I pray for you each day - on the Penal System in Ukraine
In the midst of the turbulent events in Ukraines social and political life, the issue of reforming the penal system has very much taken a back seat in public attention. There remain nonetheless a number of problems in this area which touch the lives not only of the approximately 180 thousand prisoners and 44 thousand penal system employees, but also their families, and to some extent, the entire country. The situation in places of deprivation of liberty has an indirect influence on society, the level of security and even on the level of its tolerance and morality.
Unfortunately, up till now there have not been any serious discussions in society about the problems of the system. Isolated measures, initiated usually by the management of the State Department for the Execution of Sentences as before are more about creating the semblance of discussion of the problems and a search for ways to resolve them, than actually promoting resolution of burning issues. Why this tradition is so fixed and unchanging would require separate study and analysis.
At the same time, a search for ways of resolving the systems problems is continuing.
On the initiative of the Penitentiary Association of Ukraine, and with the support of the civic human rights organization “Donetsk Memorial”, a brochure has been published with an article by Tetyana Denysova, Professor and Dean of the Law Faculty of the University “ZIDMU” in Zaporizhye, entitled “I pray for you each day”. Tetyana Denysova has worked in various positions in penal institutions for over twenty years, and therefore knows it very well not only as an academic, but in practice. She is also a member of the Board of the Penitentiary Association of Ukraine. Her thoughts, questions and proposals are well worth taking into consideration not only by academics, but by all those concerned about the problems in the penal system, as well as the officials and politicians who have been vested with responsible for ensuring the proper functioning of the system.
Chair of the Penitentiary Association of Ukraine
Chair of the civic human rights organization “Donetsk Memorial”
Dedicated to those who stand on different sides of the “barricades”, the employees of the penal system and its inmates
The Ukrainian penal system finds itself poised between the obvious contradictions presented by the conservatism of current legislation and of the entire penal system, and the aspirations of the state towards humanism and democracy. It should be noted that over all the years of Ukraines independence, no cardinal changes in the direction of social transformation have been made. Ukraine remains one of the “leaders” in the use of criminal prosecution, especially of punishments involving deprivation of liberty.
According to statistical information of the State Court Administration of Ukraine, in 2004 224,226 individuals were convicted, this being 11.5% more than in 2003, and 15.5% more than in 2002. Over the last 12 years deprivation of liberty has been applied against 28-38% of those involved in criminal proceedings, with more than two and a half million individuals being convicted over that period.
Those with convictions make up more than 0.413% of the Ukrainian population, with the latter steadily on the decline (according to the latest figures of the State Committee of Statistics the population at 1 June 2005 stood at 47,100,419, whereas in 1990 it was 52 million). Four out of each thousand people in Ukraine are either in places of deprivation of liberty, under investigation or detained.
We are forced to acknowledge also the rise in latent crime, and also the unwarrantedly high number of repeat offenders. These and other factors have facilitated the formation of the right environment for the further criminalization of society – from the move towards “shadow” or illegal activities of significant strata of the population to the criminalization of the most important spheres of the functioning of the state.
As of 1 July 2005, according to the State Department for the Execution of Sentences (hereafter the Department), there were 187.6 thousand prisoners being held in 180 institutions, and the almost 700 units of the Penal Enforcement Inspection had over 191 people on their registers.
As we know, sentences have impact not only on those convicted, and those closest to them, but also indirectly on large groups of the population and on society as a whole. Since punishment does not only serve a positive function (in protecting society), but also leads to a number of negative consequences, it is the community, together with the Department, which should be carrying out a comprehensive reform of the entire penal system and bringing it into line with international standards, as the times demand.
In developing penal policy, one needs to reject entrenched stereotypes, secrecy, departmental interests, lack of objectivity in the evaluation of the behaviour of prisoners, as well as to counter lack of professionalism, incompetence and professional degradation of employees.
These steps are needed urgently however they must be extremely well-thought-out, in order to win the respect both of law-abiding citizens in our country, and of convicted prisoners.
There are new people in charge of the penal system, with many of them not familiar with the subtleties of work in institutions of this kind, with their daily life, needs, with “prison traditions” and “customs”. Work within the system demands a lot of experience, knowledge, personal effort, and in some cases, heroism.
While “finding their bearings in the system”, they must at the same time monitor each step in order to maintain their humanity, show patience and mutual respect. After all people who have been convicted, especially those serving sentences involving deprivation of liberty, regardless of whether a court has found them guilty of committing a crime, and sometime a serious crime (murder, grave bodily injuries, armed attacks, etc), remain people and members of our society. Isolation from the latter, a forced lifestyle limiting the fulfilment of their interests as individuals, prolonged periods in a negative environment, all of this leads to irreversible changes in a persons psyche, and reduces their level of social adaptation. In the process of serving a sentence, the links binding a person to society are severed. Those who previously had a home, family, work, risk losing them, instead receiving the stigma of a criminal conviction.
I say a prayer each day for those two forces, employees and convicted prisoners that they find mutual understanding, avoid serious conflict which could lead to mass insubordination, demonstrate patience, empathy and humanity, and that they learn to really listen to each other.
The first steps needed to achieve real success
We need first and foremost to adequately assess the situation and to correctly determine strategic directions.
Despite the fact that Ukraine defines the human being as the purpose of its existence, declaring his or her life and health, honour and dignity, inviolability and security to be the highest social value, with the guiding principle: «Salus populi suprema lex»* (“The good of the people is the highest law”), not all deeds carried out serve this good.
Specifically to ensure the peace of mind of citizens, to protect and defend each individual from criminal actions, in 2001 the Ukrainian Criminal Code was passed, containing 35 sections (447 articles), a large number of which involve sanctions linked with deprivation of liberty. .
A number of studies of the institutions of punishment, their application and execution, suggest that the harshness of punishment and sanctions, lengthy sentences, or an increase in the number of penal institutions, do not bring the desired effect in fighting crime.
An analysis of the application of punishments for crimes shows, as mentioned above, that the dominant form of punishment remains deprivation of liberty. This is promoted by the established practice of the courts, indecisiveness in applying alternative forms of punishment, indifference within society, and in general the lack of a clear policy on issues involving the imposition and execution of punishments.
Criminal policy is a multi-tiered concept which can only be fully understood why considering all aspects. It includes criminal-legal, criminal procedural, penal and preventive measures all aimed at countering socially dangerous actions. There can be no doubt that criminal policy is at the basis of criminal legislation, particularly as regards the application of criminal punishment.
In terms of the concept of punishment, its essence and aims, one can identify the states main directions (functions), namely:
- A protective function (which, as well as state force applied in the form of punishment, also implements general or specialized prevention);
- Corrective (educational and social content, at once directed at the convicted person and his/her surroundings, and society;
- Compensatory (protection of the victim and compensation of damages incurred through the crime;
- The function of resocialization of convicted individuals and their social adaptation after their release from imprisonment, social control (a negative moral and legal view of a person who has committed a crime, civic control over the execution of sentences and supervision in the post-penal period).
The fulfilment of these functions requires a comprehensive range of other, auxiliary functions, namely: financing, healthcare, communal and everyday services, etc.
A major role in carrying out the main and secondary functions involved in punishment is vested with the Penal Service of Ukraine (hereafter PSU), the efficiency of which remains rather low. There has been no success in bringing the conditions in penal institutions into line with international standards (this is in particular true of pre-trial detention centres, or SIZO). The level of the corrective process makes such reforming function virtually meaningless and the most basic conditions for social adaptation for those who have served a criminal sentence are lacking. A major factor influencing the situation is the staff changes in institutions and bodies of the PSU with the new personnel lacking not only sufficient work experience, but also any possibility of gaining such experience.
The vast majority of those convicted need constant and thorough attention from society. However society, or more specifically, each of us, not only fails to take any active part in the fate of the convicted individuals, but also avoids carrying out any corrective or social control. This makes the position of members of society (including employees of the PSU) entirely incomprehensible since precisely participation in carrying out these functions is vitally needed from the point of view of the further existence of society and its protection from a spread of criminalization.
Numerous criminological and penal studies have demonstrated that there are, as it were, two sets of rules in places of deprivation of liberty. These sets of rules (sometimes called laws) are basically the same in most penal institutions in the world. The first set involves official rules, established by legislation, regulating the rules for holding prisoners. Such rules are based on current penal laws and other normative legal acts.
The second set of rules (unofficial) are based on so-called “prison law” – a collection of unwritten rules, norms, sanctions for convicted prisoners, reflected in restrictions or prohibitions. It is virtually impossible to get away from such unwritten “prison rules” and “traditions”.
As mentioned above, civic society does play an active role in reforming individuals who have committed crimes and distances itself from any measures aimed at eliminating negative manifestations of these peoples behaviour in the future. The real conditions behind bars thus encourage the creation by prisoners of their own specific groups which help to divide spheres of influence, defend themselves against attacks or harassment, and support prisoners in choosing a place within a strict hierarchy, Then following their release these groups enable the individuals to organize their life in the outside world, find work and if necessary carry out joint criminal activities.
Both in places of pre-trial detention and in penal institutions there is a permanent atmosphere of tension which at any moment can lead to offences being committed. According to the informal “codes of behaviour”, beginning with short-term deprivation of liberty (for example, remand in custody in pre-trial detention centres), the individual must immediately choose his/her specific form of behaviour amongst his/her own. Those remanded in custody or convicted for the first time must, as a rule, undergo a test through violence which they need to respond to adequately, even by committing an offence or crime. If they dont counter such actions, they may continue to be subjected to such additional violence.
The author of the present article has found in the course of studies that the overwhelming majority of convicted prisoners (74.6%) regard intervention by the administration into the internal matters of prisoners or their protection to be unacceptable. In fact, though, such intervention is virtually non-existent since in penal institutions there is, as a rule, neutrality between employees and prisoners and a divide of their spheres of influence. As a result protection against violence, rape, standing up for prisoners are not priorities of the administration, but rather of various groups, for example, those from the same area. It is from these that later one sees the formation and functioning of organized groups and criminal organizations set up to carry out serious and particularly serious crimes both in places of deprivation of liberty, and beyond their boundaries.
PSU employees in turn are placed in fairly difficult circumstances. On the one hand they need to maintain discipline among prisoners, on the other it is impossible to reckon with the unofficial prison code which prisoners try to establish in each institution. It is only the long experience of penal system personnel, their honesty, fairness and trust from prisoners which can help the administration hold such a huge and specific range of people without risking danger. It should however be pointed out that in such institutions there is permanent stress which may at any moment through incorrect steps re-allocate roles.
As has been pointed out by lawyers, psychologists, educationalists and sociologists on many occasions, experience shows that lengthy periods of imprisonment have a negative effect on the individual, reduce the efficiency of any corrective impact, make it impossible to maintain socially useful contacts, as well as increasing aggression and the risk of psychological disorders. For this reason a large percentage of prisoners after being released try to hold on to their “crowd” in which they feel themselves to be people with a social position. A court sentence therefore does not merely assign punishment for three, five, seven or more years. Society uproots criminals from their close relatives, their home and work and sends them to special institutions. In order to feel comfortable, to be protected from various difficulties, to restore a sense of self-worth and not feel themselves to be outcasts, those who committed a crime join together with others with a similar history, create their own ideology, modifying the values existing in the country and producing their own which are at odds with law-abiding society. Such ways and traditions are actively supported by those previously convicted, and it is specifically they who gradually undermine the foundations of genera morality.
It is also widely known that a certain percentage of prisoners suffer from various illnesses or diseases (tuberculosis, psychological disorders, venereal diseases or other general illnesses). Particular danger is presented by convicted prisoners with psychological disorders whose behaviour is marked by aggression, inclination for conflict, or to commit new offences. It should be kept in mind that the unsuitable conditions, with limited everyday, medical and production conditions contribute not only to the spread of disease in penal institutions, but also to their being spread beyond the confines of the institutions.
Modern society suffers from a feeling of ambivalence as far as punishment is concerned. On the one hand the rise in crime prompts society to active countermeasures through a wide range of punitive means (criminalization of activities, increase in sanctions, etc), while on the other, we wish to avoid the criminalization of society and therefore endorse a liberal approach to punishment, the use of incentives, amnesties, pardons, try to reduce the number of repeat offenders, draw up comprehensive preventive programs, etc.
Sufficiently well-justified programs have yet to be created for reforming prisoners, while the system itself is, unfortunately, unable to counter the dangerous mass of criminals. If a person, having served his/her sentence, opts for a new life, trying to break with his/her criminal past and reject illegal activities, s/he does so not thanks to, but rather in spite of the “system”. The state and society should therefore understand that criminal behaviour must not become a norm for life since this can lead to the self-destruction of the state, and society.
All the above said indicates that PSU personnel, and specifically those in charge, together with civic organizations and both former and present prisoners need to place top-priority tasks before the authorities:
The order of the following does not reflect any sequence of reform. All need to be carried out in parallel, with the numbering indicating only priorities in work.
- to pass a comprehensive range of legislative and organizational measures aimed at reforming Ukraines criminal and penal policy. There should be recognition of the undesirability of lengthy periods of deprivation of liberty for the majority of convicted criminals, and improvement to sanctions in the Criminal Code. Restriction is also imperative of the period of time of remand in custody during consideration of criminal cases before a sentence comes into legal force. There should be more use of forms of punishment not involving deprivation of liberty, as well as the use of preventive measures such as signed undertakings not to abscond, personal security, security offered by a civic organization or work collective, as well as bail.
- The second strategic direction needs to be based on an analysis of the reports of the Department on the activities of the Penal Service of Ukraine. These would include issues regarding the presence and movement of special contingents, the fulfilment of production plans, corrective work, investigative operations, staffing policy, etc.
According to the last published report from the Department, there are plenty of shortcomings in their work, and virtually no time for their rectification.
The main problem areas identified by the Head of the Department remain:
- Staffing issues (the lack of personnel and the low professional level, incidents of infringement of discipline, professional reform, psychological overload and stress, and others);
- The overcrowding in institutions of special contingents (unsuitable material and everyday conditions, insufficient places for remand prisoners in pre-trial detention centres (SIZO), inadequate financing for building new institutions or bringing old institutions into line with international standards, the lack of proper medical care, etc);
- The low rate of effectiveness of social and educational work with convicted criminals (disciplinary practice has a repressive tendency, and the organization of general education requires serious improvement;
- Production figures for the majority of institutions remain low (lack of viability, the lack of outlets for the products, weakening of agricultural production, indebtedness in paying wages, the lack of flexible marketing policy);
The present Head of the Department, like his predecessors, set as the main task (judging by the text of the above-mentioned report) to have positive results of work on all findings by the end of 2005.
As a former practicing employee of the penal system (a reserve colonel who began her service as a cadet and head of a unit), I am accustomed to:
- setting realistic plans
- being able to distinguish between strategy and tactics since this helps implement such plans
- devoting efforts not only to resolving present problems, but also to having an impact on fundamental changes to the penal system itself. All of this gives grounds for seeking ways to achieve positive results.
A second strategic direction would involve eliminating the problems of overcrowding.
At first glance a solution to this problem can seem simple, namely by major building and repair work (this, incidentally, was mentioned in the last report. However, as we know, the State Budget has not allowed for the spending need ed for equipping institutions according to norms which could at least more or less come close to international standards. Furthermore, as is already clear from the analysis, the socio-economic situation, pressure from enforcement structures, public opinion, as well as other factors, contribute to the saying that there are never many prisons not having lost its relevance.
One could regularly apply amnesties and pardons. After all, in accordance with the Law of Ukraine from 01.10.1996 «On the application of amnesties in Ukraine”, the release of a certain number of prisoners is envisaged. From 1992 – 2003, 151,940 people were released under amnesties.
Thanks to the latest amnesty, carried out on 23 June 2005, according to predictions as many as 17.5 thousand prisoners may have been released. Figures were published in the newspaper “Law and Duty” № 42 (October) which reported that 32,281 individuals had come under the amnesty, of whom 8,414 people had been released from penal institutions and SIZO, while 24,942 had been taken off the Penal Inspection register. Despite the fact the law enforcement agencies assure citizens that no worsening is envisaged of the criminogenic situation, experience shows that already in the first months a third of those released will return to where they were released from. This prognosis is based on the fact that a large percentage of convicted prisoners, while serving their sentence, lose their home, work, socially useful contacts, while some of them are unable to work. Local authorities do not have the possibility of accommodating all those wishing to go to crisis centres, There are no probation services, and the Law of Ukraine “On the social adaptation of individuals who have served sentences in places of deprivation of liberty”, which should have been able to improve the fate of those released, is virtually not working.
However the first and second ways can only be applied as an instantaneous step on the complex and difficult path of radical changes to the policy on punishment of the state. As mentioned, a change is needed in legislation, a gradual reduction in the range of activities deemed to be socially dangerous, and an according reduction in the number of penal institutions. One should also change the traditions of society, learning to show tolerance and to recognize that those convicted are also people like us, raising the legal culture and level of morality. Then measures by the state on reducing and liberalizing penal coercion will be accepted by the public as necessary. Only individuals who present a danger to society, those who have committed serious or particularly serious crimes should be kept in penal institutions, and deprivation of liberty should be applied as a most serious, exceptional form of punishment. This way is well-known to the majority of academics and world practice. It would be precisely through this that the Penal Service would be able to free its institutions of chronic overcrowding.
This does not mean that society should not punish a criminal for the deed committed. The principle of inevitability of punishment is on the contrary vital, and those guilty of any crimes must be punished. Punished, however, not crippled.
Here one must agree with the well-known Russian criminologist D.A. Shestakov who has consistently advocated liberalization of criminal and penal legislation, and a new approach and civilized relations between society and criminal elements.
It is quite clear that limitation on the use of deprivation of liberty as a form of punishment, and its application as exception, with the principle that сulpae poena par esto (let the punishment fit the crime) will need in-depth rethinking, and also courage on the part of court bodies, society and the legislative branch of power.
The third direction would involve the selection and distribution of staff, their professional training, and improvement in social protection. Despite the catchphrase that “personnel decide everything”, which the honourable Head of the Department is concentrating on, I place this direction in third place only. Why? This is precisely because the PSU are already working with employees who have a certain level of work experience and skills. I would not be prepared to assert that all is fine (based on the above-mentioned Report of the Head of the Department) and one sees that a certain number of staff are not at the appropriate professional and moral level, however thanks to ordinary employees of institutions order is maintained, and mass levels of law-breaking are not permitted among convicted prisoners.
A fair number of plans for reforming the staffing system have been drawn up, and the best should be taken from these and applied for the conditions of the present-day PSU. In order to achieve positive results in the third direction, one needs to constantly introduce tactical functions, some of which I would like to focus attention on.
As mentioned above, problems in staffing policy include: the absence of prestige for the work of PSU staff; a low professional level at all levels; pitifully low pay; lack of social protection, and others. In some cases employees have simply proved unable to cope with work under new conditions.
Bearing in mind new tendencies in the management of PSU, one should begin by ordering the competences of central and territorial structures, namely broadening the independence of territorial links. This will make it possible to raise the level of responsibility of local authorities for the organization of the process for serving sentences, taking into consideration the specific features of places where people are held.
Planning the development of territorial systems should be carrying out using a comprehensive approach, calculating the approximate number of convicted criminals, staff, as well as the financing required to maintain the institutions for a year, or perhaps for a longer period.
Predictions for the number of convicted criminals (I hope that this will not be a different issue for the management of the Department since the procedure for such calculations are generally known) can possibly be used not only to achieve stability in work staffing teams, but also for planning forms and methods of work with convicted criminals, improving the activities of penal institutions, for coordinating prophylactic work, etc. Incidentally, despite the recently passed law on penal institutions, the staffing numbers should be maintained at a stable level for two, and not one year, even under conditions of a reduction in the number of convicted prisoners.
Through attestation of staff it will be possible to identify the number of employees whose work, organizational and moral qualities meet the demands placed by society and the state, and also carry out rotation of staff (if such rotation be needed or justified). In order to improve the professional core, age limits, as well as professional demands on those occupying positions of responsibility in the PSU are needed.
An important direction would be the training of the appropriate personnel at managerial levels, social and educational services, psychologists, medical personnel, inspectors of the security service etc.
Even this list which is not exhaustive of employees working directly in penal institutions give grounds for asserting that two or even five educational institutions would not be enough to ensure this training. At the present time in Ukraine only two educational institutions prepare staff for penal institution, with these institutions being general, without any specialization. It is therefore vital to undertake an urgent review of the strategy for training staff and the system of educational institutions, and as far as possible to adapt such education to meet the specific requirements of work in places of deprivation of liberty.
Qualification models for PSU personnel need to be drawn up and textbooks and educational manuals prepared for the main categories of such staff. Highly qualified specialists must be employed for working in educational institutions, with the application of world experience applied. Most importantly, training must be as close as possible to practice (with work practice during the period of study, employment after graduation only in the PSU for a period of five years, etc).
It is no secret that being in such specific surroundings, staff develop certain negative qualities which can lead to professional degradation of an individual. Virtually no one is able to avoid this unless they know how to protect themselves. It would therefore be advisable to place the task of creating a special training program on avoiding such tendencies before scientists, psychologists, educationalists and medical personnel.
However all events will be meaningless if social programs are not introduced for members of staff, and protection of their life, health, honour and dignity is not ensured.
The next component (direction) for the Departments activities would be corrective work.
One of the tasks of criminal and penal policy is reform of the individual who has committed a crime. The concept of correction has changed in accordance with the reform of society, the state of its economy, law and order, etc. The concept of the aim of reform of convicted prisoners should be viewed taking into consideration the present days economic, social and political reality. Bearing in mind trends in application of criminal punishment, voluntary reform of prisoners would seem a more promising option, however this does not preclude the use in part of an element of coercion. Such reform is entirely in keeping with corrective penal functions. However this process should not be undertaken only within the framework of penal law. Comprehensive application is needed of the foundations of pedagogical science, psychology, criminology and sociology in order to draw up and introduce voluntary reform of the convicted person by encouraging lawful behaviour.
In moving from forced to voluntary reform a special doctrine needs to be worked out which will include provisions on help for convicted prisoners both while they are serving their sentence and later.
Tactical auxiliary steps towards this end would be general educational courses and vocational and technical training.
Encouragement for prisoners to adopt law-abiding behaviour and a non-criminal lifestyle within society following their release should become the basis of any corrective influence on convicted prisoners. They must not feel like outcasts. It is with the direct participation of these prisoners that society and the Department must create restorative justice programs which have long been used by countries of Western Europe, but which are perceived by our society as somehow paradoxical. The well-known criminologist Nils Kristi described meetings in Norway where the topics of discussion revolved around criminal and corrective policy, the life of convicted criminals, problems of their social adaptation, etc. Such gatherings are attended by prominent politicians, representatives of the press, the clergy, officials from penal institutions, academics, former prisoners and convicted prisoners on leave. This at present would be impossible to imagine in our country. Yet it will be precisely with such events that Ukraine will begin truly and not just on paper changing the policy of the state in assigning and executing punishment, and that we will be able to call ourselves a civilized society. One must wholeheartedly support the positive initiatives which have been consistently presented by L.V. Bakhri-Shakhmatov, O.V. Betsa, O.P. Bukalov, I.M. Danshin, V.M. Dryomin, O.H. Kolb, A.P. Zakalyuk, M.P. Melentyev, H.O. Radovy, A.Kh. Stepanyuk, V.M. Trubnikov and others on seeking ways of reforming not only the Penal Service, but also society.
The above gives grounds for proposing that the following be drawn up and passed:
- National penitentiary doctrine:
- A Law “On Penitentiary policy”
- A Law “On preventive measures against crime”
- A Law “On pre-trial detention” (a new version). This should allow, for example, for individuals remanded in custody to have permanent access to drinking water, to a toilet whenever needed, walks in fresh air, etc)
- Amendments to the Criminal Procedure Code of Ukraine which would stipulate that detention must not exceed 24 hours and also that a lawyer and relatives of the suspect or accused must be informed. Short-term detention of individuals, suspected of committing a crime must be regulated solely by norms of the law, and not by other provisions, instructions, etc.
An Important strategic direction in the activities of the PSU is undoubtedly production activities of institutions since these can help maintain normal material and everyday conditions, ensure employment for prisoners and increase the effectiveness of the corrective influence..
Unfortunately a detailed and full review of all the subtleties of the penal service would extend beyond the scope of the present work. The author hopes however that this article will attract the attention of the reader and would invite all those concerned by the range of issues raised, present and former employees of the Penal Service of Ukraine, convicted prisoners or those released and their families, representatives of civic organizations, scientists and ordinary citizens to join this important discussion.
(very slightly abridged version of the original with references to works not translated into English omitted)