The State Has an Ombudsman against Torture. Yet Supervision Alone Is Not Enough – You Need Money, Too

| Dimitrina Cherneva,

On September 8, 2010, the Bulgarian government approved the Optional Protocol of the UN Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Shortly thereafter – on September 22, 2010 – during the UN’s 65th session, the Bulgarian Minister of Foreign Affairs signed the Optional Protocol, which will very soon be ratified by the Bulgarian Parliament. Every country that is a signatory to the protocol is required with a year of ratification to create and maintain a National Preventative Mechanism (NPM).

In connection with this obligation, the Bulgarian Helsinki Committee organized a working breakfast to which it invited the ombudsman and all the relevant institutions (the Ministry of Justice, the Ministry of the Interior, the Ministry of Labor and Social Policy, the Supreme Cassation Prosecutor’s Office, the Chief Directorate for Implementing Punishment and so on), in order to acquaint them with the Optional Protocol to the UN Convention against Torture: Implementation Manual, which was recently published in Bulgaria. The publication was presented by the chairman of the BHC, Krassimir Kanev, who explained that one of the basic goals of the Optional Protocol is the creation of a national body for supervision, called the National Preventative Mechanism (NPM). This mechanism has an operational function to defend human rights and should carry out unannounced and planned visits, as well as visits following alerts to all places of detention and where people are deprived of freedom. A deferment for its structuring is granted so that funds may be allocated for its creation and to allow for it to be established legislatively.

During the working breakfast, Krassimir Kanev explained that due to a lack of funds, the likelihood of Bulgaria being visited by the UN Sub-Committee on the Prevention of Torture was very small. Precisely because of this, we need to support the NPM, which creates a system for conducting regular visits to places of detention or where people are deprived of their freedom. The mandate for this mechanism must be established on the most solid legislative foundation possible, while its expert must be guaranteed personal and institutional independence from state authorities. This includes the securing of financial independence, as well as the possibility for independent compilation of the budget and establishment of procedural rules.

Krassimir Kanev believes that the experts from the NPM should have access to all information concerning places of detention and individuals deprived of liberty, as well as access to all places (to all installations and facilities), where people are deprived of liberty.* They ought to have the authority to conduct unannounced visits, to conduct private interviews with persons deprived of their liberty and to freely select the people with whom they wish to speak.

The visits are only the first step in the process of preventative monitoring. The information gathered during the visits will be subjected to analysis, then reports will be prepared and recommendations made. The reports will be sent to the authorities with the aim of improving conditions in places with identified problems and deficiencies. The BHC chairman emphasized the right to publish all NPM reports, as well as the need to legislatively guarantee the possibility for state bodies to respond to the NPM’s recommendations.

The participants in the working breakfast actively took part in the discussion that followed the presentation of the Optional Protocol to the UN Convention against Torture: Implementation Manual. It became apparent that one of the difficulties in the normative establishment and structuring of the NPM would be tied to specifying the number and type of places that would be monitored and that we first needed to raise the question whether children’s institutions can be defined as places where people are deprived of their liberty. The director of the State Agency for Child Protection Nadya Shabani explained that there are children’s homes where the children have been placed with their parents’ consent, but despite this they cannot voluntarily choose to leave these places.

The ombudsman Konstantin Penchev summarized that it remained to be clarified precisely how many and which institutions would fall under the scope of the NPM. He stressed the need for financing to be secured for this body which would guarantee its independence from the executive branch and from Parliament. The participants in the discussion united around the viewpoint that it would be logical for the new structure to be associated with the ombudsman of Bulgaria. For his part, Konstantin Penchev announced that work must be done to make sure funding for the NPM for 2012 would be allocated in the budget for the coming year.

Mitko Dimitrov, the director of the Chief Directorate for the Implementation of Punishment added a skeptical note to the discussion. He commented on the eternal lack of funds and noted the impossibility of improving everyday conditions in places of detention due to this problem. According to him, Bulgaria is not in a state to guarantee conditions that meet European standards – 4 to 6 sq. m. of space for every incarcerated individual, the right to live without tobacco smoke and so on. Dimitrov predicted that even after the creation of the NPM, recommendations would be made that would not be fulfilled, and the responsibility for implementing such changes would be passed off from one institution to the next, as it has been until now. “We’ve had six inspections, and the recommendations are always the same, but without financial support things won’t change,” the director of the CD for the Implementation of Punishment emphasized. The Ministry of the Interior representative also commented that places of detention are being reformed, but due to a lack of funds, this process had been halted for the time being.

Stanimir Petrov of the BHC expressed his concern that it was highly likely that the NPM would be provided with absolutely minimal funding, which would lead to very slow work and a low level of effectiveness. He made the general observation that since things always come back to the question of funding, it was necessary to galvanize public will for a change in the attitude towards prisons and the other institutions the NPM will monitor.


* See Stanimir Petrov: “Conditions in Bulgarian Prisons are Inhuman and Degrading,” Glasove [back]