosecutor’s authorization and that detainees are not allowed to make telephone calls or send letters.
66. The Subcommittee recommends that all those held in pretrial detention should be able to spend a minimum of one hour per day outside of their cells in outdoor areas that allow for walking and exercising, should they wish to do so.
67. The Subcommittee further recommends that visiting arrangements for pretrial detainees be reviewed to ensure that visits are not subject to prosecutorial discretion, are permitted to occur with sufficient frequency and take place in facilities that are appropriate in terms of size and privacy.
Material conditions
68.With the exception of some cells in pretrial detention facility No. 461, the Subcommittee did not encounter any overcrowding, however, some facilities would have been overcrowded if occupancy rates had matched the official capacities, such as in the pretrial facility in Tuv. Most of the pretrial facilities visited were either undergoing, or were due to undergo, significant renovation. In renovated facilities, material conditions are generally acceptable, but some problems remain to be addressed. For example, in some cells, open toilets are surveyed by CCTV systems. Both male and female detainees must rely on family members for the provision of basic hygiene items or else must pay for them.
69.The Subcommittee also noted the inadequacy of bedding, including insufficient changes of bedclothes, in pretrial detention facilities. It is of particular concern that, in pretrial detention facility No. 461, detainees awaiting transfer and detainees held for up to 48 hours in temporary police detention were not provided with beds at all.
70. The Subcommittee recommends that:
(a) The State party should ensure that its programme of renovation of pretrial -detention facilities is swiftly completed in accordance with international standards. In particular, all cells should be of a reasonable size, with proper sanitation, sufficient lighting, hygiene items and bedding and adequate ventilation provided;
(b) Overcrowding in the transfer wing of pretrial detention facility No. 461 should be addressed as a matter of priority;
(c) All detainees should be provided with beds and bedding be changed more frequently.
B.Prisons: specific concerns
71.The Subcommittee commends the State party on the major strides which have been made to renovate the prison system. It also welcomes the abolition of the death penalty, the commutation of existing death penalties to 20 years’ imprisonment and other changes in the new Criminal Code and Criminal Procedural Code, which have resulted in the reduction of the prison population, thus easing problems of overcrowding.
Overarching concerns
Work opportunities
72.The Subcommittee notes that extensive work opportunities are available for prisoners. The Subcommittee remains concerned, however, that, in both closed and open prison regimes, such opportunities are not always remunerated.
73. The Subcommittee recommends that fairly remunerated work opportunities, in properly regulated working conditions in accordance with accepted standards, be made available to all detainees.
Regimes of detention
74.The Subcommittee is concerned about several overly restrictive aspects of the detention regime. In some prisons visited, newly admitted detainees are not allowed outside their cells for the first 14 days. Those who are not working are only allowed out of their cells for very short periods two or three times per week and, in some high-security prisons, such out-of-cell time is spent in what are best described as open-air cages.
75.The Subcommittee is also concerned that the recently enacted laws of July 2017 have restricted the ability of sentenced prisoners to have contact with the outside world. The Subcommittee notes that prisoners in high-security prisons are now only allowed four visits per year, of up to three hours each, and overnight visits are not permitted at all. Prisoners subject to the closed prison regime have also seen a reduction in the frequency of visits, as well as increased restrictions on sending and receiving letters and parcels and making phone calls. Moreover, many prisoners complained about the limited length of visits, given the length of the journeys and the associated costs that must be borne by their family members.
76. The Subcommittee recommends that:
(a) All sentenced prisoners, from the commencement of their sentence, be permitted to go out of their cells into common areas, with the possibility of engaging in purposeful and communal activities, should they wish to do so;
(b) At a minimum, all sentenced prisoners be able to spend the internationally recognized minimum period of one hour per day in open-air conditions allowing for movement and physical activity;
(c) The more restrictive rules applicable to family visiting and contact with the outside world introduced in July 2017 be repealed and replaced by new rules that allow for more frequent contact, for longer periods, reflecting the difficulties of travel and costs involved in family visits.
Reasonable accommodation
77.The Subcommittee did not see any provision made for adequate accommodation for persons with disabilities, in particular regarding access to showers and toilets and for the purposes of out-of-cell activities.
78. The Subcommittee recommends that reasonable accommodation should be made to secure the rights of persons with disabilities throughout the detention system.
Toilet and shower facilities
79.The Subcommittee is concerned that, in several of the prisons it visited, showers and toilets for some parts of the prison, including disciplinary cells, were located outside of the accommodation units and, in some instances, the only toilets were the “open pit” type.
80. The Subcommittee recommends that indoor sanitary facilities be provided in all prisons, incorporated into or linked with the accommodation units.
Specific concerns
Prison No. 405
81.During family visits, prisoners were held with their legs shackled in iron to the floor, in a room equipped with a CCTV system and in the presence of a prison guard.
82. The Subcommittee recommends that these arrangements cease immediately and that visits be allowed to take place in a more family-oriented and less securitized environment.
83. Prisoners were only allowed access to showers once every two weeks. The Subcommittee recommends that access be permitted more frequently, at a minimum once per week.
Prison No. 407
84.The Subcommittee is concerned at the substandard conditions of the facilities for long-stay family visits, in particular the lack of showers and the unhygienic outdoor toilets.
85. The Subcommittee recommends that the conditions in the visiting unit be improved, including the provision of indoor toilets and shower facilities.
Prison No. 415
86.Several of the communal toilet and shower facilities lacked privacy, having only low-level partitions in the shower and toilet areas and glass doors to the toilet areas, and were monitored via a CCTV system.
87. The Subcommittee recommends that those arrangements be reviewed, in order to ensure appropriate levels of privacy.
Prison No. 421
88.In common with several other prisons visited, toilets were outside of the buildings in separate units. In prison No. 421, this was particularly problematic given the significant numbers of prisoners with disabilities, older prisoners and prisoners who were unwell. The prison generally failed to accommodate the mobility and dietary needs of persons with special vulnerabilities and needs.
89.The Subcommittee recommends ensuring full accessibility of all areas of the prison, in particular for those persons who require appropriate accommodation. Food and access to water and sanitation, as well access to recreational activities and other basic rights, should conform to international standards. Special arrangements, including diet food, must be made available for persons with disabilities, older persons and detainees who require special accommodation.
C.Health-care system
Overarching concerns
Independence of the medical staff
90.The Committee visited several health-care facilities for prisoners and detainees, including the central prison hospital (detention facility No. 401), the hospital unit attached to pretrial detention facility No. 461, detention facility No. 429 for tuberculosis and HIV patients, and a detention facility for those addicted to drugs and alcohol in Bayan soum. All such facilities were clean, although some were old, with plenty of natural light. Staffing levels were sufficient, and no overcrowding was observed. Moreover, the Subcommittee received no complaints of physical ill-treatment. The Subcommittee remains concerned, however, that the medical staff form part of the prison personnel, because this raises concerns regarding the independence of prison medical services.
91.The Subcommittee draws the State party’s attention to international principles relating to equivalence and integration, which suggest that medical services in criminal justice institutions should fall under the authority of the Ministry of Health, to ensure that persons in detention receive health care equal to those not detained and to ensure the autonomy of prison medical services.
Medical screening and examination
92.Although initial medical screening is generally conducted upon arrival, it appears that it is routinely conducted in the presence of police officers. In pretrial detention facility No. 461, the Subcommittee received information that such screening was at times carried out in common areas such as corridors. The Subcommittee also observed that records of the initial medical screening are usually superficial and do not include all necessary details, including the description of existing injuries and the circumstances under which they were sustained. Moreover, results of the initial medical screening are not recorded comprehensively in the medical files of detainees.
93.In addition, medical personnel are generally unfamiliar with the Istanbul Protocol and other relevant international standards. As a result, the Subcommittee is concerned that doctors may not be attentive to indicators of torture and ill-treatment.
94.Medical examinations of persons admitted to detention centres and the proper reporting of injuries found during those examinations constitute important aspects of guaranteeing the prevention of torture and ill-treatment and in combating impunity. They can also protect police officers and prison staff against false allegations.
95. The Subcommittee recommends that all newly arrived detainees, as soon as possible and no later than 24 hours following their entry into a place of detention, be given a thorough medical examination, including a full-body examination, in order to detect, inter alia, any signs of injuries sustained prior to the patient ’ s arrival. In addition, the results of such examinations should be appropriately and comprehensively recorded in a specifically designated and confidential register.
96. Medical examinations should be carried out regularly and always conducted in line with the principle of medical confidentiality; no person other than medical personnel should be present during the examination. Guards should remain out of hearing and out of sight, except in the rare case where the medical staff may, for reasons of safety, request otherwise. Where security precautions are necessary, they should be properly recorded and security personnel should remain a short distance away.
97. Furthermore, the Subcommittee recommends that the State party improve its training of medical personnel working in places of detention, in particular as regards the Istanbul Protocol and other related international standards.
Specific concerns
Central prison hospital (detention facility No. 401)
Shortage of medical supplies
98.Many detainees complained about shortages of medication and medical supplies. The Subcommittee received information that medical treatment in clinical hospitals was sometimes postponed due to lack of the necessary equipment and/or medical supplies and that payment would be required before such treatment could be given.
99. The Subcommittee recommends that appropriate medical supplies be provided and treatment given without patients being subject to charges or payments.
Outside activity and contact
100.The Subcommittee is concerned about the lack of recreational activities and outdoor exercise at the central prison hospital and that prisoners had to sit in their rooms for most of the day, with nothing to occupy their time. The Subcommittee did not see any books for patients during the visit. Not only were patients not allowed outside their rooms, but the windows in their rooms were deliberately frosted over or blanked out in order to prevent the patients from looking out of the window, from which there were panoramic views of the countryside. The Subcommittee considers this to be unnecessary, punitive and mean-spirited in what ought to be a therapeutic environment.
101.The Subcommittee delegation was also informed that contact with the outside world is very restrictive, comprising only 20 minutes each month for those patients in an open prison regime and only 20 minutes every two months for those in a closed prison regime.
102. The Subcommittee recommends that exercise and other educational, recreational and cultural activities be provided for all patients. Windows should be unfrosted as a matter of urgency, and opportunities for contact with the outside world must be expanded. In addition, such contact should not be included within the general quota of visits to which the patients are entitled when they return to prison.
Transfer from hospital to prison
103.Some patients, notably those coming from prisons at a considerable distance from the central prison hospital, are held at pretrial detention facility No. 461 before being transferred back at the end of their medical treatment. Patients complained that they could be held for as long as two months in poor material conditions, in settings which could also be overcrowded and negated the benefits of their medical treatment.
104. The Subcommittee recommends that the periods for which former medical patients are held at pretrial detention facility No. 461 pending their return to the prisons of origin must be kept as short as possible, and during that time, they must be held in conditions that are appropriate to their vulnerable state of health.
Detention centre for those addicted to drugs or alcohol
Legal safeguards
105.The Subcommittee is concerned at the vague legal framework under which those addicted to drugs or alcohol may be placed in detention. In particular, the Subcommittee is concerned that medical assessments of substance addiction appear to be superficial and not always based on appropriate medical testing. The Subcommittee found no evidence in patients’ medical files confirming that medical examinations had been conducted that supported the determination that the detained person was in fact an “addict”. Detainees confirmed that they had not been bodily examined prior to court hearings, which they considered to be doing little more than “rubberstamping” the views of the police, that they be detained.
106.Detainees claimed that neither the process or procedure concerning their detention had been explained to them, nor had they had any explanation of their rights. They were not aware of any avenues through which the decision to detain them could be the subject of impartial, timely and effective scrutiny.
107.The Subcommittee is concerned that in the absence of such fundamental safeguards, placement in the centre may amount to arbitrary detention.
108. The Subcommittee recommends that:
(a) Community-based approaches for addressing the needs of those with problems of drug and alcohol abuse should be explored as an alternative to forms of administrative detention, which run the risk of being arbitrary in nature;
(b) Any determination that a person is an “ addict ” should be based on appropriate medical examinations and criteria. All medical examinations should be accurately recorded in a medical file, which should be available to the detainee and their lawyers upon request;
(c) The State party ensure that, in practice, all persons deprived of their liberty are afforded all fundamental legal safeguards from the outset of their detention, which includes being informed of the reasons for their detention, their rights as detainees and their right of access to a lawyer of their choice;
(d) Effective procedures for the independent scrutiny of decisions to detain persons at the detention centre for those addicted to drugs or alcohol be put in place, as well as appropriate complaint mechanisms and appeal procedures that can be effectively accessed by the detainees.
Forced treatment
109.Although the Subcommittee did not receive complaints of ill-treatment from detainees, it was clear that admission to the detention centre for those addicted to drugs or alcohol entailed forced treatment against addiction without consent.
110. The Subcommittee recommends that all those admitted to the detention centre for those addicted to drugs or alcohol be medically screened and examined, including their mental health. A proper case-management and confidential medical records system should be established and maintained for all patients The medical file should contain details of any free and informed consent for medical treatment that has been given.
Sanitary conditions
111.The Subcommittee is concerned at the appalling conditions of the toilets, which comprised an open pit and were located outside at a considerable distance from the living quarters. Shower facilities were even further away, in an old and dilapidated state and appearing to be barely usable.
112. The Subcommittee recommends that the sanitary arrangements for detainees at the Centre be radically improved as a matter of urgency and that renovations be conducted to install proper indoor sanitation with sufficient lighting and adequate ventilation in close proximity to the living quarters.
VII.National Centre for Mental Health
113.The delegation visited the National Centre for Mental Health, which accommodates both persons whose confinement has been ordered in connection with criminal proceedings and patients deprived of their liberty as a result of civil proceedings or who have been admitted voluntarily. The Subcommittee took note of the recent renovation work carried out to improve material conditions in the Centre. The delegation also took note of the steps taken towards the establishment of a system of community care. The delegation did not receive allegations of ill-treatment in the institution it visited.
114.The Subcommittee notes, however, that the mental health system in Mongolia is largely hospital-based and that there is a need for community mental health facilities to be adequately funded, in order to facilitate the move from hospital-based to community-based care and to promote mental health in the community.
115. The Subcommittee recommends that adequate human and financial resources be allocated to the area of mental health. National legislation should be reviewed in order to guarantee the rights of so-called “ voluntary ” patients and to ensure the proper functioning of review procedures.
116. The Subcommittee recommends that additional measures be taken to support the establishment of community-based services, in order to aid in the discharge of patients who are only in long-term hospital care because of their lack of access to community care.
117. The Subcommittee further recommends that health professionals be provided with adequate training on international human rights standards, in particular the Convention on the Rights of Persons with Disabilities. In addition, the number of psychiatrists, nurses, psychologists, occupational therapists and social workers should be increased. Multidisciplinary care should be provided to the patients, and rehabilitation, occupational or recreational activities should be proposed.
Involuntary placement, legal safeguards and restraint measures
118.Involuntary placement in psychiatric facilities is regulated by chapter five of the Law of Mongolia of 3 January 2013. The purpose of the involuntary placement procedure is to protect patients who are not in a position to provide consent at the time of the hospitalization. However, the Subcommittee notes that the law does not distinguish between involuntary hospitalization and voluntary treatment. Furthermore, there are no specific regulations on the need for patients to give informed consent for their treatment. In addition, there are no external oversight mechanisms, and judicial authorities have no involvement in decisions concerning involuntary hospitalization.
119. The Subcommittee recommends that medical staff systematically seek to obtain the free and informed consent of the patient for both their placement and their treatment.
120. The Subcommittee recommends that steps be taken to ensure that judges regularly review the situation of persons who have been involuntarily placed in such institutions, in order to safeguard the right to liberty of those patients who no longer need to be involuntarily hospitalized.
121. The Subcommittee recommends that the State party adopt legislation clearly setting out and protecting the rights of patients and specifying clear criteria for identifying those exceptional situations in which patients may be placed in psychiatric institutions and treated without their informed consent.
122. The Subcommittee underlines that restraints should be used only as a measure of last resort, never applied as a punishment and used only if no lesser way of controlling an actual risk is available, and they should be removed as soon as possible.
123. The Subcommittee recommends that voluntary patients should not regularly be restrained against their will. Restraint measures, if absolutely necessary, should only be taken in places specially designated for that purpose, and the restrained patient should be adequately clothed and not be visible to other patients. Staff involved should be properly trained and not be assisted by other patients when applying means of restraint; such means should be applied with required skill and care in order not to endanger the health of the patient or cause unnecessary pain.
124. The Subcommittee also recommends that Mongolia should adopt a comprehensive, carefully developed policy on the application of restraint measures that stipulates the means of restraint that can be used, the circumstances under which they can be used, the practical means by which they might be applied, the permissions and systems of supervision which need to be in place before and during their application, including the duration of their use, and the procedure to be followed following the termination of their use. In addition, all incidents of the use of restraints should be recorded in a special register, and complaint mechanisms, as well as internal and external reporting mechanisms, should be provided for.
VIII.Next steps
125.The Subcommittee requests that the State party transmit its reply to the present report within six months from the date of its transmission to the Permanent Mission of Mongolia to the United Nations Office and other international organizations in Geneva. The reply should respond directly to all recommendations and requests for further information made herein, giving a full account of action already taken or planned to be taken, including time frames, to implement them. It should include details concerning the implementation of institution-specific recommendations and concerning more general policy and practice.
126.Article 15 of the Optional Protocol prohibits any form of sanction or reprisal, from any source, against anyone who has been, or who has sought to be, in contact with the Subcommittee. The Subcommittee reminds Mongolia of its obligation to ensure that no such sanctions or reprisals take place and requests that, in its reply, it provide detailed information concerning the steps it has taken to ensure that this obligation has been fulfilled.
127.The Subcommittee recalls that prevention of torture is a continuing and wide-ranging obligation. It therefore requests that it be informed of any legislative, regulatory, policy or other relevant developments relating to both the treatment of persons deprived of their liberty and the establishment of the national preventive mechanism, in order to enable the Subcommittee to continue to assist Mongolia in fulfilling its obligations under the Optional Protocol.
128.The Subcommittee considers both its visit and the present report to form part of an ongoing process of dialogue. The Subcommittee looks forward to assisting Mongolia in fulfilling its obligations under the Optional Protocol by providing further advice and technical assistance and advice, in order to achieve the common goal of prevention of torture and ill-treatment in places of deprivation of liberty. The Subcommittee is of the view that the most efficient and effective way to develop that dialogue would be for it to meet with the national authorities responsible for the implementation of its recommendations within six months of its receipt of the reply to the present report.
129. The Subcommittee recommends that, in accordance with article 11 of the Optional Protocol, a dialogue between the Subcommittee and the national authorities of Mongolia focussed on the provision of advice and assistance concerning the implementation of the Subcommittee ’ s recommendations be held within 6 months of the receipt of the reply to the present report. The Subcommittee further recommends that Mongolia initiate discussions with it on the arrangements for such a dialogue at the time of the submission of that reply.
Annex I
List of places of deprivation of liberty visited by the Subcommittee on Prevention of Torture
Pretrial detention facility No. 461
Detention facility No. 401
Prison No. 405
Prison No. 407
Prison No. 409
Prison No. 411
Prison No. 415
Prison No. 417
Prison No. 421
Detention facility No. 429
Prison No. 441
Centralized enforcement centre for administrative detention and alcohol treatment under the Metropolitan Police
Confinement centre in Bayanzurkh district
Bayanzurkh district, first police station
Bayanzurkh district, second police station
Bayanzurkh district, third police station
Department for the forced labour and treatment of intoxicated and drug-addicted persons, Tuv province, Bayan soum
Tuv province police department
Khan-Uul district, first police station
Khan-Uul district, second police station
Chingelti district, first police station
Songinokhairkhan district, first police station
Court decision implementation service, Tuv province
Tuv province police department
Armed forces, unit No. 32
Detention facility for foreigners
Annex II
List of officials and other persons with whom the Subcommittee on Prevention of Torture met
Ministry of Justice and Home Affairs
G. Bayasgalan, State secretary
T. Bat-Ulzii, Director, Treaty, Law and Cooperation Department
General Agency for Execution of Court Decisions
S. Batsaikhan, Head of Imprisonment Office
Ch. Munkh-Erdene, Head, Security Division
B. Amardorj, Head, Pretrial detention facility No. 461
B. Dorjbat, Head, Confinement Section
National Police Agency
Colonel P. Batbaatar, First Deputy Commissioner
Colonel Ch. Boldbaatar, Deputy Commissioner
Colonel D. Naranbaatar, Head of Investigation Service
Colonel A. Amgalan, Minor Crime Investigation Service
Colonel J. Erdenebold, Head of Metropolitan Police Department
L. Nyamdavaa, Head of Legal Division
N. Baysgalan, Head of International Relationship Division
Armed Forces
General D. Ganzorig, Head, Operations Management Department, Armed Forces General Staff
L. Batbold, Head, Armed Forces Unit No. 32
Immigration Agency
N. Bayanmunkh, Head of Monitoring Department
Ch. Narmandakh, Head of Visa and Permission Department
General Intelligence Agency
D. Enkhtur, Investigation Department
Office of the Prosecutor General
Mr. Bat-Orshikh, Assistant Prosecutor
Ministry of Health
Tsogzolmaa, Senior officer, Policy Planning Department
M. Oyunchimeg, Officer, Medical Services Department
D. Baigalmaa, Senior officer, Public Health Department
L. Nasantsengel, National Centre for Mental Health
Ministry of Labour and Social Protection
Ms. Munguntsooj, Population Development Department
Ms. Munkhzul, Officer of Health, Education and Social Welfare Commission of Children with Disabilities
Ministry of Foreign Affairs
V. Oyu, Head of Human Rights Division, Department of International Law and Treaty
National Human Rights Commission of Mongolia
Byambadorj Jamsran, Chief Commissioner
Oyunchimeg Purev, Commissioner
Ganbayar Nanzad, Commissioner
Staff members of the Commission
United Nations
Beate Trankmann, United Nations Resident Coordinator and United Nations Development Programme resident
Representative in Mongolia
Tsetsegma Amar, Coordination Specialist, Office of the Resident Coordinator
Civil society
Mongolian Bar Association
People’s Security Research Centre
National Federation for Blind People
Independent Living Centre
Ms. Ichinnorov, Independent human rights lawyer