SPEECH OF PEOPLE’S ADVOCATE  

AT THE MEETING OF THE MEDITERRANEAN OMBUDSMEN’S ASSOCIATION

Athens, Greece 14-15 December 2009

Subject: "Access of Ombudsman to the detention and pre-trial

               detention centers"

          Dear organizers of the meeting!

          Dear colleagues and participants!

          First of all, allow me to thank you for the invitation you extended to me to attend this meeting and highly evaluate the good tradition created among the Mediterranean countries for the cooperation of the Ombudsmen’s Institutions. 

          Secondly, I express my highest consideration for the organizers and I commend their work for the consolidation of the Ombudsman’s values in the Mediterranean region.

          Thirdly, I have the pleasure to admit that the selected topics to be evolved during this meeting are quite useful not only for purposes of highlighting our broad activity in those areas but also to exchange experience and promote the debate in terms of the improvement of our future efforts for the protection of human rights. 

          Since its initial activity in 2000, the Institution of the Albanian People’s Advocate has shifted the focus on the monitoring of the detention and pre-trial detention centers. We have always considered the premises where a person’s freedom is restricted as the premises where human rights are threatened most. The infringement of those rights more frequently occurs “inside the walls”, disguised and isolated, than in public, visible and monitorable by everyone. 

          In respect of the Principles of Paris, we have acquired a positive experience during ten years since the creation of our Institution, and we have produced very good outcomes in terms of the control of detention and pre-trial detention centers, discovery of violations and submission of recommendations for the punishment of the officials involved in incidents of violence and abuse.

In application of the Optional Protocol of the Convention against Torture (OPCAT), ratified by the Albanian State by Law no 9094 dated 3.07.2003, in early 2008 the Parliament of Albania assigned to the Albanian People’s Advocate the function of the National Referral Mechanism Against Torture (NRMAT) on the basis of a special law. This was done in the framework of its active role and positive experience.

          In addition to the controls we have carried out in terms of complaints or different incidents within the detention or pre-trial detention centers, for two years, our activity is focused on the periodic visits or inspections of all premises where torture, inhuman or degrading treatment may be exercised. Only during 2009, the People’s Advocate organized about 150 visits, inspections or special controls in the detention and pre-trial detention centers and other similar institutions. We have also promoted the rights and treatment that individuals must enjoy in those centers.

           First of all, the Albanian People’s Advocate enjoys the benefit of having full jurisdiction for the implementation of this activity and has full powers in this area.

Specifically, pursuant to the point 1 of article 60 of the Albanian Constitution: “The People’s Advocate protects the rights, freedoms and lawful interests of the individual from illegal and undue actions or inactions of the public administration bodies”.

Referring to the Albanian legislation, public administration also includes the state institutions covering the penitentiary system (prisons and pre-trial detention centers), State Police bodies and premises where arrested, detained or escorted persons are kept, and disciplinary isolation cells in the units of the Albanian Armed Forces.

The individuals, within these premises, actually enjoy the status of the person deprived of liberty in comparison to other state organizations where the accommodation or administrative deprivation of several rights of the individual are effected on grounds of social care or medical assistance (nursing homes, orphanages, psychiatric hospitals, centers of trafficked persons or asylum seekers etc).

We monitor both categories of the above cited premises. Yet, considering the term “deprivation of liberty”, I believe that in my speech   I must focus especially on the first category of institutions. 

Pursuant to Law no. 8454, dated 4.2.1999, “On People’s Advocate” (amended), for purposes of the completion of his constitutional mission, the Albanian People’s Advocate is entitled to act under an independent investigation procedure , having broader access to any premises, offices, officials without immunity and to any documentation, either classified, of the public administration bodies.

The article 19 of the said Law reads as follows:

“In case the People’s Advocate decides to proceed with an independent investigation, he shall be entitled to:

a)     conduct on the spot investigations, including access to all public institutions and investigation on the spot of the acts or documents related to the case.

b)    request explanations from all organs of central and local administration and obtain all files or material relevant to the investigation;

c)     interrogate any person that, in his judgment, is involved in the matter under investigation and subpoena at his office any person without immunity.

 People’s Advocate has the right to set a deadline for carrying out the above actions”.

This law also provides for the article 19/1,which specifies as follows: “People’s Advocate and any official authorized by him is entitled to have access at any time, without limitation and initial authorization, upon the notification of the head of the institution, to all public institutions, prisons, pre-detention centers, military units or state institutions, psychiatric hospitals, asylums, orphanages and any other place when there is evidence of infringement of human rights and fundamental freedoms.

The access to the afore-mentioned institutions will take place to investigate a complaint, request or notification as well as with the initiative of the People’s Advocate for the purposes of inspection or studies. In these cases, the People’s Advocate is entitled to meeting and talking with any person kept in those institutions without the presence of the head of the institution.

All kinds of correspondence between the People’s Advocate and the above subjects cannot be prohibited or surveilled”.

          Provision of article 22/1 of the Law “On People’s Advocate” represents a guarantee for the full effectiveness of implementation of this activity and at the same time the sanctioning of cooperation with state bodies. The above law specifies as follows:  “The refusal to cooperate with the People’s Advocate from the civil servant, high-rank official or public authority constitutes a cause for the People’s Advocate to request to the proper authority starting of the administrative proceedings  and taking of the disciplinary measures up to the dismissal from work or civil service”.

          Further, the Law no.8328 of.2.04.1998 “On rights and treatment of imprisoned persons and pre-detainees”, by its addenda of March 2008, in support of the fulfillment of the role of the National Referral Mechanisms Against Torture, provides for the activity of People’s Advocate, particularly his access to prisons and pre-trial detention centers

According to article 43 of this law covering the access to the penitentiary institutions, only some senior state personalities may visit prisons and pre-trial detention centers at any time and without any advance notice. 

In addition to the highest state personalities such as President of the Republic, Speaker of Parliament, Prime Minister, President of the Constitutional Court, Deputy Speaker of Parliament, Deputy Prime Minister, Minister of Justice, President of the Supreme Court and Attorney General; People’s Advocate, and his commissionaires and assistant commissionaires enjoy this right to access.

           Additionally, article 74, points 1.2.3, expressly provides that People’s Advocate is a special subject for the surveillance of enforcement and implementation of the law on sentenced persons and pre-detainees. Pursuant to article 74, points 1,2,3, the Institution of People’s Advocate in the capacity of the National Referral Mechanism Against Torture is vested several additional powers borrowed from the original text of the Optional Protocol of Convention against Torture ( OPCAT).  

            In more concrete terms, according to those provisions, People’s Advocate is entitled to periodically supervise the treatment of individuals who are deprived of liberty, in the premises of detention, custody or imprisonment for the purpose of strengthening, if necessary, the protection of individuals from torture, treatment or cruel, inhuman or degrading punishment. He is also entitled to submit recommendations to the respective authorities in order to improve the treatment and living conditions of individuals being deprived of liberty and to prevent torture and cruel, inhuman and degrading treatment or punishment.

In this framework, according to the said law, People’s Advocate enjoys a series of special competences to ensure full access to those premises by collecting, inter alias, information on the number of people who are deprived of liberty and their respective location, the way of their treatment, their detention conditions etc. 

During those visits, People’s Advocate is entitled to conduct, at any time, private interviews with the convicts without the presence of the personnel of detention or pre-trial detention center and to freely choose the places he needs to visit and the individuals he needs to meet. 

In capacity of the NRMAT, our institution may acquire at any time and without excessive delay, information or complaints by the sentenced persons, administration of prison or pre-trial detention centers. At any time, he may verify documents, objects, equipment or premises related to the sentenced person or the pre-detainee, both within and out of the penitentiary institution.  For the purposes of the implementation of monitoring process, pursuant to this law, the NRMAT is entitled to hire specialists of respective areas such as forensic doctors, psychologists, psychiatrists etc. Also, we have made available a free phone number to the inmates and we have fixed special post boxes at each prison or pre-trial detention center, to be opened only by the People’s Advocate.

In fact, following the approval of the above provisions in March 2008, People’s Advocate intensively continued to carry out his function as the NRMAT at prisons and pre-trial detention centers. Only for the year 2009 all prisons and pre-trial detention centers have been visited and re-visited. Approximately 400 complaints were received and more than 40 recommendations were made for the improvement of rights and treatment of imprisoned persons and pre-detainees. Our increased presence in those premises has improved the communication and trust of the persons deprived of liberty to introduce their real problems or report negative phenomena affecting their rights.

On the other hand, our access to the official and film documentation of those institutions has been quite effective. Accordingly, we have made a proposal for the punishment of certain police officers of prisons or other employees of the penitentiary administration. Only in one case during 2009, three police officers of prisons were dismissed as following the film interception, People’s Advocate found them in violation of the internal regulation thus causing a conflict among some pre-detainees.  These outcomes represent a clear indicator of our access to the penitentiary system and beyond.

Being entitled to supervise the activity of the State Police, People’s Advocate has produced similar outcomes. During a period of ten years, the Albanian People’s Advocate has a made a record number of recommendations for the improvement of the policing activity in respect of human rights. In this frame, 250 police officers were punished. In addition, the premises of all State Police Stations with isolation cells have been periodically inspected in order to verify the treatment of individuals and ensure the prevention of violence, inhuman and degrading treatment. 

People’s Advocate had a wide access not only to the police premises but also to their documentation and records where he has often reported irregularities in terms of the escort or detention of people, expiry of escort timelines, wrongful legal qualification of people kept in those premises etc.

During the investigation of police violence, People’s Advocate had to be acquainted  with the police classified documentation. This  shows a high level of his access thus leading to a serious and highly effective work on the claims of people who are kept isolated.

          Our relations with the State Police institutions are special in that they strictly apply the provisions provided for in the law “ On People’s Advocate” as the legislation  governing their activity does not provide special rules for the access of our Institution to the police activity.

Compared to the access to the penitentiary system which is also provided in the law governing such activity, this absence in the legislation of the State Police is not considered as a shortcoming or barrier to our work. However, the new regulation to be approved by the State Police on the provisional isolation  cells within its premises, provides for special rules for the access of  People’s Advocate.

Though still pending for approval, this document demonstrates the willingness of the State Police to include in its bylaws the presence and indisputable access of the constitutional authority of People’s Advocate.

          The activity of the Albanian Armed Forces (AF) is another area to which People’s Advocate has broad access, either in capacity of the National Mechanism Referral Against Torture.  In the framework of reforms and major changes undergone by the Albanian army as a component of NATO forces, the People’s Advocate aims to ensure to the fullest extent possible, his periodic presence within the military bases, particularly in the disciplinary isolation cells.

          For this purpose, in capacity of the MKPT, our Office has organized about 25 visits in the military bases and  has closely overseen the conditions of isolation cells, treatment of soldiers, bylaws governing the disciplinary isolation measures etc.

          Furthermore, the promotion of the Institution of People’s Advocate as NRMAT for the inspection of military bases has boosted the relations with the authorities of the Ministry of Defense and the General Staff of Armed Forces. They have tasked the respective bases to respect the legal access enjoyed by our Institution and to facilitate the implementation of our monitoring activities.

          In practice, senior officers of military bases have demonstrated a high level of willingness and they have often provided us with classified military information on the number of recruited soldiers, their health treatment etc. 

          Further, People’s Advocate has introduced special recommendations, with special focus on drafting and approval of new regulations on disciplinary isolation, equal rights treatment of the military personnel and the implementation of transparent procedures in case of their isolation. 

          Like the State Police, Armed Forces do not have a new and extended legislation in place, where to reflect a series of amendments to human rights and watchdog institutions authorized for their observance within the military bases. Yet, this has not hindered our access.

          In the framework of the legal reform of Armed Forces due to the membership of Albania in NATO, People’s Advocate shall attach priority to the completion of the entire legal military framework, with new principles and safeguards on human rights to be enjoyed by each member of the Albanian Armed Forces.

          Considering the comprehensive analysis of the above referenced work, a basic need is identified for the active presence of the Ombudsman in prisons, pre-trial detention centers, police stations and Armed Forces. 

People’s Advocate believes that the increase of Ombudsmen’s authority in relation to the public administration often depends on the level of their access to the state bodies. This access is deemed too valuable if it is particularly provided beyond the dark walls of human isolation where restriction of the individual’s liberty must not abusively imply the denial of other rights.

The increase of the active role of Ombudsman and his broader access to those premises must be viewed not only as part of the reform in the institutions’ legal acts and bylaws but also as an obligation of the latter to respect  human rights and values of democracy in the respective states.

I believe that true values of the Ombudsmen are embodied in their strong will to carry out their mission within all potential legal means. 

This goodwill is a novelty which, either in the national, regional framework and beyond, must be welcomed and encouraged in order to advance our holy mission for the protection of human rights and fundamental freedoms. 

Thank you for your attention 

ALBANIAN PEOPLE’S ADVOCATE

Ermir DOBJANI