26. Rights of prisoners
1. General overview
As of November 1, 2013, 129 941 persons were held in custody in 82 facilities (181 in 2012) under the State Penitentiary Service of Ukraine (hereinafter – SPSU), which is 21 196 persons less than last year.
22 690 prisoners were held in 26 pretrial isolation centers ( hereinafter – PTIC) and 6 correctional facilities with the functions of the pretrial isolation centers ( hereinafter –CF) (which is 10 526 persons less than last year), including 1 890 persons at the stage of the pretrial inquest (1753 persons less than last year), 9 472 persons at the stage of court investigation (6 887 persons less than last year), 142 criminal executive facilities, 106 284 persons in 142 criminal prisons ( 10 359 persons less than last year), including 9 facilities with minimum security where 5 959 males were held (785 persons less than last year), 923 male inmates – in 4 facilities with minimum security and facilities with alleviated conditions, 5 778 female inmates in 14 correctional facilities (411 persons less than last year), 34 108 persons in 35 facilities with medium security regime for the first time convicts (2 898 persons less than last year); 39 923 persons in 41 facilities with medium security regime for the repeated felons ( 3 769 persons less than last year), 4 347 - in 9 facilities with maximum security ( 7 persons less than last year), 4 922 persons in the correctional centers ( another center was added, with general number 475 persons less than last year ), 2 743 persons in 6 specialized treatment facilities, 2 264 persons in the treatment centers under PIC and CF ( the total number did not change since last year), 967 persons in 7 correctional facilities for minors ( 311 persons less than last year). Among the convicts 12 thousand were condemned to more than 10 years of incarceration; 1866 serve life term (their number has grown by 64 persons sine 2012 р); 564 persons are held in custody centers set up under CF and PIC.
As compared to the last year the total number of the persons in custody has decreased by 21 196. We believe that this ominous dynamics reflects, first of all, the steps taken by the state towards humanization of the penitentiary system in compliance with the new Criminal Code of Ukraine in force. The courts are passing fewer decisions on keeping people in custody at the stage of the pretrial inquests as a preventive measure. The courts also consider the measures alternative to incarceration when passing decisions on the criminal offenses of minor and medium gravity. Due to this dynamics the number of inmates in the facilities of minimum and medium security is decreasing while the number of the convicts in the facilities with maximum security remains unchanged. Despite this positive dynamics the issues of the protection of rights of the prisoners staying in the PTIC for more than a year without appropriate court decision remain crucial. The criminal inquest is carried out on thee basis of the procedural law of 1960; torture and cruel treatment are still registered in certain PICs as well as denial of medical care, and unavailability of dubious court decisions’ reviews.
Legislation
Over the year 2013 the legislation regulating the administration of penalties has changed more dramatically than over any given historic period in the development of the national incarceration law. The process was so intense that scholars and practicing lawyers, human rights atavists did not have time to analyze the whole body of the law, which definitely will become the focus for future discussions.
The process was obviously related directly to the requirements of the Ukraine-EU Association agenda.[2] However, the number of the legal/normative acts and their amendments did not improve their quality, but, on the contrary, more often than not, deteriorated inefficient national legislation regulating the rights of people held in custody in PTIC and CF.
In brief the results of the law-making activities are presented in the Information “On the implementation of the Ukraine-EU Association agenda”[3]; it reads, specifically that “in order to bring the conditions of incarceration into compliance with the European standards, the Ministry of Justice has approved 43 orders (between 2013 and the publication of the information – author’s note.)…”. By 09.12. 2013 the number of orders increased to 48, and the SPSU claimed they have been prepared by the service[4]. Noteworthy, the majority of the orders in fact either deteriorated the convicts’ situation or did not change it at all. Many novelties were qualified by the specialists as “departmental plagiarism” meaning that the old orders of the State Department on implementation of penitentiary measures were given new letterheads of the Ministry of Justice and amended with few insignificant changes[5].
The situation was even worse when the Ministry of Justice really introduced changes to the acts passed by the penitentiary department,[6] e.g. the Internal Regulations for the PTIC.[7] The Regulations adopted without public discussion contain large body of norms aimed, first of all, at facilitating the operation of the PTIC officials, while the rights of the inmates are violated.[8]
The Regulations reflect the philosophy of maximum restrictions in the inmates’ access to information, so that no information on a criminal case would reach them. Other unjustified restrictions, i.e. on keeping articles and materials which were earlier allowed, opens the door for corruption schemes in the PTIC by “legalizing” these restrictions for additional fees. It is noteworthy that the Regulations were really modernized – they banned all the possible communication channels and electronic media which have appeared in Ukrainian markets over the recent years. Specifically the use of TV, radio, audio and video devices, video tapes, CD and DVD, multiplication devices and equipment; computers, game consoles and detachable devices, portable video games, accumulators and chargers etc. are banned. On top of everything, this act contains a lot of legal errors.
That is why it was severely criticized by the academics, specifically, by the scholars from the V.Stashys criminal research institute, human rights activists and organizations that approached the Ombudsman, the Ministry of Justice, and the Prosecutor’s General office with the open letter demanding its invalidation. However, not a single entity provided an answer[9].
Currently the draft new Internal Regulations for CF has been prepared, once again without any prior public hearing[10]. Although this document is considered a “Bible” which should guide the whole operation of CF and the life of its inmates, no one wants to discuss it with public at large. Meanwhile the criminal prosecution experts are very negative in their assessment of the novelties introduced by this normative act.
It should be also mentioned that the Ombudsman Office managed to organize one meeting to discuss this document together with SPSU leaders. Our specialists prepared their notes and recommendations with respect to the major flaws contained in the Regulations, but their majority was rejected at once without any substantiation or explanation. Later the same experts devised direct comments to the Regulations’ norms contrary to the specific provisions of the European prison regulations and Reports of the European Committee on preventing tortures and inhuman and degrading treatment or punishment (CPT). Several months later SPSU offered no incentives to continue the dialogue, so that one can conclude that the draft Regulations would be adopted without any consideration of public opinion. Besides, the requirements concerning the construction norms for the penitentiary facilities were eliminated from the Regulations currently in force. According to our information it should be approved by a separate departmental act, which, despite its importance in the light of adherence to human rights (visiting conditions, accommodations etc.), is not yet available to the public, and, probably, will not be discussed openly.
The practice of “fake” public discussion on the normative and legal acts, introduced by SPSU, deserves special attention. Thus, according to public consultations List,[11] many normative and legal acts had to be discussed publicly, although, as far as we know, some acts were not even posted at the departmental sites for the discussion. Reluctance to involve public at large in the law-making process is characteristic of other bodies of power as well, e.g. the Presidential Administration which completely rejected the proposal of introducing changes into the Pardon Provisions initiated by “Donetsk Memorial”[12].
In 2013 The Cabinet of Ministers of Ukraine adopted the State target program for the reforming of the State criminal prosecution service for the years 2013 - 2017 (the Program)[13], which could have become most important and instrumental in introducing positive changes ensuring the rights of the prisoners. Its potential, however, was reduced to minimum due to the irrational allocation of funds needed for the implementation of the measures which would ensure the priority of human rights.[14]
According to the program’s Passport, 6011.73 million UAH, i.e. over 6 billion UAH, or 1.6% of the intended revenue of the State Budget for 2013, was allocated for the Program implementation.
One third of funding should have been used to design and construct penitentiary facilities outside central areas of Lviv, Odessa and Kherson. (2051.7 million UAH). The task addressed by this measure is described in the program as “The improvement of the conditions in which the inmates are kept, transfer from the stay in the facilities of the barrack type to block (cell) accommodations with the increased area per capita by way of technical refurbishment and reconstruction of the CF, construction and reconstruction of the existing PTIC” and envisages the entire funding of 2802.07 million UAH, including the aforementioned 2051. 7 million UAH. The problem of overcrowded PTIC and colonies currently ranks second, [15] and respective allocations should be used to introduce the most desirable block system of the inmates’ upkeep within the criminal execution service.
The scope of the funding planned for the”modernization of the engineering and technical means of security and surveillance, implementation of modern technologies with the goal of creating a multi-tired system of the centralized security and video-monitoring, automatic information and telecommunication systems within the SPSU” constitutes 1107.01 million UAH, while only 123.96 million UAH are stipulated for the “improvement of catering for the convicts and persons in custody, the system of food purchase, bare necessities, and communal and everyday use equipment”, and 400.52 million UAH – for the modernization of the engineering infrastructure ( such important areas as heating, water supply, sanitation etc), while the enhancement of the penitentiary service efficiency, without incarceration (including the setting up of the probation service) envisages sum total of 0. 64 million UAH.
The situation looks even more dramatic if one considers the amounts of money allocated for the health care for the persons in custody and improvement of health care services. These issues were the matter of serious concern within the CE institutions and priority tasks for the Ukraine-EU association agenda. This amount constituted 179.57 million UAH or about 1/33 of the entire program scope and only 1/4 of the amount to be spent on modernization of the CF system.
The amount of money to be spent on modernization of the CF system and the improvement of the professional training for the individuals condemned to prison terms and restriction of freedom constitutes 730.48 million UAH (with only 18.93 allocated for vocational training of the inmates). These figures once again justify the concern expressed in the last year report with respect to the “economic priorities” characteristic of the penitentiary department in its dealings with subordinate entities and the goal of obtaining profits from the prisoners’ work instead of providing them with skills and knowledge useful for their reintegration in the society.[16] The changes introduced to the Law of Ukraine “On the State criminal executive service”at the end of 2012, under which the CF
The transformation of production units from “the enterprises engaged in non-commercial economic activity without goal of obtaining profit, to ensure professional and technical training of the convicts and their engagement in work operation…” (p. 1 art. 13 of the Law) into the “enterprises involved in economic activities and professional and technical training of the convicts” manifests the same tendency. The goal of the changes is obvious and contrary to the rule # 8 of the European prison rules[17], which stipulates that “although obtaining financial profit from the operation of the enterprises in the correctional facilities can be useful from the point of view of enhancing standards and quality and expediency of the professional training, the interests of the prisoners should not be subject to this goal”.
Ukrainian experts also voice other critical concerns. According to the aforementioned Passport, the Program envisages the attraction of funds not only from the state budget, but also from other sources “not prohibited by the law”, specifically, 2129.7 million UAH, i.e. more than 1/3 of the Program funding. Most probably, these funds will come from the investors who would use them in the CF production process; therefore, the labor of the convicts will most probably be used to the maximum and at the minimum wages to recover these costs.
On 05.09.2013 the Law of Ukraine “On introducing changes into the Criminal Executive Code of Ukraine on the order and conditions of serving prison terms”. This Law is rather declarative and progressive in language only, introducing in fact just formal changes[18]. The experts assess the Law as regressive due to its restrictive nature with respect to the human rights. A renowned expert in the criminal execution law V.Badyra states that while “earlier the code contained 11 restrictions for the persons serving their term in prison, now there are 24 restrictions”[19].
The primary goal of the new law was ensuring the right to use cell phones for the convicts in the CF of minimum security level and social rehabilitation centers. However, at the time of the first reading in parliament this amendment was rejected. During the first days after the law was passed the journalists made a lot of public claims to the effect that changes have been introduced, in defiance of the actual state of things. The convicts are still approaching Kharkiv human rights group asking whether they can use the cell phones in the correctional facilities. The human rights activist Ye.Zakrevska made an apt comment to the effect that “the cell phones will not become scarce in the prisons. For certain fees they will be given to the inmates so that these latter could use them with silent and paid-for approval of the administration”.[20]
The passed law once again confirmed the ban on the meetings with attorneys and other persons while staying in the disciplinary isolation cell. The convicts will be deprived of any visits apart from the attorney’s visits, while in quarantine or diagnostic ward. The list of persons entitled to long-term visits with the convicts serving their term (and short-term visits for those serving life term) will be limited to the nearest family (spouses, parents, adoptive parents, siblings, grandparents, grandchildren), which is an absolutely unjustified restriction, from the point of view of both Convention on protection of rights and fundamental freedoms and practices of the European Court for Human Rights. The new automatic (without any assessment of individual risks and needs) restrictions of the rights of convicts under disciplinary proceedings, i.e. stay in the disciplinary isolation cell or in the facility of the cell type to the telephone talks, which can be allowed only by the colony warden with the educational goal or under extraordinary circumstances (death or serious sickness of a family member etc).
On October 10, 2013 the draft Law of Ukraine “On probation” was passed in the first reading. It was devised by the SPSU and failed to take into account the experts’ recommendations aimed at transforming the criminal –executive inspection into the probation service. It does not embrace the classical characteristics of probation typical of the countries where this institution is well-developed. For example, it does not stipulate the preparation of the reports, based on the risks and needs assessment, and justifying early probation release of the persons serving their term in prison. The draft does not stipulate any assistance to the probation clients, especially those discharged from the places of incarceration, although combining supervision and assistance to the persons in questions is one of the main probation characteristics.[21] The idea of public participation in the probation programs, which has been successfully operating and achieved positive results in the UK, is practically reduced to zero in the draft.
Besides, the Chief expert research department of the Supreme Rada of Ukraine apparatus concluded that the draft contained a lot of terminological discrepancies with respect to the legislation in force. The concept of applying probation measures to both suspects and defendants also seems dubious. Neither suspects nor defendants cannot be considered guilty of felony and, therefore, needing “supervisory” or “social education” measures.[22] By the way, the funding assigned for probation, as was mentioned before, constitutes an insignificant portion within the Target program for the reforming of criminal executive service– 0.64 million UAH. The specialist, therefore, are concerned that the introduction of probation in fact will amount to nothing but renaming of the criminal executive inspections.
The specialized units under the SPSU deserve special attention. Their operation has been long criticized by the human rights organizations. Under the pressure from public the decision on state registration of the order regulating their operation in the past was cancelled, and the order in question was removed from the State registry of the normative/legal acts on 14.01.2008. Nevertheless, the penitentiary department has been using the said units without any legal justification till 03.07.2013, when finally the respective order #1325/5 was passed by the Ministry of Justice[23]. Despite generally positive nature of the aforementioned act regulating the operation of the potentially dangerous unit, it still contains rudimentary norms, which led, among other things, to the cancellation of its registration. For example, the functions, performance of which falls under the competences of the CF staff still are regarded as the units ‘prerogative: searches of the residential and production zones, personal belongings of the inmates etc. (p.3.7); ensuring law and order, adherence to the procedure of serving the term in CF and PTIC and adjacent territory under the law and other normative and regulatory acts; (p.3.9). In fact, the world practice testifies that specialized units can and should be used only in the emergency situations of mass actions disrupting work in the facilities, group sedition on the part of the inmates, hostages taking and other emergency situations.[24] Meanwhile, the current version justifies everyday use of these units “to maintain order” and intimidate the prisoners with the goal of establishing army discipline, which is unacceptable as far as normal relations between the staff and the inmates go, according to the CPT recommendations for Ukraine of 2012. This practice, however, persists.
It is noteworthy that the order #1325/5 failed to reflect two major CPT recommendations of the same year: the entire operation of the unit should be video-taped (the order establishes that video is to be used only to “document illegal actions of the convicts, persons in custody and other individuals” , i.e.not the commandos’ actions ); each member of the unit in the course of special operation should wear a badge enabling his identification and appeal of his illegal actions in the future, if need arises.
All these faults beyond any doubt contributed to the horrendous events that occurred in 2007 and included mass beatings of the prisoners in Izyaslav colony, which were classified by the ruling of the European Court on “Karabet et al. vs. Ukraine” (2013 рік)[25] as the violation of their Convention rights not to be subjected to torture. Characteristically, this ruling did not ban the practice of systematic use of the said unit; moreover the officers in charge of this bloody operation not only were not dismissed, but are holding higher offices within SPSU till present day.
One of the routine aspects of the CF everyday life is the organization of the educational and psychological work with the inmates. It reflects the “educational” component of the national policy with respect to the penitentiary system. It still prevails in the ideology of the incarceration department as the goal of correction, inter alia, inherited by the Ukrainian criminal law from the soviet times. This approach has been severely criticized by a renowned scholar A.Stepanyuk and his followers for its impracticality and incapability of being useful to the society at large[26],[27]. Personal reform still remains the main goal of the punishment under the CC of Ukraine, which in the end of the day contributes not only to the embellishment of the real state of things in the correctional facilities but also creates a lot of practical problems for their staff in defining the level of reform required for the early release on probation, replacement of punishment with the milder one etc. As a result the practices of penalties are not defined leading to the violation of the inmates ‘rights. (In our operation we come across the ungrounded rejections of these incentives on everyday basis).
Nevertheless, this obsolete and biased policy still remains in place and is widely used. On 04.11.2013 the Ministry of Justice approved the Order #2300/5 “On organizing social, educational and psychological work with the convicts”[28], which replaced the earlier similar act of the State Department “On approving the provisions regulating the operation of social-educational and psychological service of the correctional facilities” # 33 of 17.03.2000. The very availability of the Order (instead of just its fragment, which was the case earlier) is a positive development. But the act itself cannot bring any positive changes into the practical operation.
No tangible changes are envisaged in the operation of the social and psychological service. For the reasons unknown the order did not approve a special provision on the methodological and educational council of CF, so it is not to be found in the act. The heads of the said service, however, are still entitled to consultations, methodological and practical assistance granted by the council in the education of the inmates. On the other hand, a new clause regulating the operation of the organizations set up by the prisoners themselves was added. The special document regulating the operation of these organizations is a requirement of the CC of Ukraine. So far it was not met, causing the criticism on behalf of the experts.[29] The analysis of the document, however, shows that its norms are rather declarative, unrealistic and hardly feasible in practice. Its implementation will lead to further overloading of the social and psychological service staff (and of the convicts working together with the CF administration), who have a lot of work already, as the main goal of the said service is “voluntary-compulsory” associations of the convicts, based on common interests, for the resolution of the everyday problems through self-governance. It would be more relevant for the soviet era pioneer camps than for addressing routine problems of the CF, its staff and inmates.
The order in fact banished the psychological service as a separate unit. Now it will constitute a part of the social-psychological service, with no substantial changes involved. The policy of lowering the standards of psychological support in the CF is another reason for concern. Earlier only a person with higher psychological or pedagogical education could be hired as psychologist, while now this responsible position, which requires deep knowledge of psychology and pedagogical sciences, is available to anyone with incomplete education of the junior specialist.
The deterioration of standards is accounted for not only by the staffing problems, but by the financial issues as well. Characteristically, under the Order the psychologist is entitled only to an office, while earlier he/she was also entitled to office equipment, i.e. computer, audio and video devices, psychology manuals. The lack of regulations with respect to the room of psychological relaxation is another proof of rigid economy regime in providing psychological support. (Earlier the requirements stipulated that the room had to be equipped with color TV set, video and audio tape recorder, acoustic system with quadro-effect, projector with relaxation slides etc). Anyway, the psychologists’ operation has been long regarded as the SPSU burden, so in practice it amounts to filling out the required paperwork. In total disregard of the world trends, the national psychological service has never been a priority for the penitentiary system; therefore it is neither respected nor trusted either by inmates or staff. The aforementioned lowering of standards, however, was the last drop in questioning its importance for the mental health of the inmates and staff, their relationship, addressing the issues that arise and creating favorable psychological climate in a facility.
There is hardly any explanation for the fact that the section of the diary of individual work with the inmates reflecting the improvements/reforming of behavior, (most important for decision-making with respect to the use of incentives, e.g. early discharge) under the new Order contains a clause “attitude to the jobs performed, self-service and facility improvements” instead of “attitude to work”. The new diary format reflecting work with minors envisages only attitude to studies. It is contrary to the requirements of CC and CEC of Ukraine, because an early release, for one, should be based on the behavior assessment and attitude to work, and not only self-service and improvements in the facility. (p. 2 art. 81 CC of Ukraine), while for the minors the criteria include behavior and attitude both to work and studies, and not to studies only (p. 2 art. 107 CC of Ukraine). Currently these indicators formally are not included into the overall assessment of improvement in defiance of the highest legal act – CC of Ukraine. Interestingly, the ethnicity of a person will no longer be specified in the diary – it will be replaced by citizenship, a most welcome innovation. However, the log reflecting the work with the inmates still has this line alongside with “citizenship” line.
02.07.2013 the Ministry of Justice adopted another document, important for the functioning of the CF and the adherence to the convicts’ rights – the Order # 1304/5 “On approving the Instruction concerning the supervision of correspondence (letter writing) of the persons in custody and PTIC” which replaced the former Order of the SPSU #13 of 25.01.2006. Despite numerous faults of the norms contained in the former order, their failure to ensure confidentiality and efficiency of appeals, they have been transferred to the new order without any changes.
One of the bones of contention in the said document is the compulsory censorship of correspondence (with the exception of specific subjects). The CEC of Ukraine, as opposed to the old Correction and Labor Code of Ukraine supposedly banned the censorship replacing it with “review” (art. 113 CEC of Ukraine). By definition this review means search for the forbidden items and not reading of one’s letters. Nevertheless the Order in question still retains the norm stipulating that “letters (that contain – author) the data which cannot be divulged, are not sent to the addressee, nor returned to the convicts or individuals in custody, but confiscated”. It means that а) CF administration is obliged to reveal this information by reading the letters; b) any information can be lawfully classified as “the data which cannot be divulged” at the administration’s discretion, thus opening the door to all sorts of local abuse. As a result, “unwelcome” letters simply won’t be sent out of the CF or delivered to the addressee.
The practice also shows, as will be demonstrated below, that often there is no proof of sending out the letters containing the information on illegal actions of the CF staff. Noteworthy the SPSU expressed its readiness to address the problem, even with the involvement of international experts. [30]. We are aware of the fact that the report prepared by the CE expert James Murdoch contains a lot of remarks which should be addressed by the SPSU. That is why we find the development, discussion and normative and practical implementation of the concept of the correspondence “immunity” most topical at the current stage. The social workers and Ukrposhta should be involved in the process as current perlustration of letters creates more problems for human rights and safety of the convicts and society instead of resolving them.
Meanwhile some positive developments in the deputies’ law-making related to the penitentiary system can be traced. For example, passing of the law #3200 of 05.09.2013, submitted by the people’s deputies I.Lutsenko, A.Kozhemyakin and P.Petrenko will be instrumental in resolving many problems faced by the prisoners,[31], specifically, their pensions, holding convicts in custody, visits and other gaps in the criminal-executive legislation in force.
The implementation of the norms or international law as a part of the national law is another matter. Our study showed lack of professionalism, coordination and efficiency in the measures aimed at the enforcement of the ECHR decisions with respect to violation of the prisoners’ rights within SPSU system and by the official in charge of the ECHR decisions.[32] Hence many decisions are not enforced or are implemented only partially, while the problems identified by the court persist.
The same conclusion applies to the implementation of the recommendations formulated in the earlier and current CPT reports following the CPT delegations’ visits to Ukraine[33], which, according to the international law fall under the category of the “soft law”, and, although formally not obligatory, often become the main points of reference for the ECHR decisions against Ukraine and also a matter of concern for the Committee of Ministers of the CE.
The visit in December 2012 to Ukraine became an unprecedented event in the whole history of the Committee’s existence (almost 25 years of visits to 47 countries – members of the CE). The visit results were published in the public statement. This Committee’s competence is envisaged by the part 2, article 10 of the European convention against torture, inhuman or degrading treatment or punishment in cases when the national authorities refused to cooperate or to improve the situation taking into account Committee’s recommendations.
Over the whole period of its existence, the Committee had made only four public statements (Ukraine being the fourth country with respect to which the statement was made). It is, however, the first country to be publicly reprimanded for its failure to collaborate for the improvement of situation in the penitentiary institutions. Our country is really an exception in this sense, as usually the Committee is very cautious addressing the issues of torture in the penitentiary institutions. More often such reprimands are made with reference to militia and its departments. The Report, however, describes and highlights the tortures in the correctional facilities. CPT pointed out that the treatment of inmates held in Oleksiivka CF #25 and Stryzhava CF #81 is tantamount to the torture. The finding of a row and bats, wrapped in paper and plastic and used to beat the inmates in Stryzhava CF #81, was an unprecedented occasion for the Committee delegation.
The Report also revealed a whole range of systemic problems inherent for the national criminal-executive system. The conditions in the prisons, torture, unacceptable treatment of the inmates by the staff, corruption, the situation of male and female prisoners serving life sentence, unsatisfactory fulfillment of the job duties by the personnel are the issues that gave grounds for the Committee’s concern. Another matter of concern is the suspicion that the penitentiary department won’t be able to interpret the Committee’s recommendations correctly for their own use,[34] which fact, naturally, can affect the efficiency of their implementation.[35] The negligence of the SPSU and Ukrainian authorities as a whole is also confirmed by very superficial and insubstantial response to the Committee’s Report.[36]
3. Torture and cruel treatment in the correctional facilities
The SPSU system still remains closed for public at large and for the journalists. Its closed nature provides incentives for the systematic violations of human rights. The inmates have no way of informing the prosecutor’s office of the violation of their rights, although the procedure is spelled out in the law. Even if such information reaches the prosecutor’s office, this latter often does not respond adequately to the instances of violations committed by the administration. The culprits continue to hold important offices and to commit new crimes. The people who dare to complain are subjected to torture, while new criminal cases against them are cooked up under the article 391 of the CC of Ukraine (malicious non-compliance with CF administration requests).
The practice of denying the attorney a meeting with the client is used by the SPSU administration in cases when the violation of human rights is obvious. An attorney can register certain violations (e.g. marks of bodily injuries) and provide legal assistance to a client in putting together a complaint to the prosecutor’s office, entailing legal qualification of the staff actions. Here is a typical example:
On August 19, 2013 about 7.00 pm a man called on the hot line of the UNHCHR, reporting that his life and health were threatened, as well as life and health of 15 other persons. He said he would agree to any public intervention, including the divulging of information and the names of the convicts if it can save their lives. The inmates of CF #81 I.Chepel, S.Muratov, P.Kopetsky, O.Antonovsky, R.Zverev, O.Kozak, V.Zamelyuk, Sh.Kosovan, V.Bovko and some other prisoners who refused to give their names are, according to them, in a most dire situation. The next day an attorney Natalya Gurkovska arrived in the correctional facility to meet her clients, but was denied entrance and visit without any grounds. On the same day the attorney submitted a claim of the criminal offense to the prosecutor’s office. On August 27, 2013 the attorney N. Gurkovska once again came to the Stryzhava CF #81 with the goal of providing legal assistance to the convicts who had complained to the human rights organization and submitted a written motion to the first deputy of the colony warden S.Lysak. This latter in contempt of the law, abusing his official status, denied the attorney performance of her professional duties. The inmates were denied their right to legal assistance. On November 1, 2013 Vinnytsya circuit administrative court satisfied the attorney’s claim and ordered the colony administration to let the attorney meet her clients. A criminal claim was filed against one of the petitioners for inciting the inmates to counteract the facility administration operation.
The European Committee for prevention of torture in its report following the visit to Ukraine in December 2012 [37] pointed out that cruel treatment of the inmates in Oleksiivka CF # 25 had become an inalienable function of maintaining order and counteracting prison subculture. The colony staff is using specially selected groups of prisoners to ensure docile behavior of other inmates since their first days of incarceration. The respondents complained of cruel treatment which can be classified as torture.
V.Bordun, DOB 1957, complained to KhHRG that he had been subjected to torture in Oleksiivka CF after he, availing himself of the opportunity to leave the premises, made public the facts of human rights violations taking place in the CF. (“Naked truth or an inside look at Kharkiv colony”ORD site, 21.06.2011). Despite KhHRG requests not to send V.Bordun back to the CF #25 to serve the rest of his sentence due to the conflict situation, he was brought back. Criminal proceedings were started against V.Bordun, with final verdict of 3 years of imprisonement. Currently he was serving 15-years term and had only 75 more days in prison prior to his release. Such actions of CF #25 administration can be classified unambiguously as revenge for his complaint.
We have been receiving the information on the violation of the inmates’ rights in the CF #25 for many years – through the persons who have been discharged or moved to other CF under the SPSU. Besides V.Bordun’s testimony, there is testimony of other inmates. During press-conference in UNIAN IA on 04.10.2013 the ex-convicts openly named the warden Khyrny and his deputy Popov as the organizers and perpetrators of the torture. Popov does it in person, while Khyrny uses his authority to incite other inmates subordinate to him as warden (“the boss”).
We sent a request for information to the Prosecutor’s General office to learn about the status of criminal proceedings # 42012220090000028-27-012 of December 12, 2012 under article 365 p. 2, mentioned by the convict V.Bordun in relation to the torture he was subjected to. He became the victim of torture for his refusal to report on other inmates. The ECHR decision in the case “Savenko vs. Ukraine” makes reference to a similar case. The administration of Temnivka CF #100 was trying to persuade S.Savenko to report any illegal activity of the other inmates. He refused. When the officials ran short of arguments, they resorted to torture. As a result, Savenko lost conscience and suffered a number of bodily injuries registered by the medical expert. Savenko’s attempts to complain of the administration’s actions brought no response. He was forced to say that the injuries were self-inflicted. But later, in court, he confessed that he had been forced to refute his own testimony and also showed the conclusion written by the expert with 37 years of professional experience to the effect that Savenko was by no means capable of inflicting the injuries himself.
4. About 10% of verdicts cause reasonable doubt as to their fairness
KhHRG has collected a number of cases which give grounds for serious doubts as to the validity of the verdict. Specifically it can be argued that individuals accused of homicide in fact did not kill their victims. The courts of higher instances have recalled the sentences passed by the internal courts in more than ten cases. The general scenario is as follows: the accused is subjected to torture so that he would confess to murder. If he manages to prove the violation of the article 3 of the European convention against torture and violation of the right to fair trial (i.e.obtaining evidence by unacceptable means) in the ECHR, then, in compliance with the court’s decision, the verdict based on illegally obtained evidence should be reversed. And this is what happens. The homicide investigation should start all over again. Blessed St. Augustin noticed as early as 4th century AD that the state without due and fair trial is not a state, but a pack of criminals. This statement remains most topical today.
On November 15, 2012 the European Court for Human Rights passed its decision in the case “Zamferesco vs. Ukraine” (claim # 30075/06). The Court found a violation of the article 3 of the Convention (cruel treatment in the militia precinct), violation of pp. 1 and 3(с) of the article 6 of the Convention (absence of legal aid starting with first interrogation) and violation of p.1 of the article 6 of the Convention (the use of evidence obtained by cruel treatment with the goal of condemning the claimant). Let us remind that V.B.Zamferesco was sentenced to life term for double homicide. The charges in the case are based on the confession obtained by torture and psychological pressure imposed by militia officers. In court the defendant refuted his own testimony, but the court was implacable. The decision of the ECHR reads: “In this case the claimant was threatened with death. The threats were accompanied by beatings causing physical pain. This psychological and physical pressure was used to make him confess to the crimes”.
O.Rafalsky has been serving life sentence for 12 years. The fact of torture used against Rafalsky and other suspects in the case to make them confess to serial killings is obvious. Despite the Verbal Note sent to the Ukrainian government as far back as 2009 by the UNHCHR, resolutions of two parliamentary Committees (for counteracting corruption and legislative support of human rights protection) the correspondence with the prosecutor’s office and courts is going on; the courts now and then invalidate the resolutions denying criminal proceeding against the official torturers, while Rafalsky is still anticipating favorable decision of the ECHR.
V.Panasenko is serving life sentence for attempted murder of the “Shuvar” market director in 2006, during which a child died. The charges brought against the accused were based exclusively on the testimony of mentally sick person, who named first one perpetrator, then – in a written statement – another one, and, finally, Panasenko, as third potential killer. On top of everything that person refuted his own testimony when testifying in court and named “a real culprit”, in his own words. Let us remind that on May 15, 2012 the European Court made a decision in the case “Kaverzin vs. Ukraine” , pointing out that lack of prosecutor’s efficient investigation of the reported tortures is a systemic violation of article 3 of the Convention with respect to the procedural action.
I. Nechyporuk spent almost 8 years behind the bars, having been convicted for a crime he did not commit. According to the EUHR, his own 5 confessions, obtained with the help of beatings and torture, constituted the only evidence used in the case[38]. Another suspect was also accused of felony – O.Motsny, who also confessed after being tortured. The case was reviewed following the ECHR decision and I.Nechyporuk was acquitted. Now he is free, but Motsny, who did not complain to the European Court, is still serving his term on the same charges. Unfortunately, no one but Motsny himself can act under the circumstances. When, following the ECHR decision, the Nechyporuk case was revised by the Supreme Court, one of the judges expressed an opinion that Motsny’s verdict should be reversed as well. Lamentably, this judge was not supported by the others.
Ukraine has established an infamous record – it has more prisoners serving life sentence than Russia. As of today, their number in this country amounts to 1845, while in Russian Federation they have 1841 prisoners serving life term, while the total number of prisoners in Ukraine amounts approximately to 140 thousand as opposed to over 800 thousand in Russia. These figures are accounted for, among other things, by complicated pardon procedure and inefficient mechanism for its application, specifically, lack of conditional release (parole) mechanism with respect to prisoners sentenced for life. The expediency of such mechanism is spelled out in the Recommendations of the Cabinet of Ministers of CE (Recommendation Rec(2003)22 on conditional release (parole)): “In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.” It is also noteworthy that under this Recommendation the conditional release (parole) does not include amnesty or pardon (Rec(2003)22-Appendix par.1). The legislation in force clearly violates p.12 of the CE Resolution (76) 2 on the treatment of long-term prisoners on 17 February 1976 (at the 254th meeting of the Ministers’ Deputies), which enumerates the requirements to be met for the regular review of life sentences, including the obligatory review after 8 – 14 years of incarceration. Under the current law pardon for such prisoners can be considered only after 20 years of imprisonment, while regular review is not stipulated at all, except on their own motions. Besides, under the decision of Big Chamber of the ECHR in Vinter and Others v. the UK[39], passed this year, the lack of “real perspective of release” for the prisoners serving life term is a violation of article 3 of the European Convention on protection of rights and fundamental freedoms.
Ukraine also lacks the procedure for correcting court errors. The analysis of the Supreme Court of Ukraine practices and of the respective procedural law leads one to the following conclusions. The competences vested in the Supreme Court of Ukraine attempt to combine the control over norms with court protection in the criminal cases by means of court rulings’ revision. However, the legal levers available to the Supreme Court are not enough for the exercising of the said competences. The use of the means with subjective components (arbitrary application of the norms of material law) and the institute of cases’ submission to the SC substantially complicated practical exercising of public right to court protection and decreased its efficiency. Removing some of the SC competences (i.e. the use of procedural law norms and some portion of material law norms) is contrary to logic and the principles of legal determination and constitutional status of the SC. These developments made the SC competences “partial”, while the use of authority to revise the procedural law norms led to incapacity in fulfilling the competences the SC enjoys as judicial entity. Therefore, the essence of the SC competences does not fully agree with its constitutional status and rights of public to court protection guaranteed by the Constitution of Ukraine.
Considering all these facts, the authority of the SC of Ukraine should be restituted to the status it had prior to 2010 reform. The Supreme Court itself should define the boundaries of its competences. It means that the law should be changed, restituting the exclusive proceedings which existed prior to 2010 and vesting respective competences in the SC.
5. Right to correspondence
On December 1, 2012 V.Kolesnikov, sentenced to 10 years in prison for a homicide, was transferred from CF #38 (Lugansk oblast’) to psycho-neurological ward of the oblast’ hospital under Lugansk investigation isolation center. The transfer was the result of the dry hunger strike announced by the prisoner as a mean of protest against administration which has detained his cassation appeal, which, according to him, he could not send out for the whole term of his stay in PTIC: “I, Kolesnikov Vladimir Fedorovych, refuse to undergo medical treatment as I do not consider myself sick. Refusal to eat is an extreme measure in my attempts to have a Cassation Court hearing”. A client of KhHRG V.Nechyporenko held in custody in Sumy PTIC went on hunger strike because the letters he received from the ECHR were not delivered to him; his power of attorney was not sent out and he was subject to forced treatment.
The prisoners often complain that the staff of the SPSU facilities often hinder their correspondence, especially, when it contains the prisoners’ complaints referring to administrations’’s actions or lack of thereof. How letters are currently sent out from the SPSU facilities? A prisoner held in PTIC or any other SPSU facility hands in his correspondence directly to a staff member. If a prisoner is in re-socialization or rehabilitation ward, he can put his letters into a special box. In both cases the prisoner is unable to prove either the fact of sending a letter or the date when it was done.
On September18, 2013 an Ombudsman meeting with experts addressing the issues of convicts’ and prisoners’ rights to correspondence, took place in the Ombudsman office. The stake-holders from the public and non-governmental organizations (Ombudsman’s representatives, HR organizations, SPSU, Ministry of Justice, Prosecutor’s General office) participated in it. The discussion concerned the technical aspects of registering the correspondence. We believe that the managers of some SPSU institutions are aware of the importance of this issue and register the correspondence. On November 7, 2013 the monitoring group visited the only correctional facility for people with disabilities in Ukraine – Sofiivka CF #45 in Dnipropetrovsk oblast’. It was a training tour, at the end of the course “Monitoring of the adherence to human rights in the places of incarceration” carried out within the framework of the program “Understanding human rights” supported by the Swiss Embassy in Ukraine. The facility warden V.Khalavka informed the group that in order to avoid any complaints that the correspondence had not been sent out or had been delayed a CF operative in charge meets the inmates on the weekly basis. A prisoner would come to a meeting and hand in his letter in the sealed envelope personally. The official makes a respective entry in the log and gives a prisoner the registration number. This practice is worth disseminating in other colonies as well as a temporary solution to the problem involving prisoners’ right to unimpeded correspondence.
6. Recommendations
1. The Supreme Rada of Ukraine should:
Approve the draft law #3200 of 05.09.2013 submitted by the people’s deputies I.Lutsenko, A.Kozhemyakin and P.Petrenko;
Introduce substantial amendments of the draft Law of Ukraine “On probation”;
Pass the law on the changes to the CC of Ukraine with respect to the mechanism of conditional release (parole), for the individuals serving life sentence, in compliance with the CE recommendations;
With the goal of ensuring the right to fair trial improve the procedure for the review of verdicts which have come in force in cases when the European Court for Human Rights passes a decision on procedural violations during pretrial inquest;
Finalize the process of SPSU transference to the Ministry of Justice jurisdiction, in compliance with ПАРЄ Resolution # 1466 (2005);
Introduce changes into the current law on pardon of the prisoners serving life sentence and develop a mechanism for their early conditional release (parole) (this recommendation is also addressed to the President of Ukraine, whose decree regulates the procedure for granting pardon);
Define in the procedural law of various branches of the judicial system the procedure for the direct participation of the individuals in custody in the court hearings, in accordance with the decision of the Constitutional Court of Ukraine on the petition of A.Troyan of 12.04.2012, # 9-rp/2012.
2. The Cabinet of Ministers of Ukraine should redistribute the funds within the State target program for the reforming of the criminal-executive service for the years 2013 – 2017, taking into account human rights and not safety or CF profit considerations as priorities.
3. The Ministry of Justice of Ukraine should (these recommendations apply to the SPSU as well):
Put an end to the accelerated and inefficient law-making activity, ensure public discussion on the draft normative acts related to human rights and due consideration of the experts’ recommendations with respect to these acts;
Ban the Regulations on internal order (Order of 18.03.2013 #460/5) and develop the new regulations taking into account the recommendations prepared by experts;
Carry out broad and sufficiently long-term public discussion on the Regulations on internal order in correctional facilities, taking into account the registered violations of the human rights’ standards in this document;
Review and change the contents of the Order # 2300/5 “On organization of the social-educational and psychological work with the convicts” taking into consideration relevant remarks;
Review and change the contents of the Order # 1325/5 of 03.07. 2013 “On approving provisions on territorial (interregional) paramilitary unit of the State criminal-executive service of Ukraine”;
Launch the discussion followed by the implementation of the concept of the correspondence “immunity” both in the normative acts and in practice, with potential involvement of social services or Ukrposhta;
Review the norms regulating permitted belongings of the convicts in accordance with the international norms and recommendations spelled out in the last year report;
4. The State penitentiary Service of Ukraine and other responsible bodies should:
Change the priorities in the economic operation of their subordinate enterprises, aimed at getting profits; take into consideration the requirements of the European prison rules concerning the goals of production in the penitentiary institutions;
Meet the requirements spelled out in the reports of the European Committee against torture and inhuman or degrading treatment or punishment and take into account all the critical remarks made with respect to the potential collaboration;
Analyze in greater detail and implement all the requirements formulated by the Committee during the visit to Ukraine in 2012;
Develop the normative act regulating the enforcement of the ECHR decisions and CPT recommendations at the level of SPSU, territorial bodies and individual subordinate facilities;
Set up a special subdivision under SPSU, in charge of the enforcement of the ECHR decisions and CPT recommendations;
Enhance responsiveness and quality of the departmental law-making activity, aimed at the implementation of the aforementioned decisions and recommendations with broad public participation;
Ensure free access to the information and respective documents reflecting the enforcement of the ECHR decisions and CPT recommendations on SPSU site;
Dismiss the employees guilty of violations of the European Convention for human rights and basic freedoms protection, in compliance with ECHR decision in the case “Karabet et al. vs. Ukraine”;
Compile the reports on implementation of the recommendations and provisions stipulated by the international standards, with justification of non-compliance with certain requirements and obstacles on the way of implementation; the reports should be accessible to public at large;
Ban the practice of formal public discussions on the draft normative acts; introduce the practice of targeted requests sent to the stake-holders to seek their proposals and ensure transparency;
Conduct complex analysis of the criminal and criminal-executive legislation in force and practice of the application of the law in compliance with the international standards;
Invalidate provisions of the current SPSU normative and legal acts which violate human rights;
Together with major human rights organizations develop and implement the mechanisms and procedures for efficient and timely response to the reported violations of human rights in the correctional facilities;
Improve mechanisms and procedures for visits allowed in the correctional facilities under the Facultative Protocol to the UN Convention against torture;
Implement viable system of appeals and complaints; ban the practice of penalizing the convicts for their attempts to appeal the administration actions;
Set up an exhaustive list of regime violations entailing disciplinary action;
Verify all the instances of corruption among the staff; provide public evaluation of the proven cases of corruption;
Introduce research programs and project including those developed by the NGOs addressing the prisoners’rights and functioning of the criminal-executive system as a whole;
Improve public information concerning the operation of the bodies and facilities of the penitentiary system;
Transfer the health care services within the SPSU under the auspices of the Ministry of Health;
Guarantee confidential meetings with the lawyer within the SPSU system;
Review the provisions of the state policy Concept for the reforming of the state criminal-executive service of Ukraine addressing the priorities of self-sufficiency of the correctional facilities as a component of the convicts’ involvement in the socially useful work;
Review the conditions of the prisoners’ incarceration in the disciplinary isolation cells of the CF and bring them into compliance with the requirements of the European Committee against torture, inhuman or degrading treatment or punishment, with respective reports to the Ukrainian government;
Departments and facilities of the penitentiary system should actively involve observation committees and non-governmental organizations in providing assistance to the former convicts in their adjustment and resolving of various problems;
Replace completely the administration of the Oleksiivka correctional facility # 25 of Kharkiv oblast’ SPSU department.
[1] Prepared by V.Chovhan and A.Didenko, Kh.HRG.
[2] http://kmu.gov.ua/control/uk/publish/article%3fart_id=223286414&cat_id=223280190
[3] http://kmu.gov.ua/document/246660125/Information_on_EU-Ukraine_AAg_Implementation_2013_(Ukr).doc
[4] http://kvs.gov.ua/peniten/control/main/uk/publish/article/699785
[5] The last year report already addressed the imitation of law-making process by the Ministry of Justice: http://helsinki.org.ua/index.php?id=1362663498
[6] The last year report contained the reprimands and recommendations to the Ministry of Justice as to its deficient and unsatisfactory norm-making activity, contrary to the human rights standards
[7] http://zakon2.rada.gov.ua/laws/show/z0445-13/print1380096754591927
[8] See the criticism of the document in more detail: http://ukrprison.org.ua/expert/1365497506
[9] http://kvp.in.ua/?p=11&cpage=1
http://helsinki.org.ua/index.php?id=1368422849
http://civicua.org/news/view.html?q=2007122
[10] http://kvs.gov.ua/peniten/control/main/uk/publish/article/678075
[11] http://kvs.gov.ua/peniten/control/main/uk/publish/article/660592
[12] http://ukrprison.org.ua/articles/1375073466
[13] http://zakon4.rada.gov.ua/laws/show/345-2013-%D0%BF/print1378734200935557
[14] http://zakon4.rada.gov.ua/laws/file/text/16/f399511n75.doc
[15] http://ukrprison.org.ua/news/1379448904
[16] The last year report contained a note on unacceptability of CF transfer to self-sufficiency regime at the cost of the inmates’ work. Also, recently the experts of the “Renaissance” IF arrived at the similar conclusions in their report on implementing the requirements compulsory for the Agreement on association with EU: http://irf.ua/files/ukr/programs/euro/report_ua_eu_18.6.2013.pdf
[17] http://zakon2.rada.gov.ua/laws/show/994_032/print1380103375378991
[18] The passing of the draft law was introduced as pro-European changes in mass media, despite its real nature, e.g.:
http://unian.ua/news/593591-rada-priynyala-evrozakon-pro-pomyakshennya-umov-dlya-zasudjenih.html
http://intv.ua/important/65037-deputati-posluhali-yevropu-gumanzuvali-umovi-zasudzhenim.html
[19] http://ua.racurs.ua/363-progresyvnyy-zakon-pogirshyv-stanovysche-ukrayinskyh-v-yazniv
[20] http://pravda.com.ua/articles/2013/10/8/6999504/
[21] Hamai K. Probation Across the World: Comparative Study. — London: Routledge, 1995. — P. 3.
[22] http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=45499&pf35401=252138
[23] http://zakon4.rada.gov.ua/laws/show/z1133-13/print1378734200935557
[24] Relevant recommendation was formulated in the last year report, but, despite its transparent nature, it was not taken into account in the Provisions. It can mean that: а) the SPSU did not familiarize itself with report or б) the SPSU failed to take public recommendation into account in the law-making process.
[25] http://khpg.org/1361282500
[26] A.Stepanyuk. The essence of penalty enforcement // – Kh.: Folio, 1999. – 256 с.
[27] http://archive.nbuv.gov.ua/e-journals/Chaau/2013-1/13yisvkp.pdf
[28] http://zakon4.rada.gov.ua/laws/show/z1863-13/print1378734200935557
[29] http://archive.nbuv.gov.ua/e-journals/prtup/2012_1/yakovec.pdf
[30]http://kvs.gov.ua/peniten/control/main/uk/publish/article/692366;jsessionid=ACA7F167D0EE817CE70799E74474FF7B
[31] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=48169
[32] http://khpg.org/1370666586
[33] http://khpg.org/1379842217
[34] The fact is that the SPSU translation available on CPT site at first was not to be published and bore the seal of the “internal use only”
[35] See Report analysis in more detail at: http://khpg.org/1379843571
[36] http://cpt.coe.int/documents/ukr/2013-24-inf-ukr.pdf
[37] http://khpg.org/1379842217
[38] http://helsinki.org.ua/index.php?id=1303464835&w=%CD%E5%F7%E8%EF%EE%F0%F3%EA
[39] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122664