Introduction

In the 37 years since the coming about of the Helsinki Final Act, the region of theOrganization for Security and Co-operation in Europe (OSCE) has seen change of amagnitude with few precedents in world history. In 1975 when East and West recognized thatthe protection of human rights and humanitarian questions were a matter of internationalconcern and an essential element of conflict prevention, they did so in the context of the ColdWar anddétente,in an effort to avoid the potentially catastrophic consequences of thedecades-long nuclear arms race.The basic idea that the condition of human rights in one country affects the security of othercountries was taken to a new level after the historic changes of 1989 – 1991, when the IronCurtain fell, the Cold War ended, and the dissolution of the Soviet Union gave birth to a newgroup of independent states. In the 1970s and 1980s the Helsinki Final Act’s HumanDimension inspired the creation of important human rights groups, like the Helsinki Groupsand Charter 77, and provided them with a legitimacy that contributed to the collapse ofCommunist monopoly rule in Central and Eastern Europe. In the 1990s international relationsin the OSCE region were defined anew. The treatment of national minorities and its effect oninterstate relations, for example, became a burning issue for our region. With the threat ofnew types of international conflicts and tensions between newly created states, the Helsinkiframework was further developed into a comprehensive set of norms and standards for humanrights and conflict prevention, starting with the 1990 Copenhagen Document, the 1990Charter of Paris for a New Europe, and the 1991 Moscow Document. OSCE field missionswere established to assist participating States with the establishment of good governance,including the implementation and monitoring of their Human Dimension commitments. Alsoown Assembly was established to underline the importance of democracy in the OSCEregion.We have come a long way since then. The first decade of the 21st century saw further changesand some hopeful developments. The end of several violent ethnic conflicts, peacefulrevolutions in some of the new states, and economic growth in many more brought hope for awider respect for OSCE commitments in the field of democracy and human rights.But, it must be admitted, change in the OSCE region in recent years has in some respects alsomeantregressionin meeting those OSCE democratic commitments, and this should be amatter of grave concern for all of us. Through our election observation activities we know thatthere have been serious problems with a series of recent elections in the OSCE area. In somestates, democratic trends have been halted or reversed; in others ethnic violence hasresurfaced. Political opponents and human rights activists have been imprisoned without dueprocess. Some OSCE field missions have been closed down, not because their work wascompleted, but because they were considered a political nuisance by a particular country. Inseveral other participating States, our missions are forced to operate under restrictedmandates. Furthermore, as our Assembly discussed extensively last year in the wake of the2010 Astana Summit, the OSCE has not been able to overcome its decision-making1

weaknesses in the Human Dimension, most pointedly with regard to the consensus rule1, aswell as the restrictive structure and limited transparency of the Permanent Council meetings.It would be advisable to revise and strengthen tools, such as the Human DimensionImplementation Meeting (HDIM), to provide a proper, genuine form for monitoring theparticipating States’ compliance with human rights commitments. As civil society,independent media and political pluralism continue to be stifled in many participating States,the OSCE, including the OSCE PA, must continue to develop existing forums and establishnew mechanisms to engage these actors in our work.The OSCE’s standards in the Human Dimension are minimum standards. It is alwaysadvisable to take into account a country’s national history and culture when assessing thehuman rights situation and the functioning of democracy in a participating State. We need torecognize that a country’s political system and the quality of its rule of law are in manyrespects the outcome of its own particular history. We need to acknowledge that calling aparticipating State to account in a human rights case may cause it to resent this as interferenceand to point to other cases in other countries that also have their shortcomings.Still, the idea behind the Helsinki Agreements and the OSCE, particularly in the field ofhuman rights, has always been that certain principles transcend national boundaries and areapplicable to anyone, in any situation, anywhere, regardless of culture, religion, history, andpolitics. They are applicable not just East of Vienna or West of Vienna, but everywhere in theOSCE area, no matter how much change this region has seen. These principles concern all ofus. This is why since 1991 we have the Moscow Mechanism. It enables a group ofparticipating States to establish ad hoc missions of independent experts who assist in theresolution of national issues involving serious and persistent violations of human rights. Asthis Assembly declared last year, the Moscow Mechanism should be updated andimplemented more often and more substantively.

Chairmanships

The first responsibility for guaranteeing the OSCE commitments in the field of human rightsand fundamental freedoms lies with the OSCE participating States. Accepting the adage thatthe price of leadership is responsibility, it can be argued that, as our governments in theHelsinki Document of 1992 institutionalized the annual Chairperson-in-Office, there rests aparticular responsibility with the OSCE Chairmanship not only to provide political leadershipto the Organization, but also to set a good example with regard to observing OSCEcommitments. As our Assembly and other institutions have noted before, recent developmentsin the country that will chair the OSCE in 2013, in particular in the run-up to its parliamentaryelections in October, are worrisome2. Promises of democratic reforms by a former OSCEChairmanship have also not been fulfilled.

More generally, it must be realized that the Chairmanship of the OSCE tends to contribute toa country’s international respectability, and it certainly brings visibility. A country that has theambition to preside over an organization such as the OSCE can expect closer scrutiny of theway it fulfils its commitment to our Organization’s founding principles. This should be truefor the Troika as a whole, for the incoming Chairmanship as well as for the outgoing. In thepast, when decisions had to be taken on future Chairmanships, we have seen debates aboutwhether a particular country was ‘ready’ for the OSCE Chairmanship. However, theresponsibility to behave in an exemplary way with regard to OSCE democratic and humanrights principles does not end with the period of the Chairmanship. It would be advisable thatcountries plan for a follow-up and deepening of their commitment to OSCE standards andmechanisms once their Chairmanship has ended. Thus the period of a Chairmanship can serveto inspire a country to a strengthened and revitalized participation in the OSCE in subsequentyears. The OSCE as a whole would stand to benefit from this process.

Judicial Independence

Last year the Rapporteur of this Committee concluded that “[t]here can be no stability orsecurity where there is no respect for democracy and the rule of law and where anindependent judicial system [is] unable to develop”3. An independent judiciary is key to goodgovernance, and that is why our governments have included this element in all the majorOSCE documents on the Human Dimension. The 1990 Copenhagen Document states that theindependence of judges is “essential to the full expression of the inherent dignity and of theequal and inalienable rights of all human beings”4, whereas further mention of this is made inthe 1991 Moscow Document, the Charter for European Security of the 1999 IstanbulDocument and the 2006 Brussels Declaration on Criminal Justice Systems. The MinisterialCouncil in 2005 recognized that the right to a fair trial, the right to an effective remedy, andthe right not to be subjected to arbitrary arrest or detention constitute the basis of rule of law5.With these documents every participating State has committed itself to delivering anindependent judicial branch, with judges who can be elected or appointed, evaluated, anddisciplined in such a way that their decisions are insulated from biased or improper influence.These judges should have the power to challenge the executive and/or legislative branches ofGovernment and therefore be financially independent.Participating States should guarantee the transparency of judicial processes. If they do not doso, they run the risk that judicial decisions in their country are open to multiple interpretationsand can be regarded as having been politically motivated. This appearance should be avoided.There should not be any political prisoners in the OSCE area.The OSCE participating States have the responsibility to provide for fair trials and competenttribunals not only for political activists, but for “all human beings” as they stated in the 1990Copenhagen Document6, and that includes access to justice for those who have been accused3

of terrorist activities. This Assembly has repeatedly criticized the lack of due process in theGuantanamo detention facility and has called for the permanent closing of this prison as soonas possible. The last time we did so was at the Annual Session in Oslo in 20107, when itlooked like the new U.S. President would live up to the high expectations of change he hadraised in this regard during his election campaign. However, in 2012 we have to conclude thatGuantanamo is still open. Last January it marked its tenth anniversary. There are 171terrorism suspects still being detained indefinitely without trial. In fact, in the United Statesthere is now a debate whether President Obama’s recent signing of the National DefenseAuthorization Act has made it possible to jail even United States citizens in Guantanamowithout a trial. To anyone who values the integrity of the judicial process and the UnitedNations Standard Minimum Rules for the Treatment of Prisoners, this must be cause forconcern.In the 2006 Brussels Declaration on Criminal Justice Systems the OSCE Ministerial Councillinked independence of the judiciary to the protection of legal practitioners when it said that“All necessary measures should be taken to respect, protect and promote the freedom ofexercise of the profession of lawyer, without discrimination and without improperinterference from the authorities or the public”8. This commitment has been violated inseveral participating States in recent years, most visibly in the case of the Russian lawyerSergey Magnitsky, who died in prison in November 2009, after what President Medvedev’sHuman Rights Council called an unlawful arrest and a detention marked by beatings andtorture aimed at extracting a confession of guilt, during which prison officials instructeddoctors not to treat him9. It is self-evident that the future protection of legal practitioners inRussia requires that those responsible for Magnitsky’s death are brought to justice.

Prison Reform

Different from other international organizations such as the United Nations and the Council ofEurope, the OSCE has not developed binding standards in the field of prison conditions andthe systematic inspection of prisons is limited. Instead, the OSCE’s work in the area of prisonreform is based on technical expertise assistance as well as the establishment of discussionforums for the exchange of experience between its participating States. The OSCE primarilyrelies on the United Nations legal documents for setting standards for prison conditions, likethe UN Standard Minimum Rules for the Treatment of Prisoners.Whereas the 1989 Vienna Document called on participating States to accede to the UNConvention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,by now all have done so. However, not all OSCE participating States have ratified theOptional Protocol to this Convention, which gives it teeth by establishing an internationalinspection system for places of detention and which has been in force since 2006.Within the OSCE-framework our governments have repeatedly expressed their intention toprotect human rights in prisons. In the 1991 Moscow document, for example, the participatingStates committed themselves to treat all persons deprived of their liberty with humanity and78

with respect for the inherent dignity of the human person and to respect the internationallyrecognized standards that relate to the administration of justice and the human rights ofdetainees10. The Ministerial Council has made similar statements in Brussels in 2006 and inHelsinki in 2008.The most relevant OSCE document specifically addressing prison conditions is the FinalReport of the Supplementary Human Dimension Meeting on Prison Reform of 2002. Thisfocuses on measures to improve the physical conditions of prisons, alternative sentencingmeasures to reduce prison populations and measures to rehabilitate prisoners. Otherrecommendations include transferring penitentiary systems from the Ministry of the Interiorto the Ministry of Justice, demilitarizing and democratizing the penitentiary service,maintaining dialogue with Civil Society on reforms in the penitentiary system andestablishing and effective structure for monitoring the implementation of human rights withinthe penitentiary service. Still, there are difficulties in the ways our countries live up to thesecommitments.We need to acknowledge that those who administer justice and those are ultimatelyresponsible for the prison regime in a country often face a dilemma that makes it difficult forstates to live up to these commitments: how to ensure that all individuals in detention will betreated with humanity, while at the same time not to raise the public perception that prisonconditions resemble those in luxury hotels? How to strike a balance between punishment andlawful deprivation of freedom on the one hand and a prison regime in accordance withinternational standards of human rights on the other hand? This dilemma draws no line ofdivision in the OSCE area; all participating States struggle with it, especially in times ofeconomic crisis. It may be easy to answer the question how much a prisoner costs, but it isseldom easy to explain why a government should spend money on people who have brokenthe law.Apart from the fundamental principle that also persons deprived of their liberty deserve to betreated with respect for their inherent dignity, there is the point that prisons should and neednot become hotbeds of conflict, criminality and instability. Projects of the OSCE fieldmissions aimed at the improvement of prison conditions should be understood as part of theOSCE’s wider conflict-mitigation approach. As the flagship of this organization, the OSCEfield missions have conducted admirable work in the field of prison reform.The OSCE Centre in Bishkek organized a roundtable discussion on a new vision for prisonsin Kyrgyzstan, which was attended by Members of Parliament, officials from ministries, lawenforcement bodies, civil society and international organizations. This meeting focusedmainly on development of a new strategy for the prison system, including improvingconditions for prisoners sentenced to life terms. Recent unrest in Kyrgyzstan’s prisons,resulting from the involvement of organized crime and demands that organized crime leadersbe held under an “open door” policy, posed a high risk both for detainees and the public ingeneral. The open cooperation of prison authorities with civil society during the unrest atteststo the willingness of Kyrgyzstani authorities to improve the penitentiary system in line withinternational standards. The OSCE continues to follow the situation closely.The OSCE Office in Yerevan in 2009 supported a study on the conditions of persons deprivedof their liberty in disciplinary cells and the penal battalion of the Armenian Defence Ministry.10

The report proposed bringing detention conditions in line with UN and European prison rules,as well as discussed in detail the procedure of imposing isolation as a form of disciplinarysanction. In particular, it recommended harmonizing the practical application of disciplinarypenalties with the requirements of the European Convention on Human Rights as well asintroducing legislative amendments to ensure long-term visits to convicted persons in thebattalion. Recently, the Parliament has also adopted a new law ruling out isolation as a formof disciplinary sanction.The OSCE Office in Tajikistan, for example, works to assist the authorities in meeting itshuman dimension commitments, in particular with regard to human rights. Together withnational interlocutors, the OSCE Office in Tajikistan has identified prison reform as animportant priority. In recent years the Office organized trainings for penitentiary officials,covering topics such as domestic mechanisms for protection of prisoner rights,prosecutorial oversight of detention facilities, the role of the Human Rights Ombudsman inprotecting and promoting rights of detainees, and practical implementation of internationalcommitments in the work of correctional facilities. The OSCE has also supported training andexpert consultations on monitoring of places of detention for representatives of governmentand civil society.In 2008 the OSCE Mission to Bosnia and Herzegovina initiated prison monitoring throughoutthe country in which special attention was given to the treatment of vulnerable groups ofprisoners, like women and juveniles. Monitoring also included material conditions, oversightmechanisms, educational and work related activities, health care and nutrition. The OSCEMission assists the domestic authorities with the establishment of a National PreventiveMechanism in line with the Optional Protocol to the United Nations Convention againstTorture, promoting to the extent possible the establishment of a functional mechanism thatincorporates the civil society sector in the monitoring work.

Conclusions

The OSCE has always been a region of change. Although the OSCE has made substantialprogress in many fields, for example in the fight against human trafficking or the fight againstterrorism, it is disconcerting to note that this change in recent years has included aregressionin meeting OSCE human rights commitments in the Third Dimension in several of theparticipating States. However, the idea that the condition of human rights in a participatingState concerns the security of others has not changed since 1975. If the Human Dimension ofthe OSCE is to function properly, the annual Chairmanships have to set a good example andshow their worth in the field of democracy and human rights.The state of a nation’s judiciary branch and its penal system reveal a lot about how an OSCEparticipating State performs in the Human Dimension field. OSCE commitments leave noroom for politically motivated court cases, nor is there any room of arbitrary refusal of prisoninspections by international organizations.There is a need fortransparencyas the link between judicial independence and prisonconditions. If international and OSCE standards in these fields are fully implemented, thejudicial process and the execution of court decisions will be readily understandable for outsideobservers. If that is not the case, the judicial system risks the loss of its legitimacy andendangers the rule of law. Our governments –allour governments – have committedthemselves time and again to prevent this from happening.6

DRAFT REPORT FOR THE GENERAL COMMITTEE ON

DEMOCRACY, HUMAN RIGHTS AND HUMANITARIAN QUESTIONS

Rapporteur: Mr. Coşkun Çörüz (The Netherlands)

Introduction

Chairmanships

Judicial Independence

Prison Reform

Conclusions