Pre-trial detention centres [SIZO] in Ukraine and how they comply with international norms
An analysis of how Ukrainian legislation regulating the rules and conditions for holding individuals remanded in custody in pre-trial detention centres (SIZO) comply with the standards and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
Ukraine has ratified the fundamental international normative acts which regulate and demand that prisoners and those suspected of committing a crime are held in conditions which safeguard their human dignity and the observance of the individuals rights.
These documents are:
The European Convention for the Protection of Human Rights and Fundamental Freedoms
The UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment (Convention against Torture), to which Ukraine is a state party
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
The European Prison Rules – the Revised European version of the Standard Minimum Rules for the Treatment of Prisoners
The main aims of these normative acts, as outlined in the Preamble to the European Prison Rules are as follows:
a. to establish a range of minimum standards for all those aspects of prison administration that are essential to human conditions and positive treatment in modern and progressive systems;
b. to serve as a stimulus to prison and administrations to develop policies and management style and practice based on good contemporary principles of purpose and equity;
c. to encourage in prison staffs professional attitudes that reflect the important social and moral qualities of their work and to create conditions in which they can optimise their own performance to the benefit of society in general, the prisoners in their care and their own vocational satisfaction;
d. to provide realistic basic criteria against which prison administrations and those responsible for inspecting the conditions and management of prisons can make valid judgements of performance and measure progress towards higher standards.
It should be borne in mind that by ratifying all of the above conventions, Ukraine has committed itself to comply with the provisions contained in them, first and foremost through domestic legislation, but also through changes in society in the attitude towards human beings and their individual value.
Article 3 of the Constitution of Ukraine states: “The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.
Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State”.
This norm enshrines the social direction of the state, and is a norm of direct force, that is, for its application no additional normative acts are required. Ukraine has thus declared the principle of respect and protection of human rights however this principle also needs to “work” in places of deprivation of liberty and pre-trial detention centres.
According to points 64 and 65 of the European Prison Rules “imprisonment is by the deprivation of liberty a punishment in itself” and the conditions and prison regime should not therefore aggravate such suffering. These points, and others in the conventions mentioned highlight a fundamental difference in the concept (paradigm) of a penitentiary system. The difference lies in the fact that it is imprisonment which is deemed to be the punishment, not the regime in confinement. The regime therefore in European prisons is more reminiscent of that of a sanatorium which one may not leave, this meaning that those imprisoned are treated like people and provided with basic human needs.
The Ukrainian paradigm makes the convicted person or suspect someone “beyond society”, who must be punished and reformed through a depersonalized system which takes no account of the fact that it is dealing with a human being, and is not aimed at respect.
The basic normative acts of Ukrainian legislation regulating rules of procedure, and conditions for holding convicted people and those suspected of a crime in specially designated institutions are:
- the Criminal Code of Ukraine
- the Penal Code of Ukraine
- the law of Ukraine “On pre-trial detention”
- the Internal Regulations for penal institutions
- the Rules for holding individuals remanded in custody or convicted in SIZO of the State Department of Ukraine for the Execution of Sentences
- the Rules for treatment of those remanded in custody or convicted prisoners in pre-trial detention centres
It is these normative acts that should contain provisions analogous to those mentioned in the international legal documents.
This study offers a comparative analysis of international norms and Ukrainian legislation relating to conditions in which those remanded in custody or convicted are held in pre-trial detention centres [SIZO]. We will consider how the norms comply and also whether domestic legislation foresees mechanisms enabling the implementation of such norms. We will also consider whether legal application, doctrine and legal awareness of those who apply the legislation are changing.
2. The main points and an analysis of the comments and recommendations made by the Committee against Torture after visiting SIZO [pre-trial detention centres] in Ukraine.
All international conventions aimed at ensuring the observance of human rights and freedoms, and regulating treatment of suspects and of prisoners have a certain structure, and certain basic criteria, These establish certain limits beyond which treatment becomes devoid of humanity, respect for human dignity and takes on aspects of ill-treatment or even torture.
One should also note that such agreements as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment do not contain any rules as such. They are aimed at making it possible to inspect places where individuals are held, and it is up to the special body, the Committee for the Prevention of Torture (CPT) to determine whether treatment there constitutes torture, etc.
It is specifically in this that one of the fundamental differences lies between domestic normative acts and international conventions. Ukraines legal doctrine, practice and law-making activities have all been directed at total regulation of social regulation. It is this that explains the huge number of normative acts in our legislation, and the amount of discrepancies and general lack of coordination between them. In fact, given the volume of documents (over 205 thousand acts) it would be difficult to expect that all of them could be standardized and coordinated to avoid discrepancies. It is furthermore in connection with such differences in Ukrainian and European legal practice that the process of bringing domestic legislation into line with international agreements is so slow and inconsistent. Passing a normative act which in its spirit is fully in accord with international agreements, we come up against the problem that it can be impossible to implement (because the principle of “the rule of reason” in the application of the law does not work in Ukraine, while if one follows a different road, then one needs to pass a whole range of normative acts which establish mechanisms for implementing the provisions of international conventions). It is specifically at the stage that the contradictions, discrepancies and complications appear.
The following criteria are considered in determining when prison standards meet acceptable standards of humanity and respect for human dignity:
- reception and registration
- allocation and classification of suspects or convicted prisoners
- personal hygiene
- clothes and personal things
- medical care
- discipline and punishment
- means of restraint
- information provided to prisoners and their ability to submit complaints
- contact with the outside world
- religious and moral assistance
- protecting prisoners property
- notification of death, illness, transfer and others
- transportation of prisoners
- the purpose of corrective activities and the regime
- physical education, training, sport and recreation
- preparation for release
- special features of imprisonment for prisoners of certain categories
How domestic legislation meets these criteria will be discussed in section 3.
We would stress here that the focus of this study is detention of convicted prisoners and suspects in SIZO (pre-trial detention centres), and other institutions will not be considered.
The comments made by the CPT which are particularly linked with SIZO have over several years focused on the following:
- How full the institutions are and the physical conditions in SIZO
This factor is one of the most acute for Ukrainian institutions where people who have been remanded in custody are held.
CPT has repeatedly pointed to the unacceptably large number of people in some cells with inmates sometimes not having their own bed and having to take turns sleeping. The cells themselves have drawn criticism with only inadequate artificial lighting, with the heat sometimes forcing people to stay in their underwear. Toilet facilities are in the cells, and only occasionally partitioned off. The general level of cleanliness gives grounds for concern, with cells teeming with cockroaches, fleas and other parasites. In some cells the CPT saw rodents. This posed a serious threat to health.
While international conventions demand that prisoners have around 4 m², the actual situation showed that each individual had between 1.5 and 2 m². depending on the region and the number of rooms within a specific SIZO.
In terms of material conditions, the SIZO did not meet international standards due to:
- lack of natural lighting, ventilation and heating
- the state of the toilets in the cells
- the state of the cells themselves, as well as other premises
Minimum prison standards require windows which allow enough light to be able to read or work in normal conditions. They must also give access to fresh air, unless there is a functioning ventilator. Artificial lighting must meet technical norms; all premises must comply with sanitary hygiene requirements and all inmates should have the opportunity to use shower facilities as often as necessary, but no less frequently than once a week. There should be separate beds for each inmate and these which must be in decent condition.
One result of the bad conditions found by the CPT was the increase in illness, especially of tuberculosis in SIZO.
The CPTs recommendations concerned the following:
- that the space per inmate be increased as swiftly as possible
- that inmates be provided with sufficient quantities of items of personally hygiene and means to keep the cells clean
- that measures be taken to ensure a swift imprisonment in material conditions in all cells, improving hygiene, natural and artificial lightening, ventilation, etc. Beds must be provided for each inmate
- Health care
There are considerable problems in this area in SIZO. The state, when taking upon itself the function of punishing individuals or restricting their movements must provide such individuals with the possibility of undergoing medical treatment and checkups.
During their visits, the CPT found considerable evidence to suggest that medical care for those held in SIZO is not on an adequate level.
SIZO staff said that the main problem was tuberculosis, and stressed that over recent years the number of cases of tuberculosis had increased significantly, largely through overcrowded prisoners and the lack of appropriate sanitary conditions to control the spread of the disease. “It was also stated that the tuberculostatic medicines currently available on the market were costly, while the range available was decreasing. Also, the number of cases of multi-resistance to tuberculostatic medicines in Ukraines prisons was said to be rising (though the prison medical services did not yet have more specific information on the exact scale of the trend). As regards the Kharkiv SIZO, for example, the doctor in charge of the health-care service estimated that about 20% of the prisoners registered at the establishment as suffering from tuberculosis had a serious form of tuberculosis, caused in particular by resistance to antibiotics”.
In general the number of doctors was deemed entirely inadequate
Among the CPTs recommendations were the following:
- to ensure satisfactory conditions of hygiene and adequate ventilation in the cells for tuberculosis patients,
- care should also be taken to ensure that such prisoners are able to maintain a standard of personal hygiene consistent with the requirements of their state of health
- to –ensure accommodation for prisoners suffering from tuberculosis – irrespective of their category – based on strict diagnostic criteria
- to organize appropriate distribution and appropriate monitoring of the taking of medicine against tuberculosis
- to give more responsibility to the Ministry of Health for ensuring medical services within the Ukrainian penal system, including employing medical personnel and supervising their work
The Standard Minimum Rules for the Treatment of Prisoners provide succinct demands as regards food and drink:
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
As far as food was concerned, the CPT Delegation heard many complaints from inmates about the quantity and quality of the food, as well as many examples demonstrating lack of compliance with international standards. In the Kharkiv SIZO they were also told that the food had improved in the days preceding the visit. Most inmates relied to a large extent on food parcels from visitors. In the same Kharkiv SIZO “The six dietary norms used were based on an old instruction from the Ministry of Internal Affairs, which had not been renewed and continued to serve for catering and accounting operations (ranging from 2,726 calories per day for remand prisoners to 3,062.2 for sentenced prisoners; for tuberculosis patients this daily norm was raised to 3,144 calories and for pregnant women and nursing mothers to 3,284 calories). The weekly menus drawn up by the dietician for the head cook took account of the necessary requirements in calories, lipids and carbohydrates and were expressed in grams per person for each product (e.g. the norm established for sentenced prisoners provided for 80 g of meat per person per day).
However, it became apparent from the interviews with staff in charge of the provision of food that, despite their efforts, they could not comply with these norms. In particular, this was said to be the result of the prisons financial difficulties. Verification of the food stocks and food preparation by a medical member of the delegation confirmed this state of affairs. The checks revealed that of the 380 kg of meat scheduled on that day for a prison population of 3,760 people, it had only been possible to prepare 130 kg (i.e. 34.57g per person).
158. In addition, the conditions of hygiene in which meals were prepared in the kitchens left much to be desired. The same was true of food storage: the cold storage unit and freezers were not equipped with a temperature regulator (or where there was one, it did not work), some of the meat hooks were rusty and there was no means of checking the expiry date on tins. That is an unsatisfactory situation in health terms”.
The doctors in the Delegation also noted that the menu on the day of the visit did not corresponde to what the inmates actually received. In addition, they found that the meat which was going to be prepared was not fit for consumption, as evidenced both by its appearance and its smell.
This is just a small part of the problems identified during the CPT visit to SIZO.
The CPT recommended that the Ukrainian authorities:
- “ensure without delay that the various norms laid down for the daily menus are strictly complied with
- ensure that meals are prepared in appropriate hygiene conditions
- remedy the deficiencies as regards the storage of food products (especially as regards cold storage/freezer units, control of the expiry date of tinned food).”
- Personnel, maintenance of discipline and isolation
The CPT stressed the need for professional staff with well-developed interpersonal communication skills, as well as the need to establish good relations between prison staff and prisoners. It mentioned also that the state must raise and maintain the prestige of those working in the penal system.
“Disciplinary matters for remand prisons are regulated by Section 14 of the Law on “Pre-trial detention” and Rule 17 of the Rules of conduct for remand and sentenced prisoners in remand prisons. The most severe disciplinary sanction is placement in a disciplinary cell, for up to ten days for adults (15 days for working sentenced prisoners) and up to five days for minors”.
The CPT found the conditions in the Kharkiv SIZO unacceptable. “The cells were very small (3,8 m²) and had no access to daylight. In addition, with the exception of women and minors, prisoners placed in disciplinary cells received neither a mattress nor blankets at night. Moreover, with the exception of minors, they were not allowed outdoor exercise. The only positive point concerned artificial lighting and ventilation, which were adequate”
The CPT recommended that the necessary measures were taken to ensure that all prisoners placed in disciplinary cells:
· receive a mattress and blankets for the night
· have one hour of outdoor exercise per day.
It also recommended that steps be taken to ensure that all such prisoners have access to reading matter, and that disciplinary cells were enlarged and provided with access to natural light.
- Contact with the outside world
The CPT Report from 1998 states: “It is very important for prisoners to be able to maintain good contact with the outside world. Above all, prisoners must be given the means of safeguarding their relationships with their families and close friends, and especially with their spouses or partners and their children. The continuation of such relationships is of crucial importance for all those concerned, particularly in the contest of prisoners social rehabilitation. The guiding principle should be to promote contact with the outside world; any restrictions on such contacts should be based exclusively on security concerns of an appreciable nature or considerations linked to available resources. That is the spirit underlying several recommendations in the 1987 European Prison Rules, especially Rule 43 (paragraph 1) and Rule 65 (point c).
The CPT Delegation met many remand prisoners and people detained in the Kharkiv SIZO who had over a long period not been allowed visits from relatives or friends, or who had not been given the right to correspond with them.
The CPT recognized that there might on occasions be a need to limit contact, but stressed that this must not be for prolonged periods. It also said that while visits in closed booths might be necessary in some cases, in general inmates in SIZOs should be able to enjoy visits in more open conditions.
The violations identified concerned in the first instance the fact that visits were entirely up to the person running the investigation, which meant that one could not say that visits and other contacts were guaranteed people remanded in custody.
According to the Standard Minimum Rules for the Treatment of Prisoners “Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.” (36 § 3).
During their visits to Ukrainian SIZOs, the CPT gave considerable attention to whether inmates were able to make complaints. They looked at how effective the complaints procedure was and the checks made into such complaints, with basic safeguards against unlawful or ill-treatment in places of deprivation of liberty.
The CPT stated:
Prisoners should have avenues of complaint open to them, both within and outside the prison system, and be entitled to confidential access to an appropriate authority.
A remand prisoner can submit complaints to the prison governor and has confidential access to the public prosecutor. The CPT invites the Ukrainian authorities to add the President of the CPT to the list of authorities with whom prisoners can communicate on a confidential basis.
As regards the inspection of remand prisons, it is a matter for the public prosecutor, who is required to monitor compliance with the law in these establishments. According to the information gathered by the delegation, these inspections take place once a month and give rise to a report. The representatives of the Prosecutor Generals Office of Ukraine indicated that public prosecutors inspecting prisons were entitled to visit the detention areas in order to inspect conditions of detention, to control disciplinary measures as well as compliance with legislation and regulations.
3. Analysis of Ukrainian normative acts in terms of how they comply with European standards and other international normative acts, and ensuring that Ukrainian legislation complies with the recommendations made by the CPT.
We will carry out our comparison using the same sections as in Part 2.
1. How full the institutions are and the physical conditions in SIZO
Pursuant to Article 1 of the Law of Ukraine “On Pre-trial detention” “pre-trial detention is a preventive measure applicable to an accused, a defendant, a person suspected of having committed a crime punishable with imprisonment or a convicted person whose sentence has not yet come into force. Pre-trial detention takes place in pre-trial detention centres [SIZO] which are part of the Penal Service of Ukraine.”.
The purpose of pre-trial detention is to ensure that a person remanded in custody does not abscond from investigation or court, does not obstruct the establishment of the truth in the case or pursue criminal activities, and in order to ensure the execution of a sentence.
The legislators allow for the following identifying features of pre-trial detention which are decisive for determining and maintaining conditions in SIZO, namely:
- pre-trial detention is a preventive measure;
- this preventive measure is used against a person accused, awaiting trial, suspected of a crime, that is, against individuals who have not been convicted;
- this preventive measure is used against people suspected of having committed a crime which carries with it a punishment involving deprivation of liberty;
- this preventive measure is used against a person whose sentence has not yet come into legal force.
These features highlight the key point about remand in SIZO, this being that a person has not been convicted, and that the demand of the presumption of innocence must apply. Article 1 § 2 of the Law on pre-trial detention states that the remand in custody is carried out in strict compliance with the Constitution of Ukraine, the Universal Declaration on Human Rights, other international legal norms and standards for the treatment of prisoners, and must not involve deliberate actions causing physical or moral suffering, or humiliating a person.
We need to determine whether these principles are in fact adhered to.
In accordance with current legislation two categories of people are held in SIZO:
i) people who have been remanded in custody as a preventive measure while under investigation or awaiting trial;
ii) convicted prisoners who have been kept in SIZO to work providing services to the SIZO with their own written consent.
The main requirements of the regime in pre-trial detention centres are the isolation from society of individuals remanded in custody, constant surveillance and separate conditions on the basis of such criteria as age, gender, character, and the seriousness of the crime the person is charged with, the legal status of the individual (convicted, suspected).
On the basis of this provision of the above-mentioned Law, one can state that at the legislative level the basic principle for separate conditions are stipulated which overall comply with the provisions of Points 11 – 13 of the Standard Minimum Rules for the Treatment of Prisoners. However there are some differences. For example, Article 8 of the Law on pre-trial detention stipulates that minors shall be kept separate from adults. In exceptional circumstances, in order to avoid infringements of the regime in cells where minors are held, it is permitted with the sanction of the prosecutor to hold no more than two adults who are being prosecuted for the first time and are not charged with serious or particularly serious crimes. This provision of Ukrainian legislation runs counter to both international experience and standards. This was pointed out by the CPT in its reports based on visits to Ukrainian SIZOs.
“In a cell of around 8 square metres there were 12 people standing awaiting allocation, both adults and minors. The Committee must also state that it cannot support the practice observed in some SIZO where an adult was place in a cell for minors and instructed to watch over them. The holding in the same place of minors and adults who are not related undoubtedly carries the danger that the adults will dominate or exploit the minors. The Committee therefore recommends that a review be made of such practice.” [CPT Report for 1999]
One feels that such a comment is entirely justified since minors form a very specific group differing from others held in pre-trial detention centres not only on account of their age, but also because of physiological, psychological and intellectual features.
On account of these differences minors first of all need more attention and engagement from the staff. One needs to spend more time with them, find socially useful activities to occupy them, involve them in the educational process. Minors as opposed to adults need greater and more intensive use of motor skills, to move about and go for walks. It is therefore important to involve them in sports or more frequent walks. Most minors have not undergone sufficient socialization, and the educational process with them should be more intensive and needs to motivate them. In terms of their intellectual and psychological capabilities minors are much more unstable. It is easier to exert an influence on them, including influence in a negative direction. It is also easier to impose authority, which can be criminal. Precisely for these reasons it is inadmissible that adults should be placed in cells with minors, since the former with their physical, psychological and criminal “maturity” may take a dominating role, and actually force minors into committing certain actions.
An additional point regarding separate conditions as demanded by Article 8 of the Law on pre-trial detention must be noted which is that certain doubts are raised regarding the very possibility of complying with these requirements given the level of overcrowding in SIZO which has been observed over recent years.
This same Law states: “Individuals remanded in custody are assured living conditions in compliance with sanitary and hygiene norms”. A provision with analogous content is contained in the Minimum Standards. Current Ukrainian legislation sets the space norm for people remanded in custody of no less than 2.5 square metres, and for pregnant women or a woman who has a child with her the norm is 4.5 square metres. These provisions directly contravene the demands of international laws. In accordance with the norms which the CPT endorses, the space norm should be no less than 4 square metres, and rooms with less than 6 square metres should not be used for holding people at all. Thus, despite the fact that Ukraine has bound itself to adhere to the requirements of international laws, in this area the norms of Ukrainian legislation do not comply with European standards.
In general the problem of the amount of space which should be allocated for each individual is one of the greatest in the national penal system. This is explained by the fact that due to lack of financing buildings to hold those remanded in custody and convicted prisoners are not being constructed and the buildings presently used have experienced serious wear and tear making them effectively unfit for holding people. Nonetheless, despite the trends noted, the number of places for holding those remanded in custody has risen. Thus, as of 1998 during the time of the CPT Delegations visit there were 44 thousand individuals held in 32 pre-trial detention centres with the overall number of places constituting 34 thousand. This situation remained virtually unchanged until 2003. According to figures from the State Department for the Execution of Sentences on 11 February 2006 Ukraines SIZO were intended for 36,992 places (letter from the State Department of Ukraine for the Execution of Sentences [hereafter the Department] from 11.02.2006 № 16-С-128). This means that over five years, from 1998 to 2006 2,992 extra places for holding remand prisoners had been created. It remains unclear however how these places were created if new buildings with the said number of places were not constructed. One has the impression that such an “increase” may have been at the expense of “further utilizing” existing places, or through using other premises to hold remand prisoners which have not been made suitable for holding people. This was pointed out in “Human Rights in Ukraine – 2004” by Yevhen Zakharov. Such a situation cannot be considered a solution to the problem of overcrowding since it has effectively led to a reduction in the space norm per person and reduced the area of other premises designed for other purposes (for example, for lessons, work, sport, etc). Furthermore, according to the Departments statistics, changes in the numbers of those held in SIZO were as follows: in 2001 there were 46.5 thousand people being held in SIZO, in 2002 – 41,087, in 2003 – 43,223, in 2004 – 40,743 and in 2005 – 38,768, among whom there were 2,659 women and 1,992 minors. Bearing in mind the figures for the number of places and the fact that this number did not change up till 2003, one can assume that up till 2006 it did not change substantially.
All of this suggests that overcrowding in SIZO is at the level of 2 remand prisoners per actual place, that is, there are twice as many people as places and it is only in the last 2-3 years that the situation has improved slightly. Such a situation continues despite Point 1.3.2 of the Rules for holding individuals remanded in custody or convicted in SIZO of the State Department for the Execution of Sentences which stipulates that the actual number of remand prisoners and convicted prisoners must not exceed the number of individual sleeping places in accordance with the sanitary norms set down in current legislation. However at the present time SIZO are oversubscribed.
According to the standardized norms established by the Cabinet of Ministers, remand prisoners are provided free of charge with food, individual sleeping places, bed linen and other types of material and everyday provisions. Where necessary they are given clothes and shoes of a stipulated form. These provisions also comply with the norms of international laws, however there are no mechanisms for their implementation. It remains unclear what is meant by “other types of material and everyday provisions”. The term has no real substance and does not in any way bind actual penal service staff. The situation would seem to be as follows: there is a norm, but its not compulsory to apply it, and it doesnt bind anybody.
In February 2006 the Department added a supplement to the whole range of normative acts, making it appendix point 8.1.1 to the Rules for holding individuals remanded in custody or convicted in SIZO of the State Department of Ukraine for the Execution of Sentences: each individual remanded in custody, and convicted individual is provided with an individual sleeping place, bed linen, a mattress, pillow, pillowcase, two sheets, a blanket and towel.
One must thus state that the conditions for holding individuals in SIZO fail to comply with European standards as regards the space norm per person, as well as over the mechanisms for implementing or ensuring the conditions for material provisions of inmates.
2. Health care
According to the general rule formulated in Article 11 of the Law on pre-trial detention, medical care, as well as treatment, prophylactic or anti-epidemic work in pre-trial detention centres, is organized and run in accordance with legislation on health care. The rules and procedure for providing inmates with medical assistance, the use of hospitals of health care bodies and involving their personnel for this purpose, as well as for carrying out forensic medical examinations, are defined by the State Department of Ukraine for the Execution of Sentences, the Ministry of Defence and the Ministry of Health. The said bodies issued a Joint Order from 18 January 2000 No. 3/6 “On approving normative legal acts on issues of medical and sanitary provisions for individuals held in SIZO and corrective penal institutions of the State Department of Ukraine for the Execution of Sentences”. This normative act contains rules regarding the content, regularity, rules and conditions for carrying out medical checkups, requirements of hygiene and sanitary conditions, as well as demands regarding medical examinations and prophylactic measures with regard to specific types of disease.
In order to carry out medical examinations and provide medical assistance medical units are organized within each SIZO.
In the SIZO:
- monitoring is carried out of the state of health of remand prisoners and convicted prisoners through medical checkups and examinations;
- individuals are identified who require treatment or constant medical supervision, with treatment and health measures being carried out in order to protect their health and ability to work;
- outpatient and hospital treatment using methods and means recommended by the instructive-methodological guidelines of the Ministry of Health of Ukraine.
Purely formally all the provisions of Ukrainian normative acts on medical care for individuals remanded in custody comply with international laws. Here, however, one should note that the provisions regarding medical care for individuals remanded in custody are formulated extremely vaguely and without specifics. Take, for example, the following provisions:
“In a specially equipped shower room or in the cells, it is permitted to shave using either safe shaving equipment with cassette heads, or electric shavers”.
And also: “To treat individuals who are ill it is permitted, with a doctors assessment, for those remanded in custody or convicted prisoners to receive extra parcels from relatives with the medical supplies (in their packaging) required for their treatment should these not be available in the medical unit of the institution. The medicine received must be registered in the medical unit and administered to the ill person in accordance with the sheet of instructions”.
These examples taken from the Rules for holding individuals remanded in custody or convicted in SIZO of the State Department of Ukraine for the Execution of Sentences: are formulated from the point of view of juridical technique as discretionary provisions. That is, they do not give prisoners the relevant rights nor the according obligation of the SIZO administration to provide to a certain degree suspects or convicted prisoners with medical care of a certain quality, amount or with particular frequency. The said provisions merely give the SIZO administration the possibility at their own discretion either to allow the prisoner, for example, to shave, or to receive medicine which is not available in the institution. Furthermore, it remains an open question whether it is possible to exercise those provisions formulated in the Law and subordinate legislation. A person held in SIZO does not have the necessary levers with the help of which s/he can trigger mechanisms for ensuring and receiving access to medical personnel or medical services. Evidence that the system of medical service in SIZO is ineffective is provided by the information given to prisoners and their relatives. Thus the mother of a remand prisoner recounted: how 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 – reported in Human Rights in Ukraine - 2005)
In connection with the above one should mention the fact that the Joint Order from 18 January 2000 No. 3/6 “On approving normative legal acts on issues of medical and sanitary provisions for individuals held in SIZO and corrective penal institutions of the State Department of Ukraine for the Execution of Sentences” contains a fair number of norms (around one third) which are directed at organizing a system of reporting of SIZO medical units. This indicates that the work of medical units of SIZO has to a considerable extent become bureaucratic.
Another problem is the financing of SIZO, or more exactly the absence of financing which is the cause of the inadequate supplies to SIZO medical units, with a lack of needed equipment, medicine, technology and qualified personnel.
The CPT stated in its report after the visit in 2000:
The situation with regard to health care for those held in SIZO in many ways remains the same as that described in the report on the 1999 visit.
Given this situation, one can state that the system of health care existing in Ukraine for people held in SIZO formally complies with the demands of international laws, however in reality does not provide those individuals with medical services, since the formulated provisions are discretionary and are not regulated by a mechanism for demanding that the SIZO administration actually provide these medical services.
There are several aspects to the provision of food. There is, first of all, the food provided by the SIZO itself, then there is the possibility for individuals remanded in custody to obtain food in shops set up within the SIZO, and thirdly, those held in SIZO may receive food parcels. Ukrainian legislation allows for the above-mentioned as follows. According to Article 11 of the Law “On pre-trial detention”, a person remanded in custody or convicted prisoner is provided with meals three times a day according to established norms, with the food being received as a rule in the cells. Convicted prisoners who have been kept in the institution to carry out work on serving or making improvements to the SIZO take their meals in the canteen.
The points which restricted the number of parcels received by individuals remanded in custody were suspended for 2006. According to the general rule, remand prisoners are allowed to receive parcels, brought or sent, as well as money transfers, twice a month.
So that those remanded in custody or convicted prisoners can buy food or everyday items, shops are established within the SIZO. In general they are allowed to buy things there not less than twice a month, while women who are pregnant or who have children with them may use it no less than four times a month.
The above-mentioned provisions do not prevent the SIZO administration from providing prisoners with the sort of food which was seen by the Committee for the Prevention of Torture during their visits, as described above. One means that people held in SIZO are given food which is of poor quality and low in calories. Furthermore, legislation does not set down any liability for officials or the staff of penal institutions for infringements of the requirements regarding food for prisoners.
Here we encounter the same problem mentioned above. The conditions people are held in should not in themselves be a punishment, still more since those held in SIZO have not even been convicted of a crime and therefore sentenced to serve a punishment.
In addition, Point 25.1 of the Standard Minimum Rules for the Treatment of Prisoners provides instructions on how food must comply not only with the norms stipulated by medical bodies, but also conform in terms of quality and quantity with the norms and requirements of modern hygiene, and should take into consideration the age, state of health and type of work of the individuals involved. According to these requirements, the food norms for that given to prisoners should be reviewed fairly regularly. In Ukraine there is one normative act regulating food norms, namely the Resolution of the Cabinet of Ministers of Ukraine No. 336 from 16.06.1992 „On the food norms for people held in penal institutions, pre-trial detention centres, centres for the reception and allocation of vagrants and other reception centres of the Ministry of Internal Affairs”. This situation is a direct infringement of the requirements of international laws, since this act does not contain modern norms and requirements on food hygiene or food norms. Over the fourteen years that this act has existed, amendments have been introduced only twice. The first time in 2001 supplements were added regarding food norms for those suffering from tuberculosis, while in 2004 amendments were introduced to the name of the norm, with a list given of categories of people covered by these norms. One would reiterate therefore that the food norms existing in Ukraine do not comply with the requirements and standards formulated in international laws.
It is also important to have a dietician in the staff of the SIZO who is responsible for carrying out daily control over the calorie level, quality and quantity of food. The lack of such a member of staff in SIZO makes it effectively impossible to establish and ascertain whether the food prepared for prisoners in SIZO meets sanitary, hygiene and calorific requirements, as well as whether it is fit for consumption and of the appropriate quality. Incidentally, canteens in SIZO should comply with the requirements for any public food outlets. This means that prisoners should receive information about what they are eating (menu, a list of components), this food should be of the appropriate temperature, quality and type. Controlling bodies monitoring food quality and sanitary and hygiene requirements should have access to the SIZO. As for parcels handed in or sent, if one does not view these as an aspect of contact with the outside world, then any ban or limit on the quantity of such parcels is incomprehensible, especially with regard to food. I consider that the quantity of food parcels handed in or sent should not be limited. Such restrictions are only possible in terms of the assortment of food items which clearly must not contain those products which may not be passed on to people in SIZO.
With regard to buying food items in SIZO shops, legislation establishes the requirement in accordance with which prisoners do not themselves buy the items in the shops. The purchase of products is carried out through non-cash payment on the application of the individual held in the SIZO by a SIZO employee who is asked to buy a certain range of items. The products are then handed to the prisoner who signs for them. In my opinion such rules and procedure for purchasing products is incomprehensible and inexpedient since it gives too much scope for abuse from SIZO personnel and deprives the prisoner from the possibility of making his or her own choice.
In my opinion individuals held in SIZO must be allowed to visit the shop themselves while maintaining rules of isolation and division of inmates, in order to buy products using the money that they have on their account. Such rules of procedure will help to increase the amount of time prisoners spend in the fresh air, and also give them the opportunity to retain communication skills, carry out trial day-to-day lawful activities, and will support their sense of self worth while making their own choices.
In view of the above, one must acknowledge as of the present time Ukrainian legislation regarding food for individuals held in SIZO does not comply with international standards, and does not help these individuals retain their sense of personal dignity or socially useful skills.
4. Personnel, maintenance of discipline and isolation
Article 21 of the Law “On pre-trial detention” stipulates that personnel of pre-trial detention centres may be those holding both ordinary and managerial positions within the penal system, military servicemen of the Military Service for Law and Order of the Armed Forces of Ukraine, as well as those working in these institutions on a contract basis.
Employees of pre-trial detention centres within the limits of the powers vested in them by this Law and other legislative acts take decisions independently and bear disciplinary or criminal liability for any illegal actions, including the non-fulfilment or inappropriate fulfilment of their responsibilities as set down by this Law and other normative legal acts, and for the violation of the rights of individuals remanded in custody.
As is clear from the above definition, the Ukrainian legislators name official service as the main features of personnel. Analogous provisions are contained in the Law of Ukraine “On the State Penal Service”. In Article 14 § 4 of the latter, the text is provided of the oath which penal system employees make. From the content of this oath one sees that it is oriented on carrying out official duties and orders. The oath virtually does not touch on the prisoners or convicted individuals, and there is nothing about observing or consolidating human rights and freedoms, raising respect for human dignity. One can thus state that the spirit of the oath is fully in accord with the principles of Soviet times, when the main thing was to carry out ones official duties.
Unlike national priorities, international laws name as their priorities rich experience of interpersonal relations, creating positive relations with prisoners. As far as the tasks and priorities formulated in national legislation and international laws are concerned, the provisions of Ukraines legislation run counter to international standards for the treatment of prisoners.
To rectify this situation, it is vital at the level of legislation to define the priorities of the penal service of Ukraine, to raise the prestige of the profession of penal system employee, including by means of substantially increasing the pay for staff of this system, while also raising the requirements for applicants to such positions. One of the main demands on candidates for these posts should be experience of interpersonal communication, of working in a team and the ability to create good working relations within such a team.
As far as maintaining discipline is concerned, we discussed the main shortcomings earlier. During its visits, the CPT made many comments, however they all effectively revolved around the organization and implementation of measures regarding material conditions in SIZO (for example, the inadequate size of premises, the lack of fresh air and natural lighting, ventilation and others).
At the time of writing this report, at the normative level all contradictions which related to measures of discipline had been eradicated. For example, the appropriate additions were added to legislation in accordance with which prisoners kept in disciplinary (or punishment) cells are provided with a mattress and sheet at night, and a one-hour walk in the fresh air.
One can state that in terms of formal features, Ukrainian legislation with regard to measures of a disciplinary nature or isolation of prisoners has been brought into line with international standards.
5. Contact with the outside world
International normative acts understand contact with the outside world to include the possibility for prisoners to see their families and representatives of organizations from the outside world, the opportunity to correspond, to receive short-term leave, as well as the possibility to receive information about events and things happening in society, the state and in the world.
In this area, national legislation has a whole range of contradictions and points of non-compliance with international standards.
Article 12 of the Law “On pre-trial detention” stipulates that meetings with relatives or other individuals may be allowed people remanded in custody by the administration of the pre-trial detention centre only with the written consent of the investigator, detective inquiry body or court dealing with the particular cases, and as a rule, once a month. The length of a visit is stipulated as being from one to four hours. At the same time, the Rules for treatment of those remanded in custody or convicted prisoners in pre-trial detention centres states that where consent has been received, the visit can be 1 or 2 hours a month. As we see, even in Ukrainian legislation itself there are provisions which contradict each other. And although these discrepancies are resolved in favour of the normative act of higher legal force, their very presence shows that the penal system of Ukraine lacks unity and coordination.
Thus visits for individuals held in SIZO depend entirely on the will of the individual running the investigation. From a legal point of view, visits for these prisoners are not even a right since the law does stipulate that they must be granted. This institution has an unclear position. It does not depend either on particular circumstances or events, or on the behaviour of the prisoner, or on other factors. In other words, it is entirely at the discretion of the investigator. This regularization of visits for people held in SIZO gives scope for abuse by officials running the investigation which places the prisoner in uncertainly as to the possibility of seeing relatives and close friends. And, as stated above, it is a direct violation of the requirements of international laws.
In my opinion it would be desirable to stipulate in the law the right of prisoners to visits which must be allowed “automatically”, with certain regularity, and then in exceptional cases such visits could be prohibited in the interests of the investigation, on application from the investigator which would need to receive the sanction of the court.
There is an analogous situation with correspondence for individuals remanded in custody. The wish of the legislators to not allow prisoners the possibility of communicating with the outside world is inexplicable. All the more so given the existence of the so-called “checking” of correspondence of remand prisoners.
I suggest that in order to bring national legislation into line with international acts, those remanded in custody must have the right to correspond without limitation, while any restrictions in the interests of the investigation, involving a certain group of individuals must be justified in an application from the investigator and sanctioned by the court.
As the CPT stated in its Reports for 1998, 1999, 2000 and 2002, during their visits to SIZO the Delegation met many people detained or arrested and remanded in custody who had over a prolonged period not been allowed visits from their family and friends, and had not been allowed to correspond with them.
With regard to providing remand prisoners with the opportunity to receive information about events and things happening in society, the state and in the world, such an opportunity is not foreseen by current legislation at all.
One must thus state that at the present time the norms of national legislation do not guarantee or safeguard the possibility for individuals held in SIZO to maintain contact with the outside world in the ways outlined above. In this respect current Ukrainian legislation contravenes the requirements of international normative acts.
This is regulated and stipulated by current Ukrainian legislation very thoroughly. Pursuant to Article 13 of the Law “On pre-trial detention”, people held in SIZO have the right to address complaints, applications or letters to the European Court of Human Rights, as well as to other appropriate international organizations to which Ukraine is a signatory or member, to the authorized individuals of such international organizations, to state bodies and officials, to the court, other state officials and nongovernmental institutions. The Law “On pre-trial detention”, the Rules for treatment of those remanded in custody or convicted prisoners in pre-trial detention centres and the Rules for holding individuals remanded in custody or convicted in SIZO of the State Department of Ukraine for the Execution of Sentences allow for procedure for the submission by prisoners of complaints, applications or letters, their check, being sent on, as well as for responses and allowing prisoners to see the responses.
It would seem that the possibility for a convicted prisoner to address the above-mentioned documents to competent bodies, institutions, organizations is set down and regulated. However here too there are shortcomings. A major shortcoming lies in the fact that people remanded in custody are not provided with help in writing their appeals, applications or complaints. This means that the content may not always make it clear what the prisoner wants to say, and also the latter is not always aware who to approach. All of this can lead to prisoners letters either not being considered (with a pro-forma answer sent), or not reaching the right place, or arriving after the time limit has elapsed (if there are such restrictions). In view of the fact that at liberty any person can seek the help of a lawyer or other profession, it is necessary to ensure at the level of legislation that in order to avoid discrimination of prisoners and to ensure them equality of arms before the law, and to safeguard the principle of the presumption of innocence, that the staff of SIZO are obliged to provide help in drawing up appeals, applications or complaints. Such procedure will help resolve the issue of “checks” of correspondence of prisoners which incidentally is another problematical area as regards appeals, applications or complaints from individuals remanded in custody.
One of the major factors in exercising the right of prisoners to submit appeals, applications or complaints is defined by international standards as being confidentiality, It is true that international laws do not provide a definition of the boundaries of this confidentiality. However Ukrainian legislation in contravention not only of international norms but of its own Constitution (which contains a ban on any form of censorship) introduces the concept of “checking” [perehlyad] of the correspondence of individuals remanded in custody. The extent of this is not defined by current legislation which makes it impossible to speak of the right to correspondence being safeguarded and which presents the possibility of violations since one can thus not determine whether such a “check” is violation of the conditions of correspondence, or not. Section 4 of the Instructions on organizing a check of correspondence of individuals held in penal institutions and pre-trial detention centres enables one to conclude that effectively correspondence of individuals held in custody are subjected to censorship which clearly renders impossible confidentiality of correspondence. This situation is a violation of international normative acts.
In general the system for submitting appeals, applications or complaints is constructed in such a fashion that with the help of “checks”, any appeals, applications or complaints may or may not be sent on to their destination, they may be given the “go ahead” or not, depending on whether they “threaten” officials of the SIZO, the interests of the investigation or of third parties.
The Committee for the Prevention of Torture in its reports for 1998 and 1999 stated:
Prisoners must be given the possibility to complain about different actions to the appropriate bodies in full confidentiality.
A person held in a pre-trial detention centre may complaint to the head of the institution and has the right to make a confidential appeal to the prosecutors office.
In view of the above, it can be stated that current Ukrainian legislation does not provide individuals remanded in custody with the opportunity to submit appeals, applications or complaints to competent bodies, institutions, organizations and officials and functionaries, since the regulation of this issue demonstrates discrimination and the lack of an effective mechanism for exercising the right to submit such appeals, applications or complaints.
The material reviewed here enables us to make certain conclusions and give recommendations for the future reform of the Ukrainian penal system.
1. The overwhelming majority of those held in pre-trial detention centres [SIZO] have not been convicted of a crime, which means that they do not have any special status which carries with it limitations. This point was noted by the Head of the State Department of Ukraine for the Execution of Sentences, V. Koshchynets. In his report published in the newspaper “Holos Ukrainy” [“Voice of Ukraine”] from 20 June 2006 he states: “Our particular focus of attention is what goes on in pre-trial detention centres since the people held there are not convicted prisoners”.
This is an extremely important comment since Article 62 of the Constitution of Ukraine states clearly that A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty. In view of this, the question arises as to how correct at all the practice is of choosing remand in custody as a preventive measure. Here one needs to resolve not merely a legal question regarding the need for such detention in the interests of the investigation, but also a moral and ethical issue. What forms the grounds for the right of the state to deprive a suspect of his or her liberty? When one is speaking of a person who has been convicted of a crime, then all is clear – if the guilt has been proven, then the person should serve a certain sentence which corresponds to the gravity of the crime. Yet what if the guilt has not been established and perhaps will not be so? Does anyone have the right to effectively deprive this person of their liberty in order to make it more convenient to carry out an investigation into a crime?
There are too many questions to be able to give an unambiguous reply, however it would be wrong to simply brush these questions away, since it is impossible to compensate an individual whose guilt was not proven for the period of time spent and the conditions in the SIZO which the person was subjected to. The person after all has lost a part of his or her life which he or she was forced to spend in an depersonalized, unsanitary and unsuited for human existence place.
I would venture to suggest that amendments be introduced to the Law “On pre-trial detention” and the Criminal Procedure Code of Ukraine, which would allow for the remand in custody of only those individuals in whose case the investigator (detective inquiry unit) could produce material and evidence to unambiguously suggest the likelihood that the suspect would abscond the investigation or trial. Examples of such material or evidence might be a persons change of address, work, the giving of false information, lack of documents providing identification, information about registration, been found with forged documents, the lack of a centre of clear interests in life, and so forth. Furthermore various factors would have to be produced at the same time and in total.
2. A second conclusion must be that Ukraines legislation regulating the conditions for those remanded in custody, as well as suffering from excessive regulation, also allows an undesirable degree of discretionary powers, while mechanisms for exercising the norms and provisions set down in the normative acts are not sufficiently worked out.
These circumstances render meaningless the many positive provisions which have over recent times appeared in penal legislation. One has in mind declarations concerning the assertion of the rights and freedoms of prisoners, respect for their honour and dignity, the observance of international norms for prisoners. Such provisions find their way into legislation, however they are either formulated in such a way as to not bind anyone to anything, or they offer no mechanisms to control their implementation and for holding liable officers of the penal service who violate them, or they seem to be formulated clearly, bit they are impossible to implement since such norms do not create a system which enables them, with the help of other norms, to be brought into effect and used.
We have already commented on such cases. I believe that any provisions introduced into legislation must be coordinated with norms already existing, and the mechanisms for their implementation and application must be foreseen. Examples of such provisions are those concerning health care services for people held in SIZO, food, and all forms of contact with the outside world.
In connection with this, as already noted, it is important to highlight a difference between the systems of law and legal doctrine existing in Ukraine and in countries of Western Europe. This difference lies in the fact that Ukrainian legal doctrine is based on total regulation of social relations. This engenders certain complications and misunderstandings. The main complications which arise are that it is not possible to regulate all social relations, and attempts to do so lead only to confusion and the creation of dead or contradictory norms. In addition, regulated social relations require for their application regulation of other relations as well. For example, provisions on prisoners food require the formulation of actual food norms. The establishment of food norms should prompt regulation of a mechanism of control over the observance of these norms and over the quality of the food. The presence of control leads to the need to enlist the appropriate officials. The individuals who control the food should bear responsibility for their functions, and so forth.
European legal doctrine is based on a principle which can be called the “rule of reason”. The content of this principle is not explained, and this to a large extent defines its essence, since legislators rely a lot on common sense, life experience and other factors which, from the point of view of our system of law, are of a haphazard nature. One can describe this difference in another way, i.e. that countries of Europe trust their citizens and the individual in general more.
3. This leads on to the following observation, this concerning the concept (paradigm) of punishment. The main thesis of my conclusion drawn in the process of this survey would be that the main concept (paradigm) of the Ukrainian system of punishment is the idea of developing a sense of guilt in the individual who is remanded in custody or convicted. All the conditions, procedure, mechanisms for implementing legal restrictions (in the case of remand in custody) or punitive elements (in the case of punishment) are aimed at distinguishing between the person imprisoned and other members of society, at immersing the imprisoned individual in the negative consequences of the crime, not for the sake of self-correction, but in order that he or she “understands” what he/she has (allegedly) done. And this brings with it the sense that the individual is removed from society, separated from it and the sense that there is no possibility of “return”. That is, the state shows no “forgiveness”, and this is seen in all the structures directed at so-called resocialization (administrative surveillance, social and everyday provisions for such people, the existing problems with finding work, etc). These structures are not of a supportive nature, but rather of total control and lack of trust.
Even the aim of punishment is formulated through the category of “conscious reform” of the individual, his or her “return to independent, universally accepted social normative life”. These categories again demonstrate the lack of trust to the individual since they effectively show that the individual who committed a crime acted “unconsciously” and “not independently”. However how did the person act then, who directed him or her to commit the actions?
I believe that it is possible to avoid the development of a guilt complex in the individual by forming an attitude to prisoners which positions the person as equal to other members of society who in connection with certain factors committed a crime, however this does not make them outcasts or inferior. As the CPT Delegation indicated, relations with prisoners must be based on interpersonal relations and support. In order to carry out such a concept, in my view, it is vital to remove such ideas as reform and resocialization which effectively only make clearer a divide between “normal” members of society and prisoners. The aim of punishment and the application of other restrictions against an individual should be confined to carrying out certain procedure which must not contain elements of separation and alienation of the individual from society, placing him or her in unnatural conditions. The individual should not develop the conviction “Im a criminal, Im guilty”, rather s/he should understand that the action was a mistake which can be rectified, and must not be repeated. It would perhaps be expedient to provide the assistance of professional psychologists and psychotherapists.
4. A major problem which leads to the lack of conformity of norms of Ukrainian legislation to international laws is, in my opinion, the fact that in Ukraine there is a lack of culture and tradition for treating each person as an individual and as a human being, and for respecting him or her as such. Historically the situation that developed meant that Ukraine never experience periods of time during which civic society could develop with the fundamental social, public, democratic and legal values which are inherent in such a society. This is true of when Ukraine was part of the Russian Empire, Poland, Austria and Hungary, and later during Soviet times. Consequently, in the consciousness of modern citizens and members of Ukrainian society there is no such thing as concepts like “dignity”, “honour” and “humane attitude”, or if there is, it is somehow lacking in clear substance. This situation leads to the attitude to people remanded in custody or to convicted prisoners being purely negatively. Such people are “bandits” and you have to be hard with them. This attitude was confirmed during the recent Orange Revolution when one of the slogans was “bandits should be put in prison!” Precisely this phrase encapsulates the attitude of society to individuals who are remanded in custody, and still more so to convicted prisoners. They should disappear from society, have no access to it, and just stay in prison. It is this attitude too which can be found in current penal legislation. This thesis is also confirmed by the presence in current normative acts of such a concept as “special contingent” which is used to define convicted individuals or those remanded in custody. It is unclear why such a concept should be added to legislation adding only confusion. If one uses legal language and concepts, then such individuals should be called “convicted individuals” or “suspects” or “remand prisoners” since this designates their legal status. This usage will be correct, whereas the use of the term “special contingent” can only be considered atavism which comes from the labour camp system of Soviet times when prisoners were quite literally cut off from society, their relatives and close ones (with visits and correspondence prohibited). The aim was indeed degradation, depersonalization of the individual, his or her feeling of worthlessness, and in the final analysis, destruction. There would seem no other explanation since individuals who are held in penal institutions do not bear any “special” marks, and it is therefore undesirable to name them a “special contingent”. In connection with this, I suggest that the term “special contingent” should be removed from current legislation as a term lacking legal meaning and which is in contravention of the Constitution of Ukraine and international norms.
The problem of bringing conditions of those remanded in custody and convicted prisoners into line with international standards will not be resolved until the attitude of society changes to individuals who have ended up in places of deprivation of liberty or pre-trial detention centres. Only then will society formulate those provisions in legislation not only on paper, but also through real legal mechanisms and will understand those provisions and carry them out, not out of fear of being held liable, but from respect for the human being and individual.
5. One other reason which can explain the lack of respect for human dignity is the presence of a subculture which is respected and cultivated in society. The sense of this subculture lies precisely in the notion that prisoners are isolated individuals constantly pressurized by the state, and therefore romanticized, seen as deserving pity, and at the same time, somehow untouchable. There are even radical groups in Ukrainian society which support and propagate a prison subculture.
To make a general summary and assessment of the conditions in SIZO bearing in mind points 64, and 65 of the Standard Minimum Rules for the Treatment of Prisoners, then one is forced to acknowledge that Ukraine is not safeguarding compliance of the conditions with the requirements of human dignity or with the norms accepted in society. The negative consequences of imprisonment are not being minimized, and there is a significant different between life in prison and at liberty, and contacts with relatives and the outside world which would best serve the interests of prisoners and their families are not being supported and strengthened. All of these fundamental demands of the points mentioned are not fulfilled in Ukraine.
In response to the tasks formulated at the beginning of this report it should be stated that with the help of systematic changes in legislation, the penal service of Ukraine, the system for training professions for the penal service it would be possible to reach a level which would make it possible to implement the provisions of international laws, as well as those acts in domestic legislation which stipulate the observance of human rights and freedoms, respect for the individuals honour and dignity, and the creation of proper and dignified conditions for prisoners.
In view of the study carried out and the conclusions and recommendations outlined here, one can conclude in general that current Ukrainian penal legislation does not comply with international standards, and this lack of conformity lies first of all in the absence of systematic coordination and in the lack of real mechanisms for implementing those provisions which in the form of declarations have found a place in Ukrainian legislation.
 Since the Ukrainian has been gathered from different parts of a given report, making it very hard to repeat the original wording and as the reports (in this document for the 1998, 1999 and 2000 visits) are all available at http://www.cpt.coe.int/en/docspublic.htm, the above is, in places, a précis of the main points (translators note )