Natisni vsebino

The Work of the Slovene Human Rights Ombudsman in Relation to Persons Deprived of their Liberty

15.02.2004 16:51
Category: papers


1. The Slovene Human Rights Ombudsman

The Slovene Human Rights Ombudsman (hereinafter: the Slovene ombudsman) is an institution based on the classic model of the national parliamentary ombudsman with broad powers in relation to state authorities, local government authorities and bearers of public authority. The basis for the establishment and work of the institution of ombudsman is contained in the Constitution of the Republic of Slovenia. The Human Rights Ombudsman Act was adopted by the National Assembly in December 1993. The ombudsman officially commenced work on 1 January 1995. The ombudsman is autonomous and performs his work independently. The funds for the work of the ombudsman are provided by the national budget. The level of funds is determined by the National Assembly at the proposal of the ombudsman.

The ombudsman belongs to the ‘new generation’ of ombudsmen who, in addition to supervising the work of state bodies, occupy themselves through their measures and recommendations with the defence and promotion of human rights. Above all it is his task to protect the individual in his or her contacts with state bodies and to supervise the work of the latter. He offers protection to the individual by investigating his or her complaints and proposing the rectification of irregularities if he finds that the complaint is justified. This involves protection in the sphere of the lawful, proper and correct action of the State in relation to the individual. It covers the areas of decisions made by the authorities and the personal contact of the individual with state bodies.

2. The ombudsman and persons deprived of their liberty

The institution of ombudsman was introduced for the sake of individuals. Its task is to prevent and identify violations of human rights and other irregularities and to rectify their consequences. It is therefore of vital importance that this institution should be accessible to everyone who wishes to have recourse to it. This applies in particular to persons deprived of their liberty such as persons in police custody, remand prisoners, illegal immigrants (aliens), asylum seekers and persons detained against their will in psychiatric hospitals or closed wards of social care institutions. We devote special attention to these groups. In most cases the persons involved are those who have been pushed to the margins of society and are particularly vulnerable and powerless. Public interest in the conditions in which they live, and in their rights and freedoms, is limited and usually related to individual notorious or sensational cases. Their life is led behind closed doors, far from the public eye, and many of them are often viewed with mistrust and too little understanding by the public. It is therefore no surprise that the ombudsman’s activity, particularly in relation to prisoners, is not always very welcome to the general public. A few years ago such criticisms could even be found in the Slovene media.

For persons deprived of their liberty, our constant presence, care and simple accessibility often means the only effective and impartial help they receive. We do not only pay attention to individual cases, we also attempt to contribute to improving the work of the competent state bodies in general so as to ensure the beneficial and humane treatment of all persons deprived of their liberty. Convicted criminals sentenced to imprisonment are punished by being deprived of their liberty. Criminal law does not require them to be punished in other ways too. Thus the ombudsman proceeds from the view that the human rights and fundamental freedoms of a prisoner are only limited to the extent necessary to enforce the sentence of imprisonment. This means that only those restrictions which are the necessary consequence of deprivation of liberty while serving the sentence are admissible.

Through our interventions we wish to draw attention to the fact that places of detention (especially prisons) must also be safe for the mentally and physically weakest detained persons. Respect for the humanity of the individual and the dignity of the person must be guaranteed for each of them during the time they are deprived of their liberty. In relation to the serving of prison sentences, we advocate treatment which encourages and prepares sentenced prisoners for life after release from prison so that they will not reoffend. We particularly emphasise the necessity of enabling detained persons contacts with their family and relatives, since contacts with the outside world can make an important contribution to the resocialisation of the prisoner.

Persons deprived of their liberty often turn to the ombudsman. This applies in particular to remand prisoners and sentenced prisoners, from whom we receive about a hundred written complaints relating to deprivation of liberty every year. Persons deprived of their liberty may also call the ombudsman’s free telephone number from anywhere in Slovenia. Every day we receive at least a few telephone calls from prisons. Experience shows that this is an established method of contacts between the ombudsman and persons in detention which prisons facilitate correctly. Written complaints and telephone calls do not only arrive directly from persons in detention themselves, they also come from family members, especially wives and parents. The possibility of such communication strengthens the position of persons in detention, as determined by domestic legislation and international legal acts from the field of the protection of human rights and fundamental freedoms.

3. Visits to places of detention

Visits to places where people are deprived of their liberty is a regular activity of the ombudsman. Frequent visits to prisons enable remand prisoners and sentenced prisoners a direct contact with the ombudsman and his colleagues. This method of work improves the speed and efficiency with which we can address and rectify the problems we identify. Experience shows that persons in detention trust the ombudsman. This has been shown in several cases where persons in detention have requested our intervention or at least our cooperation in resolving contentious issues with the State, in particular with the Ministry of Justice and the National Prison Administration.

The ombudsman may carry out inspections of prisons and other places where persons are or may be deprived of their liberty by a public authority. The ombudsman may visit all such places regardless of the grounds on which persons have been deprived of their liberty, provided persons are detained there involuntarily by public order. The key lies in the nature of the detaining authority. It is by virtue of a public authority that the ombudsman enjoys the right of access even if the place of detention is in fact private. This means that he can visit prisons, police stations, centres for aliens, centres where asylum seekers are accommodated, psychiatric hospitals, old people’s homes and other types of social care institutions with closed wards in which people may be accommodated against their will.

Visits can be announced in advance or unannounced. Visits to detention premises at police stations are always unannounced. This is also usually the case with smaller prisons with a maximum capacity of 50 to 60 detained persons. Visits to larger prisons such as Dob (capacity: 289), Ljubljana (capacity: 128), Maribor (capacity: 148) and Celje (capacity: 94) are generally announced in advance. This is to ensure the smooth running of the visit and the presence of responsible officers (e.g. the governor). If the visit is an announced visit, the detained persons are also notified so that they can put in a request for an interview. They are not obliged to state in their request for an interview what they wish to talk about. This guarantees the confidentiality of the interview, which takes place on a one-to-one basis. The ombudsman has the right to hold an interview with persons deprived of their liberty without the presence of third persons.

When we announce a visit, we do so a few days (a week at most) before the visit itself. At the same time we request that the detained persons be notified of the impending visit and informed that they may put in a request for an interview. A visit to a place of detention usually lasts two days although in larger prisons, especially when a large number of remand prisoners and sentenced prisoners apply for an interview with the ombudsman, it can last for three or four days.

Visits are usually carried out by the deputy ombudsman responsible for the area of deprivation of liberty, together with colleagues from the expert service. A delegation consists of two to four people. These are usually lawyers, although the delegation may include a social worker or a psychologist. The Human Rights Ombudsman Act also allows the possibility of participation in the visit by an external expert, but we have not made use of this possibility to date. If during the course of a visit we encounter issues which require an expert opinion or outside expertise (e.g. from the area of health care), we procure this through inquiries or by commissioning an expert opinion.

Some visits are carried out on the basis of our regular annual programme (periodic visits). As a rule we visit most prisons at least once a year, since we consider that the protection of persons deprived of their liberty from cruel, inhuman or degrading treatment or punishment can effectively be reinforced by means of preventive character based on visits. During these visits we carry out detailed inspections of places of detention and hold interviews with a large number of persons deprived of their liberty. In addition to those who themselves request an interview, we choose others at random and interview them if they give their consent. This takes place while we are inspecting the living premises and other premises occupied by persons deprived of their liberty. During our inspection of these premises we are always open to conversation with the persons present, whether in the form of a group conversation of all those present or a separate conversation with one individual in private.

The second type of visit are ad hoc visits required by circumstances. These can be circumstances reported to us by detained persons themselves and deriving from complaints addressed to the ombudsman. Before visiting prisons we frequently contact prisoners, members of their families and their legal representatives in order to obtain all useful information which will enable us to establish more effectively the existence of the alleged irregularities. The basis for a visit can be information in the media or a warning from non-governmental organisations about irregularities in a specific place of detention. It can also be a follow-up visit in order to check the implementation of our (earlier) recommendations regarding the elimination of irregularities.

During our interviews with detained persons in the course of our visits we deal with individual complaints and establish the general circumstances which affect the rights of these persons and the way they are treated while deprived of their liberty. After completing the interviews we devote special attention to the inspection of those premises to which our attention has been drawn during the interviews and those related to the treatment of specific complaints. We are given unrestricted access to all premises occupied by detained persons and may move freely in them without restrictions. When inspecting prisons, even during shorter or ad hoc visits, we inspect some randomly chosen cells, washing and toilet facilities, the dining hall, visiting rooms, disciplinary and security cells, etc. During the visit we also sample the food which is given to detained persons.

After the interviews and the inspection of premises we conclude the visit with a meeting with the governor or director and the responsible officers of the institution we have visited. In the case of prison visits, a representative of the National Prison Administration is also usually present. At these meetings we give our tentative first impressions, our assessment of the facts and circumstances and at the same time propose the immediate rectification of any identified irregularities which are of such a nature as to permit this. If there is agreement with our findings, conclusions and recommendations, we are thus able to resolve many open questions or at least set a deadline for addressing them before leaving the institution, at the meeting which concludes the visit. At the same time we ask for written feedback on the implementation of our recommendations.

4. Visit report

Following every visit we prepare an extensive written report on our findings, together with proposals and recommendations for rectifying identified irregularities and improving conditions, including measures to reduce the possibility of incorrect treatment in the future. As a rule this is done within a few weeks of the visit.

The visit report covers all the circumstances affecting the guaranteeing and respecting of physical and mental integrity, and humanity and dignity in general, during deprivation of liberty and the serving of a sentence. The basic starting point of every report is the prohibition of torture and inhuman or degrading punishment or treatment. In our preventive function we attempt through our recommendations to eliminate or reduce the risk of maltreatment of persons deprived of their liberty. Our recommendations relate to the material conditions of detention (overcrowding, size of the cell, lighting and ventilation, cleanliness, maintenance of facilities, food, etc.), the detention regime (opportunities for work and other purposeful activities, education and vocational training, leisure activities, contacts with the outside world: visits, phone calls, privileges, etc.), effective complaints procedures and legal safeguards, access to legal counsel from the very outset of police custody, access to a doctor, information on rights, complaints procedures, judicial supervision of the deprivation of liberty, etc.

The report contains findings and recommendations relating to the visit to a specific place of detention. On the other hand, the opinions, proposals and recommendations it contains are generally applicable to all institutions where the same activity or a comparable activity is carried out. The proposals for changes and improvements made on the basis of identified shortcomings or irregularities in a given institution thus have a wider generally preventive effect which has to find a response both at the legislative level (if necessary) and in the area of the implementation of legislation and practice at all state bodies and institutions directly or indirectly involved with persons deprived of their liberty.

We send the report to the institution we have visited, to its superior body (the National Prison Administration, the General Police Administration, etc.), and if necessary to the appropriate ministry. After due consideration of the nature of the matter, we set a deadline within which the individual institution or its superior body (ministry) must consider our report and respond to it. We expect the response to also contain the steps that will be taken by the competent state bodies for the rectification of identified irregularities and the improvement of the identified situation. Some recommendations in the visit report are of such a nature that they can be realised immediately and existing practice changed, while others are of a longer-term nature and require appropriate solutions at the general, systemic level, perhaps also through a change to legislation or implementing regulations.

A visit report can also later be the subject of a special discussion with representatives of individual ministries. Such meetings, particularly with the National Prison Administration, have become traditional and are an additional contribution to the faster and more effective addressing of open questions.

5. Informing the public

The ombudsman also informs the public about his visits to places of detention. In some particularly notable cases we have called an on-the-spot press conference at the end of a prison visit. Extracts from the report are also presented at the ombudsman’s regular press conferences and published in a special informative bulletin aimed at the general public. Findings, conclusions and proposals also find a response in the ombudsman’s annual report, which is considered by parliament.

In special circumstances the ombudsman may also issue a special report which he addresses to the competent working body or directly to the National Assembly. This has happened twice so far in the field of deprivation of liberty. In 1999 we produced a special report analysing the situation as regards detention and the enforcement of penal sanctions, in support of the amendment to legislation when the new Enforcement of Penal Sentences Bill was drafted. A year later we devoted a special report to the issue of involuntary hospitalisation in psychiatric hospitals and detention in closed wards of social care institutions. With this report we drew attention to systematic violations relating to the judicial supervision of involuntary hospitalisations and to gaps in the law in this area.

6. Success is only assured by quality work

Besides dealing with individual petitions (complaints) from the individuals concerned, visits to places of detention are the primary method of work of the ombudsman in the sphere of protection of persons deprived of their liberty. When dealing with individual complaints, the ombudsman can also make proposals and recommendations for changes, improvements and the rectification of irregularities. At the same time he sets a deadline within which he expects the addressee to consider his recommendation and respond to it. If necessary the dialogue will continue later in written form or through direct contacts between the ombudsman and the responsible officers of the competent state authority.

In connection with visits to places of detention and dealing with individual complaints, the ombudsman may address proposals, opinions, criticisms or recommendations to state bodies which they are obliged to consider and respond to within a deadline. The ombudsman relies on the weight of his arguments and his professional reputation in order to convince them. The ombudsman is not however a (fourth) branch of power, does not have the power to make decisions of a binding nature and cannot impose sanctions. The quality of his work is therefore extremely important, since through it he supports his authority and the effectiveness of his work. Every recommendation for improvements must be convincing from the factual and legal points of view, with strict respect for impartiality, after previously considering the views of all parties concerned.

The ombudsman also deals with issues which are not directly connected with material conditions or general living conditions during a period of detention. Thus for example he deals with the duration of detention and the existence of legal grounds for deprivation of liberty before a criminal judgment becomes final, conditional release (early release from prison), respecting procedural safeguards and the material provisions of the legislation governing the admissibility of involuntary hospitalisation in a psychiatric hospital, etc. In connection with the serving of prison sentences it is worth mentioning the granting of privileges (more open visiting arrangements and prison leave), which is generally the most common subject of the complaints that the ombudsman receives from sentenced prisoners.

In justifying his proposals and recommendations the ombudsman refers to domestic legislation and implementing regulations, and frequently to international treaties ratified in Slovenia, particularly those dealing with the protection of human rights and fundamental freedoms (e.g. the European Convention on the Protection of Human Rights and Fundamental Freedoms). We also refer to other international acts such as resolutions, declarations and recommendations. I need merely mention the 1987 European Prison Rules and the 1955 Standard Minimum Rules for the Treatment of Prisoners. We also refer to the standards developed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). A useful guide are the CPT reports on its visits to Slovenia in 1995 and 2001. The role of the CPT in Slovenia and the work of the Slovene ombudsman complement each other and both are oriented towards the same goal. From the point of view of the effective and professional work of the ombudsman, it is useful that one of the deputies of the Slovene ombudsman is also a member of the CPT. This personal connection enables the work of the Slovene ombudsman to be even more closely based on the experience of this important body of the Council of Europe and, above all, on the standards which this body has developed with the aim of preventing torture and other forms of ill-treatment.

Allow me to illustrate the cooperation between the CPT and the Slovene ombudsman with the help of two examples. The ombudsman’s caution that prison staff must observe the principle of proportionality, as the fundamental principle governing the restraint of prisoners, when using means of restraint was recapitulated in its report by the CPT, which explicitly cited the ombudsman’s letter of 10 July 2001 to the Ministry of Justice. Similarly the CPT’s report supports the ombudsman’s call for longer visits for remand prisoners and for open visits to be the rule rather than an exception. The justice minister responded to our observations on this matter with the opinion that this area is regulated satisfactorily by an implementing regulation and that there is no need to amend the regulation. However when the same recommendation was made by the CPT (that visits behind a glass partition should be the exception not the rule), the Government of the Republic of Slovenia responded that it would reconsider the normative regulation for remand prisoners, particularly the provision of the implementing regulation that visits to a remand prisoner shall as a rule take place behind a glass partition, and that the duration of visits would be increased. Although the changes to the regulation – which should guarantee remand prisoners a more open visiting regime and visits of longer duration – have not yet taken place, it nevertheless appears that this objective will be achieved, thanks to the support of the CPT. The relationship between the ombudsman as one of the possible national preventive mechanisms and the CPT as an international visiting mechanism can thus be defined as cooperation and not competition.

7. Misunderstanding the role of the ombudsman

In the first years of work of the ombudsman we encountered a number of cases which showed that the role and importance of the institution of ombudsman in a democratic state governed by the rule of law were not always correctly and fully understood. We found out, for example, that judges were opening letters and thus controlling the correspondence between remand prisoners and the ombudsman. On that occasion the Ministry of Justice issued an instruction to prison governors that correspondence between remand prisoners and the ombudsman must be sent to the court for inspection. During a visit to one prison we encountered a standpoint that made contacts between a remand prisoner and the ombudsman conditional on the prior knowledge and even the consent of the trial judge.

Communication between a detained person and the ombudsman is based on the principle of confidentiality. The ombudsman has the right to hold an interview with persons deprived of their liberty without the presence of third persons. The nature of the work itself, which derives from the ombudsman’s supervisory function, does not permit restrictions and conditions to be imposed on the ombudsman’s contacts with persons deprived of their liberty. Remand prisoners often request contact with the ombudsman in order to criticise the actions of the judge himself. In such cases it would be necessary to inform the judge against whom the complaint is directed about the contacts between the remand prisoner and the ombudsman. This is illogical and could also have a negative effect on the remand prisoner because of the fear of potential harmful consequences during the judicial procedure as a result of his seeking contacts with, and complaining to, the ombudsman. This problem was resolved at the ombudsman’s initiative by an amendment to the Criminal Procedure Act. The Act now explicitly provides that the ombudsman or his deputy shall visit remand prisoners and correspond with them without prior notification of the trial judge and without supervision. Correspondence sent by a remand prisoner to the ombudsman may not be inspected.

8. The influence of the ombudsman on amending legislation

The Slovene ombudsman does not have the right of legal initiative but he may submit an initiative for the adoption, supplementation or amendment of a law. In the course of the nine years of the ombudsman’s work, many additions and amendments to various laws regulating the area of deprivation of liberty (e.g. the Enforcement of Penal Sentences Act, the Criminal Procedure Act and the Police Act) have been adopted on his initiative. Having received the persistent support of the ombudsman, the Bill on Mental Health is currently before parliament. This law, when enacted, will offer a new and more complete regulation of involuntarily hospitalisation in psychiatric hospitals and detention in the closed wards of social care institutions. A couple of years ago, again thanks to constant warnings from the ombudsman, the Free Legal Aid Act was adopted.

The ombudsman may submit to the Constitutional Court a request for a review of the constitutionality of a law or implementing regulation if he considers that an unconstitutional provision or an unconstitutional gap in the law is involved. This power, which is given to the Slovene ombudsman by the Constitutional Court Act, also often brings about a change or supplementing of legislation. It is not uncommon for the legislator to respond even before the decision of the Constitutional Court and amend or supplement the law which is the subject of the request for a review of constitutionality. It is worth stressing here that a review of constitutionality does not merely include the conformity of the law with Slovenia’s constitution but also its conformity with ratified international conventions (particularly those from the field of human rights and fundamental freedoms) in force in Slovenia.

It was by referring to the provisions of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights that we succeeded, some years ago, in amending the Criminal Procedure Act so that a minor must be detained separately from adults unless it is considered in his best interest not to do so in view of the minor’s character and other circumstances.

9. The comparative advantages of the ombudsman

A comparison of the method of work, competences and powers of the Slovene ombudsman as one of the possible national preventive mechanisms shows certain advantages over international visiting mechanisms founded at the regional (European) level (e.g. the CPT) or at the universal level under the wing of the United Nations, such as for example the Subcommittee on Prevention  established under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. I need only list a few of the advantages enjoyed by the Slovene ombudsman in comparison with international visiting mechanisms:
1. The ombudsman’s constant presence. Any place of detention in Slovenia can expect a visit from the ombudsman at any time of day or night, 365 days a year. The visit can be related to the treatment of a specific complaint alleging unlawful or incorrect treatment, or it can be a visit of a preventive nature at the ombudsman’s own initiative. A visit by the ombudsman can be unexpected i.e. not announced in advance. The CPT or the Subcommittee on Prevention must notify the government of the country concerned of their intention to carry out a visit. In practice, the proposed date and duration of the visit are made known to the country concerned about two weeks before the visit. And ad hoc visit can be undertaken at even shorter notice – if necessary within a matter of days. The short interval between the notification and the beginning of the visit does not allow time to make significant changes to the conditions or regime at the places of detention that may be visited. Nevertheless, the notification of the visit and the proposed date for it is an indication to the places of detention that a visit can be expected even though it is not announced in advance. It can thus be concluded that a visit by an international visiting mechanism cannot be seen as totally unexpected since all places of detention can expect a visit during the period when the visiting delegation is in the country concerned.
2. The ombudsman knows all the places of detention in the country and is familiar with their appearance and operation, since he visits them regularly and frequently. He knows the management staff of the majority of institutions from his previous contacts with them. This eases communication (by telephone, in writing or in the form of personal contact during a visit). He often even knows detained persons, since some (e.g. sentenced prisoners) have been deprived of their liberty for many years. Thus his experiences from previous contacts tell him what information (and with what degree of reliability) he can expect from a detained person, which influences the speed of his reaction. In a small country like Slovenia the ombudsman visits at least the largest places of detention (prisons) every year. This enables on-the-spot verification that his recommendations are implemented. Since he knows the special features and problems of each individual institution, he can tailor his proposals and recommendations to specific conditions (e.g. taking into account the overcrowding of a particular prison).
3. The petitions (complaints) received by the ombudsman from a specific prison enable him to acquaint himself with the problems and difficulties in advance. This makes it easier for him, during the visit itself, to establish the crucial facts and speed up his response with an appropriate proposal to rectify the irregularity and improve conditions.
4. Knowledge of the language is another advantage of the ombudsman, since this enables him direct contact (without interpreters) with the management and staff of the institution he is visiting and also with detained persons.
5. The ombudsman is familiar with the legislation and implementing regulations governing the area of deprivation of liberty in Slovenia. He can read the legislation in the original language (Slovene), which makes interpretation easier. Likewise he is familiar with expert literature, commentaries on legislation and case law, all of which is important for the correct understanding of the legal position of different categories of detained persons.
6. The ombudsman may request from the Constitutional Court a review of the constitutionality of an act and implementing regulations. In the case of an individual who has been deprived of his liberty, he may lodge a constitutional complaint with the Constitutional Court if he considers that a human right or fundamental freedom has been violated by a final judicial or administrative decision.
7. In addition to visits to places of detention the ombudsman’s work is based on the petitions (complaints) sent to him by detained persons, their relatives or non-governmental organisations. He also deals with all the legal aspects of deprivation of liberty, including the legality and duration of deprivation of liberty.
8. In addition to his preventive role the ombudsman is closely involved in the addressing of individual complaints when a violation of the rights of a detained person has already occurred. His role after a violation has occurred, for example after ill-treatment has already taken place, is particularly important. When he proposes the rectification of an identified irregularity, a wide range of possibilities are open to him, from a written apology or compensation for damage to a proposal for disciplinary proceedings against the responsible officer.

However despite some of the advantages of national preventive mechanisms it is impossible to overlook the importance of external supervision – by international visiting mechanisms at the regional or universal level – with regard to the State’s treatment of detained persons. A view from outside guarantees increased independence and impartiality and enables comparison with the regulation, standards, know-how and practice in other countries and at the international level. This can be a useful contribution to the critical evaluation of domestic conditions and, consequently, can help improve the existing situation. The cooperation of national and international visiting mechanisms can greatly improve the situation in the sphere of deprivation of liberty in an individual country.

Prepared by: Aleš Butala, Deputy Ombudsman

Ljubljana, 18 January 2004


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