Radio Svoboda: Observance of human rights in Ukrainian penal institutions

We have been hearing about the conflict unfolding in a Lviv penal settlement. The Head of the Lviv regional administration, Petro Oliynyk, has suggested that the head of the Department on Penal Issues in the region, Vasyl Ilnytsky, should be dismissed. This is all as a result of the protest actions by prisoners on Saturday when more than 30 inmates cut veins open in protest at alleged cruel treatment. And a little earlier the same thing happened in Kharkiv.

Why is this happening specifically now? Has the attitude to prisoners really become so much worse recently?  Or has a kind of critical mass of violations been reached which has led to such an explosive reaction?

Arkady Bushchenko:  I don’t think that the situation has got worse recently. I would say that the situation is the same as it was before. It’s just that the attention of society to these events has become more critical and therefore we hear of the incidents.

As for why the events happened, one can only guess. I have a certain theory with regard to the reasons for these events. In April there were several reports about various penal settlements suggesting that in all regions of Ukraine some kinds of special units, carrying out certain actions, had been brought in.

The Department claims that these were planned searches before the holidays in order to avert certain disturbances in the prisons.

However it’s very strange that these sub-divisions, according to information we’ve received, were in masks, and had special equipment. They allegedly resorted to certain actions which could be interpreted as cruel treatment, i.e. beatings, exhausting exercises and so forth.

That’s one of the versions.

Volodymyr Boiko: I would like here to add that when we speak of penal institutions, we mean only those settlements, etc, where people are serving sentences following a judge’s ruling which has entered into force.

Yet the point is that the system of imprisonment in Ukraine is three-tiered. In specifically those settlements, the conditions are the best. We have a strange system.  The worse conditions, really appalling, are in temporary detention units where they hold people who haven’t even been charged with anything. They’ve just been detained as a rule. My estimate would be that 70-75% of detentions occur with absolutely no grounds and in contravention of the law, and of the requirements of Article 106 of the Criminal Procedure Code. There the conditions are the most terrible. They’re better already in pre-trial detention centres (SIZO).

It is considered that detention for more than three days in a temporary detention unit (TDU) is already torture. There have been examples when the courts awarded compensation to individuals who had been held for longer than the legally established period (for example, the well-known Donetsk lawyer, Salov[1]  because such conditions are in general deemed to be inhuman. Our own Ukrainian laws take this view.

In pre-trial detention centres they’re a bit better because it’s possible to live there. And indeed people live there for years. How is it possible to live?  With 60 people in one cell … I don’t know if you could call such life normal, but they live there. And it’s precisely in the penal settlements that you have better conditions.

Therefore, when we say that people are cutting their veins open and injuring themselves in protest in penal settlements, we should consider what is actually going on in pre-trial detention centres.

Quite another matter that what happens within the walls of pre-trial detention centres and TDU simply doesn’t reach us, does not get out, since they have a very strict system of isolation. Whereas there is some kind of contact between prisoners in penal settlements and the outside world, and therefore from time to time we discover these things.

From what we learn, if one compares the present situation in this area with that a few years ago, say, under the previous regime, are there any changes for the better? These latest events would seem to suggest the contrary?

Volodymyr Boiko:  Changes for the worse are simply not possible since it seems like the system has reached the state where worse would be only if they begin shooting people in their cells.

Are there changes for the better? There simply can’t be since the system itself has remained unchanged. And the essential feature of our law enforcement system is that the Prosecutor, police bodies, the SSU and the tax police work solely for themselves.

Arkady Bushchenko: We can only make guesses as to what takes place in penal institutions since at the present time this remains the most closed part of society and state organization. Even the police these days show more openness than penal institutions.

Yet I don’t see the conditions for this since the police could have certain reasons for keeping certain aspects secret. When a person is serving his or her sentence already, there can be no such reasons. Yet the Penal Department resists any attempts to open these institutions up to public control.  And we, therefore, can only make surmises as to whether in fact it’s better or worse.

We tried to invite somebody from the State Department on Penal Issues to join our discussion today, however despite enormous effort we were unable to find any official to agree. We were told that nobody in the Ministry of Justice is allowed to give interviews without the personal permission of the Minister, Serhiy Holovaty.

I would also like to draw attention to another worrying aspect, noted by journalists, in the story with the Lviv protesters. This was the attempt by the administration at first to conceal information about these protests from the public and, secondly,  to not allow journalists to talk with the prisoners.

Mr Boiko, is this a certain trend? How much can one speak of the willingness of officials working in this area to cooperate in any way with the public, in particular with journalists and human rights activists?

Volodymyr Boiko: First of all one needs to understand that the penal system is a huge business which involves incredible amounts of money.  This is connected not only with the commercial activities of these penal institutions, and there is a certain amount of commercial activity there – they produce certain things, have workshops. It’s also connected, however, with the entire contact with the outside world – parcels, drugs which freely “travel” through penal settlements – all that is done with the knowledge of the administrations of those institutions and done for a certain amount of money. This is huge illegal business.

There can therefore be no real talk of cooperation or of openness since the whole “corrective” system is corrective on paper. In fact it is aimed at meeting the material demands of those people who control it, beginning from the corporals who get their 50 or 100 UH for passing on “malyava” [a note] or drugs, for organizing or not noticing infringements of internal discipline, and ending with the people at the real top who earn big money. I suspect the figures come to tens of millions.

Mr Bushchenko, what do civic organizations do to in some way bring this situation to light? What are they managing to achieve?

Ardady Bushchenko. We try to work with the State Department, with the head of the Department. We have on several occasions suggested that human rights organizations be allowed to visit the prisons. However the Department is only prepared to cooperate with those public organizations which can provide food, financial help, or hold such kind of cultural events. They’re not willing to open up the prisons so that their actions can be monitored, their behaviour, so that the treatment of prisoners can be checked. That they don’t agree to.

Unfortunately thus far we have not had much success. The Department is at the stage of its development that the police were at in 2001.

With the Department all then is clear, but do civic organizations not have any levers of influence on the situation?

Ardady Bushchenko: We very much hope we will.  I can say that there is some hope that the so called optional Protection to the UN Convention against Torture will be signed. This would allow for the creation of national prevention mechanisms, these being mechanisms created by the public which envisage visits by members of the public to certain institutions in order to monitor them. It would be aimed at doing what the European Committee against Torture does now. There is hope.

I would like to ask for a conclusion or some kind of look to the future as to possible steps which could nonetheless improve the situation in this sphere; how realistic they are, and what Ukrainian society needs to do in the first instance.

Volodymyr Boiko: The problem is that Ukraine is not yet a law-based state. One cannot review in isolation the situation in penal institutions without everything else happening in the state.

If there is no prosecutor, no decent court system, if there is no real overseeing system, and no real liability of those in control, then we understand ourselves that there can be no progress in the observance of human rights in these institutions. That’s the situation.

Until such time as the people who are obliged to observe human rights in those institutions start being punished

Ardady Bushchenko: I also take this view. I believe that the only cure for this system would be public control, the broadest possible public control because, going by the experience of human rights organizations I can say that none of the information about the state of affairs in penal settlements has reached us or any of our partners through legal channels, i.e. it’s all via these “malyava” [notes], and other informal means of passing on information. No other information gets out. They are kept in very strict conditions.

While such institutions remain closed we will not know what is going on there and we will suspect the worst.

Is there any chance in society of changing this in the near future?

Ardady Bushchenko: I hope so. I’ve already mentioned the optional protocol. That would be a very powerful instrument of public control.

I hope that civic society will also be ready to create certain bodies for such control.

“Vechirnya Svoboda” [“Evening Liberty”] was brought to you by Kyrylo Bulkin, and his guests were Ardady Bushchenko, legal expert for the Kharkiv Human Rights Protection Group and the journalist, Volodymyr Boiko.

[1]  In 2005 Salov won his case in the European Court of Human Rights.  The case can be found at: www.echr.coe.int