THE RIGHTS OF THE CHILD CHILD IN TRANSIT DETENTION CENTERSOF UKRAINE: CONCLUSIONS AND RECOMMENDATIONS

As a result of monitoring child's rights in transit detention centers of police of Ukraine

Kyiv − 2013

Monitoring was conducted in frames of the project “The Rights of the Child the Transit Detention Centers of the Internal Affairs Bodies in Ukraine” with support

of the International Renaissance Foundation and Save the Children International (2012-2013)

THE RIGHTS OF THE CHILD IN TRANSIT DETENTION CENTERS OF UKRAINE:

CONCLUSIONS AND RECOMMENDATIONS

As a result of monitoring child's rightsin transit detention centers of police of Ukraine

Kyiv - 2013

4

1

CONCLUSIONS AND RECOMMENDATIONS

2 The case of Ichin and Others v. Ukraine, Applications nos. 28189/04 and 28192/04. Judgement of December 21, 2010, Final 21/03/2011. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-102362

A system of the reception centres (holding facilities) for juveniles of the Ministry of Internal Affairs of Ukra- ine, which was established back in the Soviet era, fails to comply with basic human/ chi- ldren rights’ standards. Both non-governmen- tal organizations and the police itself recognize this fact. First, the status of these facilities is not clearly defined. In particular, in the case of Ichin and others v. Ukraine (2), the European Court of Human Rights specifically points to this fact: “(…) the Court does not consider, and indeed, it doesn’t appear to be argued by the Government, that the juvenile holding facility itself constituted “educational supervision”. As it transpires from the domestic law, the centre is designed for temporary iso lation of different categories of minors, including those who have com- mitted an offe nce. The regulations on the juvenile holding facilities do not provide with sufficient clarity what educational activities must be organised in the centre and the pre- ventive and educational work envisaged in the regulations includes purely investigative actions of data collection about possible involvement of minors in criminal activities”. A study within the framework of monitoring of the reception centres raises serious doubts about clear understanding of goals of institutionalization of different categories of children who in many cases are not necessarily in conflict with the law. The expediency of “isolation” in many cases is beyond legal justification, and this violates personal freedoms. At the same time, it is difficult to substantiate goals of educational supervision considering the absence of clarity about educational activities to be organised in the facility. It is further confirmed by the monitoring data regarding functioning of the reception centres. Reception centres for juveniles in their cur- rent form need to be eliminated (or comple- tely restructured). There exist several ways of reforming these institutions. According to the Coalition “The Rights of the Child in Ukraine”, the most

effective way is to transform these faci- lities into centres for re-socialization of juvenile offenders, while specifics and activity areas of these centres (e.g. pro- bation centres) should be determined at the community level. The entire system of work with children in conflict with the law should be reformed, and changes in the functioning of the reception centres are not sufficient. It is necessary to develop a new concept of such work: following formal approval at the government level, it should enable joint actions of social services for chil- dren, police units, educational facilities and courts with clearly defined mandates and responsibilities. At the same time, it is essential to organize ongoing educa- tional work with every child according to individual plan, and to minimize cases of restriction of child’s liberty regardless of the facility type. Accordingly, schools for social rehabilitation that commonly accept children from the reception cen- tres also require reformation, taking into account the same issues. The human rights problems in the abovementioned types of institutions are quite similar. As for the children, placed in the reception centres according to the Agre- ement on Cooperation between the CIS member states on returning minors to their countries of origin, the vision of the Coalition “The Rights of the Child in Ukraine” is that children should be kept out of these facilities. Efforts aimed at reviewing this Agreement are one of key strategic goals of current Coalition activities. As far as the reception centres continue to exist and until the reform process is complete, special attention should be given to the rights of children, who will stay in these facilities for certain periods of time.

5

2

3

4

5

CONCLUSIONS AND RECOMMENDATIONS

Quite alarming is the issue of the lack of specific rules for the regime, daily routine and education of various cate- gories of children placed in the reception centres. This specifically concerns children institutionalized owing to their conflict with the law, as well as children on the wanted list or those transferred to their countries of origin according to the provisions of the abovementioned Chisinau Agreement. These should be specific differentiation in the rules and approaches to the regime, daily routine and education of children placed in the holding facilities of the closed type, such as police reception centres.

Another problem is non-observance of human rights standards during legal proceedings. For example, in many cas- es interviewing of children by investigators is carried out in the absence of the child’s legal representative or lawyer. Some reception centres practice fingerprinting. It is essential to abolish the practice of child interviewing in the absence of his/her legal representative; to observe procedural guarantees regarding the presence of a de- fence counsel. The practice of fingerprinting in holding facilities also has to be eliminated.

The lack of “personal space” in insti- tutions, as well as the deficit of time that can be used at the child’s own is another important issue. In the majority of reception centres they take away personal belongings and keep them out of children’s reach during the stay. Time, which is schedu- led as “free”, cannot be used in the child’s discretion – e.g. to take a nap, to water the flowers, to pick favourite games to play, and so on. Standard bedrooms usually accommodate 4 and more beds. They are locked from the outside and usually have little doors with grating. Closets or bedside tables are either absent or are not used to keep personal belo-

ngings. These bedrooms are accessible for children only for the night-time rest. All other premises (e.g. playrooms) are shared by all inmates, providing no individual, “safe corners” for children. Since the term of placement of children in the reception centre may be quite long, the existing situation does not contribute to the natural process of education, and significantly limits the child’s freedom. All residential institutions for children should arrange conditions resembling family care to a maximum extent possible. Children should be provided with personal space as much as possible (e.g. a separate room or at least personal corner in the room). Children should have an opportunity to keep their personal belongings (clothes, notebooks, craft and art items - sketch pads, play dough or modelling clay, as well as toys, photos, posters and the like) within their personal territory, as well as to choose games, occupation and relaxation upon their own decision.

Children are deprived of their personal belongings. Even though such arrange- ments have no formal reasoning, they can be observed in almost all facilities. For example, in some institutions children cannot wear their own clothes, including underwear. At the same time, forcing children to remove their “home” clothing and to put on used outfits may fully contradict norms and traditions of families where they were grown. All institutions prohibit cell phones, watches and jewellery. Most facilities also prohibit any personal belongings – even books and photos of friends and family are banned. In practice a child may be allowed to keep his or her favourite toy only upon authorization of the supervisor – and only in case of child’s good behaviour. Another specific issue here is jewellery and accessorises, as these are also personal belongings that help children to express themselves. Prohibition to wear decorations, especially earrings or other body piercing items, often forces children to re-pierce after

7

6

7

8

9

CONCLUSIONS AND RECOMMENDATIONS

3 “The Rights of the Child in the Social Rehabilitation Facilities in Ukraine: Special Report on the Implementation of the National Prevention Mechanism” (in Ukrainian). Ukrainian Parliament Commissioner for Human Rights, official publication. Kyiv, 2013 – 110 p.

-

their stay in the reception centre is over. Children should have a right to wear their own clothes and to keep important items, such as pictures of their family, favourite toys and books, as well as cell phones and the like. Children should also be allowed to wear items which may cause certain bodily changes if absent (e.g. earrings and body piercing items).

Organized leisure time is very un- common in the facilities. Children complain about very limited outdoor time during winters. Consequently, they have to watch TV all day long. As indicated in the Report of the Ukrainian Parliament Commissioner for Human Rights “The Rights of the Child in the Social Reha- bilitation Facilities in Ukraine: Special Re- port on the Implementation of the National Prevention Mechanism”(3), interviewed inma- tes of the reception centres for juveniles were “extremely bored”. It is possible that this situation resulted from diminishing number of inmates in the reception centres for juveniles. According to the staff, in the past many reception centres attracted volunteers who organized various hobby groups for children; similarly, staff members and children used to organize concerts and performances. The reception centres and similar faci- lities should organize leisure time for children to be able to engage in art and crafts, to master drawing, to play musical instruments, to participate in various performances and to go in for sports. Also adequate attention should be given to individual training.

According to human rights stan- dards, limited access of individuals to personal hygiene facilities (e.g. toilets, bathrooms, shower rooms) at night con- stitutes poor and degrading treatment. For example, a child may leave a bedroom to use a toilet only upon calling a supervisor on duty. Moreover, in many facilities children

are not allowed to visit restrooms at night, and in order to ease themselves children have to use special containers (e.g. a bucket). Premises with bedrooms (sleeping accommodations) for children should ensure unrestricted access to personal hygiene facilities and guarantee privacy of their use.

Personal searches are very frequent in the majority of facilities. In addition to formal search at admission, which is documented, children often undergo “informal” ransacking and body search, especially before bedtime, after visits of friends and relatives, and the like. Searches and personal examinations need to be reasonably justified, performed in cases stipulated by the law, and appro- priately documented. Any acts of this kind, performed by any staff member upon his/her own initiative and without formal documentation should be strictly pro- hibited.

Automatic review of all correspon- dence and factual impossibility to ha- ve private telephone conversations (all calls are authorized by the administration and are made in the presence of a staff member) significantly limits children’s abi- lity to seek legal assistance regarding some actions of the staff, and makes it almost impossible for them to complain to parents, friends and other adults, or to file a comp- laint to relevant government authorities, such as the prosecutor’s office. An institutionalized child should have a right to contact his/her legal represe- ntatives, lawyers or prosecutors in written and in confidential manner. Such corres- pondence cannot be reviewed or examined by the facility staff. In addition, children should be allowed to have private telephone conversations, and to make calls to child protection organizations without autho- rization of the staff.

11

10

11

CONCLUSIONS AND RECOMMENDATIONS

Institutionalized children who are yet to receive legal assistance have very limited access. Most of the reception centres don’t provide information about where and how to seek assistance; relevant “complaint mailboxes” are mostly unavailable for inmates. Children’s external contacts are restricted, especially if their relatives rarely or never come to visit them. Since the facility personnel routinely inspects children’s correspondence, any opportunity to complain to an addressee other than the director or other administrators of the facility is virtually impossible. Observations show that services for children are quite passive in this regard, even though specialists of these government bodies should monitor observance of children’s rights, receive reports and complaints from children, and adequately respond to these complaints. The only opportunity for children is to contact personnel of the prosecutor’s offices. At the same time, staff members of the reception centres report receiving not a single complaint from their inmates. Therefore, it is possible to assume that children either do not trust the prosecutor’s office, or their complaints are simply ignored. Inspection logs of several reception centres contained only some notes on the need to strengthen control. It is important to note that prosecutor’s inspections do not commonly view provisions of the UN Convention on the Rights of the Child as the standards for inspection. Institutionalized children should have free and unrestricted access to legal assistance. Children need to receive information on how to seek assistance and who to appeal to outside the institution. While complaining against the actions of the staff children have to be protected from possible reprisals or repercussions. Information stands should explain where and how to seek assistance regarding specific issues, including contacts of governmental and non-governmental organizations serving the interests of children and protecting theirrights. For example, these may include numbers of the La Strada Ukraine’s hotline

on the child rights protection, as well as contacts of the prosecutor’s office, social services and local NGOs. It is necessary to actively involve services for children to the provision of legal assistance to children placed in the reception centres. Each facility should set up a special “complaint mailbox”, and provide opportunities for children to send and to receive private correspondence and make private telephone calls. The prosecutor’s offices inspections of the facilities have to be guided by the CRC provisions.

Ensuring ongoing education is another major problem. Normative documents regulating activities of the reception centres for juveniles do not stipulate organization of education for the inmates. Certain educational activities and classes, if any, are held upon the initiative of the facility’s administration and staff members. Facilities do not have any curricula – only correction and discipline work plans. Some facilities concluded agreements with neighbouring schools of general education, but the effectiveness of such cooperation and practical implementation of formal arran- gements raises many questions. The majority of local departments of education lack relevant information about institutionalized children who need education. As for the children who wait in the reception centres to be transferred to their countries of origin, there exist no normative arrangements to provide them education in their native languages. Relevant measures should be taken to ensure provision of age-appropriate education in line with formal school curriculum to children in all residential facilities. Children, whose native language is not Ukrainian, should be given opportunities to continue their education in their native languages. It is necessary to arrange maximum opportunities for institutionalized children to attend nearby schools of general education.

8

12

13

14

15

-

CONCLUSIONS AND RECOMMENDATIONS

The reception centres for juveni- les do not function as socializa- tion or re-socialization institu- tions. None of these centres has relevant programmes. The issue is partially addressed via correctional work, usually in the form of sensitization conversations. This approach, however, is not based on the child’s individual needs; therefore the goal of these measures is not always clear. Long-term placement of children often for the sake of residency does not seem sound and reasonable. The reception centres need to put in place a system of socialization and re-socialization with relevant individual care plans for children, focused on their needs and capable of tracking the impact on these measures on the child’s development and progress. Socialization and re-socialization measures require hiring of competent specialists in this area.

Access to personal hygiene products for boys is satisfactory, but some serious issues do exist. The majority of hygiene products are available in sufficient quantities, but it becomes possible only due to charitable support from certain NGOs. As for the girls, the most serious issue is the availability and accessibility of sanitary pads (towels). Usually the charity givers provide these items. Every time the girls have to ask supervisors, health workers or other facility staff in order to get these products. In most centres sanitary pads and towels are kept by the nurse, which makes then unavailable at night. In some cases sanitary products are stored inappropriately (e.g. on the window sills or in toilet facilities). Personal hygiene products should be made widely and freely available to children so they will not have to ask the facility staff every time they need something. This particularly concerns such delicate issues as obtaining sanitary pads or towels. Sufficient funds need to be allocated to provide the reception centres with necessary amount of personal hygiene products.

There exist no clear approach to the system of incentives and punishments in the facilities. As a rule, they intimidate children with “disciplinary room”, admonish and universally use “corrective conversations”. There exist certain inconsistencies in the staff reports on this issue. According to some staff members, there is no such thing as “punishment”, even though the Provisions on the Reception Centre for Juveniles directly stipulate admonitions or placement in the disciplinary room, while application of these disciplinary measures should be documented. Staff members of the same facility may also disagree on the use of “disciplinary room”. Sometimes disciplinary rooms are used “unofficially” (without documenting the case) for several hours, which constitutes serious violation. Institutionalized children often do not have information on the criteria for using incentives or punishments. All punishments should be carried out strictly within current norms with relevant formal documentation. Institutionalized children should have all necessary information on the criteria for using incentives or punishments.

The reception centres that perform transit functions for send- ing children to their countries of origin may host young children from the age of 3 years. At the same time premises of these facilities are not equipped to admit children of such age. Children are placed in the police holding facilities designed to detain or restrict liberty of children in conflict with the law – these are by no means childcare institutions. Unattended children, children separated from their families need special protection, rather than restriction of liberty. During the monitoring the Coalition identified the case of a girl, who was deported from Ukraine (the country where she was born and lived all her life) to Russian Federation (the country of her national affiliation).

9

-

16

CONCLUSIONS AND RECOMMENDATIONS

No normative arrangements exist to provide the children who wait in the reception centres to be transferred to their countries of origin with education in their native languages. If the facility’s provisions envisage temporary placement of infants, the facility should be adequately and sufficiently equipped with all necessary items.Migrant and unattended children should not be kept in the police holding facilities, such as reception centres for juveniles. The practice of restricting liberty of unattended children violates children’s rights and needs to be immediately eradicated. Unattended children should benefit from special protection. Considering the fact of their separation from families, they must be placed in childcare settings that resemble family care to a maximum extent possible. Chisinau Agreement must be reviewed. At the same time, this process should not prevent a child from receiving positive opportunities to return to his/her home country. While reassessing provisions of said Agreement, it is necessary to consider availability of trained specialists in the reception centres who will escort children to their countries of origin.

Children in the reception centres are under permanent control and supervision. Some facilities even introduced the rules where children have to sleep without covering their heads and keeping hands over the blanket. As children have to sleep with the lights on, some facilities install dim lighting. During the day children are constantly accompanied by the staff, which makes any privacy impossible. Considering small number of inmates (which typically ranges from 0 to 3 children), the presence of staff members become too visible. Control and supervision of children should be made unnoticeable for them. All children should have opportunities for privacy. Children should independently regulate the light intensity in their rooms, therefore their premises should be equipped with both bright lighting and night lamps.