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20.06.2006

Human Rights in Ukraine - 2005: XVI.The Observance of Prisoners’ Rights

   

1. INTRODUCTION

In preparing this section, previous studies carried out by the civic organization “Donetsk Memorial” were used, in particular, statistical information, printed in the information bulletin ASPECT and in the brochure “Criminal sentences in Ukraine in 2004”. A further valuable source of information was provided by the responses to formal requests for information sent by the organization during the second half of 2005 to the State Department for the Execution of Sentences  [hereafter: the Department] and its departments in the regions, to the Ministry of Internal Affairs and a number of its regional departments, to the Prosecutor General of Ukraine and a number of regional prosecutor’s officers, as well as to the State Court Administration of Ukraine. A considerable amount of the information used was gleaned from publications in the mass media and on Internet publications.

A crucial part of our sources of information came from the work of partners in the regions who provided examples of publications in the local press, excerpts of letters from members of the public who had approached their organizations for assistance.

Clearly it was important to treat and analyze the information received to some degree critically. This applies in our view both to the examples of violations of human rights cited in letters from members of the public, and to information from state institutions.  Plainly the level to which information from different sources can be deemed reliable varies. However, bearing in mind the specific nature of the activity of the system, we do not feel it to be justified to discard information purely because it contains negative content or contradictory details. An honest approach envisages the consideration of different facts and opinions. Only in this way can one gain a more or less full impression of what the real situation is, and therefore, it is only by using such an approach that one can effectively choose optimum ways of overcoming existing problems.

2.   POLICE INSTITUTIONS

Individuals remain in custody in police institutions from when they are detained until charges are laid. During this period, they are held first directly in district police stations, then in temporary holding facilities.

The Ministry of Internal Affairs is in charge of 501 temporary holding facilities (ITT – izolyator tymchasovoho trymannya), where they may be held for a maximum of 3 days (10 days in exceptional circumstances) before being moved to a pre-trial detention centre (SIZO – an acronym for slidchy izolyator).  However there are instances when this time period is exceeded. Each day in Ukraine around 7,000 people who have been detained are held in ITT, with a capacity for 10,400 places. According to information from the Ministry of Internal Affairs, 127 ITT are in need of repair.

The greatest number of cases involving ill-treatment while in custody occur specifically during the time that individuals detained are held in police institutions. The conditions in such institutions are, furthermore, excessively harsh. This is connected to a large degree with poor financing however recently funding has been allocated to provide for detainees held in ITT.  “Donetsk Memorial” sent formal requests for information to ten regional departments of the Ministry of Internal Affairs (MIA) with questions about the conditions in which prisoners were held in ITT.  Information from the responses received is presented in Table 1: “Conditions in which prisoners are held in temporary holding facilities”.

According to figures from the departments, in 2004-2005 from 16 to 70 UH was allocated for each individual while being held in an ITT.

However problems remain with providing food for individuals remanded in custody, and those taken during a court hearing to the court, when they may receive nothing to eat through the entire day.

In the Report of the Council of Europe Monitoring Committee, presented in autumn 2005, PACE noted that according to information from the Human Rights Ombudsperson, Nina Karpachova, during her almost seven years tenure she had  received around 12,000 complaints from individuals alleging that they had been subjected to torture while in police custody. She also stated that over the last years the number of illegal arrests and incidents of torture by the police had not decreased at all.  According to the President of the Supreme Court of Ukraine Mr Malyarenko, in every third case of grave and especially grave crimes the accused had complained of illegal investigation methods.

Victims do not, as a rule, lodge complaints about ill-treatment, and it is therefore difficult to estimate the real level of illegal use of force by police officers. Among the reasons why victims do not complain is the fear of worsening their situation, being totally dependent on police officers and not having any opportunity to inform people about their situation and their problems. Not infrequently individuals who fall victim to ill-treatment are from socially marginalized groups of the population – down-and-outs or people with criminal records who simply do not know who they should complain to, and how.  Therefore, after being released, they do not insist on the perpetrators being found and punished. And those who do try to complain and to prove the guilt of police officers, can spend months attempting “in legal fashion” to prove that he or she was subjected to brutal treatment in the courts and with the prosecutor’s office.

One example of procrastination with investigating allegations of brutal treatment by the police is the case of Mykhailo Yevtyushyn. In June 2000, then aged 16, he took part in a fight. Ten days later one of those involved in the fight died. At first two adults who had taken part were detained, however they were soon released and Mykhailo was arrested.  This took place at around six o’clock in the morning on 29 June, when his parents were not at home, only his small brother. Mykhailo was beaten, while a protocol was only drawn up at 14.00  which he was deceived into signing.  His mother claims that police officers demanded several thousand dollars to release her son, and when she refused, he was sent to a pre-trial detention centre (SIZO).  There he spent two years.  After a very drawn-out investigation, in 2002  the case reached the appeal court which sent the case back for further investigation and released Mykhailo, changing the preventive measure to a signed undertaking not to abscond on account of his having tuberculosis.  The lad had contracted the disease in the SIZO, this being confirmed by the medical examination carried out immediately after his release. However the administration of the SIZO responded to the lad’s mother’s question by claiming that Mykhailo had been healthy immediately prior to his release.

The prosecutor’s office appealed the change in preventive measure and despite the urgent need for medical treatment succeeded in obtaining a court ruling reinstating the remand in custody. In order to continue his treatment, Mykhailo went into hiding, and was declared wanted by the police. This situation remained unchanged at the beginning of 2006. Mykhailo made an application to the court to replace his preventive measures with an undertaking not to abscond so that he could safely appear in the court where his case was to be reviewed. The court refused to consider this request without Mykhailo being present in the court.  His mother turned to the prosecutor’s office of the Petrovsky district in Donetsk making a complaint about violations of the law during his detention in 2000, and about the beating inflicted.  The prosecutor’s office checked her complaint in June 2005 and refused to initiate a criminal investigation. His mother appealed this decision of the prosecutor’s office, and the court upheld her complaint. . The prosecutor’s office supposedly checked her complaint for the second time and in August 2005 again passed a ruling refusing to launch a criminal investigation however Mykhailo’s mother was not informed of this ruling. It was only at the end of December, in response to her formal request for information, that the prosecutor’s office notified her of the decision taken. One thus has the impression that at the present time also the actions of the police, the prosecutor’s office and the courts at local level are coordinated among themselves and directed at concealing the ill-treatment Mykhailo allegedly suffered when being detained.  The young man is already 21, he lives permanently in hiding from the police and having no opportunity to prove in court that he was not actually guilty of causing the death of the person who together with him took part in the fight in the middle of 2000 and who almost ten days later died of something.

To protect themselves from potential law suits filed by individuals who have been held in custody by the police and then released, and who might complain of ill-treatment, the police quite often get people to sign statements declaring that they have no complaints against the police.

A human rights organization, the Poltava Regional Media-Club took efforts to counter such practice. On 21 November 2005 it addressed an appeal to the heads of the department of Internal Affairs for the Poltava region and the highest levels of the Ministry of Internal Affairs in which it called for “a stop to the practice of taking signed statements in any form (under duress or not) from individuals detained or arrested declaring that they have no complaints against the police”.  The appeal stresses that “in considering allegations from individuals of ill-treatment, it seems especially cynical for the heads of law enforcement agencies to refer to the fact that the claimants allegedly left statements they themselves wrote declaring that they have no complaints against the police.  It is always law enforcement officers who initiate such statements in order to hinder individuals from complaining against their illegal actions and to absolve themselves of liability. And secondly, such statements are quite often beaten out of a person using coercion, and the individual is not released until he or she has signed such a document.”

One of the problems with police custody is the fact that detained individuals suffering from tuberculosis cannot be sent to SIZO.  As noted in the Council of Europe (Monitoring Committee Report, on the basis of a number of normative legal acts of the State Department for the Execution of Sentences, individuals suffering from infectious diseases (including tuberculosis) cannot be transferred to pre-trial detention centres (SIZO) from the temporary holding facilities (ITT) under the competence of the Ministry of Internal Affairs.  According to some reports, 739 arrested people were not admitted to SIZO during 2004. TB-infected people were thus held in detention in the ITT, which are not fit for holding such persons, beyond the legally established maximum term of arrest (3 or 10 days). This not only violates the rights of the arrested but also promotes the spread of diseases in the ITT.  According to the Ministry of Internal Affairs, more than 1,000 people are held daily in ITT after the maximum time-limit established by law, including 100 people ill with TB. The situation has not improved even after an Instruction (No. 419-p of 5 July 2004) was issued by the Cabinet of Ministers whereby the State Department for the Execution of Sentences was ordered to ensure admission of those arrested who are ill with TB. According to the comments of the Ukrainian authorities, there are plans to solve this problem by delegating the treatment of persons in detention on remand to special establishments of the Ministry of Health which will be guarded by Ministry of Internal Affairs units. This requires changes to the relevant legislation.

According to figures from the Prosecutor General, over the first six months of 2005, criminal charges were laid in Ukrainian courts against 212 police officers for crimes committed, of which 43 were for using prohibited methods of investigation.  In all, at the request of prosecutor’ offices, by September 2005, disciplinary proceedings had been brought against 14,117 police officers.

The situation with ill-treatment of individuals detained by members of the police during 2005 remained worrying. PACE’s Resolution № 1466 (2005) reads:: “we urge the Ukrainian authorities to continue to apply a zero tolerance policy and to secure prompt, impartial, and full investigation into all allegations of torture, prosecution, and punishment of those responsible, and to improve the control over the law enforcement bodies in practice” 

Amendments to the Law “On the police” make it mandatory for the police to inform relatives of a person detained or arrested within 2 hours – and not 24 hours – after the detention / arrest;  to notify a lawyer, the administration of the person’s place of work or studies of the detention, if the person detained or arrested so desires; to ensure that all those detained receive 3 meals a day; to inform the person detained or arrested of his / her procedural rights and of the grounds for the detention / arrest. Police officers are prohibited from interrogating the person detained or arrested, should the latter have asked for a lawyer to be present, before the lawyer arrives. Should the above-mentioned or other provisions not be observed, the right is stipulated to monetary compensation.

However police practice changes rather slowly and reports are frequent of ever more cases of corruption and illegal detention of citizens by the police.

3. BACKGROUND INFORMATION ABOUT THE DEPARTMENT

The State Department for the Execution of Sentences was formed by Decree of the President of Ukraine on 22 April 1998 from the previous Central Department for the Execution of Sentences of the Ministry of Internal Affairs of Ukraine as a separate structure. Its creation was one of the stages in fulfilling Ukraine’s commitment undertaken in 1995 as part of joining the Council of Europe to transfer the system of the execution of judgements to the Ministry of Justice; Since 1998 the Department has been an autonomous structure under the control of the Cabinet of Ministers, with the Head of the Department being appointed by Presidential Decree.

The tasks and functions of the Department were initially defined in the Provisions on the Department, approved by Decree of the President of Ukraine on 31 July 1998.  Later, in June 2005 a Law “On the State Penal Service of Ukraine[1]” which establishes the legal base for the organization and activities of the State Penal Service of Ukraine, its tasks and powers was adopted.  The new Penal Code [kryminalno-vykonavchy kodeks] came into force on 1 January 2004, this being the basic document regulating the enforcement of sentences and the structure of the institutions of the State Department for the Execution of Sentences.

Immediately following the creation in February 2005 of a new government, the liquidation of the Department as an autonomous structure was announced, with the Department being transferred to the Ministry of Justice. This decision was in keeping with Ukraine’s commitments as per the Opinion of the Parliamentary Assembly of the Council of Europe № 190 (1995). However opinions began to be heard straight away from some politicians, supported or initiated by the top management of the Department that the mere fact of having taken the penal system from under the control of the Ministry of Internal Affairs had fulfilled Ukraine’s commitments. The Chair of the Verkhovna Rada Committee on legislative provisions for law enforcement activities, Volodymyr Moisyk stated: “Pursuant to Ukraine’s obligations on becoming a member of the Council of Europe, in compliance with the Opinion of its Parliamentary Assembly (№ 190 for 1995) it was stipulated that by the end of 1998 the Ukrainian penitentiary system needed to be taken from the control of the Ministry of Internal Affairs. In my opinion the requirements of the Council of Europe do not amount to subordinating the penitentiary system to the Ministry of Justice, but to the creation of a penitentiary system in the form of an autonomous social organization”.

This position has been declared also by the new top management of the Department.

At the same time these statements are, to put it mildly, inaccurate.

As far as the reference to the PACE Opinion is concerned, this states unambiguously: ”the  responsibility for the prison administration … will be transferred to the Ministry of Justice before the end of 1998”.  The position of the Council of Europe has not since changed. For example, point 8 of PACE Resolution № 1346 (2003) states unequivocally:  “The Assembly urges the Ukrainian authorities ...ііі) to complete the transfer of the entire penitentiary administration system to the authority of the Ministry of Justice ..."

Point 13.7 of PACE Resolution № 1466 (2005) on the Honouring of Obligations and Commitments by Ukraine reads:

"With regard to the respect for the rule of law and protection of human rights, the Assembly calls on the Ukrainian authorities to:

13.7. finalise the transfer of the State Department for the Execution of Punishments to the Ministry of Justice as required by Opinion No. 190 (paragraph 11.vii.); to create at national level an independent body to oversee places of deprivation of liberty; to continue the commendable practice of authorising the publication of CPT reports with respect to Ukraine; "

PACE’s position on Ukraine’s fulfilment of its commitments to the Council of Europe has thus not in fact changed. This means that the transfer of the penitentiary administration system to the authority of the Ministry of Justice remains an unfulfilled commitment made by Ukraine which is still valid now.

It is clear that there is a political issue here, and the commitment must sooner or later be fulfilled.

The Ukrainian President with his Decree № 39/2006 from 20 January 2006  “On an Action Plan for carrying out Ukraine’s duties and commitments arising from its membership of the Council of Europe” approved a plan which contains the following point: “in order to carry out Ukraine’s duties and commitments arising from its membership of the Council of Europe, to undertake measures to resolve the question of jurisdiction over the State Department of Ukraine for the Execution of Sentences”, to be carried out by 1 April 2006.

In terms of administrative distribution, there are 26 territorial departments within the framework of the Department, including 23 departments in the Autonomous Republic of the Crimea,  in most regions, Kyiv and the Kyiv region, 2 units in the Transcarpathian and Chernivtsi regions, as well as a penal inspection unit in Sevastopol which is empowered with the relevant departmental functions. 

The overall number of institutions of different types of regime within the Ukrainian penal system over recent years has hovered between 180-182, including 136 corrective colonies[2], 33 pre-trial detention centres (SIZO) and 11 juvenile educational colonies.  There are also 22 corrective centres for the nearly five thousand people sentenced to restriction of liberty.

As of 1 January 2006, there were 49,814 staff positions at both managerial and ordinary levels, with the number of regular jobs for personnel, paid by the state, amounting to 43,487.5, or 67% of the figure for the number of staff of the penal services established by legislation.

The system for training staff of the penal system includes the Chernihiv Law College, two specialized colleges for training junior personnel in Dnipropetrovsk and Bila Tserkva.  Another such college for training junior personnel is planned. The training of specialists for the agencies and institutions of the penal system is carried out in the Yaroslav Mudry National Law Academy of Ukraine in Kharkiv (law specialists), the Karazin Kharkiv National University (psychologists and specialist social workers).

4. THE STRUCTURE OF PUNISHMENTS IN UKRAINE

The structure of punishments handed down by Ukrainian courts for crimes committed is as follows: according to information provided to “Donetsk Memorial” by the State Court Administration of Ukraine, in 2005 court proceedings were concluded on 208,673 criminal cases (in 2004 the figure was 221 375).  Of this figure, 195,169 ended in the person being convicted. This was 15% less than in 2004, and almost the same as in 2002.  The use of different forms of punishment in 2005 is presented in the table below.  The use of some of these punishments will be discussed in more detail below.

Sentences involving deprivation of liberty were handed down to 54,114 individuals which is considerably lower than the numbers for 1996 – 2002. In court practice the number of acquittals remains stable and unnaturally low. In 2005 898 people (0.48%) were acquitted, while in 2004 there were only 502 (0.26%) acquittals.

168 people were sentenced to life imprisonment in 2005, and presently in Ukraine there are 1,221 people serving life sentences.  These people are held in two specially equipped prisons in Zhytomyr and Vynnytsa, as well as in maximum security sectors of a number of other Department institutions. As of 1 January 2006, these institutions had an overall capacity for 1,225 prisoners.  The Department is scarcely keeping up with creating places for this category of prisoner, and they are therefore held for some time in SIZO, where special blocks have been set aside.

 

Type of punishment:

Number convicted

To deprivation of liberty for a certain period 

54 114 / 27,7%

Life imprisonment

168 /0,08%

Corrective labour

2 221 / 1,1%

Community work

3 800 / 1,95%

Arrest [3]

2 219 /  1,1%

A fine

12 963 / 6,6%

Suspended sentence

109 362 / 56,0%

Restriction of liberty

4 502  / 2,3%

Total

195 169

5. prisoners and those convicted in department institutions

Of every 100,000 of the population, approximately 370 individuals in Ukraine are serving prison sentences. For comparison: in the USA this figure is 700, in Russia – around 650. In countries of Western Europe the numbers are around 100 (in Germany, for example, the figure is 85, in Belgium – 75). There was a significant rise in the prison population in Ukraine during the first half of the 1990s: in 1989 there were 88,807 convicted prisoners in places of deprivation of liberty, while in 1996 the figure was 172,163.

 

Year

Total sentenced

Including to deprivation of liberty

Percentage of individuals sentenced to deprivation of liberty

1999

222 239

83 399

37,5%

2000

230 903

82 869

35,9%

2001

201 627

70 308

34,9%

2002

194 212

61 168

31,4%

2003

201 100

61 000

30,3%

2004

224 226

62 337

27,9%

2005

195 169

54 282

27,8%

 

The increase in size of the prison population was attributable to a growing trend for courts to pass sentences involving deprivation of liberty. Whereas in 1988 only 29,372 people received such sentences, by 1994 this figure had already reached 63,572, and from 1996 over the next three years more than 85 thousand people were sent to places of deprivation of liberty each year.

Comparison with figures for the last few years (cf. Table) makes it possible to conclude that the use of deprivation of liberty has since 2001 been falling slightly. As a result each year from 2002 – 2004 “only” 61-62 thousand people were sent to places of deprivation of liberty, and in 2005 around 54 thousand. The maximum use of deprivation of liberty was observed in 1999 - 37.5%.  There was a noticeable change after the adoption of the new Criminal Code – in 2004 the percentage of people sentenced to deprivation of liberty fell to a “record low” after 1988, equalling  27.9% and in  2005 – falling to 27,8%.

Financing of the penal system comes largely from the State Budget (in 2004 – 612 million UH or approximately 233 million US dollars), and is clearly inadequate. According to some estimates, three times more would be needed to provide a proper level of funding.  Partial financing of institutions is envisaged through the activities of industrial enterprises within the penal colonies (in 2004 income was anticipated of 159 million UH, or about 32 million US dollars). In the middle of 2002 the amount spent on food per prisoner per day was 2 UH 11 kopecks (around 40 cents), and the figure spent over all on detaining one prisoner was around 120 UH (approximately $23) per month. These figures have slightly risen by now.

In addition, prisoners partially pay for their upkeep through their earnings, with deductions being made from the amounts they earn. Department enterprise experience enormous difficulties in receiving orders, in production and in selling what they produce. A significant percentage of convicted prisoners are not provided with work which creates innumerable problems both for the prisoners themselves, and for the administration of the colony.

The PACE Monitoring Committee’s 2005 Report states:

“Along with the allocation of sufficient funds for the maintenance and development of the penitentiary system, additional attention should also be paid to the effectiveness of the expenditures. The parliament’s Accounting Chamber, after a thorough inspection of the State Department’s budgetary expenditures in 2004, concluded in March 2005 that the Department failed to implement the assigned budgetary programmes in a proper way. Due to the lack of pertinent internal control and non-compliance with previous Chamber’s recommendations, the Department’s officials committed budgetary violations and ineffective spending in the amount of 136 million UH (almost EUR 19 million)”. 

“We urge the Ukrainian authorities to provide sufficient funds for the penitentiary system, to eradicate overcrowding in the prisons and to improve the conditions of detention. The European Court on Human Rights on numerous occasions observed that the lack of resources cannot justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. In six cases against Ukraine the Court found the conditions of detention to be inhuman and degrading”.

6. PENAL LEGISLATION

It is clear that the enforcement of a court sentence inevitably involves a number of restrictions, not specified in the court verdict, but inextricably connected with enforcing the punishment. In practice this means that sometimes restrictions may be introduced to the Law which are not unavoidable when serving sentence involving deprivation of liberty and the expediency of which, or indeed any reasonable grounds, may be in question. They are nonetheless formulated and introduced into the Code and gain the force of law.

The following analysis of a number of articles of the new Penal Code of Ukraine  [Kryminalno-vykonavchy kodeks Ukrainy] is of a somewhat fragmentary nature but is aimed at showing the shortcomings, sometimes discrepancies or the declarative nature of many of the provisions of the new Code.

The new Penal Code of Ukraine was adopted in 2003, and came into force on 1 January 2004. It contains a number of new and progressive provisions, however at the same time it has retained many norms typical for the old code which are not in accord with the real situation of the present day.

Point 2 of Article 7 states that: “individuals convicted enjoy all human and civil rights, with the exception of restrictions stipulated in the laws of Ukraine and this Code and established by the verdict of the court”. The given norm makes it possible with this Code to restrict the rights of persons convicted, going not only beyond the court sentence, but beyond what are unavoidable and reasonable restrictions. Some examples are provided of such restrictions in excess of the court sentence (see, for instance, the analysis of Article 121 of this Code).

Article 8 guarantees those convicted the right “to receive information about their rights and duties, the rules and conditions for enforcing and serving the punishment handed by the court”, however it does not bind the administration to provide this in written form. This leads to the situation where prison personnel often simply read prisoners their rights, and thus deprive them of the opportunity to refer to the exact wording of the law at any time when this is convenient for them or when the need arises. In any case, when the need arises to check the norms of the law, the prisoner is forced to make a request to the administration.

The same Article 8 guarantees the right to make suggestions, applications and complaints in accordance with legislation to the administration of penal bodies and institutions, to other higher bodies, as well as to the Human Rights Ombudsperson, to the court, prosecutor’s offices, other state authorities, bodies of local self-government and civic organizations.  Despite the fact that a convicted person has the right to approach the court, the Code does not contain procedures or guarantees for such an application. A convicted person does not have the guaranteed opportunity to turn to a lawyer, send a complaint to the court, etc.  Until recently, the article did not even contain a norm allowing convicted prisoners to approach international institutions, for instance, the Committee against Torture or the European Court of Human Rights, under confidential cover. A Law of Ukraine from 1 December 2005 introduced amendments to the Code, to this article and to Article 113. As a result of the amendments, prisoners received the right to approach the European Court of Human Rights and other international organizations.

The right “to social security, including the right to receive a pension, in accordance with Ukrainian laws” granted by this article in fact contains discriminatory procedure (see the commentary to Article 122 of the Code).

It can be revealing to view declarations about the Code being progressive and taking international standards on human rights into consideration in the light of the actual content of the provisions of the Penal Code.  A particularly apt observation with regard to this was made by the dean of a faculty of the Natural Law Academy (in Kharkiv), A. Stepanyuk. He noted that “in analysing the list of principles of penal legislation, the question arises why, among these principles, no place was found for the principle of respect for human rights. It would appear that the authors of the Penal Code of Ukraine, declaring that it had been drawn up taking into account international standards on treatment of prisoners, international conventions on the protection of human rights and freedoms, effectively ignored the Basic Principles for the Treatment of Prisoners which has the following provisions: “All prisoners shall be treated with the respect due to their inherent dignity and value as human beings” “Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms …”

Article 8 § 2 defines the list of individuals who may provide legal assistance to those convicted.  In order to receive legal help, they may use the services of a lawyer or other specialists in the field of law who according to the law have the right to provide legal assistance personally or on the instruction of a legal entity”.  This list is clearly restricted to the minimum.  It does not include, for instance, either civic organizations, or relatives of the person convicted, whereas Article 44 of the Criminal Procedure Code of Ukraine allows for the possibility of relatives of the accused acting as defence. The right to legal assistance of those convicted is thus extremely limited by the norms of this Code. 

It is useful to consider the view expressed by I. Yakovets, a research assistant on issues in penal legislation of the Academy of Legal Sciences of Ukraine, in Kharkiv, with regard to the new procedure for dividing convicted prisoners according to types of institutions. 

She considers that the procedure at present for determining the type of institution for enforcing sentences does not ensure that convicted prisoners are detained in homogenous groups, this being one of the conditions for effectively working with them. In institutions of one and the same type there are often prisoners who differ radically both in terms of the crimes connected, and in terms of their personalities.

Despite the fact that the instructions call for consideration of all circumstances of the case and personality of the convicted prisoner when determining a specific penal institution (which experts from the Council of Europe have emphasised), in practice their initial classification is carried out purely on the grounds of the seriousness of the crime committed, previous convictions and whether they have previously served sentences involving deprivation of liberty.

The procedure for convicted prisoners to defend their rights with regard to the type of institution where they serve their sentence, established by current normative legal acts of the Department, are unwarrantedly complicated and confused, and in general do not comply with the provisions of the Constitution of Ukraine and current legislation.”

In Article 24 of the Penal Code, the list of people entitled to carry out visits for the purpose of checking penal institutions without a special permit does not include members of the European Committee against Torture which runs counter to the recommendations of the Committee, as well as to the sense of the European Convention for the Prevention of Torture.  Nor does the list include representatives of inspection commissions authorized to carry out public supervision of places of deprivation of liberty. The public supervision, therefore, declared in Article 25 of the Penal Code is effectively made impossible as a means of real control.

Point 2 of Article 25 states: “In order to ensure public control over the observance of the rights of those convicted of a crime while serving their sentence inspection commissions shall be created, functioning on the basis of this Code and on the Provisions on Inspection Commissions approved by the Cabinet of Ministers of Ukraine”.  As the results of Donetsk Memorial’s study, the first carried out in Ukraine, showed, in reality these commissions in the overwhelming majority are 85-90%, sometimes even 100% made up of state officials.  And the public control over institutions of the system is merely proclaimed, since the powers of such commissions, defined by the above-mentioned Provisions, do not include overseeing the observance of human rights.  This means that in practice there is no such control. And positive assessments of the activities of inspection commissions can be provided only by those who know little about the real state of affairs.

The given Code envisages the enforcement of some types of punishment, initiated as an alternative to deprivation of liberty, in such a way that they virtually do not differ from deprivation of liberty. For example, point 2 of Article 51 of the Penal Code states:  Those sentenced to arrest are subject to the restrictions established by penal legislation for individuals serving sentences in the form of deprivation of liberty”. This means that punishment in the form of arrest is in fact DEPRIVATION OF LIBERTY, although formally it is not considered as such. This is confirmed by the wording of point 1 of Article 53: «everyday material provisions and medical services of those sentenced to arrest are provided in accordance with norms established for those individuals serving a sentence in the form of deprivation of liberty “.

Article 59 contains two mutually exclusive provisions for individuals serving sentences involving restriction of liberty. Point 1 at first asserts that individuals “sentenced to restriction of liberty have the right … to keep money and values on them, and to use money without any restrictions.”, while point 4 provides a list of items prohibited and states that: “in the event that … money, valuables or other things are discovered in the convicted person’s position, these may by court order be handed over to state revenue”. In other words, in one and the same article you are allowed to have money on you, and punishment is foreseen if a convicted person does indeed have the money on him or her.

The Penal Code does not provide clear guidelines as to whether work is a right of convicted prisoners or their duty. For example, in point 1 of Article 60 we read: “those sentenced to restriction of liberty are, as a rule, employed in production work at corrective centres, as well as on a contractual basis at enterprises”.  The same lack of definition is seen in Article 77 of the Code regarding the work of military servicemen. In Article 9 the list of the basic duties of those convicted does not include the need to work.  However Article 118 states quite clearly:  "Those sentenced to deprivation of liberty must work in the places and at the work assigned them by the administration of the colony”.  Together with this, Article 107 of the Code outlines the rights and duties of those convicted to deprivation of liberty, among which is the right “to take part in labour activities”. It is clearly impossible to apply Articles 107 and 118 at the same time.

The Code also has other limitations on applying labour legislation. For example, according to point 4 of Article 118 “convicted individuals do not have the right to stop work in order to resolve labour or other disputes”. The prohibition on stopping work as a means of resolving labour issues deprives those convicted of their right to stand up for their labour rights. The attempt to resolve a labour dispute by stopping work can have grave consequences for the individual involved. He or she can be declared a “PERSISTANT offender” and may be punished for this (see the next Article).

A number of articles allow for the use of work by convicted individuals as a form of punishment (Articles 68, 82, 132, 145 of the Code).  In this respect A. Stepanyuk quite correctly notes that “having declared their commitment to international standards of treatment of prisoners, the authors of the Penal Code in Article132 § 1 where such duties as «being assigned extra turns in cleaning the premises and territory of the settlement» are imposed, yet again ignored the recommendations set out in Part 1 of Article 28 of the Minimum standards for treatment of prisoners, in accordance with which «No prisoner shall be employed, in the service of the institution, in any disciplinary capacity”. 

A particularly large number of restrictions whose justification seems highly questionable or which defy any reasonable explanation are contained in the articles which define the rights of those convicted.  Their specific content often contradicts provisions of a general nature contained in the Code. For example, Article 102 asserts that “the regime in colonies should reduce to the minimum the difference between conditions in the colony and at liberty, and this should contribute to increasing the level of responsibility convicted prisoners take for their own behaviour and to their sense of human dignity”.  This statement is contradicted by the numerous specific restrictions imposed by other articles of the Code.

In Article 110, it is stated that “convicted prisoners have the right to four telephone calls throughout the year, with each lasting up to fifteen minutes, under the control of the administration”. Yet Article 81 envisages granting one telephone call as a means of encouragement. Furthermore, the Internal Regulations, which are a subordinate legislative act, narrow still further – incidentally, in violation of the Constitution  - the right of inmates to use the telephone. According to Article 46 of the Internal Regulations “the administration of the penal institution where there is the technical possibility, provides that convicted prisoners are granted telephone conversations". Such a norm enables the administration, in cases where the “technical possibility” is lacking, to not allow any telephone conversations at all, which is in contravention of provisions of the Code. Moreover, using a telephone call as incentive, and just ONE a month, means that the right to communicate with the outside world can turn into an element of manipulation of the convicted prisoners. This runs counter to Article 22 of the Convention of Ukraine which prohibits the passing of any laws which worsen the human rights situation.

Article 107 also grants those convicted the right:

–  to submit suggestions, applications and complaints either verbally or In writing on their own behalf, and on issues which affect them personally;

–  to use the free time set aside in the daily routine as they choose, not however infringing rules of behaviour;

–  receive education in accordance with legislation on education”.

However this article effectively prohibits the submission of complaints if these do not concern the prisoner personally. It is also often difficult in practice for prisoners to use their free time at their own discretion. Since in cases where the colony’s timetable envisages certain events, it is not possible to avoid taking part in them, otherwise this may be deemed an infringement of the rules of behaviour. This is addressed in Article 123 which directly states: “the daily timetable of the colony may include educational events, participation in which is compulsory for prisoners”.  Thus, the free time which prisoners really can use at their own discretion is reduced to a minimum, while the deprivation of prisoners right to choose in such a situation reduces their social responsibility which directly contradicts Article 7 which claims that “the state respects and protects the rights, freedoms and legitimate interests of those convicted and ensures the necessary conditions for their reform and re-socialization”. It would be difficult to recognize the requirements of the Code described with those of point 2 of Article 102 “to reduce to the minimum the difference between conditions in the colony and at liberty".

It can also be impossible for convicted prisoners to receive an education, since there are often not enough textbooks, notebooks, and it is extremely difficult to find enough teachers. Although, according to point 2 of Article 125 “prisoners who wish to raise their general level of education, regardless of their age, shall be provided with the conditions for self-education, and the opportunity to study in general educational institutions of the colony”, at the same time achieving this opportunity is made dependent on “the availability of the necessary materials, technology and educational-methodological base, and teaching staff”. This does not safeguard the fulfilment of the commitments set down in the provisions of this article and means that the exercise of the right to education guaranteed by the Constitution is made contingent upon the availability of materials and technology which the colonies often do not have.

With regard to the real situation as regards education, according to Department figures, there are 20,352 inmates of penal institutions who do not have full secondary education.  There were 11,006 students in corrective colonies at the end of the first semester (54% of the overall number without full secondary education), which was 18% more than in the 2004/2005 academic year. In comparison with the previous academic year, the number of teachers working in general education institutions within the penal system increased from 670 to 712.

Educational institutions function in 103 corrective colonies and 18 pre-trial detention centres (SIZO). In 38 institutions evening schools have been created, in 41 – classes (groups) with an evening form of studies and in 42 – study consultation centres. 332 classes for studies have been equipped.

Point 4 of this Article reads: "For prisoners who do not have a working profession at which they can be employed in the given colony, there is compulsory training on courses of vocational training for workers in production”. In other words, vocational training in penal colonies may be forced upon prisoners, this not being foreseen either in the Constitution, or in the court sentence, but merely “by the given Code”.

Article 112 limits the maximum weight of one parcel or package with printed material by post, referring to postal rules which can just about be understood. It is incomprehensible however why “the weight of one parcel delivered by hand may not exceed the weight of a posted parcel”. Restrictions on the right to receive parcels and food without limit contradict the aim of point 2 of Article 102 “to reduce to the minimum the difference between conditions in the colony and at liberty".

Article 111 of the Code allows prisoners the right under exceptional personal circumstances to short trips beyond the confines of the corrective colony. Permission for such short trips is given by the head of the colony, taking into consideration the personality and the behaviour of the particular prisoner. However the Code does not contain procedure for appealing against a refusal to allow a trip. It is possible that it is considered that the head of the colony can never make a mistake when taking decisions on granting permission for prisoners to go beyond the confines of the colony.

The Code does not provide sufficiently clear regulation for holding those sentenced to deprivation of liberty in heightened security units.  Article 97 states that in such instances “each individual has a specially drawn-up program which envisages measures of an individual – educational, psychotherapeutic and psycho-regulating nature".  Transfer to a re-socialization unit is possible “on the application of the head of the department of the social and psychological service by a resolution of the head of the colony … after the program has been completed”.  However the Code does not specify how long the convicted prisoner can be held in cell-type conditions, and there are no criteria for determining when the program has been completed.  The situation cannot be precluded where a prisoner could in principle spend their entire sentence in a heightened security unit, since the Code puts no obstacles in the way of such a variant. The fact that the procedure for changing the conditions for detaining convicted prisoners by transferring them to heightened securityl units is defined by an Instruction of the Department from 1 July 2004 № 5-2740 is more evidence of the inadmissible practice when issues pertaining to human rights are stipulated by subordinate legislation.

Article 106 regulates the use of physical force, special equipment and weapons. Point 5 stipulates that “the use of physical force, special equipment and restraint-jackets is accounted for in a report to the head of the colony. In each instance involving the use of weapons, a report is prepared and the prosecutor’s office is immediately informed".  At the same time there is no possibility envisaged for civic structures or the public exercising supervisory control over the use of physical measures of influence.  And the situations in question are those where there is an increased likelihood of human rights being violated.

As far as the security of prisoners is concerned, A. Stepanyuk notes that “as has been emphasized in literature in this filed, colony dormitory conditions are intrinsically linked with a number of legitimate and veiled restrictions on rights not found in prison cell conditions. For example, such dormitory conditions in colonies do not ensure to an adequate degree the right of those convicted to personal safety and protection from any threats from other inmates on their life and health, honour and dignity, rights and legitimate interests, and they limit the right of those convicted to freely decide how to spend leisure time, to receive information of interest from channels of mass information. In this respect it would seem that only a prison form of confinement of convicted prisoners could ensure their personal safety.”

According to Article 113 "convicted prisoners are allowed to receive and send letters and telegrams at their own expense without any restriction on the number…. Correspondence which convicted prisoners receive and send may be checked”.  The Code does not state how the scrutiny of letters takes place – in the presence of the prisoner or not. In this version the scrutiny of letters effectively constitutes censorship. Furthermore, the state does not ensure those convicted any minimum possibility for corresponding: if a convicted person does not have any money, sometimes through no fault of his / her own, then s/he effectively does not have the RIGHT to have correspondence. Point 3 of Article 113, by stating that the correspondence of individuals deprived of their liberty is liable to scrutiny is no less than a covert form of censorship which Article 15 of the Constitution of Ukraine prohibits.

Pursuant to point 4 of Article 113 “suggestions, applications and complaints addressed to the Human Rights Ombudsperson and to the Prosecutor’s office are not liable to be checked, and are sent to their addressees no later than within 24 hours. ". The European Court of Human Rights only appeared on the list of addressees whose correspondence is not liability to be checked after the adoption on 1 December 2005 of the Law introducing the appropriate amendments.

Article 115 stipulates that the standard of living space  “per convicted inmate of corrective colonies may not be less than three square metres”. This norm, however, does not comply with the recommendations of the Committee against Torture recommending as a minimum four square metres  per person.

Point 3 of Article 121 contains a harsh requirement: “in the case of convicted prisoners who persistently avoid work, the cost of their food, clothing, shoes, bed linen, communal and other services provided will be deducted from the money in their personal accounts. Should there be no money in their personal account the corrective colony is entitled to file a suit against him or her with the court”. It is clear that filing a suit with the court against a convicted prisoner who refuses to work, besides all else, would create difficulties for the prisoner after his or her release – when, without any work, s/he would have to pay pursuant to the suit for the period in the colony.

Article 122 of the Code states that: “convicted prisoners are entitled as general right to the state pensions on retirement, in the case of disability pension, in connection with the loss of the breadwinner, or other legally established cases”.  However point 3 of this same article contains a provision which nullifies the statement of point 1: “the " time spent working by those sentenced to deprivation of liberty is counted towards their employment record in determining the State work-related pension after their release on condition that they have paid their social security contributions to the Pension Fund of Ukraine according to the procedure, and to the amount foreseen by legislation”. In the penal colonies, when paying remuneration for prisoners’ work the Pension Fund contributions are not paid by the institutions.  This means that not of their own will, but as a result of the actions of a state structure – in this case the institutions for the execution of punishments – prisoners effectively lose their right to pension payments for the time spent working in the colony, if they do not pay the contributions to the Pension Fund for that period after leaving the colony.  As a rule, that is difficult to do or even impossible. Therefore, in practice, their RIGHT to a pension for the time spent working in the colony ends up being the lack of any real possibility of actually exercising this right. This is yet one more example demonstrating how in practice the promise of point 2 of Article 102 “to reduce to the minimum the difference between conditions in the colony and at liberty” ends with the violation of their rights and the creation for those convicted of problems which make their social adaptation following their release even more difficult.

In point 4 of the same Article 122 there is a provision stating that “convicted prisoners who lost their ability to work while serving their sentence, have the right following their release to a pension and to compensation for damages in cases, and according to procedure set down in legislation of Ukraine”.  The given norm thus deprives convicted prisoners of the right to compensation for damages while serving their sentence since for them the right is only recognized following their release. There is clear discrimination in this norm which is supposedly lawful as a result of point 2 of Article 7 which states that “individuals convicted enjoy all human and civil rights, with the exception of restrictions stipulated in the laws of Ukraine and this Code and established by the verdict of the court”.

I. Yakovets, mentioned earlier, considers that: “the fact that Articles 107 and 119 of the Penal Code does not envisage the right to annual leave for individuals deprived of their liberty cannot be described as other than disregard for Article 45 of the Constitution of Ukraine which guarantees every working person the right to paid annual leave and evidence that the Ukrainian legislators did not take into consideration recommendations contained in Article 70.2 of the European Prison Rules according to which “treatment programmes should include provision for prison leave”.

The procedure for appealing decisions of the administration allowed for in the Code is extremely incomplete. It is found in points 13-15 of Article 134: “the convicted prisoner may appeal against a penalty imposed upon him or her however the submission of an appeal shall not suspend the enforcement of the penalty. The official who imposed the penalty, if there should be grounds for this, may cancel it or replace it with a milder form of punishment. A higher-ranking official may cancel the penalty should the official who imposed the penalty have exceeded his or her authority, or if the penalty was imposed by the said official without the convicted prisoner having committed any infringement.” It follows from the article that the decision of a “higher-ranking official” cannot be appealed. The Code makes no provision for such an appeal.  The final authority for the appellant is this “higher-ranking official “. The Code provides for no role for independent structures, no public control over the correct use of punishments.  Furthermore, point 15 of the given article envisages that “when imposing a penalty on a prisoner the administration of the colony grants the person the opportunity in accordance with established procedure to notify close relations, a lawyer or other specialists in the area of law who according to the law have the right to provide legal assistance personally or on the instruction of a legal entity of this”. However the Code contains no procedures or mechanisms for notifications, nor guarantees from the administration of such notification. It is not known what procedure is established for informing lawyers about the imposition of a penalty, and it is not specified BY WHOM and WHERE such procedure is established, and whether there are any penalties in the event of its infringement by the administration.

Another example of the lack of procedure for appealing decisions of the administration can be seen in Article 145 which lays down that “for infringements of established rules and procedure, and of the conditions for serving their sentence, minors can be … placed in a punishment isolation unit for a period of up to ten days with or without being taken from there to studies or to work”. There is again no procedure for appealing such a decision in the Code.

There is a similar situation with the procedure for compensating material damages caused by a person sentenced to deprivation of liberty.

With regard to unwarranted restrictions imposed by the Code, I. Yakovets notes that there are restrictions which do not directly reflect the essence of the punishment yet do in one way or another have impact on the size of the penalty. A glaring example of such restrictions is seen in the imposition of reduced food norms for individuals being held in cell-type premises of maximum security corrective colonies when compared with institutions of other types”.

Article 157 stipulates that “individuals released from execution of punishment are provided with transport free of charge to their place of residence or work within the confines of Ukraine”.  However this requirement may not be met since at present colonies often do not have the money to pay for this.  People are quite often released without any money whatsoever and without their passport. However no liability for the fact that the convicted person is not provided with the free transport mentioned is envisaged by the Code, nor any liability for the non-payment of money the person earned. This is yet another example of the asymmetrical nature of liability of those convicted and the state institutions.

The provisions of the Code with regard to holding life-sentence prisoners are also inadequate. For example, Article 92 envisages that those sentenced to life-long deprivation of liberty be held separately. Such a requirement does not envisage their being held among the general prisoners at any period during their imprisonment which is hardly justified and does not help them to retain social skills while having a negative impact upon their psychological state.

Overall the conditions for life prisoners are extremely severe and harsh. They do not encourage the prisoners to any self-improvement, or give them any hope for the future. They are not given the opportunity, albeit occasionally, to serve their sentence in an environment with other prisoners. Such an approach can have extremely detrimental consequences for the prisoners.

Women sentenced to life imprisonment are held in Chernihiv Colony № 44 with violations of the provisions of the given Code. Repeated appeals from human rights organizations regarding the need to bring their conditions into full compliance were ignored by the Department. It was only after the intervention of the Prosecutor General that changes were made.  

The Internal Regulations of the colonies contain a whole range of norms which have no rational basis at all. For example, prisoners are prohibited from pinning up photographs or pictures from magazines near their beds or bedside tables.

One should note two other important features of the new Penal Code. Firstly, it suffers from excessive detail: the Code stipulates the number of visits, the weight of parcels, the number of telephone calls permitted prisoners.  This means that any changes to these regulations, for example, on the weight of a postal parcel or the possible number of telephone calls can only be made by the Verkhovna Rada, and for this a separate law is required.  It would be much more sensible for such details to be regulated by a simpler procedure, for example, by establishing them through the Internal Regulations, approved by Order of the Head of the Department.  Especially given that in such Regulations these norms are very often set using the same wording as in the Code anyway. Such duplication suggests a certain lack of awareness among the authors of the Code of the techniques for drawing up legal documents.

Secondly, in Section III of the Code, the chapter “The regime in colonies and ways of safeguarding it”  s placed ahead of other chapters dealing with the conditions prisoners are held in,  prisoners’ rights and duties.  This positioning reflects the entrenched priorities in the activities of the penal institutions, with the regime being deemed more important that the observance of prisoners’ rights.  The practical activities of the administration and top management of bodies of the Department observe specifically this hierarchy.  Such priorities encourage violations of human rights since it is precisely the requirements of t he penal regime that often justify these violations of rights.

In June 2005 the Law of Ukraine “On the State Penal Service of Ukraine” was adopted, this defining the legal principles for the organization and functioning of the State Penal Service of Ukraine, its tasks and powers.

7.  OVERSEEING THE FUNCTIONING OF PENAL INSTITUTIONS

The problems, difficulties and shortcomings in the functioning of the Ukrainian penal system are not denied by its top management and representatives however the latter as a rule confine themselves to a fairly general statement of fact. There are not many independent institutions vested by Law with the right to check and monitor how the system works. National institutions are the Prosecutor and the Human Rights Ombudsperson, international – the European Committee for the Prevention of Torture. One should stress that the autonomous nature of the Department makes it difficult for independent structures to check its activities.  The financial activities of the system may be checked by the Accounting Chamber of the Verkhovna Rada. Excerpts from reports of the Human Rights Ombudsperson and the Accounting Chamber given below suggest serious shortcomings both in terms of observing prisoners’ rights, and in organizing how state funding is spent.

The Human Rights Ombudsperson, Nina Karpachova, in presenting her annual report on the observance and protection of human rights and liberties in Ukraine to the Verkhovna Rada on 6 July 2005 highlighted a number of extremely important problems with the observance of prisoners’ rights.

One reasonably acute problem she considered was the excessive use by the courts of remand in custody as a preventive measure. The transfer of the power of decision as to whether to apply this preventive measure from the prosecutor’s office to the courts had had virtually no impact on the number of people remanded in custody.  Local courts agreed to approximately 90 percent of the applications from investigators. During 2004 every seventh person remanded in pre-trial detention centres (10 thousand 537  people) had been released due to a change in preventive measure, conviction with a sentence not involving deprivation of liberty, acquittal or because the criminal investigation itself was terminated.

As the results of the Human Rights Ombudsperson’s monitoring indicated, no reduction could be observed over the last two years in the use of prohibited methods of running an investigation, including torture.  Thus, radical changes for the better had still not taken place. She noted also that an independent body for investigating complaints against the police had still not been created.

It should be added that at the present time the European Court of Human Rights is in communication with the Government of Ukraine with regard to around 40 cases lodged with the European Court of Human Rights connected with the use of torture

One of the activities of the Human Rights Ombudsperson is the overseeing the conditions in which individuals detained by the police are being held.

A check made by the Human Rights Ombudsperson in June 2005 of a temporary holding facility (ITT) in the city of Feodosia found that the cells were still without windows. Many ITT have semi-basement dark concrete cells, without fresh air, drinking water, or plumbing, posing a risk to people’s health and reminiscent of the middle ages. They furthermore constantly hold one and a half or even twice as many people as they have capacity for, and it is possible to breathe there only through forced ventilation.

The Human Rights Ombudsperson found that the rights of citizens regarding three-hour detention in holding rooms were infringed, and that in half of the 808 district police departments people detained were not given anything to eat, despite several submissions from the Human Rights Ombudsperson, on the basis of which State Deputies and the Government allocated funding.  Such conditions are also a form of torture, yet due to the continuing large numbers of detentions and arrests, people are placed in the rooms set aside for those detained. Each year more than a million people pass through these ITT.

One of the most acute problems linked with the observance of prisoners’ rights is the overcrowding of penal institutions and the unsatisfactory living conditions linked with this.

In Ukraine penal institutions are overcrowded, with 20% more inmates than they have capacity for. The process of bringing conditions in penal institutions into line with international standards is extremely slow. A result of this is the constant increase in complaints lodged, either by prisoners or by their close relatives, to the European Court of Human Rights.

A check undertaken by the Human Rights Ombudsperson established that specifically due to the unsatisfactory situation as regards consideration by the courts of material regarding seriously ill people imprisoned in penal institutions, for example in the Kherson and Donetsk regions, out of 454 convicted individuals suffering serious illnesses and therefore with the right to be released, only in 40% of the cases did the court decide in these people’s favour. Of those who were turned down, one out of three died.

The Human Rights Ombudsperson categorizes as torture the practice of using special purpose units in penal institutions.  Enforcement officers of these units are involved in the so-called working over of penal institutions and carrying out general searches. In doing so harsh and degrading methods are used, including mass beatings. Such negative activities were detected by the Human Rights Ombudsperson in corrective colonies of the Vinnytsa, Zaporizhye and Khmelnytsky regions.

In the system of the State Department of Ukraine for the Execution of Sentences there is no higher educational institution for preparing specialists for the penal system.

The Human Rights Ombudsperson believes that an increase in the professional skills of personnel in the penal system would assist in achieving positive changes in the future reforming and humanization of the penal system, the improvement of relations between personnel and prisoners, and their rehabilitation after serving their sentence.

A highly detailed and professional examination of penal institutions and police units was carried out during the periodic visits to Ukraine of the European Committee for the Prevention of Torture (CPT).

In October 2005 the fifth such visit of the Committee to Ukraine took place. The first four were in 1998, 1999, 2000 and 2002.  The release of the first three CPT Reports on the results of the Committee’s visits to Ukraine from 1998-2000, and the three Responses of the Ukrainian Government took place on 10 October 2002. In its Reports the Committee made strong criticism of many aspects of the conditions individuals are held in either in penal or in closed institutions.  The frequent use of beatings by the police when detaining people, the use of sophisticated forms of torture during police interrogations, the poor conditions for prisoners in places of deprivation of liberty, and especially in SIZO, the overcrowding in places of imprisonment, at times unendurable, as well as countless other failings with regard to providing food and medical treatment for prisoners, their treatment by the staff of places of deprivation of liberty, the conditions for life prisoners, are a by no means exhaustive list of the comments made to the Ukrainian Government in the conclusions from the Committee’s visits.  During the third visit in the year 2000 the Committee commented on certain progress in implementing many of CPT recommendations, however still found these moves far from sufficient. . The results of the last visit remain confidential.

The Accounting Chamber of Ukraine carried out an audit of the use of funding from the State Budget of Ukraine allocated to the State Department for the Execution of Sentences in 2004 in order to pay for its activities and for the reforms to the penal system. The results of the audit identified numerous infringements. The following are some of them.

 

The measures set out in budget programs which were provided for by state budget funding were on average only 45.4% of the amount asked for by the Department in its budget request for 2004, and for certain programs only 5.9 – 9% funded. This situation with financing not only does not provide for the development and reform of the penal system in accordance with the requirements of the Penal Code of Ukraine and European standards, but does not ensure the running of penal institutions at the proper level.

The measures and tasks of the fight against tuberculosis for 2002-2005 are of an incorrect and general nature. They do not set out periods for implementation of each stage, the amount and source of financing with a breakdown into years and anticipated results. The epidemiological situation as regards tuberculosis in penal institutions remains serious, although in 2004 a tendency towards stabilization was seen.  Tuberculosis hospitals had only 87% of the full number of tuberculosis doctors, with only 20% of these tuberculosis doctors having qualification grades in this specialization.

Furthermore, as of 01.05.2000 in pre-trial detention centres with a capacity of 32.8 thousand places, there were 48.4 remand prisoners. At the same time the Department had planned in 2001-2004 to extend this capacity in existing pre-trial detention centres by only 2.9 thousand places.  As of 01.01.2004 an additional 594 places had been introduced.  During that period there were 32 pre-trial detention centres in the penal system in Ukraine, holding 38.4 thousand remand prisoners. The average space in a cell of the pre-trial detention centre for one remand prisoner, in violation of the requirements of Article 11 of the Law of Ukraine “On pre-trial detention” with a norm of 2.5 m².was 2.1 m² (and in some places it was less than 2 m², for example, in the Donetsk SIZO no. 5 it was 1.4 m², in the Zaporizhye SIZO № 10 – 1,4 m², the Kherson SIZO№ 28 – 1,6 m² and so forth).

Despite a shortage of capacity of 5,018 places, the Department did not create a single place from the 1,250 places envisaged within the framework of this measure.

In the opinion of the Accounting Chamber, the lack of a single state purpose-linked program for reforming the penal system, taking into consideration international experience and world standards, and designating specific people responsible for implementing it, deadlines for implementation (as a whole, and by stages), the size and source of financing for each of the measures and tasks, the anticipated results and level of effectiveness, has led to loss of control by state executive bodies, first and foremost, the Cabinet of Ministers of Ukraine, over the proper implementation of the numerous and diffuse program measures of the Department.  The Government was therefore forced to prepare a new draft plan for a State Program for reform of the penal system for 2005-2010, which once again, in most of its tasks, effectively duplicates the old, yet still unimplemented, program for strengthening the material base for the bodies and institutions of the penal system for 2000-2004.

The problem of finding accommodation for employees of the Department has still not been resolved satisfactorily.  With 2,892 families of general and management staff of the penal system not provided with accommodation, during 2004 80 families received accommodation, while at the same time merely in new constructions being built over a long period, the construction of over 1000 flats was temporarily suspended., and of 69 houses considered uncompleted, 10, with an overall area of 28,940 m² were written off.

A general analysis of the implementation of state programs, the fulfilment of which was either fully or partially the responsibility of the State Department of Ukraine for the Execution of Sentences suggests that the financial and material resources available were used inefficiently. No true reform of the system was undertaken, and the main objective of the program tasks – an improvement in prisoners’ conditions, as well as the provision of accommodation for general and management staff of the penal system and members of their families, were not achieved.

Over many years, expenses were incurred and paid for by enterprises which were not connected with production activities, with the procurement of various goods and materials for the needs of the penal institutions. For example, the following were purchased: by Enterprise VK No. 133 : a car VAS-21099 valued  31.1 thousand UH; by VK No. 133 a “Honda” – 90.4 thousand UH; by VK № 136 a car VAS--2107 – 27.9 thousand UH and a car Day Lanos  – 42.4 thousand UH., and were transferred to the balances of the regional branches of the Department. As a result of inefficient management, 61 enterprises of the Department as of 01.01.2004 had losses from previous years not covered amounting to 50.4 million UH.

As a result of the lack of effective internal supervision over the work of the State Department of Ukraine for the Execution of Sentences and the fact that suggestions from the previous audit of the Accounting Chamber were not implemented, there were budgetary offences and inefficient spending of state budgetary funding amounting to 136 million UH.

 

 

8. SURVEY OF FORMER PRISONERS

Within the framework of the project “Observance of prisoners’ rights in Ukraine”, in November and December 2005 Donetsk Memorial carried out a survey of people recently released from places of deprivation of liberty. The aim of the survey was to determine the level to which prisoners rights are observed in places of deprivation of liberty. The survey was carried out on an anonymous basis in three regions of Ukraine.

It is important to bear in mind that the people surveyed do not form a representative selection, and therefore the given study is not to any full extent a sociological survey. This means that it would not be entirely justified to assume that the results received give an exact impression of the real situation in places of deprivation of liberty.  However, given the fact that the Department avoids letting civic organizations carry out monitoring in places of deprivation of liberty, the data received may at a qualitative level and with a certain degree of reliability give some idea about the presence or lack of problems as regards the observance of human rights in penal institutions.

As a result of our questionnaire, 92 people were surveyed, including 19 people (21% of the total number) who had been released within the preceding month, 10 (11%) – between 1 and 3 months earlier, 22 (24%) – between 3 and 6 months earlier, and only 29 (32%) had been at liberty more than half a year. 10 people (!!%) gave responses to the questionnaire while awaiting release.

From the total number of people who participated in the survey, the majority – 52% - assessed the quality of food as partially satisfactory, 34% considered it totally unsatisfactory. Only 13% thought that the food in their colony had been entirely satisfactory. There was approximately the same distribution of answers regarding medical services.

The reason for such a situation with food and medical services is largely due to insufficient financing of colonies. These failings are caused, as a rule, not by the actions of the administrations of specific colonies, but by the overall state of the penal system.

With regard to prisoners’ access to information 39% of those surveyed considered this to be entirely satisfactory , while more than half (56%) described it as partially satisfactory Only 4% called the situation in this area totally unsatisfactory.

One of the important problems in places of deprivation of liberty which prisoners may encounter is that of the use of violence. In response to the question how often prison staff had unwarrantedly used force or had threatened to use force to those surveyed, half – 46 people (50%) replied “sometimes”. 28 people (30%) had themselves personally never been subjected to unwarranted use of force nor been threatened with force. At the same time it is extremely disturbing that 18 people (20%) of those asked said that they had themselves experienced unwarranted use of force “very often”, and 23 people (25%) had witnessed the use of force just as often in relation to other prisoners.

According to Article 1 of the Penal Code of Ukraine, the Code’s objective is to create conditions for the reform of prisoners and to use measures of influence for the purpose of reforming them. During the time spent in the colony, only 9 people (10%) said that they had felt a noticeable reforming influence from prison administration. 38 of those surveyed (40%) spoke of a negligible reforming influence.  At the same time “no reforming effect” had been experienced by 33 of those surveyed (36%), while a negative influence of the efforts by the administration to reform prisoners was reported by 13 former prisoners (14%).

In assessing the effectiveness of checks carried out by prosecutor’s offices into the compliance with the law in places of deprivation of liberty and the observance of prisoners’ rights, only 12 people (13%) considered them to be “an effective means against violations of prisoners’ rights”, while another 39 (43%) thought that such checks are only sometimes effective. However 38 people (41%) labelled them “an empty formality”.

Besides prosecutor’s office checks, an effective system for lodging prisoners’ complaints would also help to fight possible violations of prisoners’ rights. Does such a system exist in places of deprivation of liberty in Ukraine? It was important to learn the opinion of recent prisoners as to whether censorship exists in penal institutions.

It turned out that 1 person (1%) believed that there was no censorship in other colonies. 13 (14%) former prisoners considered that letters are checked from time to time.  At the same time, 78 people were convinced that there is definitely censorship, this being 85% of those surveyed.  Clearly the  lack of censorship formally stipulated in the Penal Code does not hinder the administration from in fact not only reading letters, but not actually sending them, if they so choose.  There are no mechanisms which guarantee that the colony administration will send prisoners’ letters. It is impossible to gain access to the internal instruction of the Department of regulating work with prisoners’ letters, since it is on restricted access. At the same time it effectively legalizes censorship abolished by legislation. In such conditions the existence of an independent and effective system for lodging complaints is entirely impossible.

When asked how often prisoners who want to obtain early conditional release (ECR) have to force themselves to carry out unwarranted demands of the administration, those surveyed answered as follows: only 7 people (8%) considered that in order to receive ECR it was worth standing up for ones rights. 27 people (29%) were convinced that they could seriously count on ECR while not giving up principles and carrying out only the legitimate demands of the administration. Whereas far more than half – 55 people (60%) considered themselves to be realists and were convinced that only by obeying ANY, even unjustified, demands of the administration personnel was it possible to get early release.

It is hardly likely that the presence of these problems can be explained purely by the under-funding of the system. These problems are possibly a result of too little political will from the management of the Department, or lack of professionalism and competence at certain levels of the system. In any case it would seem both relevant and extremely important for the future existence of the penal system in Ukraine to seek the reasons for such a situation.

The problems which proved to be the most significant for the former prisoners was the lack of means of existence – 65 people (71%) and the lack of accommodation – 64 people (70% of those surveyed).  The third problem in terms of importance was the lack of passport[4] (52%), although there is now the possibility of receiving this before release. The heads of penal institutions and Department bodies claim that “almost everybody” when released receives a passport, this problem still nonetheless exists for many people who have been released. And it is resolved extremely badly. According to Department figures, in 2005 3,414  prisoners were helped in organizing a passport of whom 1,055 received a passport for the first time, while 1,994 – to replace one that was lost. According to Donetsk Memorial’s figures, just in the four regions of the country surveyed in 2003 almost 27 thousand people did not have passports. Providing assistance to 3.4 thousand people a year given such a large demand is unsatisfactory and clearly does not resolve the problem.

The next most important problems were the lack of: work (45%); the lack of people close to them – 27 people (29%); no state structures helping people released during the initial period  – 20 people (22%).

The most significant problem during the time spent in the pre-trial detention centre (SIZO) was identified as the poor conditions (light, air, toilets, etc) – these were noted by 60 people (65%).  The second most important was insufficient food - 54 of those surveyed (59%), while the third issue in terms of concern was overcrowding in the cells – 40 of those asked (44%). 27 people (29%) had found the impossibility of having time alone to be a serious problem, while 25 (27%) had suffered from isolation and the lack of contact with people close to them.  One in four – 23 people (25 %) – said  that they would remember as a problem – and would perhaps long remember – ill-treatment from personnel. Only 9 people (10%) of those surveyed had not experienced any particular difficulties spending a part of their life in SIZO.

The main conclusions from the given study were as follows:

 1.  Food and medical services in places of deprivation of liberty were assessed on the whole as partially satisfactory.

2.  Prisoners’ contact with the outside world was also seen as probably partially satisfactory.

3.  Unwarranted use of force or threats to use this as a rule were of an episodic nature, however 20 to 26% of those surveyed considered that it was used often. In this there was no marked difference whether it had been applied to those surveyed, or whether they had simply witnessed its use.

4.  The effect of the efforts of the colony administrations aimed at the reform of prisoners were viewed as questionable – half of the former prisoners considered that there was either no effect, or that this effect was negative.  It would appear that the “reform of prisoners” exists rather in the reports of the Department and in the declarations made by its representatives, than in reality.

5.  Inspection of the observance of human rights by bodies of the prosecutor’s office was not seen as effective. 43% of those surveyed had experienced any effect only in separate instances, while 41% considered such supervision by the prosecutor’s office to be an empty formality.

6.  Such an assessment correlated to the motives for placing prisoners in cell-like units [PKT] or punishment isolation units [SHIZO], with more than half of those surveyed considering that being placed there was as often justified as unjustified.  Every fifth person was convinced that the administration put prisoners there without good reason.

7.  Given the level of efficacy perceived of the supervisory control by the prosecutor’s office and of the motives of the administration when applying punitive measures against prisoners, the choice they made for ways of behaviour is entirely logical: 60% were convinced that if you want to be released early, then you have to obey ALL, even unjustified, demands of the administration. It wasn’t worth looking for justice either in the colony, or outside it – it was a waste of time. This conclusion logically combines too with the certainty of those former prisoners, taught by their experience of life “behind barbed wire”, that there is censorship – 85% of those surveyed said that it definitely existed. That means that to be released, it’s worth forgetting while serving time in the colony about dignity and about justice.

8.  Release brings a mass of new problems which the state must resolve, creating opportunities for providing work and accommodation, and ensuring a minimum level of support immediately after release, however …For the moment in any real and serious way the state is not concerning itself with this issues, and rescue for those who have been released is in the first instance in their own hands.  Nor is anyone personally responsible for this.

9. penal institutions of the department

In spite of some reduction in the number of prisoners over recent times, penal institutions nonetheless remain overcrowded. According to figures from the Department, on 1 July 2005 there were 27.7 thousand prisoners more than the institutions should hold.

Changes in number of prisoners within the penal system over the last few years can be seen from the following table:

 

01.01

2001

01.01

2002

01.01

2003

01.01

2004

01.01

2005

01.07

2005

01.01.

2006

Total number of prisoners, including those in SIZO

222 254

192 293

197 641

191 677

188 465

187 600

170 923

 

Usually this number does not include the few hundred people who at the order of the court have their freedom of movement restricted. These are convicted military servicemen. They serve their sentence by being held in a disciplinary brigade.  This battalion is subordinate to the Ministry of Defence however the punishment of military servicemen is served pursuant to the Penal Code (Chapter 14, Articles 71 – 85).

According to figures from the Ministry of Defence, in Ukraine 375 military servicemen served their sentences in 2004 in the single disciplinary brigade, and at guardhouses, with the analogous figure for 2005 being 416.  83 servicemen awaited court rulings while in guardhouses in 2004 and 51 in 2005.  There were no appeals from among these people against unlawful actions of officers of the investigation units. There were also no women in this group in 2004-2005.  There were also no servicemen who died while in the disciplinary brigade or in guardhouses during this period.

Various regions of the country have different numbers of penal colonies and therefore the distribution of prisoners over regions is very different. In July 2005 Donetsk Memorial sent formal requests for information to regional divisions of the Department, asking for information about the number of prisoners in each of the regions. Only in November did we receive all the information. These figures are presented in Table 2: “The number of prisoners in penal institutions as of 01.07.2005.”

The large numbers of prisoners as of 01.07.2005., according to Department figures, were in the Donetsk (25,449), Dnipropetrovsk (18,813), Kharkiv (16,464) and Luhansk regions (15,594), the least – in the Transcarpathian (353), Chernivtsi (1,849) and Volyn (2 040) regions.

There were a disproportionately high number of deaths among prisoners during the first half of 2005 in the Donetsk region – 154 out of an overall figure of 504.

One of the sources of information about the situation in institutions of the penal system is the mass media. However there are not many publications in the media about the situation in penal colonies. Most of the ones there are have a generally positive line, and are sometimes even complimentary about the institutions. It is clear that journalists who have received permission to visit institutions are extremely circumspect about covering the negative aspects of the reality of colony life.  It is understandable also that prisoners are often not inclined to talk about problems which could pose a risk to their life in captivity with unknown people, albeit journalists.

Access of journalists to penal colonies is strictly controlled by the Department. Until recently a journalist of a national publication needed to apply to the Department in Kyiv in order to visit a colony in any region of the country.  Now such permits are issued by the regional divisions of the Department. The administration of a specific penal institution does not have the right itself to decide whether to allow a journalist from a central publication wishing to visit any penal institution in the region to come to their colony. This is despite the lack of any legislative restrictions, since pursuant to Article 24 § 2 of the Penal Code “representatives of the mass media may visit penal institutions with the special position of the administration of these institutions” or the bodies managing these institutions.

According to information provided by the Department, over 2004 and in the first half of 2005, representatives of media outlets approached the management of the Department 96 times, that is, on average there were about 5 approaches per month. During that period 7 briefings or press conferences were held, i.e. approximately one each quarter. It was not possible to obtain exact information as to how often journalists’ requests were turned down, since the Department preferred not to give the number of rejections, confining themselves to the phrase: “In the overwhelming majority of cases the requests were granted, with the exception of cases when prisoners refused to meet with the press. Requests from prisoners for meetings with the press were not received by the Department”.

In the regional divisions of the Department there are no press services as noticeably active structures, therefore there is almost no data regarding regular issues of information to the mass media.  The following details give some idea of the efficiency of the level of interaction between bodies and institutions of the Department with the press. In autumn 2005 Donetsk Memorial approached divisions of the Department in the Kherson and Donetsk regions asking for information about coverage of escape attempts from the SIZO in Kherson and Artemivsk (Donetsk region) in summer 2005.

The acting head of the division of the Department for the Kherson region informed us that a press release about this event had not been issued by the press service of the division. At the same time it was stated that for the local press “the primary source of information had been the wanted notices which were distributed in order to activate the search of the escaped prisoners. In addition, the head of the division of the Department issued information over the local television channel “Skifiya” and the radio station ““105.6 FM”.  The local population were provided with information about the escaped prisoners, and were also warned of criminal liability for concealing the criminals. Their attention was drawn to the search for and detention of the individuals who had carried out the escape”.  Samples of the wanted notices were attached to this information.

In an analogous situation the division of the Department for the Donetsk region behaved somewhat differently. In response to a request for information, the deputy head of the division stated that “information about the escape of prisoners from the Artemivsk pre-trial detention centre was not made widely available”. Obviously no press release about the event was issued by the press service of the division either. Despite the fact that formally the press service in the Donetsk regional division of the Department supposedly exists, in fact it is not functioning. Information about the escape from the Artemivsk SIZO appeared in the Donetsk region media with a reference to the press service of the regional department of the Ministry of Internal Affairs.

Despite the assertions of the top management of the Department about the openness of the activities of its institutions, both the Department directly, and its regional divisions are very circumspect when it comes to providing information about their activities in response to requests for information.  After Donetsk Memorial sent formal requests for information to the Department and its divisions on their activities, including the number of prisoners according to categories, only four of the regional divisions provided the information immediately in compliance with the law. Some of the divisions did not respond at all, while about ten stated that the information requested was “official”, and therefore could not be provided.  At the same time they advised us to approach the Department in order to receive the information.  While the division of the Department for the Donetsk region asked: “where, when, to whom and on what conditions will the information received be provided, and will this information be given to a foreign state, and if so, which?”  In response to Donetsk Memorial’s mention of the fact that such questions are far in excess of the requirements of the Law “On information”, the regional division in its next letter stated that since the project was nongovernmental, and since the division ““was refused permission to see and study the given project to determine its conformity with current legislation”, the division presumes that “the given project is aimed at collecting information which is not subject to issue in response to requests for information”, and therefore “the decision has been taken to refuse to provide the information requested regarding the activities of the division.” 

On our second requests for information to the regional divisions of the Department which had not provided information in accordance with the Law and to our requests to produce any normative document which defined the information requested as “official”, and restricted its issue, not one regional division produced such a document.  Finally and only after several repeated requests for information referring to the Law of Ukraine “On in information” and to the Law “On fighting corruption”, the majority of regional divisions did in fact provide the information.  After three months of correspondence, the Department itself also provided information. However we were still unable to get answers to some questions.

At the same time one can learn about certain positive results and problems of the system’s institutions from the media. A lot of publications give positive coverage of the situation in penal institutions.

Senior Aide to the Prosecutor of the Chernihiv region V.V. Los states: “The lack of employment of people serving a sentence is one of the main factors having a negative impact on the situation in places of deprivation of liberty. Unemployment prevents prisoners not only from earning money for addition food, but from receiving incentives from the administration. And that would contribute to their gaining the chance to early conditional release… In the Makosynsk Colony № 91 there is no money in the account to pay prisoners their earnings. And if a person has earned several hundred UH, and on release cannot receive them, what should he or she do? Most complaints from prisoners are caused by the financial situation of the corrective institution, about not being paid the money they have earned. There are also complaints about the actions of the administration when the latter, according to the prisoners, imposes unreasonable disciplinary penalties”. (The Chernihiv newspaper “Hart”, № 36, 1 September 2005).

The lack of funding also has ramifications for the possibility of organizing studies in the colonies. The Kherson newspaper “Vhoru” [“Upwards”] № 36 from 8 September writes:

“Due to the lack of money in the budget, the local authorities of Belozerka, in the Kherson region, intended to close study consultation centres in two penal colonies, however employees of the regional division of the Department have managed to hold out for these centres”.

Critical publications also appear in the press, often on Internet sites and also on the websites of human rights organizations.  However one cannot always be certain of the reliability of such information. Unfortunately sometimes even highly respected institutions give information where caution would be required regarding its reliability.

For example, the following was published in the newspaper “Holos Ukrainy” [“Voice of Ukraine”] № 145 from 9 August 2005 р:

“The Human Rights Ombudsperson, Nina Karpachova has demanded the release from custody of the journalist Volodymyr Lutyev. Despite the fact that the journalist is being held in one of the worst cells, the Human Rights Ombudsperson asserts that he is being subjected to harassment and physical violence, and denigration of his human honour and dignity.”

Donetsk Memorial sent a formal request for information to the Division of the Department for the Autonomous Republic of the Crimea regarding the conditions Lutyev was being held in and the use of physical violence against him. In response, the acting head of the Division of the Department for the Crimea states “No check was carried out by N. Karpachova  in 2005 into the conditions in which the prisoner V. Lutyev is being held in the Simferopol SIZO“. Lutyev himself, while being held in the SIZO “was held without violations of sanitary and living norms. No incidents involving the use of violence against the prisoner V. Lutyev by the administration of the Simferopol SIZO  were recorded or discovered”.

It is thus very difficult to come to a clear conclusion from the responses of these two respectable institutions as to whether violence really was applied against Mr Lutyev during the time spent in the SIZO.

According to the results of the study carried out by the Kharkiv Institute for Sociological Research in 2004, 56% of those who had been detained in SIZO considered that they had not been adequately fed, and that they had been permanently hungry. Together with other conditions – the stuffiness, the bad light, the heat in summer and cold in winter, these problems were named as what the prisoners had felt most acutely.  The Department has on more than one occasion stressed that the conditions are improving however this is taking place too slowly.  The lack of funding for the improvement of conditions connected with the general difficult economic situation in the country is not the only reason for such slow progress. As the audit of the Accounting Chamber demonstrated, a fair amount of Department money was spent too inefficiently.

The results of the answers receive from the regional divisions of the Department are presented in Table 3 “The number of places against number of prisoners in penal institutions and the number of complaints in 2005”

As the figures show, in 7 of the 19 regions of the country we received responses from, there are less inmates than the institutions could hold, i.e. they are not full to capacity. Overcrowding was observed in only nine regions.

However, it is not always clear how the number of places in the institutions were calculated since the current Penal Code from 1 January 2004 raised the minimum standard space norm for each prisoner to 3 м2. The information received from the division of the Department in the Donetsk region is revealing:

For example, the SIZO in the city of Donetsk is designed for 2,194 places however there are 3,288 sleeping places.

The SIZO in Artemivsk with intended capacity for 1,622 places has 2,115 sleeping places;

The SIZO in Mariupol with intended capacity for 905 places has 1,007 sleeping places;

This means that the SIZO in Donetsk is equipped to hold a number of people which exceeds its capacity according to the law by 50%.  Thus the overall number held in these three SIZO in 2005 – 5,285 remand prisoners, constitutes on the one hand overcrowding of 12%, since they are intended for 4,721 places. On the other hand, however, in these SIZO there are still 1,120 free places if one goes on the number of “sleeping places”.

According to information from the PACE Monitoring Committee, The Department plans to meet the international standards in this regard only by 2012.  Despite the significant decrease in the number of inmates, the problem of overcrowding remains acute.  The actual living space allocated inmates in SIZO is only 2.3 м2 against the norm of 2,5 м2.

Officially the top management of the Department acknowledge that the conditions need to be improved, and make certain efforts towards achieving this. At the same time, specific examples illustrating the level of these problems are not as a rule given. It is common practice to combine bad conditions with the denigrating, sometimes brutal, treatment by personnel of prisoners, although such treatment is prohibited by law. This is how some prisoners and their relatives (their full names are known to the authors of this report) describe the conditions.

The wife of a prisoner O. from the Dnipropetrovsk Penal Colony (PC) № 89, in Dnipropetrovsk, wrote in the following letter to a human rights organization in November 2005: “In summer (my husband) was in a cell like a stone oven. There was absolutely no air, which was why a lot of them, including my husband, have bad health, you just can’t breathe. When they ask for medical care, it’s not given, they just get laughed at.  My husband’s a believer, he asks to speak with a priest and the requests are turned down. When he approached the head of the colony, he heard a lot of foul abuse and was told that people who are serving life, are already wiped from society, and can forget about demands. And if he complains, the man said: “I’ll dig you a grave here”.

Prisoner R. from the Zamkova PC № 58, in Izyaslav, the Khmelnytsky region, wrote in a letter sent to his parents in July 2005: “The heads of the medical unit and the colony think that for a shower once a week ten minutes is enough, and they’ve even got a schedule for the time periods spent in the shower place[5] for a certain number of prisoners, for example, less than 8 people – 10 minutes, more than 8 – 15.  You just get under the shower, the shower person adjusts the water for 5 minutes – gives either cold or hot water, then 5 minutes to wash yourself… They don’t disinfect the shower area, there’s a foul stench. … Prisoners with tuberculosis who are kept separately are brought here to wash at the same time as healthy prisoners, with an interval of 30 minutes. 15 days I got in the punishment cell from Mr. X because of a metal plate under the sleeping place I use, which I had nothing to do with and couldn’t explain how it got there. I hope there won’t be any provocations in the future, though just today Mr. P. refused to see me and threw me out of his office.”

A letter from prisoners of colony No. 81, published in the KHPG Bulletin “Prava Ludyny” [“Human Rights”] № 13 for 2005 reads::

“The administration forced us to vote for Yanukovych. At first they gave presents: cigarettes, tea, two “Miviny” [quick noodle snacks] each and warned us: “We’ll give anyone who votes for Yushchenko a hiding”.  But many of us voted for Yushchenko. And the head of Colony № 81 gave an order to beat up everybody who’d voted for Yushchenko. We were locked up in a punishment cell and beaten everyday. The beatings from the administration weren’t recorded, and we were refused any medical attention.  The money we earn which they put in our account, doesn’t get paid out on release, we can’t send it to our relatives, the money’s just on paper. In the canteen the menu’s only for the commission”.

These examples show that sometimes objectively harsh conditions are used by the prison staff to exercise pressure, moral or psychological, on the prisoners to get their absolute submission. Attempts by prisoners to complain are given short shrift.  The practice still exists of bringing in special units which the Human Rights Ombudsperson spoke about. The Department claims that this practice is needed for training of the special units and insists that the training takes place in strict observance of the law and under the supervision of the prosecutor’s office. It should be stressed that in the answer Donetsk Memorial received from the Department, it was asserted that in 2004-2005 prisoners had not be involved in such training exercises.

The expediency of such training exercises in the form that they are actively carried out in  would seem dubious, especially given that there have been far from isolated incidents when the actions of members of such units have been extremely brutal and aimed at gaining the total obedience of the prisoners.

Prisoner R. from the Zamkova PC № 58, in Izyaslav wrote in July to his parents: “It’s become standard to carry out searches without an officer – representative of the colony administration being present, to rummage through letters and read them (who knows what for), infringing instructions on carrying out searches of living space and personal belongings – chucking them about carelessly and not putting them back in their place, showing no respect for personal property.Ferreting about on order so as to exert psychological pressure.

The parents’ committee “Poryatunek” [“Rescue”] addressed a letter on 6 July 2005 to the President of Ukraine and to the Head of the State Department for the Execution of Sentences V.V. Koshchynets in which it called for an end to violations taking place in penal institutions. They particularly focused on special units and the regular so-called “preventive-regime measures”. The Committee considers that the purpose of such measures is to keep the prisoners in a state of fear and submission so that they don’t complain, so that they turn into passive, intimidated sheep. The members of the Committee state:

“Despite the fact that the law only allows for checking prisoners’ correspondence, in actual fact in the institutions there is strict censorship. Letters of the inmates are inspected by special employees. The control is carried out to find out about any complaints by prisoners. Such letters, including personal correspondence, are removed and not sent, and later punitive measures are applied: beatings, the punishment cell, other forms of pressure to knock out any thoughts of complaining again. In contravention of the Constitution of Ukraine, the State Department applies a departmental instruction it signed on checking the correspondence of those convicted.  This departmental instruction effectively negates the constitutional right of the convicted person to privacy of correspondence”.  The letter also speaks of the unreasonable reduction in the visiting time for life prisoners from 4 to 2 hours.

In response the Department justifies the existence of special units on the grounds of the need to fight terrorism, while with regard to most of the other problems it simply quotes the existing norms of the law. The response ends with the assertion that: “the management of the Department has established strict control over the observance of the requirements of current legislation, human rights and of the prohibition of degrading treatment of prisoners in places of deprivation of liberty.”

10. MEDICAL PROBLEMS

According to figures from the Department, on 1 January 2005 among those held in places of deprivation of liberty were 3,568 HIV-infected people, including 89 people with AIDS.  There were also 10,198 people suffering from an active form of tuberculosis. During 2004 there were 806 deaths among people serving sentences in the Department’s institutions, including 44 cases of suicide. Mortality rates were 4.3 people in every thousand (on average in the country the number is 16.0).

The official information from departments does not always fully reflect the real situation.  It is sometimes the case that those employees who are aware of the real state of affairs are afraid to talk about it. For example, the newspaper mentioned above “Vhoru” in № 39, from 29.9.2005 writes:

“People who have died of tuberculosis, if their relatives do not take over, are buried at the cemetery not far from the village where the tuberculosis hospital is located. According to medical norms, the bodies should be created, a medical assistant of the medical outpatients’ unit says, but there is no crematorium, and for that reason they’re buried a bit deeper in the ground, with disinfectants spread. Official assurances that all hospitals, as well as the colony, are provided with the necessary quantities of disinfecting chemicals are not true. However nobody is prepared to directly point to the infringements, and they don’t question the official version that “all’s fine” – after all, if they close the office, where will they find work?”

There are certain problems also with people released who are in a poor state of health. There is a Joint Order of the Department and the Ministry of Health of Ukraine № 3/6 from 18.01.2000 which contains a List of illnesses which are grounds for applications to the court of material on releasing prisoners from continuing to serve their sentence”.

The Department claims that it has raised the issue with the Ministry of Health of expanding the List of illnesses which can serve as grounds for early release.

11. SIZO [PRE-TRIAL DETENTION CENTRES]

The number of remand prisoners held in SIZO over the last 7-8 years has not changed much, remaining around 39-44 thousand people. On 1 January 2005 there were 38,768 people in SIZO, including 2,659 women and 1,992 minors. From the Department’s figures, by the end of 2005 this number had dropped to 36.6 thousand.

The use of remand in custody as a preventive measure remains unwarrantedly high in Ukraine. Quite often the measure is used against people who are accused of not particularly serious crimes, and they are sent to SIZO more for the convenience of the investigator, than because it is impossible not to apply this measure. A telling indicator of the existing practice is the number of individuals who are released from SIZO.  It is precisely those people in whose case, as a rule, the use of such a preventive measure was least justified. In 2004 14,186 people were released from SIZO – 19.3% of all those who had been brought to the SIZO that year. Of these the release was:

in connection with the courts applying a punishment not involving

  deprivation of liberty    8392 people

on the period of their sentence having ended  3604 people

in connection with a change in preventive measure   2103 people

due to the courrts terminating the investigation or to acquittals  46 people

Clearly the expediency of holding the majority of the over 14 thousand individuals in SIZO is extremely questionable since not one of them in the end received a serious sentence. The responsibility for this situation lies in the main with judges who sanction remand in custody. There is a view that a substantial percentage from this category was made up of people who did not appear at court hearings, and in order not to delay consideration of their cases due to regular non-appearances in court, the last judge chose remand in custody as preventive measure for the short period while the case was being considered. This ensured reasonably swift consideration of their cases, and after indeed not receiving a particularly harsh sentence, they were released from the SIZO.  However there have been no studies enabling an assessment of what the actual percentage of such people would be out of the whole numbers of those remanded in SIZO.

People who have spent time in SIZO have little that’s positive to say about the conditions in them.  For example, the Donetsk lawyer S. Salov has these memories of the time he spent in Donetsk SIZO № 5:

“In SIZO № 5 in Donetsk the conditions are worse than for animals. It’s sweltering in summer, and freezing in winter. And the dampness, the bedbugs and filth are constant. Everyday you get boiled wheat – I feed my dogs better than that. All those 8 months I shared a cell with a “chicken” (that’s what they call someone planted who sniffs around and write denunciations to the operational unit. There were four of us altogether, the others changed but the plant was my constant cellmate. But in comparison with the ITT where I spent 11 days, this wasn’t so bad – after all there you had to sleep on a concrete floor. In the ITT there was a particular cell without bunks and that was exactly the one I got put in.

When I’d spent a bit of time in the ITT and the people at the protest rallies were calling for me to at least be moved to a SIZO, my representatives made a written appeal to the main human rights person, Karpachova. The answer they got back was that she “has no right to intervene in the activities of the law enforcement agencies”.  In 2001, speaking before the Verkhovna Rada she mentioned me as the only violator of the election campaign of 1999, and convicted me from the parliamentary platform. And when they recently arrested Kolesnykov, that “defender of human rights” on the second day already from the same platform heatedly and vehemently demanded Kolesnykov’s release. And nothing stopped her then from intervening in the activities of the law enforcement agencies”. (newspaper “Donbass”, 10 September 2005).

There are problems with detained people with tuberculosis being transferred to SIZO from ITT. The SIZO personnel as a rule refuse to take them. However there are also other examples. For example, the newspaper “Holos Ukrainy” № 230 from 3 December 2005 р. informed its readers that “in the Kirovohrad SIZO a separate unit has been created to hold people suffering from an active form of tuberculosis. Over ten months in 2005 75 people were found to have tuberculosis, of whom13 are suffering from an active form. Convicted prisoners whose tuberculosis is diagnosed in the SIZO are as a rule transferred already having this disease from a temporary holding facility (ITT)”.

In summer the mass media reported two escapes from SIZO  – in Artemivsk, in the Donetsk region, and in Kherson.

During the trial of the men who broke out of the Artemivsk SIZO, one of the accused said that “the prisoners constantly demanded money from him and his friends, and took most of the parcels for themselves”. The mother of one of the accused men stated that she had letters from her son in which he says that prisoners have tried to force him to have anal sex with them. She claimed that she had given the management a lot of money so that her son served his sentence in more or less normal conditions, but with no result. She had tried to get tablets for a kidney complaint to her son, but the medicine never got to him, disappearing someway in the depths of the SIZO”  (the weekly “Sobytiya” [“Events”], № 41, 12 October 2005)

The incident with the SIZO staff in Lviv received a lot of publicity.

A group of officers and praporshchyks of the Lviv SIZO № 19 appealed to the Cabinet of Ministers and to the Head of the Department, Vasyl Koshchynets to “put an end to corruption, chaos and harassment of citizens” which the Head of the SIZO, Vasyl Romanyshyn, was guilty of.

The appeal was signed by 17 officers working in the SIZO and made public on 15 June 2005.

In their letter about the actions of the Head of the SIZO, the SIZO employees state that their boss “has psychologically and physically exerted influence on prisoners, forcing them during the presidential elections to vote for the presidential candidate Yanukovych”.  “He considers the people who work here to be his slaves, and he pays out material assistance only to those whom he has family connections with (and the officers who are relatives of the Head or have a special relationship with him turn up at work when they feel like it, he makes cuts in interest and extra payments”, one of the SIZO officers explained.

The head of the SIZO hospital, Major Nadiya Kyselchuk, told a journalist from “Gazeta” that “back in May we wrote a collective letter of complaint to the Head of the Department in which we set out instances of V. Romanyshyn’s unlawful actions. That includes also illegally holding people who are ill in the punishment cell, beating them, as well as psychological pressure on the staff of the institution. However so far nobody has spoken with me on the subject –either from the regional division, or from the Department.”

Psychiatrist of the SIZO, Nataliya Luhova asserts that “on the instructions of the Head they transfer people to the SIZO hospital for in-patient treatment who don’t require treatment, or vice versa. And  SIZO doctors can whistle for professional development courses. Mr Romanyshyn says that he doesn’t need clever doctors”.

A junior inspector of the unit for regime security, Liliya Suprun, whose husband signed the appeal, was summoned by the Head and told that he was putting her on night shift.  When she said that she had two small children, he answered: “I don’t care”.

On 6 July at 10.00 the employees of the Lviv SIZO officially announced that they were beginning an indefinite hunger strike in protest “against the pressure and unlawful activities” of V. Romanyshyn

With regard to the reaction of the management of the Department, one of the people who signed the appeal said: “We appealed to the Head of the Department. He heard both sides and promised to put things in order within ten days. Three weeks have passed. We have not heard of any decision. Yet all those who signed have been moved to different places”.

 The Head of the SIZO considers “that they’re officers and should use the disciplinary charter and provisions on doing service. And there it’s clearly stated that each person may appeal to the prosecutor’s office, to higher bodies. Because there’s internal security, there are officials who can resolve any complaints only in a legal framework”.

The hunger strike lasted 10 days. All of those who took part were punished for infringements of work discipline. V. Romanyshyn remained in his post.

However the prosecutor’s office launched several criminal investigations into V. Romanyshyn’s activities. Pressure began to be placed on one of the people who had signed the appeal: unidentified individuals telephoned and demanded that the person withdraw the testimony against Romanyshyn.  The latter was admitted to hospital, supposedly at the advice of the management until all problems were resolved. However he was seen on a number of occasions during that time in the city, and at work.

He is adamant that all the accusations have been commissioned in order to discredit the SIZO and its Head. The results of the investigation by the prosecutor’s office into the criminal cases are still unknown.

12. imprisonment of minors and women

The situation with juvenile crime remains worrying. In 2004 21,806 minors were convicted of criminal offences – 9.7% of all convictions. For comparison: in 2000 20,016 juvenile offenders were convicted (8.67% of the total number of people convicted of crimes), with 4,810 being deprived of their liberty (24% of the number of convicted juvenile offenders) in 2004 4,384 juvenile offenders were imprisoned – 20.1% of the number of convicted juvenile offenders. In Ukraine there are no juvenile courts especially for young offenders. There is too little use made of alternative forms of prevention or punishment rather than deprivation of liberty.

In Ukraine there are 11 juvenile educational colonies – ten male, and one (in Melitopol in the Zaporizhye region) for girls. On 1 January 2006 there were 2,698 juvenile offenders in these, including about 120 girls. In 2005 the number of minors fell by 527 people. Pursuant to the new Penal Code it is allowed to hold without transfer to adult colonies young people up to the age of 22, whereas previously the age limit was 21.

A psychologist from the Pryputsk educational colony comments: “All of the kids in the colony after they’re brought having gone through the SIZO and court are virtually in shock because of the nervous strain, and these are children. Therefore the first thing that we have to do is to help them to unwind. In order to achieve that they come to relaxation rooms for two hours daily over almost ten days, to adapt to the conditions of places of deprivation of liberty. The kids live in dormitories of about 20.For work in the educational colony they receive pay – between 48 and 200 UH a month. They can buy food and basic necessities with the money in the local shop”. (the newspaper “Tovaryschch”, № 70, September 2005).

There are also sometimes unpleasant incidents. The prosecutor’s office of the Donetsk region launched a criminal investigation under Article 127 § 3 of the Criminal Code over the use of torture to one of those held in the Mariupol educational colony.. According to the press service of the prosecutor’s office, it had been established that a member of staff of the unit № 3 of the colony had deliberately inflicted bodily injuries (the newspaper “Accent”, № 163 3 November 2005).

At the end of 2005, there were 8.5 thousand women held in 13 women’s corrective colonies (at the beginning of 2003 there were 8,016 thousand women, and on 1 January 2005 – 9,265). Two colonies for convicted women have a children’s home – in Odessa and in Chernihiv.

There are sometimes articles about the problems of convicted women in the media. The newspaper “Tovaryschch”, № 76 for September 2005 writes::

“In the Kachanovska Corrective Colony (Kharkiv) more than 900 women between the ages of 18 and 77 are serving their sentences. The Head of the Colony believes that it is impossible to re-educate a person under such conditions, you can only train them to follow the regime.

The young women the journalists spoke with rely on parcels from relatives, and also try to prepare food themselves, using a small boiler. Almost all of them complained about the lack of basic items of women’s hygiene in the colony shop, and that a lot of the women run to the administration, with cause or without, and rat on each other.  Another noticeable restriction was that the women have to wear head scarves.

The main contingent of the colony is made up of young women from 22 to 35 serving sentences for theft or for killing somebody … the statistics show that most women after being released can’t find work”.

Interesting experience was reported by the newspaper “Dossier 02”, № 6 for April 2005.: “In Ternopil an inspection commission and the civic organization “The Ternopil Regional Women’s Association” have created a permanent consultation centre for women released from places of deprivation of liberty, in order to assist in the social adaptation of these women”.

Active and very constructive work with the Chernihiv colony for women № 44 is being carried out by the Women’s Human Rights Centre (Chernihiv). They have created a public reception centre attached to the Chernihiv colony for women № 44, which in just under a year has been visited by more than two hundred convicted women. Practice shows that the most common are:

-  infringements of labour legislation regarding the length of the working day;

-  pushing convicted prisoners to buy goods or food items with the money earned in the colony instead of paying it out on their release;

-  not providing assistance in obtaining a passport which makes normal adaptation impossible following release.

In the course of receiving women sentenced to life imprisonment, flagrant infringements regarding their conditions were found, with these bearing the hallmarks of ill-treatment.

In some colonies there is a strange and specific practice of forcing personnel of the institutions during the summer to gather medicinal herbs or apricots from plantation areas, etc.

According to the weekly ““Sobytiya” (№ 32, 10 August 2005), “the Head of the Artemivsk SIZO has confirmed information that “in their free time people (SIZO employees) are specially assigned to collect herbs, flowers for the prisoners. This is done in order to provide the prisoners with vitamins. The Head of the SIZO asserts that “this is practised in all penal colonies. The state cannot fully provide prisoners with vitamins, so we try to make the life of people serving their sentence easier”.  When asked whether the employees could refuse to gather herbs, the Head answered that “elucidatory-prophylactic work is carried out with them. This is like a social burden.  Remember how previous Pioneers collected scrap metal?  They’re told it’s necessary, so it’s necessary. And I give out tea with dried fruit for the prisoners, and my deputies also, and we don’t see anything bad in that, only benefit.”

In the neighbouring region analogous reports also appeared in the press. The newspaper “Slava Krasnodona” from 3 September 2005 reports: “In the Sukhodolska Colony, in order to supplement food supplies, wherever possible – in plantation areas, abandoned kolkhoz orchards, three tonnes of apples and apricots have been gathered which are being dried for the winter. Employees scouring the ravines and steppes have collected five tonnes of different medicinal herbs to prepare herbal infusions

It is not known how widespread such practice is within Department penal institutions..

13. PRISONERS SERVING LIFE SENTENCES

Life imprisonment is a fairly new form of punishment for Ukraine. Since the abolition of the death penalty, the courts in Ukraine which had previously sentenced around one hundred and fifty people to death a year, have been issuing life sentences at the same rate. The Department is not able to keep up by creating new places for the normal holding of this category of prisoner. At the end of 2005 there were in excess of 1,200 such prisoners.

The problems with conditions for life prisoners have received a great deal of attention from the European Committee for the Prevention of Torture (CPT). Problems with holding them are also acknowledged by the Department, after all a certain number of these convicted prisoners are held in SIZO (pre-trial detention centres), which are not as a rule adapted for this group of prisoners.

The Penal Code sets down excessively harsh conditions for life prisoners.  They have to wear special orange-coloured clothes, and outside their cell they are kept in handcuffs.  Dogs are often used when escorting them outside the cells.

At the same time, world practice in the use of life imprisonment shows that incentives for life prisoners must be flexible and provide a person who may have committed a terrible crime with realistic chance of remorse and of returning to society. European standards and approaches are outlined, for example, in the PCT Report to the Ukrainian Government on the Visit to Ukraine in 2000, where point 75 states:

“… The CPT wishes to stress that it can see no justification for keeping prisoners whose death sentences have been commuted to life imprisonment apart from other prisoners serving lengthy sentences. In many jurisdictions, life-sentenced prisoners are not viewed as necessarily more dangerous than other prisoners; many of them have a long-term interest in a stable and conflict free environment. Risk/needs assessment of life-sentenced prisoners should therefore be made on a case by case basis. Such an approach will also make it possible for the prisoners in question to be accommodated as close as possible to their homes, and will improve their contact with the outside world.

 The CPT recommends that the Ukrainian authorities take due account of all the factors identified above in their policy on the management of life-sentenced prisoners and the regimes to be provided for them. It also recommends that prison staff be encouraged to communicate and develop positive relationships with this category of prisoner”.

Information sometimes appears in the mass media about life prisoners. The newspapers “Donbas”, for example, from 9 June 2005, writes the following about those who are serving life sentences: “In the Yenakiyivska Colony № 52, the youngest life prisoner is 19, and 20 men are younger than 25, while the oldest prisoner is 65. And more than half – 73 men are in their first year. In the two-storey building there are 48 cells, a medical unit, a domestic unit, the food is brought to the cell. You can only watch TV at certain times, if relatives have provided a television, read. There’s no work, but it is planned. Once a week you have a shower session, every day an hour’s walk in the courtyard, which is like a cell, but without a roof. There’s no grass, not one blade”.

The harshness of the conditions for life prisoners is often explained by the overall pitiful financing of the system. However there have been many cases where the expediency of some measures would seem questionable. For example, the recommendation of the PCT to not use handcuffs when taking prisoners from their cells has not been heeded.  Pursuant to point 10.2 of the Provisions on the Organization of the Execution of Sentences in the form of life imprisonment: “Where prisoners are taken from their cells, convoyed on the territory of the institution or beyond it, handcuffs shall be used. In using handcuffs, the hands of the prisoner shall be tied behind his back. Convoying of prisoners shall be carried out one by one, accompanied by two young officers and a dog handler with a training work dog.”

Virtually none of the life prisoners have work, and are therefore deprived of the opportunity to earn even small amounts of money.

One learns about some of the nuances of the way life prisoners are treated from their letters to their parents or to human rights organizations.

Prisoner B., held in Prison № 1, Vinnytsa, writes in a letter to relatives:

”I wanted to send a complaint to the Head [of the Department], V.V. Koshchynets, but they didn’t send it on. It was to say the following:

The administration deliberately creates problems and doesn’t resolve them. For example, at my own expense I did repairs in my cell, then a week later they moved me from that cell, put me in another one. Am I supposed to do repairs at my expense for other people?  And I myself have to live in a cell where the toilet doesn’t comply with the most elementary sanitary requirements, since the lavatory pan is directly connected to the sewerage system without any pipe-bend and all the stink from the sewerage, and all the germs come into the cell, which is leading to the prisoners contracting tuberculosis and other diseases. They put me in a cell with a person who smokes though I’m a non-smoker, and I now have to endure his cigarette smoke which violates my right to health care guaranteed by Article 49 § 1 of the Constitution of Ukraine. My letter to the Prosecutor General about the crimes were not sent, at least they haven’t informed me of this. I handed over the envelope on 30.08.2005, it was returned to me a week later on 07.09.2005, although they should have sent it within a day. I handed it in again to be sent on 08.09.2005.” “It’s strictly forbidden to send copies of the complaints home, especially with some kind of complaints about the administration. And the letter to the Prosecutor General never did get sent, it vanished, as always happens”.

Life prisoner Y. is held in the Zamkova Penal Colony № 58, in the Khmelnytsky region. His aunt reports that “having come to visit my nephew, I found out that the food parcel which I’d submitted earlier had been taken away from him and put in the storage place, which deprived him of his right to enjoy it.  I was only allowed a short visit of 15 minutes”. She complained to the Head of the Colony that her nephew was not being given medical care when he was ill. However, in his response, the Head of the Colony noted that “there have been no complaints or criticisms from Y. about the procedure and conditions, which is demonstrated by his personal explanations”, “qualified medical care will be provided if he asks for it. The prisoner himself provided two written explanations addressed to the Head of the Colony on 11 January 2005. In one of them, (the spelling of the original is retained) he states: “In regard of the questions asked me, I explain that I don’t have complaints about giving me medical care”.

The wife of prisoner B, who is held in the prison in Vinnytsa, writes that: “there are no personal visits, they don’t allow radio-video, in the cell you’re not allowed a fridge, parcels with fruit and vegetables aren’t allowed… letters (to the administration of the institution can only be looked at, but not read, and if there’s foul language or a secret code, they’re destroyed. That means that the letters are actually read, otherwise how could you know about foul language.”

A great deal of effort to improve the conditions for life prisoners is taken by the Parents’ Committee “Rescue” which is an association of parents whose sons and daughters are serving the most serious sentences. In a letter address to the Prosecutor General of Ukraine, the Parents’ Committee states that “the actions of the management of the colony in taking explanations from the prisoner Y. about his lack of complaints against the administration are clearly outrageous. Y. is totally dependent on the prison administration, and is effectively in their hands therefore taking such statements from him is unlawful and unacceptable. This was stated by the European Court of Human Rights in its judgment in the case of Poltoratsky v. Ukraine, № 38812/97 “.

An appeal from the Committee «Rescue” addressed to the President, published in “Pravda Ukrainy” in autumn 2005 states:

“Our children have already spent several years not only in prisons, but being deliberately and systematically subjected to torture. What Mr President saw in Corrective Colony № 71, is still nothing in comparison with the horror our children have to endure.  Facts about cases of torture which we are in possession of do not comply with any concept of humane behaviour”.

The parents of one life prisoner B. report: “We have on several occasions approached the State Department for the Execution of Sentences and the Ministry of Justice of Ukraine however we have not found either support or understanding of the problem. We were personally unpleasantly shocked by the position of the Head of the Department, Mr. V.V. Koshchynets who refuses to accept either criticism or proposals from our civic organization, makes no attempt to understand the normative legal problems, let alone resolve them.”

The European Court of Human Rights has handed down judgment in several cases involving prisoners serving life sentences. However after the judgment of the European Court of Human Rights in the case of Poltoratsky v. Ukraine, which found Ukraine guilty of violating Article 3 of the European Convention for the Protection of Human Rights, which prohibits torture, the violations of this article in the case of Poltoratsky and other prisoners still continue (the newspaper “Pravda Ukrainy”, 13 October 2005).

One of the prisoners in June addressed a complaint to the Prosecutor General in which he wrote that while being held in SIZO № 12 in 1998 he was “beaten at the order of the head. On 2 September 1998 when I was already a blue-black colour because all the bruises had come up, they continued to beat me in the SIZO club for a reason then unknown to me. However the reason became clear after they brought me (or, more accurately, dragged me), half unconscious, to the head’s office.  He ordered them to take the handcuff off my right hand (since I needed to write something) and he fastened the left hand to the table. Then he put an envelope and piece of paper in front of me, ordered the SIZO employees to stand outside, and told me “Write!”. When I asked what I should write, he said that I should write to the European Court of Human Rights saying that I withdraw my previous statements about my criminal case and confirm the testimony according to which I was sentenced to the highest measure – to death”.  Kuznetsov refused to do this, he was again beaten and finally they did manage to force him to write such a letter to the European Court.

In Ukraine there are 11 women serving life sentences who until October 2005 were being held in the Chernihiv women’s colony №44. They were held for a long time with violations of current legislation. Attempts by human rights activists in Chernihiv to rectify the situation were over a long period not reacted to adequately by the top management of the Department.

According to specialists from the Women’s Human Rights Centre, under the previous Corrective Labour Code, the legal status of women serving sentences in harsh regime colonies was different from that of men being held on special regime. The internal regulations of the penal institutions, approved by Order №275  of the Department from  25.12.2003 in section 4 “Special features the conditions of prisoners sentenced to lifelong deprivation of liberty” did not provide a specific resolution regarding the legal status of women sentenced to life imprisonment. This section detailed the rules and procedure for men serving life sentences, the scope of their rights and duties, the place, procedure and conditions of executing and serving their sentence.

Since 1 January 2004 when the new Penal Code of Ukraine came into force, Article 150 of the Penal Code began to be applied to women sentenced to life imprisonment in the same way as to men.

The application of provisions of Article 151 in full to this group of women limits their lawful rights. Women sentenced to life imprisonment are unwarrantedly not granted long visits; the amount they are allowed to spend on food products is reduced, as is the number of parcels they may receive each year. They have to wear special prison clothes, and any time they are taken out of heir cells, they are handcuffed.  The European Committee for the Prevention of Torture advised Ukraine to end this practice back in 2000 during its visit (point 76 of the CPT Report for 2000): “The CPT also recommends that immediate steps be taken to review the current practice of routinely handcuffing life-sentenced prisoners whenever they are taken out of their cell and when a staff member enters the cell.  Such a practice is highly questionable, all the more so when it is applied over a prolonged period of time in a secure environment. Other means can and should be found to counter security risks”.

Information about violations of women’s rights were sent by the Women’s Human Rights Centre (Chernihiv) to the Head of the Department, to the Prosecutor’s office in Chernihiv and to the Human Rights Ombudsperson Nina Karpachova, however without any kind of result. Only after an appeal to the President of Ukraine did the Prosecutor General take measures to restore the violated rights of the said women. The Department, on the demand of the Prosecutor General, albeit with infringements of the time limits established by law, did finally react.

However instead of changes to the conditions, at the beginning of October 2005 without any explanation, these women were suddenly transferred from the Chernihiv colony to the women’s colony in Kharkiv. This transfer coincided with the beginning of the visit to Ukraine of the European Committee for the Prevention of Torture.  It is much more difficult for the Chernihiv human rights activists to check the conditions at this new place. As to whether the demands of the Prosecutor General have been implemented regarding changes to the conditions in which the women serving life sentences are held, the Chernihiv human rights organization cannot say.

In May 2005 the civic organization “Donetsk Memorial” approached the President of Ukraine, the Prime Minister, several members of the Verkhovna Rada, as well as the President’s Commission on Pardons, with suggestions regarding the imprisonment of life prisoners .including the following proposals.

“…. to review Chapter 22 of the Penal Code of Ukraine which regulates the conditions for serving a life sentence, establishing more humane conditions for prisoners sentenced to lifelong deprivation of liberty and more incentives for their reform;

  to reduce the term upon which a life prisoner may first make a submission to be pardoned;

  to pardon all 11 women who are serving life sentences and change their life sentence to deprivation of liberty for a specific period, depending on the seriousness of the crimes they committed.

There has been no real reaction this initiative.

14. SENTENCES NOT INVOLVING DEPRIVATION OF LIBERTY

The responsibility for enforcement of sentences not involving deprivation of liberty within the Department is vested with the Penal Enforcement Inspection (hereafter PEI). With the entry into force of the new Penal Code the importance of punishments presenting an alternative to deprivation of liberty began to increase. The rising number of people on the PEI register is also becoming more evident.

According to figures from the Department, on 1 January 2006 responsibility for enforcement of sentences not involving deprivation of liberty was handed within the Department to 700 units of the Penal Enforcement Inspection with 1,732 members of staff in total which constituted 22% of the requirement foreseen by the law.

In 2005 there were 316,505 people registered with the Department’s Penal Enforcement Inspection whose sentences did not involve deprivation of liberty. On 1 January 2006 the register held 156,335 such convicted individuals of whom 144,247 had received suspended sentences and 8,087 were minors.

The average officer of a territorial unit of the Penal Enforcement Inspection is responsible for 96 convicted individuals, while in some inspections this number reaches 200. According to the Law of Ukraine “On the general structure and numbers of the penal system of Ukraine” one officer of the Penal Enforcement Inspection should not be in charge of more than 20 convicted individuals.

An investigation into how the human rights of this very large group of convicted people are observed is outside the immediate task of this study. It is important however to note that problems do exist, although there has been no systematic study made thus far. Among specialists there are lively discussions regarding the creation of a probation service and experiments are being undertaken. However there is to date no law on a probation system.

15. AMNESTY AND PARDONS

The amnesty carried out in 2005 affected 32,614 people. 8,414 people were released from penal colonies and SIZO, while another 24,942 people were removed from the register of the Penal Enforcement Inspection (the newspaper “Zakon i obovyazok” “[The Law and duty”], №42, October). There were also almost 32 thousand people granted amnesties in 2003 including 5,032 people released from imprisonment.

The right to pardon in Ukraine is held by the President. A commission on pardons has been created which prepares material on possible pardons for individuals who have made appeals for such to the President. However the makeup of this Commission and its activities in 2005 were not publicized at all. Formal requests to provide information about the work of the Commission and its head were turned down with the reason given that the Commission is a body under the auspices of the President and that it does not keep such statistics. In 2005 the President approved a new version of the Provisions on the Commission (in January, and then again in July), with its makeup being changed and published. Previously on average around 500 people were pardoned each year. In 2005 the President pardoned 447 people. The authors of this Report have no information regarding these pardons – what the crimes were for which they had been sentenced and how many people actually make such appeals for a pardon each year

Considerable problems need to be resolved by citizens after their release from places of deprivation of liberty.

There is virtually no effective system in the country for providing support to individuals released for the period immediately after they leave the colony.

For example, in Kherson people who have been released turned to civic reception centres primarily with three main problems: they have no passport, nowhere to live and registration, and they don’t have work.

16. the system for making complaints

In any prison system one of the mechanisms for protecting prisoners’ rights is an effective system for making complaints. The Penal Code of Ukraine does not provide such a mechanism. The actions of the administration may be appealed only to the immediate superior. In theory it is possible to approach the court, however the complaint needs to be sent via the administration which in practical terms, as a rule, makes such appeals impossible.

Donetsk Memorial has attempted to collect statistical information about prisoners’ complaints. We are unable to provide information about the number of complaints sent by prisoners directly to the Department since in spite of correspondence with the Department management from July to December 2005 and despite sending a number of formal requests for information, the management of the Department have continued to avoid providing the information.  In response to our last formal request for information, the Deputy Head informed us that “Thorough checks are carried out into all complaints. Where the information presented is found to be true, measures of response are taken against those employees who committed unlawful actions. Taking into account the fact that …state statistics are published openly and open access to it is ensured, you have the opportunity according to the procedure established by current legislation to see this statistical information”.  This was effectively a pro-forma response, and the Deputy Head of the Department in contravention of the requirements of the law did not provide the statistical data.

At the same time information about complaints sent to regional divisions of the Department is gathered by each division.  It is given here in Table 3 “The number of places against number of prisoners in penal institutions and the number of complaints in 2005”.  From the information received it is possible to draw certain conclusions.

It would appear from the data presented that in the divisions of the Department for the Vinnytsa, Volyn, Ternopil, Poltava, Kherson and Cherkasy regions from the complaints received (from 6 to 67) not one was found to be justified. Only one complaint reached the Khmelnytsky division. The division of the Department for the Poltava region stated that “67 complaints were received from prisoners which were reviewed by a commission with a visit to the institution”. However even such a conscientious approach did not uncover any justified complaints. The picture is a little different in some other divisions. For example, in the Donetsk regions 179 out of the 308 appeals from prisoners were allowed, however this figure includes not only complaints, but also applications and suggestions. How many of them were actually complaints is not known. On the number of appeals from convicted prisoners and other citizens, the Department also provided information – in the first half of 2005 there were 3,934, of which 412 were allowed or resolved. However the number of actual complaints is again unclear. The division of the Department for the Mykolaiv region also gave the number of appeals from convicted prisoners and other citizens.  This however was not the information that the divisions were formally asked to provide.

This attitude to prisoners’ complaints does not in any way mean that work on reviewing complaints or appeals is not undertaken anywhere, or is carried out extremely badly. Here is how the situation looks in as far as consideration of complaints and appeals in the Kherson region.

Members of the civic organization who took part, together with Department division employees, in considering such complaints provided certain generalized comments.

From 1.01.2005 to 10.09.2005, the Socio-Psychological Service of the Division of the Department for the Kherson region registered 60 appeals both from convicted or accused individuals, and from their relatives.

The complaints from convicted prisoners cover a range of subjects. Most of the appeals are requests for a reduction in the length of the sentence (early conditional release, amnesty or pardon). There are appeals regarding alimony, assistance in resolving issues over labour or living conditions, the quality of broadcasts of television programs, not receiving correspondence, non-payment of a disability pension.

The complaints and appeals can be divided in terms of type into several groups.

Workers in the production zones complain that with the increase in the minimum monthly wage, their norms of production have been increased so substantially that virtually nobody can “squeeze out” such an amount, and it has become difficult to work. It is unclear how their salary is calculated, since seemingly they work and work, come to get something for it, and there’s either nothing at all, or a few kopecks that you can’t get anything for.

Another category of complaints are from those who are ill.

Many have septicaemia, wounds or sores which have gone septic, and the medical assistants can only rub ethyl green[6].  Those who have disability status encounter problems with having it renewed every year – for that they need to be taken to a colony which has a hospital, undergo a medical examination, and then the employees there need to call a special commission, etc.

There is another group of complaints, fairly large, against the prosecutor’s office.

The situation is difficult to understand: the colony administration and the inspection commission recommend that a prisoner be granted early conditional release, but the prosecutor’s office objects and the person remains in the colony. The reason for the prosecutor’s objection is virtually always the same: the person did not officially work in the production zone. Yet the situation in colonies regarding work in the production zones is truly catastrophic. In one, more or less favourable colony (SPC №90), our of one and a half thousand prisoners, only around three hundred are employed – there isn’t any work.  Most of the prisoners work on the colony territory, growing or gathering things, painting or whitening, dong repairs.

There are grounds for believing that the picture presented here does not encompass the entire scope of prisoners’ attempts to make complaints. It may also appear this way because complaints which are more serious in terms of substance possible almost do not reach the management of divisions. It would at least be worth bearing in mind the following reports.

In the earlier mentioned letter from prisoners regarding colonies № 81 and 86, published in the bulletin “Prava Ludyny” № 13 for 2005, the prisoners wrote: “It’s impossible to send complaints from these places and those that complain get beatings and whatever oppressive measures they can come up with. They make such a person out to have done something wrong, charge him under some article or other, increase the person’s sentence”. 

More serious problems with complaining are also reported by the Parents’ Committee “Rescue”. In a complaint addressed to the Head of the Department, Vasyl Koshchynets on 15 October 2005, the Committee wrote:

“In July of this year at a meeting with you we discussed the question of violations of prisoners’ rights and presented specific instances. Most regrettably we are forced to inform you that our active defence of human rights resulted in acts of revenge from the management of penal institutions.

We are appalled by such policy from the State Department which has not changed in any way for the better and remains shameful and repressive. We are surprised by the conclusions which the Department drew from our appears given that none of the violations we noted have been eliminated, while instead the prisoners mentioned in our complaints are being subjected to oppressive measures and the management of the institutions are openly making excuses.”

Our organization demands that censorship is immediately prohibited in penal institutions, that careful attention is given to the instances involving violations cited, that the safety of prisoners who make complaints is guaranteed, that acts of revenge from the people at the top in  penal institutions are prevented  and that strict observance of legality is observed” 

In a letter from 2 November signed by the head of the division, M. Ityai, the Department informed the Committee that “a check carried out has established that no measures in relation to the prisoners involving physical influence and special methods were applied, and food was supplied in compliance with the approved norms. The work of the medical units of the institutions was carried out in compliance with the requirements of the relevant Order. No infringements of normative legal acts of the Department, unlawful actions or biased treatment by the staff of the institutions of the prisoners mentioned were established”.

One has the impression that it is quite common for the administration of many penal institutions to seek to achieve a situation where there are either no complaints about their actions at all, or if there are, then only the sort of complaints which when checked prove not to be justified.  It is clear that in order to achieve this state of affairs, there must be a strict watch over all correspondence sent by prisoners to the outside world, that is, strict censorship.

Such suppositions entirely coincide with the results of Donetsk Memorial’s study (see above) which found that 85% of the former prisoners surveyed were convinced that there was censorship in penal institutions.  The complaints from prisoners which come to Donetsk Memorial from the institutions through official channels deal exclusively with issues relating to sentences, unfair trials, the procedure for appeal a verdict in the European Court of Human Rights, etc.  Complaints which reach the organization about the actions of the administration are sent, as a rule, by illicit means.

It is important to stress that the complaints sent to the Department are almost always checked by the Department itself, without the involvement of either civic organizations or inspection commissions.  It is therefore impossible to assess the quality of such checks. There are however exceptions. For example, following the last in a line of complaints, the Parents’ Committee “Rescue” was invited to join a check on 19 May 2005 of the Sokalsk colony № 49 in the Lviv region.

After this check the Committee in a reporting note sent to the President of Ukraine, the Head of the State Department and the Head of the Division for the Lviv region wrote:

 “The Parents’ Committee gratefully notes that for the first time in the years of Ukraine’s independence, representatives of a civic organization have been allowed to visit a penal institution where prisoners serving life sentences are held.

The points made in our complaint were about 90% confirmed. Before the arrival of representatives of the State Department and our Committee, the Head of Colony № 47 took a great deal of effort to eliminate violations raised in our complaint. For example, the everyday conditions improved significantly, the supply of hot water was regulated, the quality of drinking water was improved, prisoners were transferred to dry, clean, spacious and light cells, the attitude to prisoners by staff improved, the practice of using black bag’s over prisoners’ heads when moving them was stopped. One of the main problems of Colony № 47 is the lack of proper financing which makes it impossible to create decent living conditions, provide adequate food and medical treatment”.

Such examples, however, are isolated, and later appeals from the Committee demonstrate that significant changes are not taking place.  .

17. checks by the prosecutor’s office

The single structure in the country which is empowered to regularly check the situation regarding observance of prisoners’ rights is the prosecutor’s office.

Donetsk Memorial sent formal requests for information to the Prosecutor General of Ukraine and to the prosecutor’s offices of ten regions of Ukraine with questions regarding supervision over compliance with the law by penal institutions and reaction to complaints from prisoners.  The responses, in particular information about the number of complaints submitted to regional prosecutor’s offices and the number of complaints found to be justified  are given on Table 4: “Supervision by the prosecutor’s office of the observance of prisoners’ rights”.

One can see from this table, for example, that out of 156 complaints sent by people convicted or prisoners to the prosecutor’s office of the Poltava region over 2004, following checks, not one complaint was deemed justified. This is fairly typical for the majority of regions: in 2005 in the Donetsk region out of over 200 complaints, 3 were found justified; in the Lviv region 2 out of 83 3,; in the Zaporizhye region – out of 65 not one was considered warranted.  However it would be difficult to imagine that given such harsh conditions and objective chances to complain, the prisoners of these regions approached the prosecutor’s officer solely with unfounded or far-fetched complaints which proved without foundation, and were unable to send even one really serious complaint. It is worth stressing that the prosecutor’s offices quite independently find a fair number of law-breakers among personal of the institutions. In 2004, according to figures from the Prosecutor General, charges were brought against 2,778 employees of penal institutions, with over a thousand such cases just in the Donetsk region. And the prosecutor’s offices receive hundreds of people throughout the regions. These strange statistics require further study and analysis.

With regard to compliance with the requirements of the law by regional prosecutor’s offices themselves, one should note that fact that the formal requests for information sent by Donetsk Memorial were not, as is required by law, answered by the prosecutor’s offices of the Donetsk, Luhansk, Dnipropetrovsk and Zaporizhye regions.  It was only after the civic organization approached the Prosecutor General that instructions were sent to these regional prosecutor’s offices to provide responses to our formal request for information.

At the same time, as has already been mentioned, despite the almost total lack – according to figures from the prosecutor’s offices – of complaints from prisoners found justified, checks by prosecutor’s offices of penal institutions uncover numerous violations. The press services of the prosecutor’s offices function quite well, and in the media there are also a fair number of reports on the results of such checks.

The Kherson newspaper “Hryvna” № 36 for 2.09.2005 writes that the regional prosecutor’s office “has launched a criminal case against the inspector for supervision and security of the Daryevsk corrective colony № 10, for an attempt to pass drugs to a prisoner. This is the third case in 2005 that employees of the region’s colony have been arrested”.

The newspaper “Vecherniy Donetsk” on 26 March 2005 wrote that “At an interdepartmental meeting in the prosecutor’s office of the Donetsk region it was stated that in 2004 law enforcement agencies detained 5,204 people on suspicion of committing a crime. Later, 1,005 of these people were released from arrest by the courts. Yet some of these people arrested had spent two or more months in a SIZO, although there were no good grounds for remanding them in custody. The prosecutor of the Donetsk region, A.V. Bahanets cited the following facts: out of 536 investigative operation cases launched by the department of the Security Service (SBU) for the Donetsk region, only 81 actually turned into criminal cases. In 94 cases the courts issued the Security Service with warrants to use operational and technical devices, yet as a result of such measures there were extremely few criminal cases”.

A fair number of violations are uncovered in the Donetsk region.

The newspaper “Donbas” № 69 from 14 April 2005 року reports::

“Officials of the Toreask Corrective Colony  № 28 held Mr N.in their institution illegally for more than ten months.  His sentence ended in June, but he was not released. It was only after a check by the prosecutor’s office of the Donetsk region that justice was restored. Officers of SIZO № 5 in Donetsk where convicted citizen, Mr. K. received serious injuries dangerous to life also “excelled themselves” A criminal case has now been initiated and the city prosecutor’s office is running the investigation.”

Noticeable work in this sphere has also been carried out by the Prosecutor General of Ukraine. According to the website: for-ua.com:  “The Prosecutor General of Ukraine made checks regarding  compliance with the law by the administration of the corrective colonies and centres of the State Department of Ukraine for the Execution of Sentences, in the course of which a number of serious violations were discovered.

The press service of the Prosecutor General reported, for example, that numerous cases had been discovered of late consideration of material in relation to convicted prisoners who had already served the legally imposed sentence, unlawful rejection or unwarranted sending to the courts of applications for early conditional release or change to a  lighter form of punishment.

According to results of checks 59 documents of prosecutor’s reaction were recorded on the basis of which 74 officials of the penal system had disciplinary proceedings brought against them for violations of the law, and 61 unlawful legal acts were cancelled, the news agency “UNIAN” reports.

The Prosecutor General’s office sent a representation to the Head of the State Department of Ukraine for the Execution of Sentences, Vasyl Koshchynets, on the elimination of the violations of laws uncovered, as well as a letter to the prosecutor’s officers in the regions on stepping up prosecutor supervision of compliance with the law in granting convicted prisoners early conditional release, or changing their sentence to a lighter form of punishment, or granting release due to illness”  

The examples presented here of results of checks by prosecutor’s offices of penal institutions show that there are a considerable number of problems in the activities of institutions of the penal system.  Relying only on the efforts of the prosecutor’s officer and the Human Rights Ombudsperson it is difficult to discover them, and the public remains unaware of many of the violations which are discovered., and these do not therefore become the subject of public debate.  It would scarcely be justified in gauging the state of the penal system to rely only on that portion of information which the State Department for the Execution of Sentences issues to the public. More active involvement of the public and of civic organizations in the activity of penal institutions and monitoring them,   in particular activating the work of inspection commissions and carrying out monitoring could make it possible to gain a much fuller and more objective picture of the state of affairs with regard to observance of prisoners’ rights.. Only on the basis of full information is it worth resolving issues involving the future steps for developing the penal system of Ukraine, including important questions of who it is subordinate to, and the role of civic organizations in carrying out public supervision of penal institutions.

18. CONCLUSIONS

1.  Since 1998 the State Department for the Execution of Sentences has remained an autonomous structure. This situation is in contravention of Ukraine’s commitment given on joining the Council of Europe in 1995 to transfer the system of the execution of judgements to the Ministry of Justice.

2.  The continued autonomous status of the department has been one of the factors in the excessively slow process of reform of the penal system.

3.  Despite the adoption of a new Penal Code the priorities of the Department in the area of law creation have not changed in any noticeable way, and therefore the cosmetic changes in this area are not keeping up with the requirements of the time.

4.  The observance of human rights and respect for human dignity have not yet become a dominant factor in penal policy, and the existing practice regarding treatment of prisoners is based on strict demands from the administration of penal institutions of prisoners’ submission.  This is compounded by the lack of any mechanism for making complaints.

5.  Improvements in prisoners’ conditions are being made too slowly, although to a considerable extent this is a result of the general difficult socio-economic situation in the country. It is determined, for example, by extremely inadequate financing of the system, but is sometimes exacerbated by bad economic management of the structures of the Department when spending state funds, and sometimes expenditure not as intended.

6.  Conditions of work for personnel are bad, they have little social protection, and the ill-considered staff policy of the Department leads to a drain of qualified professions. This process in some regions is taking on worrying proportions.

7.  Excessively narrow framework for cooperation with the public, in the first instance with nongovernmental organizations, limiting this merely to the issue of material assistance for the penal system, and lack of acceptance by some of the management of the Department of critical views from representatives of the public regarding facts and processes in the penal system frustrate the fairly  strong interest of the public in the problems of the system.

8.  Public supervision over the activities of penal institutions is non-existent, and the public panels attached to divisions of the Department and directly to the Department did not during the year begin working which was to a large extent caused by the lack of interest of the management of the system’s agencies in its working.

19. RECOMMENDATIONS

1.  To fulfil Ukraine’s commitment to the Council of Europe and finalize the transfer of the Department to the Ministry of Justice as called for in PACE Resolution № 1466 (2005);

2.  To change priorities in law creating activities, giving preference to humanitarian values over issues of the technical functioning of the department; to increase attention to issues relation to the observance of human rights, respect for the human dignity both of people imprisoned, and personnel of the penal institutions, and not just confine oneself to declarations on this subject;

3.  To introduce monitoring of prisoners’ conditions on a wide scale, and to prepare annual reports on the state of affairs in the system by nongovernmental organizations, including on the basis of state funding, as well as the preparation of alternative reports, reports on problems or on areas of activity of the institutions;

 4.  To qualitatively increase information to society about the situation and problems of the system via regularly carrying out a wide range of measures such as press conferences, roundtables, as well as simplifying the procedure for providing access of members of the public and journalists to penal institutions.  

5.  To pay more attention to social protection for staff of penal institutions; to provide professional development, and involve the efforts which nongovernmental organizations can offer in resolving these issues.

6.  To facilitate the undertaking of a comprehensive analysis of the norms of the Penal Code and normative acts of the Department, as well as practice in implementing them, to contribute to their improvement and to involve specialists in this work, including the Penitentiary Association of Ukraine.

7.  To promote the introduction of public supervisory control over penal institutions, and not limit this to the activities of inspection commissions;

8.  To pass a Strategy for reforming the penal system only after independent expert opinions, and public debate.

Table 1. Conditions of those held in temporary holding facilities (ITT)

  Total in the MIA  Dnipropetrovsk region Donetsk region

  Zhytomyr region  Kirovohrad region  Kyiv

  Poltava region  Kharkiv region

 

 

 

 

 

Indicators

 

 

 

ВСЬОГО
по МВС

Дніпропетровська

Донецька

Житомирська

Кіровоградська

м. Київ

Полтавська

 

Харківська

1

Number of temporary holding facilities (ITT) in the region

501

27

27

21

20

1

25

20

2

Number of places available in the ITT

10400

959

1024

265

 

125

525

261

3

Number of people held in the ITT of the region as of  01.01.2005

 

 

49118

13103

9954

1931

21683

12244

4

Number of people held in the ITT of the region as of 01.07.2005

 

 

18049

6855

4637

2470

10212

5071

5

Number of complaints of unlawful activities  of staff of internal affairs agencies in 2004

4,6 тис.

0

0

0

0

0

 

1

6

Number of employees against whom disciplinary proceedings were begun in 2004

1451

0

0

0

0

0

 

0

7

Number of complaints of unlawful activities  of staff of internal affairs agencies in the first half of 2005

13 тис.

0

0

2

0

0

 

0

8

Number of employees against whom disciplinary proceedings were begun in the first half of 2005

757

0

0

One partly

0

0

 

0

9

Amounts spent on holding people in ITT in 2004:

33782, thousand

 

1863,0

220800

1100

756558

58529

1761

706000

668900

10

per person

 

 

37,9

16,8

76,0

30,3

32,6

54,6

11

Amounts spent on holding people in ITT in the first half of 2005

11623,6 thousand.

 

806,6

184900

1300

266536

78886

343000

350000

12

per person

 

 

44,7

27,0

57,5

31,9

33,6

69,0

13

Number of established cases where the period of detention was exceeded without a court warrant

 

0

0

0

 

0

0

0

14

Number of people who died while being held in an ITT of the region in 2004

 

0

 

0

1

 

0

0

15

I cases of suicide among them

 

0

 

0

0

0

0

0

16

Number of people who died while being held in an ITT of the region in the first half of 2005

 

0

 

0

3

 

0

0

17

cases of suicide among them

 

0

 

0

1

0

0

0

 


Total   AR Crimea  Vinnytsa region Volyn region   Dnipropetrovsk region  Donetsk region

Zhytomyr region  Transcarpathian region  Zaporizhye region 

Ivano-Frankivsk region

 

 

 

Indicators

 

 

 

ВСЬОГО

АР Крим

Вінницька

Волинська

Дніпропетровська

Донецька

Житомирська

Закарпатська

Запорізька

Ів-Франковська

 

1

Number of people held in penal institutions

187599

4153

6899

2040

18813

25449

6395

353

11930

2703

з них

Convicted prisoners in corrective colonies, among them:
 

147397

2358

5698

1520

14205

20038

5298

0

9859

2177

women

9526

0

0

0

1793

1056

0

0

163

99

minors

2603

0

0

158

291

328

0

0

140

0

prisoners serving life sentences

1175

6

318

1

44

160

172

1

58

4

People held in pre-trial detention centres (SIZO)
among them:

36492

1795

1201

291

4264

5020

1097

353

1908

526

women

2424

139

43

19

360

340

41

10

103

38

minors

1653

90

27

11

211

288

28

17

106

23

2

People with an active form of tuberculosis

10375

22

15

7

1326

1786

0

9

621

7

3

Number of convicted individuals who arrived in SIZO or penal institutions

28878

392

1347

240

2757

3755

1071

0

2040

360

4

Number of people released from penal institutions

28383

403

1224

190

3004

3338

1128

0

1713

425

 

Incl

Early conditional release

15751

216

692

140

1728

1995

633

0

684

206

5

Number of people released from SIZO

7337

319

154

133

761

785

183

73

371

138

6

Number of people registered with the Criminal Execution Inspection

191286

12107

6404

3670

17438

21595

5554

3256

10582

2675

7

Number of people who died while in penal institutions

504

5

16

0

39

154

10

0

12

3

 

Incl.

Cases of suicide

19

0

1

0

4

2

1

0

0

0

Table 2:  The number of prisoners in penal institutions as of 01.07.2005 (all places refer to regions)

Kyiv Kirovohrad Luhansk  Lviv  Odessa  Poltava Rivne  Sumy  TernopilKharkiv  Kherson  Khmelnytsky  Cherkasy  Chernivtsi  Chernihiv

Київська

Кіровоградська

Луганська

Львівська

Миколаївська

Одеська

Полтавська

Рівненська

Сумська

Тернопільська

Харківська

Херсонська

Хмельницька

Черкаська

Чернігівська

Чернівецька

 

7860

3968

15594

7534

7679

7895

7656

4297

4963

2774

16464

7211

6045

4496

2579

1849

 

5166

3010

12897

5972

6798

5150

6054

3511

4268

2264

12493

6136

5541

3842

1708

1434

0

0

442

21

0

1471

625

0

0

1245

1003

0

0

423

1185

0

0

0

283

189

0

0

297

240

0

214

207

0

0

0

256

0

7

8

78

50

20

10

10

48

70

3

62

11

12

4

13

5

2694

958

2382

1316

881

2539

1232

489

695

265

3396

1075

504

654

542

415

188

58

161

99

80

171

115

25

52

9

154

67

29

41

53

29

93

40

146

52

41

101

34

24

33

13

127

55

16

35

17

25

55

50

1115

24

995

56

482

4

27

206

1397

2132

6

22

11

0

 

1123

555

2398

1165

1234

848

1399

598

773

535

2496

1503

1049

666

349

225

 

1121

645

2760

870

1065

1076

1586

729

756

430

2570

1262

872

697

334

185

 

503

371

2034

357

585

688

1132

447

378

251

1381

479

256

363

177

55

 

580

283

475

199

280

640

249

136

174

51

709

149

87

183

158

67

 

13187

5148

14546

5910

6955

10212

6762

2715

3722

1998

14119

6406

4505

4865

4736

2219

 

21

4

25

12

12

19

15

4

7

3

47

73

12

5

4

2

 

2

1

0

2

2

0

0

0

1

0

0

0

0

3

0

0

 

Total   AR Crimea  Vinnytsa region Volyn region   Dnipropetrovsk region  Donetsk region

Zhytomyr region  Transcarpathian region  Zaporizhye region 

Ivano-Frankivsk region

 


 

 

Indicators

 

ВСЬОГО

АР Крим

Вінницька

Волинська

Дніпропетровська

Донецька

Житомирська

Закарпатська

Запорізька

Ів-Франковська

1

 Number of people

187599

4153

6899

2040

18813

25449

6395

353

11930

2703

2

 Number of places in the colony

152170

 

7289

2190

14880

20311

 

 

 

2300

3

Number of convicted prisoners

 

 

 

 

 

 

 

 

 

 

4

Percentage

 

 

94,6

93,1

126,4

 

 

 

 

117,5

5

 Number of places in SIZO

36992

 

830

 

5208

4721

 

652

 

717

6

Number of prisoners

 

 

 

790

291

4264

5285

 

349

 

530

7

Level of fullness in percentages

 

 

95,2

 

81,9

112,

 

53,5

 

73,9

8

Number of complaints from prisoners

 

 

13

6

13

308

 

2 ??

 

7

9

Number of complaints found justified

 

 

0

0

7

 

 

 

 

1

10

Number of complaints found partly justified

 

 

0

 

 

 

 

 

 

 

11

Number of complaints satisfied

 

 

0

 

 

179

 

2

 

1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table 3. The number of places against number of prisoners in  penal institutions and the number of complaints in 2005”

Kyiv Kirovohrad Luhansk  Lviv  Odessa  Poltava Rivne  Sumy  TernopilKharkiv  Kherson  Khmelnytsky  Cherkasy  Chernivtsi  Chernihiv

 

 

Київська

Кіровоградська

Луганська

Львівська

Миколаївська

Одеська

Полтавська

Рівненська

Сумська

Тернопільська

Харківська

Херсонська

Хмельницька

Черкаська

Чернігівська

Чернівецька

7860

3968

15594

7534

7679

7895

7656

4297

4963

2774

16464

7211

6045

4496

2579

1849

 

3300

 

8050

8000

5700

8470

3830

 

2900

13650

4752

5680

 

 

1940

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

120

 

93,6

96,0

 

90,4

112

 

95,7

120,6

151,7

106,4

 

 

95,3

 

1050

 

1450

1100

2970

1535

669

 

289

3800

885

650

963

810

490

 

975

 

1307

881

2606

1239

489

 

209

3396

1108

491

 

542

415

 

92,9

 

90,1

80,0

 

80,7

73,1

 

72,3

89,4

125,2

75,5

 

66,9

84,7

 

182

 

159

90

47

67

4

 

14

 

43

1

32

94

39

 

 

 

 

 

 

0

 

 

0

 

0

0

0

 

9

 

?

 

 

 

 

0

 

 

0

 

 

0

0

 

 

 

 

 

 

15

4

 

 

 

 

 

8

0

0

26

9

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table 4: Supervision of the prosecutor’s office and observance of prisoners’ rights

Overall for ITT  Lviv region  Odessa region   Poltava region   Kharkiv region  Luhansk region  Donetsk region  Zaporizhye region  Dnipropetrovsk region

 

 

Indicator

 

 

 

Загалом по ГПУ

Львівська

Одеська

Полтавська

 

Харківська

Луганськ

Донецьк

Запоріжжя

Дніпропетров

1

Number of complaints received from prisoners in 2004, including those:

1064

131

134

159

 

 

339

 

 

2

in SIZO of the region

 

 

78

97

 

14

 

 

54

3

in colonies

 

 

56

 

 

40

 

 

247

4

Number of complaints found justified or partly justified

204

5

109

0

8

3

 

 

31

5

Number of justified complaints in  %

 

 

 

 

 

 

 

 

 

6

Number of complaints received from prisoners in the first half of 2005, including those:

933

83

106

119

 

 

282

 

 

7

in SIZO of the region

 

 

66

72

 

13

60

37

25

8

in colonies

 

 

40

 

 

45

222

28

80

9

Number of complaints found justified or partly justified

103

2

101

2

4

4

3

0

6

10

Number of justified complaints in  %

 

 

 

 

 

 

 

 

 

11

Number of people released from the region’s SIZO  who had been held there by court warrant, illegally in 2004

21

0

2

0

0

0

0

7

0

12

Number of people released from the region’s SIZO  who had been held there by court warrant, illegally in the first half of 2005

5

0

1

0

0

0

1

0

0

13

Number of instructions from prosecutor’s offices to remove identified violations of the law in relation to prisoners in 2004

3652

19

176

22

504

264

6

257

31

14

Number of instructions from prosecutor’s offices to remove identified violations of the law in relation to prisoners in the first half of 2005

1764

30

91

14

354

250

5

108

6

15

Number of satisfied protests from prosecutor’s offices regarding penal institutions in 2004 

 

17

 

15

 

 

67

15

 

16

Number of satisfied protests from prosecutor’s offices regarding penal institutions in the first half of 2005

 

6

 

9

 

 

87

8

 

17

Number of employees of the penal system against whom charges were laid in 2004

2778

96

128

65

399

259

1003

190

17

18

Number of employees of the penal system against whom charges were laid i in the first half of 2005

1286

63

69

55

272

282

656

96

 

19

Number of people held in SIZO received by prosecutor’s offices during 2004

 

83

176

48

533*

64

400

154

25

20

Number of people held in SIZO received by prosecutor’s offices during the first half of 2005

 

47

87

37

253*

72

320

50

10

21

Number of people held in penal colonies received by prosecutor’s offices during 2004

 

312

389

58

 

816

2289

323

307

22

Number of people held in penal colonies received by prosecutor’s offices nі the first half of 2005

 

182

167

39

 

800

1227

170

156

 

* - number of citizens received

 

 



[1]  The Ukrainian for the Service mentioned here is the “Derzhavna kryminalno-vykonavcha sluzhba”, which is sometimes translated more literally, as the State Criminal Execution Service.  The same applies to the Kryminalno-vykonavchy kodeks, which we translate as the Penal Code (and not, as sometimes translated, the Criminal Execution Code).  Unfortunately, most terms are variously translated.  The name of the Department given here is that used by the Council of Europe, however it is often simply called the State Penal Department of Ukraine.  The reason for using Ukrainian abbreviations and acronyms (ITT and SIZO) is to try to somehow minimize the difficulties.  (translator’s note)

[2]  There are various forms of colonies [koloniya], which are penal institutions for convicted prisoners  (translator’s note). 

[3] [Custodial] arrest is a form of punishment for administrative and criminal offences. «Punishment in the form of arrest involves custodial detention in conditions of isolation and is imposed for periods from one to six months». (Article 60 of the Criminal Code). (translator’s note)

 

[4]  In Ukraine a passport is basically a personal identification document. For travel abroad, a different passport is obtained which most Ukrainians call a “foreign passport” (translator’s note)

[5] a rather loose translation of the Ukrainian баня  [banya] which is normally translated as sauna.  Given the conditions and the rather different associations of the word sauna, it seemed better to avoid it [translator’s note]

[6]  zelenka – ethyl green is a dye which has antiseptic qualities (translator’s note)

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