Human rights in Ukraine – 2004. XVIII. THE RIGHTS OF PRISONERS
1. General comments
In this section we consider certain aspects concerning the observance of the rights of individuals deprived of their liberty who are held in the custody of the police before a decision is taken with regard to preventive measures – in temporary detention facilities (hereafter TDF), during pre-trial investigation – in pre-trial detention centres (hereafter – PTDC), after the passing of a sentence by the court which stipulates such forms of punishment as custodial arrest, restriction of liberty, custody in a disciplinary brigade for military servicemen, deprivation of liberty for a certain period or life imprisonment in penal institutions and corrective penal settlements of the State Department of Ukraine on Penal Issues (hereafter Department) and the Ministry of Defence (guardhouses, disciplinary brigades).
The penal system includes 181 institutions, of which 33 are pre-trial detention centres, 135 – penal institutions of various levels of security, 11 – corrective penal settlements (for minors: 10 for males, one for females), 2 corrective labour and treatment centres. Some detention facilities for those sentenced to custodial arrest were supposed to be built, but due to lack of financing, none was built. In 31 PTDC, therefore, special units were created to hold those sentenced to custodial arrest.
As of 1 January 2005, there were 188,465 prisoners in penal institutions of the Department, this being 1.7% less than at the same time in 2004 (on 1 January 2004, there were 191,677 prisoners, on 1 January 2003 – 197 641 prisoners, for 1.01 2002 – 192 293 prisoners, for 1.01 2001 – 222 254 prisoners, for 1.01 2000 – 218 083 prisoners, for 1 January 1999 – 206 191 prisoners). At the beginning of 2005 there were 149,267 prisoners in penal institutions and corrective penal settlements (at the same time in 2004 – 150,934, 2003 – 150,239, 2002 – 147,549). In pre-trial detention centres, there were 38,768 detainees, as compared with 40,743 at the beginning of 2004, 43,223 in 2003 and 41,087 in 2002.
The number of prisoners per 100,000 of the population, at 398, is one of the highest in Europe.
These figures are convincing evidence that one of the main problems of the penal system remains the high percentage of sentences involving deprivation of liberty, as well as the large number of charges where the courts choose as preventive measure remand in custody (pre-trial detention). This leads to overcrowding in pre-trial detention centres and some penal institutions, as a result of which both Ukrainian and international experts have described conditions of detention as being cruel and inhuman, or even possible to classify as torture.
The problem of overcrowding is directly connected to the sharp rise in crime from 1991-1999 and the corresponding increase in the number of prisoners.
According to statistics from the Ministry of Internal Affairs (MIA), received in the middle of 1994, as of 30 January 1994, there were 38,900 detainees in 30 pre-trial detention centres with capacity to hold 11,300, that is, 3.44 times more detainees than places, while at that time in the whole country there were 161,000 prisoners. The then First Deputy of the Head of the Central Penal Administration of the MIA, Oleksandr Ptashynsky stated that as of 1 February 1997, 43,700 detainees were being held in 32 pre-trial detention centres, and indicated that during the previous five years, 3 PTDC had been opened with 1800 new places.
Data as of 1 January 2001, provided by the then Head of the State Penal Department, Ivan Shtanko, showed the following: In 180 Department institutions there were 222.3 thousand people, 171 thousand being held in 128 penal institutions, 3,3 thousand adolescents – in penal settlements for minors, 46,2 thousand – in 32 PTDC, as well as 1,8 thousand people in 8 corrective labour and treatment centres. Due to the fact that between 1991-1997 the numbers of those deprived of their liberty rose annually by 11%, from 1993 – 1999, 35 institutions with capacity to hold 25.5 thousand people were opened. From 1997, the number of those convicted of a crime fell slightly, with the number of those deprived of liberty also decreasing: in 1997 the number of convictions constituted 257 790, with those deprived of liberty being 85,396 or 33,13%; in 1998 the respective figures were 232,598, with 86,347 or 37,16% deprived of liberty; in1999 there were 222 239 convictions, with 83,399 or 37.5% deprived of liberty; in 2000 – 230,903, with 82,869 or 35,89% deprived of liberty.
Nonetheless, the annual figures for those punished who end up in penal institutions still far exceed the number released from custody, and not even the annual amnesties, which free on average 35 thousand people, help. Although the new Criminal Code envisages forms of punishment which are not connected with deprivation of liberty, this has not eased the burden on the penal system as was expected.
At the same time, the repressive nature of criminal – legal policy has on the whole remained unchanged. It is no accident that the number of acquittals through all these years stood consistently at between 0,33-0,35%, and, just as previously, the percentage of those held in penal institutions with sentences up to 3 years is around 30% of all those serving out punishment. As before, the number of those accused who are held in pre-trial detention centres remains obviously excessive. In 2004, 14,186 detainees were released from PTDC, this being 19.3% of the overall number who had been held in a PTDC during the year. Of this figure, 8,392 were released in connection with the use by the courts of forms of punishment not involving deprivation of liberty, 3,606 due to the end of the term of remand in custody, 2,103 as a result of change in preventive measure. Thus, the necessity for having held these people in custody is extremely questionable.
Comparing data for various years on the number of places in PTDC and the number of people actually heard there, the conclusions one may draw are shocking. One has the impression that from 1993-1999 the annual registered number of places in PTDC formally increased by 10-15% while the actual number of places remained unchanged. This may, on the other hand, be explained by the fact that the administrations of the PTDC need to take the detainees regardless of the number of places available, and they are financed in accordance with the number of places. Since the number of people, held in custody in PTDC steadily rose, the administration was simply forced to increase the registered number of places, otherwise the financing they received even for food for the detainees would have been even more woefully inadequate. All the more so because the ever insufficient financing of penal institutions and pre-trial detention centres was not provided in full. This is, in our opinion, one of the main reasons for the harsh conditions of detention.
According to data received from the State Penal Department, the following amounts were allocated in the budget for financing the penal system: 227,5 million UH for 1998, 216,6 million UH – for 1999, 204,2 million UH – for 2000, 156,3 million UH – for the first six months of 2001 р. The figures actually received were 180.6 million UH, 203,3 million UH, 204,2 million UH and 154,7 million UH, respectively.
This means that the average cost of holding one prisoner was approximately 70 UH per month in 1998, 78 UH per month in 1999, 77 UH per month in 2000, and 115 UH per month in 2001. If one considers that the number of staff of penal institutions and pre-trial detention centres must not, by law, be less than a third of the number of inmates, it becomes clear that financing of the penal system is catastrophically insufficient. Violations of the rights of both staff and inmates are implicit in a budget which provides for around 35% of that required, and only 12% of the necessary amount for food. It has led to a situation where between 1998 – 2000 the real figures allocated for food were 8-12 kopecks, and on medical services 4 – 7 kopecks. The prisoners can not earn a living themselves, since finding them work is one of the biggest problems for the administration. For example, in 1998 67 thousand prisoners, on average, did not have monthly work, this constituting 51,5% of the overall number of prisoners supposed to work. The average salary of prisoners moreover came to 1.01 UH a day.
Such pitiful financing can explain the high levels of illness and the high mortality rate in penal institutions and pre-trial detention centres. According to figures from the Department, in 1998 there were 2,108 deaths among prisoners and those awaiting trial (approximately 10 deaths per thousand inmates), in 1999. – 3,015 deaths (approximately 13.5 per thousand inmates), in 2000 . – 2,222 deaths (around 10 per thousand inmates), in the first six months of 2001 – 865 deaths (around 7,8 per thousand inmates), including deaths from tuberculosis, the numbers of deaths constituting 725, 1133, 715 and 300 respectively. The mortality rate for the country as a whole during these years stood at 14 deaths per thousand people. The mortality figures in penal institutions and pre-trial detention centres are therefore very high given that inmates are predominantly young and able-bodied, with more than half of all inmates being under the age of 30.
Since 2001 the financing of penal institutions has been gradually increasing: in 2001, 355 million UH was allocated from the budget (with 339.4 million actually provided), in 2002 – million UH (with 373 actually received.), in 2003 the full amount planned was paid, this being 453.2 million UH. It seems clear that the increase in financing has had a direct impact on the mortality rate which has decreased: in 2001 in Department penal institutions, there were 1,381 deaths, in 2003 – 824, in 2004 – 808. Spending on food has increased from 70.4 million to 81.4 million UH, expenditure on medical supplies – from 4.9 million to 5.2 million. We believe, nevertheless, that financing remains inadequate. In the view of the Department, it needs to be increased 2.5 times.
These statistics demonstrate clearly that many problems of the penal system in Ukraine would be solved if forms of punishment not involving deprivation of liberty were applied more widely and if proper levels of financing were maintained. For the moment, the State Penal Department remains the hostage of the current repressive criminal – legal policy.
2. Detention in police custody and pre-trial detention centres
A serious problem is presented by the conditions of detention in custody in temporary detention facilities (TDF) and other places of preliminary custody during police detention, and in pre-trial detention centres (PTDK). The Committee against Torture has concluded that these conditions do not comply with their standards.
The premises in which detainees are held are not designed to hold people for any length of time. In accordance with the law, detention may not last more than three hours. In these premises, accordingly, there are no places for sleeping, and expenses for food are not provided. In addition, the detention time limits for people detained in police units are infringed – instead of the three hours stipulated by the law, they may be held more than a day, or even up to three days. For example, according to results of monitoring of district police units by the Human Rights Ombudsperson, Nina Karpachova, during 2000 in Kyiv District Police Stations 25,089 people were detained for more than 24 hours, including 15,729, detained for administrative offences, 7126 – on suspicion of having committed a crime, and 2,225 arrested.
Moreover, in almost all cases, those held in temporary detention facilities do not receive meals three times a day from State funds, as envisaged in Resolution №336 from 1992 of the Cabinet of Ministers and the Order of the MIA №485 from the same year. At the demand of Nina Karpachova, expenditure for board was stipulated in the budget however in many regions, as checks showed, the money is not used as intended. Unfortunately the situation has still not changed: our experience defending activists of youth movements detained during the election campaign in Autumn 2004 indicates that there is no funding for providing detainees with food in district police stations.
Police temporary detention facilities have become breeding grounds for tuberculosis. Individuals taken into custody on suspicion of having committed a crime, according to Article 155 of the Criminal Procedure Code (CPC) may not be held in TDF for more than 3 days, or in districts where there is no pre-trial detention centre, for longer than 10 days, after which they must be transferred to a PTDC. However, in contravention of requirements of Article 4 of the Law of Ukraine «On preliminary detention» and the above-mentioned Article 155 of the CPC, the management of the Department issued several departmental normative documents as a result of which a number of restrictions appeared with regard to taking in special categories of detainees.
In particular, a joint Order of the Department and the Ministry of Health of Ukraine №3/6 from 18 January 2000, an Order of the Department №192-2000 and Directive №24/44 from 3 January 2003 prohibit the admission to pre-trial detention centres of those suffering from alcohol-induced psychoses, as well as individuals suffering from serious somatic or infectious illnesses. Clearly the latter include people with tuberculosis. For example, in 2003 793 detainees were denied admission to PTDC for this reason. At the current time, therefore, more than 200 detainees suffering from tuberculosis are held in temporary detention facilities which are in absolutely no way fit to house people suffering from dangerous illnesses
These individuals, from the moment of detention to when their sentence comes into force are usually kept in temporary detention facilities in the custody of the police, or in exceptional cases under police guard in «civil» hospitals which have no facilities for this. Therefore the staff of law enforcement bodies are forced to allocate extra forces, leading to flagrant infringements of infectious disease containment procedures and the spread of the «criminal» infection among police officers. For example, last year as a result of this situation, more than 20 police guards contracted tuberculosis. It goes without saying that in the cells of TDF dozens, even hundreds, of healthy people are constantly infected and traumatized. This problem requires urgent attention.
As mentioned, the time limits for detention during the period of preliminary investigation have not been reduced as recommended by the UN Committee against Torture (Paragraph 22 of the document «Conclusions and Recommendations of the Committee against Torture. Ukraine», CAT/C/XVIII/CRP.1/Add.4). If the investigation cannot be concluded within two months, and there are no grounds for cancelling or changing the preventive measures, the time limit may be extended: up to 4 months with the consent of the Prosecutor and the judge who took the initial decision with regard to the choice of preventive measure; up to 9 months – if the application is agreed by the Deputy of the General Prosecutor of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, of the region, of the cities of Kyiv and Sevastopol, or by Prosecutors of the same rank, or with the same Prosecutor on serious or particularly serious crimes, or by a judge of an appeal court; up to 18 months – if the application is agreed by the General Prosecutor of Ukraine or his Deputy, or the same Prosecutor on especially important cases involving serious or particularly serious crimes, or by a Judge of the Supreme Court of Ukraine. «In each case when it is impossible to terminate the investigation of a case in full within the stipulated remand period, with the consent of the Prosecutor, the case is remitted to the court in that part which relates to accusations which could be proved. In relation to the incomplete investigation, the case is be divided into separate proceedings and terminated in accordance with the general rules. In this, the time for the accused and his or her defendant needed to familiarise themselves with the materials in the case upon completion of the investigation is not taken into consideration when calculating the overall term of remand in custody» (Article 156 of the CPC).
As before, there are no limitations on the total time limit for remand in custody during pre-trial investigation, familiarization with the case and the court. If one bears in mind the widespread practice of the courts in sending cases back for additional investigation (approximately one tenth of criminal cases are returned for supplementary investigation), it becomes clear that these norms in their entirety create the possibility for extremely long periods of remand in custody. The conditions in pre-trial detention centres are in themselves cruel and inhuman. Cases are not rare where people accused of a crime are held for years in PTDC, although innocent, since a verdict has not been given in their case, and the judge does not dare to either acquit the person or at least change the preventive measure. The result is overcrowding of PTDC.
According to Article 11 of the Law of Ukraine «On preliminary detention», the space standard for cells per detainee must not be less than 2.5 м2. At the same time, the average figure in pre-trial detention centres in Ukraine is only 1.8 м2, and in some PTDC it is even less: in Simpferopol, Luhansk, Kharkiv PTDC it is 1.5 м2, in Kherson – 1.3 м2, in Kryvy Rig – 1.2 м2, in Donetsk PTDC – 1 м2.
Even the General Prosecutor of Ukraine decided to publicly acknowledge the harsh conditions in pre-trial detention centres. A press release of the General Prosecutor states that legal requirements as far as providing for the everyday material, medical and sanitary needs of inmates are being infringed. This situation is explained by the overcrowded conditions in PTDC, and thus, in contravention of Article 11 of the Law of Ukraine «On preliminary detention», a considerable percentage of detainees are not even provided with places to sleep.
The Press Release adds: «People are effectively forced to rest in turns». According to checks made by the Prosecutors office, from 400 to 1300 individuals are being held in excess of norms in PTDC in the Autonomous Republic of the Crimea, the Dnipropetrovsk, Luhansk, Odessa, Poltava, Kharkiv and Kherson regions.
According to the Prosecutor, there are even more individuals who have been sentenced to life imprisonment and whose sentences have come into force. This is in contravention of requirements of the Penal Code and the Law of Ukraine «On preliminary detention». As a result of such infringements, there was recently an attempted escape by a prisoner sentenced to life imprisonment from a Kyiv PTDC.
As stated in the conclusions of the Prosecutor, heads of institutions of the penitentiary system and executive bodies do not use the necessary measures for improving the financial position of such institutions, as well as for increasing the financing of anti-epidemic measures. The General Prosecutor considers that the situation in pre-trial detention centres and inadequate financing of penitentiary institutions may lead to unforeseeably grave consequences.
The harshness of conditions of remand in custody is set out also at normative level. For example, in the Law «On preliminary detention», there are significant shortcomings, and a number of its provisions do not conform to international standards in the sphere of human rights.
а) The Law not only never mentions the presumption of innocence, but often does not have it in mind, since there is no distinction made between individuals accused of a crime, and those convicted. For example, Article 9 on the rights of individuals held in custody shows that the regime limitations on those only charged with a crime (that is, not yet convicted by a court) scarcely differ from the limitations on those whose sentence is already in force. In our opinion, limitations on amounts of money to the size of one minimum wage is unjustified, yet these limitations are the same for adults, minors and women with children;
б) Article 8, although it requires that minors be kept in separate custody from adults, allows, with the permission of the Prosecutor, for the detention in one cell with minors of two adults who, it is true, must be facing charges for the first time and for less serious crimes, this being a direct violation of childrens rights;
в) in Article 15, which establishes punishment for individuals taken into custody, nothing is mentioned about mechanisms for appealing punishments, instead the immediate implementation of the punishment is envisaged. This consolidates the full and absolute dependence of a person who has not yet been declared guilty on the investigative bodies and on the staff of places of custodial detention. This Article allows for being locked up in isolation cells as a form of punishment for persistent violations of the regime, which in itself is dubious in relation to individuals who have not been convicted of a crime.
3. Custodial detention of those convicted of a crime.
An analysis of the Penal Code
3.1. Positive changes
The new Penal Code came into force on 1 January 2004. If one compares it with the Corrective Labour Code (CLC) which it replaced and other normative acts, certain positive moves can be identified. For example, the Penal Code foresees the regulation through one law of the procedure and conditions of implementation of all forms of punishment without exception. The right of those convicted of a crime to social security is proclaimed. Of benefit for the health of prisoners will be the fact that, in contrast to Article 101 of the Corrective Labour Code of Ukraine, in Article 51 of the Penal Code, individuals serving their sentence have no prohibition imposed on buying food products and other basic items, and may receive money orders.
Unlike Article 49 of the CLC of Ukraine, where only the obligation of convicted prisoners to work was established, Part 1 of Article 107 of the Penal Code indicates that those deprived of their liberty have the right to work. This means that the new version in the Penal Code is closer to Article 43 of the Constitution of Ukraine which affirms the right of citizens to labour.
In comparison with Article 39-1 of the CLC, Article 111 of the Penal Code is more humane, given that it now allows for the possibility of short-term trips outside corrective-educational penal settlements and corrective-labour penal settlements of low and medium security which, in terms of regime restrictions, are somewhere between penal settlements of heightened and strict regimes which existed up to the end of 2003, from which short-term trips in case of exceptional personal circumstances were simply not possible.
The aim of observing the labour rights of convicted prisoners can also be seen in Article 119 of the Penal Code which stipulates that the working week of individuals deprived of liberty must not exceed the norm for the working week set down in Ukrainian labour legislation, this being in contrast to the CLC where the working week in places of deprivation of liberty was 48 hours.
Evidence that penal legislation is being implemented in accordance with legislation on pension provisions is found in the regulation of Part 3 Article 122 of the Penal Code, according to which the time spent working by those sentenced to deprivation of liberty is counted towards their employment record in determining the State work-related pension.
One would assume that Part 2 of Article 120 of the Penal Code which increases to 15% (as opposed to 10% under the CLC) the guaranteed minimum received by the individual from the monthly wage will serve to improve the well-being of those serving sentences.
The fact that under Part 3 of Article 129 of the Penal Code stipulates that those deprived of liberty are entitled to not less than two hours free time a day will give those deprived of their liberty the chance to at least double their leisure time, which should improve their psychological state and broaden their range of activities.
One notes that under Article 143 of the Penal Code permitted limits on means of improving the conditions of those in corrective-educational penal settlements are considerably broadened, with it now not only being possible to spend a sum of money equivalent to 60% of the minimum monthly wage (as foreseen in Part 2 of Article 38 of the CLC), but to also receive short visits, which at the decision of the Head of the corrective-educational colony may take place beyond the territory of the colony, and also receive three parcels and four postal deliveries with printed materials a year.
Part 1 of Article 144 of the Penal Code is aimed at increasing the contact of individuals deprived of liberty with the outside world, as recommended by international standards of treatment of prisoners. According to this Article, inmates have the right to visit cultural performances and sports events outside the corrective-educational penal settlement accompanied by members of staff, and the right to go outside the territory of the settlement in the company of their parents or other close relatives.
One should note that the Penal Code goes considerably further than Articles 81 and 82 of the Criminal Code of Ukraine, where the corresponding possibility for an early conditional release from serving ones sentence and change in the not yet served part of the sentence to a lighter form of punishment are set out. Thus, Part 3 of Article 154 of the Penal Code sets out the duty of the administrations of the penal bodies and institutions within a month after the period of sentence stipulated by the Criminal Code elapses, to review the possibility of early conditional release or of a lighter form of punishment for the remainder of the sentence. The establishment in this way via a norm in the Penal Code of the need for the outlined actions creates, in accordance with the theory of legal relations, a legal requirement for administrations which cannot be avoided since it is unambiguous in content, directive, unarguable and safeguarded by judicial mechanisms. This feature of the legal obligation of administrations, stipulated in Article 154 of the Penal Code, to review questions regarding the possibility of early conditional release or a change to a lighter form of punishment implies the right of convicted prisoners to demand the fulfilment by the administration of this obligation and to lodge a complaint if the administration does not review this question. This means that the lawful interest of convicted individuals, foreseen by Articles 81 and 82 of the Criminal Code of Ukraine, which the legal obligation of the administration does not correspond to, under Part 3 of Article 154 of the Penal Code turns into the subjective right of the convicted person to the guaranteed possibility of seeking early conditional release or a change to a less severe form of punishment. One should add here that in the list of rights of those sentenced to deprivation of liberty, formulated in Article 107 of the Penal Code, this right is not mentioned.
3.2. Shortcomings of the Penal Code. General Part
While acknowledging the significant improvements in the Penal Code as compared with the CLC of Ukraine, one must, nonetheless, point out its many shortcomings and contradictions, explained by the discrepancies between particular provisions with those in the Criminal Code of Ukraine, with general legal theory and the theory behind implementation of punishments.
One should, first of all, note that the Penal Code defines the purpose of punishment much more widely than the Criminal Code of Ukraine. For example, according to Article 50 of the Criminal Code of Ukraine, the aims of a penal system are to punish, rehabilitate those convicted, and also to prevent new crimes being committed, either by those convicted or by others. Part 1 of Article 1 of the Penal Code, however, asserts, that penal legislation of Ukraine is a means of achieving «the aim of protecting the interests of the individual, society and the State via the creation of conditions for the reform and resocialization of those convicted, and of preventing new crimes being committed, either by those convicted or by others». It is clear that «protecting the interests of the individual, society and the State» and «resocialization», for all their attractiveness, are secondary among the aims given in Article 50 of the Criminal Code. Ukrainian legislators, defining the aim «of protecting the interests of the individual, society and the State» as the single goal of penal legislation, are by this means once again attempting to introduce into national legislation the concept of «social defence», which was the basis for the Corrective Labour Code of the RSFSR (1924) and the CLC of the Ukrainian SSR (1925). The replacement of the purpose of penal measures formulated in Article 50 of the Criminal Code of Ukraine by the aim «of protecting the interests of the individual, society and the State» can only be described as an attempt to reject the concept of penal measures developed by Ukrainian criminal justice, to blur the clear boundaries of real criminal responsibility, to discard basic provisions in the theory of the penal system, which could ultimately lead to the activity of penal bodies and institutions losing a clear legal framework.
It would thus seem that Part 1 of Article 1 of the Penal Code would be better expressed as follows: «Penal legislation regulates activities related to the enforcement of penal measures by penal bodies and institutions, as well as the procedure and conditions for the enforcement and serving of criminal sentences with the purpose of punishing and creating conditions for convicts reform, and for preventing new crimes being committed either by those convicted, or by others.
It is difficult to accept the principles of differentiation and individualization of penal measures, named in Article 5 of the Penal Code as being among the principles of penal legislation, together with the merging of punishment and corrective influence, public participation in the activity of penal bodies and institutions. These can mainly be applied in the case of punishment by deprivation of liberty. How can one, for example, have public participation in paying a fine? The absence in Article 5 of the principle of respect for human rights is extraordinary. It would seem that those who drew up the Penal Code, proclaiming that the Ukrainian Penal Code had been prepared taking into consideration international standards for the treatment of prisoners and international agreements on the protection of human rights and freedoms, effectively ignored the Fundamental principles of treatment of prisoners, where the following is found: «All prisoners shall be treated with the respect due to their inherent dignity and value as human beings». «Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto… « (Resolution 2200 А (ХХІ) of the General Assembly. Addendum).
The sheer possibility of regulating by legislative norms the process of positive change in a personality, that is, the reform of those convicted (Part 1 of Article 6 of the Penal Code) is also questionable. The question arises, whether the term «readiness» can be considered a legal term, and by what criteria such «readiness» can be defined. The Penal Code provides no answers to these questions. Moreover, the definition of «reform» through the use of indefinite forms of the verb like «happen», «create», make the process of reform rather vague, and give grounds for thinking that reform is a process which within the framework of implementation and serving of sentences is still far from being complete. With such an approach, reform cannot be considered to be a judicial fact, since judicial facts cannot be abstract concepts, opinions, or changes in the inner spiritual life of a person.
As is known, the legal position of convicted individuals is a system of normatively established subjective rights, lawful interests and duties of those convicted. Therefore, the inclusion in the outline of the foundations of the legal position of convicted individuals (Part 1 of Article 7 of the Penal Code) of words according to which the State should ensure the necessary conditions for the reform and resocialization of convicted prisoners is clearly redundant in the definition of the foundations of the legal status of convicted individuals, since in the given context mention for some reason of reform and resocialization carries no substantive weight, and has no relation to the definition of legal status. This example provides ample proof yet again that the language of the Penal Code lacks the clarity, succinctness, definiteness and accuracy of presentation required by judicial practice.
Unfortunately, in Articles 7 and 8 of the Penal Code there is no provision stipulating that a convicted person must be recognized as a person before the law in the sphere of implementation of punishments. It would seem expedient to do this on the basis of Article 6 of the Universal Declaration of Human Rights which declares that «everyone has the right to recognition everywhere as a person before the law».
The terms «resocialization», «social adaptation», «reintegration», «social rehabilitation», «diagnostics», «measures of a psychotherapeutic, psycho-corrective nature», «local residence» and so on, which abound in the Penal Code have never before been used in national legislation of the criminal cycle. In our view, the use of such terminology in no way promotes distinctness and clarity of legal regulation of the penal process, and of the application of State compulsion aimed at limiting the rights and freedoms of convicted individuals where any misunderstandings must be precluded.
The wish to replace penal institutions of general, heightened, severe and special regimes with penal settlements of low, medium and maximum levels of security (Article 4 of Article 11 of the Penal Code), which is not mentioned in the Criminal Code, is not entirely clear or justified. It would have been more consistent to introduce together with the legislatively established penal institutions of an open type (Article 61 of the Criminal Code of Ukraine), penal institutions of semi-open and closed types. As regards the envisaged levels of security, the question arises: security for whom? If the issue is one of creating safe conditions for people sentenced to deprivation of liberty, as is stated in Part 1 of Article 7 of the Penal Code, then another question seems called for: why in this case should the maximum level of security be for those who have committed the gravest crimes?
Yet another question arises after a comparative analysis of the differences to the penal institutions which were in existence until the end of 2003, in terms of their regime and corrective labour penal settlements in terms of their level of security. If the penal institutions of different types of regime differed among themselves according to the categories of people serving their sentences in them, and in aspects of the regime (the amount of money which inmates could spend on buying food and on basic essentials, the number of parcels), penal settlements of different levels of security differ in almost the same aspects. What then is the sense of introducing three levels of security instead of the customary four regimes? If this was a desire to yet again declare Ukraines «European choice», ‘regime is in fact a commonly used term according to international standards. «Traditionally the custody regime refers to the fact that institutions are divided into categories in accordance with type of regime». «The custody regime is not simply security within the territory of the external boundaries of an institution, but also the level of freedom of movement of prisoners».
It is thus unclear what considerations the Ukrainian legislators were guided by in proposing to replace «regime» by «level of security» if there is no difference in content between them. Moreover, the Ukrainian legislators entirely avoided mentioned such institutions as prison, suggesting as places of deprivation of liberty only penal settlements which are to be distinguished in terms of «level of security». However a penal settlement and level of security it would seems are incompatible, after all, as O.I. Boytsov noted, it is natural for a settlement hostel to have a number of legitimate, but implicit limitations on rights which are not present in prison cell custody. In particular, it does not ensure to an adequate degree the right of those convicted to security of person and protection from any threats from other inmates on his or her life and health, honour and dignity, rights and legitimate interests, it limits the right of those convicted to freely decide how to spend leisure time, to receive information of interest from channels of mass information. In connection with this it would seem that only prison custody would be able to ensure their personal safety.
There is a dubious provision formulated in Article 16 of the Penal Code, according to which individuals convicted of crimes of medium severity should serve their sentence in corrective penal settlements. This is questionable given that penal institutions of the open type (as stated in Article 61 of the Criminal Code of Ukraine) are intended for individuals sentenced to periods of restriction of liberty from one to five years. Crimes of medium severity are crimes for which deprivation of liberty for a period of no more than five years is foreseen. The Ukrainian legislators have thus not differentiated between restriction and deprivation of liberty. However an analysis of Part 2 of Article 12 and Part 2 of Article 61 of the Criminal Code of Ukraine allows one to conclude that penal institutions of the open type (or in corrective centres as they are called in the Penal Code) are intended for individuals whose punishment is specifically that of restriction of liberty, that is, a punishment which is milder than that of deprivation of liberty.
A comparative analysis of the Corrective Labour Code of Ukraine, the Instruction on the classification, assignment and transfer to penal institutions of individuals sentenced to deprivation of liberty, approved by an Order of the State Department of Ukraine on Penal Matters from 16 December 2003, and the Penal Code clearly indicates that it would have been more sensible and consistent (than is foreseen in Article 16 of the Penal Code) to hold those convicted of minor crimes in penal institutions of an open type; those convicted of crimes of medium severity in penal settlements (with the degree of security stipulated in the Penal Code) of a minimum level of security, as well as women sentenced to deprivation of liberty for a certain period; men sentenced to deprivation of liberty for a certain period for serious crimes, as well as males who have already served a sentence involving deprivation of liberty, and women sentenced to life imprisonment, in penal settlements of medium security; males sentenced to deprivation of liberty for a certain period for especially serious crimes, or males sentenced to life imprisonment – in penal settlements of maximum security.
3.3. Shortcomings of the Penal Code. Special Part.
If one takes Part 2 of Article 51 of the Penal Code, where we read that those sentenced to custodial arrest are subject to the limitations of rights established by penal legislation for individuals serving a sentence in the form of deprivation of liberty, then custodial arrest can indisputably be considered a type of deprivation of liberty. This does not comply with Article 51 of the Criminal Code of Ukraine, according to which arrest comes between confiscation of property and restriction of liberty, and is thus a more severe punishment than confiscation, yet milder than restriction of liberty. Together with this, Article 51 of the Penal Code, which establishes for those sentenced to arrest additional prohibitions (in comparison with those for deprivation of liberty) with regard to visits and parcels, creates in this way stricter conditions for serving punishment than those envisaged for inmates of penal settlements of maximum security.
Another far from perfect part of the Penal Code is Article 53 which stipulates that «everyday material provisions and medical services of those sentenced to arrest are provided in accordance with norms established for those individuals serving a sentence in the form of deprivation of liberty. This still further confirms that even at the level of micro-social conditions, a sentence of custodial arrest is equated by the Penal Code to deprivation of liberty. At the same time the Penal Code does not indicate under which norms, envisaged for different categories of those deprived of liberty, those sentenced to arrest should be provided with food. This should perhaps be the food norms for those held in pre-trial detention centres, since there remain no buildings for arrested individuals, and those sentenced to arrest serve their sentence in pre-trial detention centres. Yet maybe it should be the norm stipulated for those held in prison, after all the present conditions for serving out arrest are stricter than those in a prison? It seems that Article 53 of the Penal Code should have defined more precisely which category of deprivation of liberty those sentenced to custodial arrest fall in with regard to everyday material provisions».
It is unclear what the legislators were guided by when, in Part 1 of Article 59 of the Penal Code they gave those sentenced to limitation of liberty the right to have money with them, but in Part 4 of the very same Article prohibited those sentenced to limitation of liberty from keeping money and stipulated that if the latter was found on those whose liberty had been limited, it would be passed, by court order, to the State. So can those whose liberty has been limited have money on them or not?
A scrutiny of the text of the Penal Code also raises doubts as to whether those who drew it up really did, as they claim, try to take as their basis the priority of universal human rights and freedoms, the establishment of a system of social and legal guarantees, safeguarding the legal status of those convicted, and the bringing of the procedure and conditions for serving penal sentences into compliance with generally accepted international norms. Similar doubts arise due to the fact that, in comparison with the Corrective Labour Code, some articles of the Penal Code envisage harsher conditions for serving ones punishment for certain categories of those convicted. This particularly applies to Article 69 of the Penal Code, which has no mention of the possibility for those sentenced to limitation of liberty to go outside the confines of the corrective centres for periods of annual leave, as had been allowed for by Article 107-10 of the Corrective Labour Code of Ukraine. The conditions for serving their sentence have also become stricter for men convicted of serious crimes who were already serving their sentence at the end of 2003 in penal institutions of heightened regime. According to Article 18 of the Penal Code, these categories of individuals sentenced to deprivation of liberty must serve their sentence in penal settlements of medium security, where the conditions are more severe than in the former penal institutions of heightened regime.
Although the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950 р.) indicates that deprivation of life to prevent the escape of a person lawfully detained is not a violation of the right to everyone to life, in our opinion, the Ukrainian legislators should have taken into account the fact that in Ukraine, after it signed Protocol № 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 28 April 1983, on joining the Council of Europe, in connection with the abolition of the death penalty, people may not be deprived of life for more serious crimes than attempting to escape from a place of deprivation of liberty. How justified, therefore, is the use of arms to deprive people of life during an attempt to escape? Considering that «Everyone has the right to life, liberty and security of person», as proclaimed in Article 3 of the Universal Declaration of Human Rights, depriving a person of life for the desire to be free is a contradiction of the principle of respect for human rights which were supposed to have been the principle of penal legislation of Ukraine and which the Ukrainian legislators proved incapable of formulating. While the will of a person deprived of liberty to escape is illegal, the will itself to be free remains a natural human right. All individuals deprived of their liberty enjoy the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, as set down in the Basic Principles for the Treatment of Prisoners. In connection with this, it would seem that Ukraines authority would only be enhanced if, as a member of the Council of Europe, it came forward with the proposal that member states of the Council of Europe sign a Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms on the example of Protocol № 6, which prohibited the taking of life when preventing escape from places of deprivation of liberty.
In our opinion, Parts 5 and 6 of Article 108 of the Penal Code need to specify the period of time during which prisoners may buy their own food products and basic necessities for the amounts of money defined.
The content of Article 111 of the Penal Code demonstrates the will to also free the institutions of the State Department of Ukraine on Penal Issues from Prosecutor supervision, and not only from judicial control, as had been achieved on 30 August 2001 with the provision of functions related to the justice system to the Commission on classifying and assigning individuals sentenced to deprivation of liberty from pre-trial detention centres (prisons) to corrective labour institutions. This conclusion is also justified given that under Part 3 of Article 39-1 of the Corrective Labour Code, permission for short trips which was given by the head of the corrective labour institution had to be agreed with the Prosecutors office. According to Part 2 of Article 111 of the Penal Code, the head of a penal settlement no longer needs to agree permission for short trips with the Prosecutors office which, in our opinion, will reduce the guarantees that the principle of legality will be observed.
Ukrainian legislators would appear to have demonstrated certain inconsistency in allowing in some cases for individuals in penal institutions to have their correspondence checked, and in others not. For example, the correspondence of individuals sentenced to restriction of liberty, as well as military servicemen in disciplinary battalions (these being a place of deprivation of liberty) may not be checked which, incidentally, is in accordance with Article 31 of the Constitution of Ukraine which guarantees everyone privacy of mail. In contrast to this, Part 3 of Article 113 of the Criminal Code indicates that the correspondence of individuals deprived of their liberty may be checked, which is nothing else than a covert form of censorship which, according to Article 15 of the Constitution of Ukraine is prohibited.
Those who drew up the Penal Code declared its compliance with international standards for treatment of prisoners. However, the fact that Article 115 of the Criminal Code states that the space standard per inmate in corrective penal settlements cannot be less than three metres squared, provided that the inmates are in dormitory style accommodation, in no way complies with the recommendations of Article 9 of the Standard Minimum Rules for the Treatment of Prisoners, which states that «each prisoner shall occupy by night a cell or room by himself». Moreover the European Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has indicated that living space of less than 7 м2 per prisoner turns the conditions of custody into torture.. What kind of compliance with international standards can be spoken about in this case?
In Article 118 of the Penal Code, the additional obligation to work is imposed upon individuals deprived of liberty, although in Article 107 «Rights and duties of those sentenced to deprivation of liberty» this obligation is not prescribed. One should mention that the Constitution of Ukraine also does not stipulate the obligation to work, since Article 43 only affirms «the right to labour». Furthermore, from Article 118 in the Penal Code it follows that together with the obligation of those deprived of liberty to work, the administration has the corresponding obligation to engage inmates in work which does not entirely comply with the theory of legal relations in accordance with which a obligation may be placed in opposition to a right, and vice versa. The establishment in Article 118 of the Penal Code of an obligation to work makes the right «to take part in work activities» (Article 107 of the Penal Code) meaningless since, as O.I. Yekimov wrote, if a right becomes an obligation, it ceases to be a right. To have the right means to have the possibility of choice. A person who has the obligation imposed, no longer has such choice. Further, the establishing of the obligation of individuals deprived of their liberty to work in the legal norms of the Penal Code which is a procedural normative act imposes the element of compulsion on the work of convicted individuals, whereas according to Article 43 of the Constitution of Ukraine, which entirely prohibits forced labour, this is not «work … carried out by a person in compliance with a verdict or other court decision». Since court rulings which oblige individuals to work in places of deprivation of liberty are not passed, work which is defined as an obligation by the Penal Code takes on the features of forced labour. The general obligation to work in the activity of corrective penal settlements is non-economic and not legally based compulsion to work which is incompatible with the principle of equal rights. This circumstance was noted by V.S. Nersesyants, who came to the conclusion that a person who, not of his own will, is obliged to work, and is provided with work under compulsion (in this case regardless of whether as a convicted person or not), can obviously not be considered as either a person with the right to equivalent payment for his forced labour, or as a person before the law at all. In connection with this, in our opinion, it would be better to change Part 1 of Article 118 of the penal Code, removing the person part of the sentence, replacing it with the provision which would in general comply with Paragraph 8 of the Basic Principles for the Treatment of Prisoners, specifically: «Conditions should be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the countrys labour market and permit them to contribute to their own financial support and to that of their families and relatives».
The fact the Articles 107 and 119 of the Penal Code do not stipulate the right to vacation for those deprived of liberty is nothing more than disregard not only of Article 45 of the Constitution of Ukraine which guarantees the right of everyone who is employed to paid annual vacation, but also shows that Ukrainian legislators did not pay attention to the recommendations contained in Article 70.2 of the European Prison Rules, in accordance with which «Treatment programmes should include provision for prison leave which should also be granted to the greatest extent possible on medical, educational, occupational, family and other social grounds»
The wording of Part 4 of Article 122 of the Penal Code according to which convicted individuals who are no longer able to work are entitled to a pension and compensation for damages only after being released from serving their punishment is unclear. The question arises from this how exactly these individuals will be able to obtain food and other basic necessities if they are no longer able to work during the term of their punishment, but they can only receive a pension upon their release. Moreover, a person unable to work will not have money in his or her personal account earned in the place of deprivation of liberty. The pension could be the main source of money to obtain food and other basic necessities for such a convicted individual. In this case, the convicted person, in order to be able to buy anything in the shop, can only hope for a package from some benefactor or other, which may be a fairly forlorn hope.
This version also leaves unresolved the issue of ensuring pension payments for individuals who reach pension age during their sentence. If Part 3 of Article 122 of the Penal Code applies to them, then how does one deal with Article 56 of the Law of Ukraine «On pensions», according to which the work of prisoners given payment of national insurance contributions counts as work record giving the entitlement to a pension? Why is the work of individuals deprived of their liberty counted towards their pension, but the actual right to the pension, under the Penal Code, only valid upon completion of the punishment? And this is when Part 1 of Article 8 of the Penal Code includes the receipt of a pension as a basic right of those convicted.
Having declared their commitment to international standards of treatment of prisoners, those who drew up the Penal Code in Part 1 of Article132, where the imposition of such duties as «being assigned extra turns in cleaning the premises and territory of the settlement», yet again ignored the recommendations set out in Part 1 of Article 28 of the Minimum standards for treatment of prisoners, in accordance with which «No prisoner shall be employed, in the service of the institution, in any disciplinary capacity»
Article 133 of the Penal Code gives a definition of a persistent offender in infringing established rules of the penal institution. In this way, the behaviour of the convicted person is not being assessed, but rather a label is being attached to the actual person, namely that he or she is a persistent rule breaker. Basing ones reasoning on the fact that the legislators have moved away from recognizing an individual as a particularly dangerous repeat offender to providing an assessment, a qualification in criminal law, of the deed, of socially dangerous activities, and not of a particularly dangerous personality condition, then it would surely be analogous, if one is consistent, in Article 133 of the Penal Code to give a definition of a persistent infringement of the regulations, and not of a persistent offender in infringing established rules of the penal institution. Even more so given that the definition of a persistent offender in infringing established rules of the penal institution did not stand in the way of providing for, in Part 7 of Article 134, of punishment for persistent infringement of established rules of the penal institution. However, bearing in mind the theory of social defence which is embodied in the norms of the Penal Code of Ukraine, making a convicted person responsible for a dangerous personality condition as a persistent offender in infringing established rules of the penal institution is entirely natural.
One should mention the surprising position of the Ukrainian legislators who know that Article 44 of the Constitution of Ukraine guarantees the right of those who are employed to strike, but who categorize convicted individuals who have stopped work in order to resolve labour or other conflicts as persistent offenders in infringing established rules of the penal institution. It could be said that by using threats of measures involving disciplinary and material responsibility in order to hinder convicted inmates participating in a strike, the Ukrainian legislators will force penal settlement administration to teeter on the edge of a foul given that preventing participation in a strike under the relevant conditions could be qualified as a crime, as envisaged by Article 174 of the Criminal Code of Ukraine.
Article 97 of the Penal Code does not define the time limit for holding a convicted person in a unit of heightened control despite the fact that the regime established there is envisaged for holding convicted inmates in maximum security penal settlements, that is, a regime analogous to that which is established in a penal institution of special regime. This is seen, in particular, in the amount of money which inmates can spend on buying food and basic necessities (70% of the minimum wage); the possibility of receiving short visits every month, with a long visit once every three months; also in the fact that during the year those convicted may receive five parcels and two postal deliveries with printed materials. However if this is an original manifestation from those who drew up the Penal Code of the principle of boundless humanism, why, according to the Corrective Labour Code of 1970, was transfer to cell premises in a penal institution possible for a period of six months? The period for holding convicted people in units of heightened control is not specified since, in accordance with Article 97 of the Penal Code a convicted person could be there until the completion of «a special individual program which sets out measures of an individual educational, psychotherapeutic and psychologically regulative nature». If Ukrainian legislation goes further in inculcating a concept of «new social protection», it will in future be just one step away from generally applying unlimited sentences. Signs of the movement in that direction can already be seen in the fact that:
1) the courts have been divested of the possibility of determining the type of penal institution, which had always been a component function of the justice system;
2) in accordance with Part 2 of Article 65 of the Criminal Code of Ukraine, an individual may now be «assigned punished necessary and sufficient for the persons reform and for the prevention of new crimes».
It thus remains only to grant corrective institutions the right to hold convicted people as long as it takes to complete «a special individual program which sets out measures of an individual educational, psychotherapeutic and psychologically regulative nature».
The wording of Article 136 of the Penal Code raises the question whether the list of situation when convicted inmates «must compensate losses caused the penal settlement and any additional costs connected with preventing the escape of a convicted person, the treatment of a convicted person who deliberately inflicted on him- or herself bodily injuries» is exhaustive, After all, a penal settlement can also incur other additional costs, for example, with stopping mass disturbances, or when imposing quarantine in a case where a convicted person has caused an epidemic in the penal settlement, or in connection with funeral expenses where a convicted person committed suicide, and so forth. Who and according to which procedure must compensate these or other costs caused the penal settlement if Article 136 of the Penal Code does contain an exhaustive list?
Article 137 of the Penal Code sets out that «material losses caused the State by convicted inmates while serving their sentence shall be deducted from their wages at the decision of the Head of the penal settlement». In our opinion, compensation for material losses, caused by convicted inmates at the decision of the Head of the penal settlement can only be relevant where the loss was caused during the process of carrying out labour duties. If such a loss was caused, then the Head of the penal settlement who is at the same time the Director of the enterprise has all authority to apply labour legislation norms. However, in other cases, if the loss can be compensated on grounds established by civil legislation, the Head of the penal settlement should do what is foreseen by the Civil Procedure Code of Ukraine, namely file a civil suit in court. The wording of Article 137 offered by the Ukrainian legislators does not extend the jurisdiction of the court to penal settlements since during the serving of the sentence compensation for the loss can be obtained according to the procedure outlined by this Article of the Penal Code. Only after the release of the convicted individual, as stated in Part 7 of Article 137 of the Penal Code, is it possible to receive compensation, on the ruling of the court, for losses incurred during the serving of the sentence. The proposed procedure for compensation of losses only at the decision of the Head of the penal settlement thus runs counter to Article 124 of the Constitution of Ukraine, in accordance with which the courts have jurisdiction over all legal relations which arise in the State.
Perhaps only the Ukrainian legislators are clear to what extent Article 24 of the Constitution of Ukraine which proclaims «material and moral support of motherhood and childhood» is complied with by Part 1 of Article 141 of the Penal Code which states that women sentenced to deprivation of liberty for a period longer than five years for premeditated serious and particularly serious crimes, cannot have their children housed in the childrens building where conditions vital for the normal life functions and development of the child are created. It follows that Part 3 of Article 141 of the Penal Code does not apply to such mothers, that is, they cannot be sent to those penal settlements where there are childrens buildings, where «the conditions necessary for the normal life functions and development of the child are ensured. The question arises in connection with this as to why the child is deprived of conditions necessary for its normal life functions and development? Why should the child suffer because its mother has been sentenced to deprivation of liberty for a period over five years? This is a somewhat unusual understanding of the aim of «protecting the interests of the individual, society and the State», as declared in Part 1 of Article 1 of the Penal Code.
The wording of Article 143 of the Penal Code also leaves a great deal to be desired, given that the formal rejection of corrective penal settlements of heightened regime has not led to the corrective penal settlements that are presented in the Penal Code corresponding according to all the elements of the regime to the former collective labour penal settlements of general regime. This concerns, in particular, such an element of the regime as receiving parcels since according to the old Corrective Labour Code, those under the general regime had the right to receive 10 parcels, whereas according to Article 143 of the Penal Code, they can receive only 9.
Part 1 of Article 148 of the penal Code is concerned with «consolidation of the results of reform». In connection with this it can be asked exactly what kind of results are being discussed, if reform in Article 6 of the Penal Code is defined as «readiness», and readiness is a state which precedes the achievement of a result?
Article 151 of the Penal Code sets out the procedure and conditions for the implementation and serving of a sentence to life-long deprivation of liberty which, in terms of the elements of the regime, do not differ from those which were created in prisons for this category of convicted prisoners. At the same time, the conditions of custody in penal settlements of maximum security for individuals sentenced to life-long deprivation of liberty are harsher than for other categories of individuals serving sentences in the given corrective penal settlements. In this respect, one might ask whether it would have not been expedient to direct in Article 151 of the Penal Code that individuals sentenced to life-long deprivation of liberty be held in units of heightened control in penal settlements of maximum security?
Going further, Part 1 of Article 151 of the Penal Code states that those convicted and serving a sentence of life-long deprivation of liberty are held in cells, as a rule, with one other person. This approach makes it possible to conclude that the Ukrainian legislators have not heeded the recommendations contained in Article 9 of the Standard Minimum Rules for the Treatment of Prisoners which say: «it is not desirable to have two prisoners in a cell or room»
It would seem that the imposition of administrative surveillance over individuals released from penal institutions (Article 158 of the Penal Code) is entirely in keeping with the theory of «new social protection» embodied in the norms and institutions of the Penal Code of Ukraine, with its axioms about the need for using preventive measures over a dangerous personality condition. At the same time, however, the imposition of administrative surveillance contravenes the principle of justice enshrined in Article 5 of the Penal Code. The principle of justice in penal matters is based on punishment being proportional to the crime committed. This means that State coercion in applying punishment should be limited to the framework outlined by a verdict of the court. Use of State coercion beyond the framework defined by the court verdict runs counter to the principle of justice, extending coercion beyond the requirements of punishment. Such a conclusion makes it possible to define the concept of administrative surveillance as a system of temporary compulsory preventive measures of surveillance and control over the behaviour of individuals released from places of deprivation of liberty. It follows from this that administrative surveillance is this same additional coercion applied beyond the requirements of punishment, which in turn is defined in Part 1 of Article 50 of the Criminal Code of Ukraine as a coercive measure.
Furthermore, one should note the fact also that restrictions on the rights and freedoms of a convicted person, in accordance with Part 3 of Article 63 of the Constitution of Ukraine may only be «determined by law and established by a court verdict», not by a decision of a judge about imposing administrative surveillance.
One has doubts about the formulation in Articles 160 and 161 of the Penal which talks about the imposition of surveillance by civic or labour organizations over individuals released early from serving their sentence, and that educational work is carried out with these individuals. From the wording it is unclear whether carrying out educational work with these freed individuals is a right or an obligation of civic or labour organizations. Articles 161 and 162 of the Penal Code do not establish either the obligation of those who were convicted to be under control or of civic or labour organizations to carry out such control over those released early.
From an overall analysis of the regulation of interrelations between the convicted person and the administration, one can state that the convicted person is entirely in the power of the administration of the penal institution, and cannot even make a complaint about their actions. It is no accident that not a single claim against the conditions of custody in penal institutions and pre-trial detention centres, or against the actions of the administration, has reached human rights NGOs through legal channels, but only as they say «through freedom», bypassing the compulsory checks of mail by representatives of the administration.
On the whole, despite certain positive aspects, one can conclude that the Penal Code requires substantial revision at both the conceptual level, and in details. This could have been avoided had the attitude to preparing this important legislative act been different. Unfortunately there was a lack of collective discussion of the relevant Draft Law which should have taken place prior to its being presented for consideration in the Verkhovna Rada, public opinion was not heeded, there was no qualified assessment of the Draft Penal Code by specialists in the field of Penal Law, and the wider public was not even made aware of it.
4. Conditions of custody of those convicted: some examples
Unfortunately, many of the guarantees of prisoners rights proclaimed in the Penal Code have been rendered meaningless by by-laws of the Department, in particular, the Rules of Internal Order (RIO) of penal institutions, approved by the Order of the Department №275 from 25 December 2003.
As already mentioned, even at the level of the Penal Code there are infringements of the principle in Paragraph 2 of Article 7 of the Penal Code declaring that convicted individuals enjoy all human and civil rights, with the exception of limitation defined by laws of Ukraine and the Penal Code, and established by verdict of the court. The detailed, and one could say, petty regulation of prisoners life seriously undermines this declaration. For example, custody in resocialization units, according to inmates accounts and in violation of Article 96 of the Penal Code, takes place in local sectors, each of which is under lock and key. The question begs itself, what kind of resocialization can be meant? The norms of Article 129, which guarantee the right of convicted individuals to use their leisure time at their own discretion and which stipulate that the said leisure time should be no less than two hours a day, are effectively cancelled by Paragraphs 18, and 23 of the Rules of Internal Order, according to which those convicted have the right to a daily walk lasting one hour. Those convicted can thus already not spend two hours of leisure time walking in the fresh air. We could provide many such examples. As testified by prisoners of Penal Institution №88 в Orekhovo (Zaporizhye region), units of heightened control turn into units of prison regime, voluntary mass events become compulsory, endless checks during the day turn quite literally into torture, complaints cannot be lodged against the administration, nor can appeals be addressed to the court.
We quote a letter from a prisoner of Penal Institution №58 (Izyaslav, Khmelnytsky region), retaining the style of the original.
«At approximately 11 a.m. Kyiv time, on 30 May 2001, some special unit officers burst into the cell where prisoners are held, and used their rifles to beat the convicted prisoners onto the floor. The special unit men kicked the prisoners as they were lying and those who werent, in their view, lying the way they should, were beaten with rifles and forced to lie as they said. After that, the prisoners were dragged from the floor one by one and made to run between two rows of special unit officers along the corridor who beat them with truncheons. Then the prisoners were marshalled out into the corridor and the special unit men, together with prison staff, forced them to totally undress, turn to the wall with their legs spread out, almost sitting on the floor in a «splits» position. The special unit men walked up from behind to the prisoners that the prison staff pointed out and inflicted blows to various parts of the body (the leg muscles, kidneys, liver and spine). They then made the prisoners squat down making a croaking noise. While all the above was taking place, a part of the special unit totally ripped apart the cell where the prisoners were held. Prisoners personal belongings were pulled out of bags and flung in a general pile on the floor, which the special unit men stamped on, completely destroying some of the things. The prisoners in the corridor were again commanded by the administration to run past the lines of special unit men, but this time naked. The soldiers kept hitting out at parts of the body with their truncheons until the prisoners ran into the cell which by that stage had been turned upside down. The beatings went together with the cynical laughter of those who planned and carried it out. The procedure described there was applied to about 120 convicted prisoners serving their sentence in the prison. The intimidation process was conducted in stages, separately for each cell.
After the torture described above had ended, representatives of the administration – Lieutenant Colonel Zakharov, Major Mazepa and others went through the cells and told the prisoners that the exercise had been carried out with the consent of the prosecutors office and the Department on Penal Issues. If any of the convicted prisoners had complaints, they were ready to hear them (at this time the special unit soldiers were in the corridor around the door to the cell). Obviously, the prisoners all kept their mouths shut, so that, God help them, it didnt happen again.
On 29 January 2002 a swift response special unit was again brought into the penal institution ЗВК-58, and on the instructions of the administration mercilessly beat up all those convicted prisoners on strict regime and also those serving their sentence in prison regime. At about 10 a.m., soldiers of the swift response special unit armed with rifles, burst into the cells, firing blank shots, pushed the inmates into the corridor where they beat them, tormented them, forcing them to say things about themselves which denigrated their honour and dignity. Those who refused were beaten particularly severely. Many of the convicted prisoners received serious bodily injuries. Oleksandr Pavlusyk, Valery Batanov and Serhiy Kostenko had broken ribs as a result of which they were in a bad condition for some time. Serhiy Kostenko, to stop the beating, cut the veins on his wrists, but this only annoyed those who were beating him still more, and he was flung, barely alive, back into the cell.
The special unit soldiers forced me to stand up straight to the wall and used their truncheons to beat me around the legs, kidneys, liver, forcing me to say that I would not infringe the custody regime (meaning making complaints about the administration). They made me say things that were humiliating. When I refused to say what they wanted, they beat me until I lost consciousness and flung me in the cell.
This behaviour was meted out to all prisoners who were in the severe regime cells on 29 January 2002. There were about 80 convicted prisoners..
Convicted prisoners from cells of prison regime (from the first to sixteenth), with an overall number of around 100 men were also beaten. However the beating here was carried out selectively. Prisoners in some cells were beaten more brutally, in others less. The administration provided instructions as to who to target and how to apply force.
All of what I have described above was carried out in the presence of three prosecutor officials on observing the law in penal institutions. I personally saw Y.O. Volkov and V.L. Stasyuk (his assistant). I do not know the surname of the third person, but they say that he was a representative of the prosecutor of the Khmelnytsky region.
The administration of the institution told the convicted prisoners that the action had been carried out on the instruction of the State Department of Ukraine on Penal Matters and had been agreed with the prosecutors office of the Khmelnytsky region.
After the beatings we were told that such «preventive work» would be carried out regularly. The custody regime began to tighten up immediately. I want to tell you about the 58th penal settlement and what I know about the settlements of the region from other people, so that you get some idea about what is happening there. Ill start from the very beginning and say a couple of words about the history of camp №58, what I learned from people who were serving sentences there during communist times.
The camp has existed for a very long time, and in Soviet times it was one of the most lawless. People say that a human life was worth the price of a packet of cigarettes and one of tea. The camp administration crushed anybody who annoyed it by bribing other inmates, by weaving intrigues between prisoners leading to conflict and violence. And also by simply subjecting the prisoners to constant terror in the form of disciplinary persecution, being placed in solitary isolation, etc. After this, people were psychologically broken and began to collaborate with the administration or become seriously ill after which they ceased to be of any interest to those in charge. And although times have changed, and you dont see such open terror now, the administration has stayed the same. Now they carry out their nasty deeds more furtively.
Convicted prisoners who have come from penal settlement №98 (the city of Klementovychy, Shelemivsky district of the Khmelnytsky region) recount that in November and December 2001 they also had forces of a special unit brought in, who tormented the prisoners. Inmates were beaten, and then taken, one by one, into a closed room where they were read a supposed death sentence, after which they were shot at with rifles shooting blank bullets.
In the 69th penal settlement in the Poltava region, such visitations to impose beatings occur regularly, once a month. Those people who have come from there have got used to such treatment and keep silent. One prisoner wrote to me that from the beginning of the year it had become more severe, but had been suspended before the elections. Woman have said the same thing. I have kept these letters. I think that the instruction came from the President to departments because the prosecutors offices were also involved. I have sent the General Prosecutor a complaint about all this. Has he received it?»
Unfortunately, we could provide many such letters, sent bypassing the censorship of the institution, about beatings of convicted prisoners. The administration of the institutions claims that all is made up and that we have no way of checking such complaints. However, the fact that people who do not know each other from different institutions in different regions all say the same things is highly suspicious.
1. To limit through legislation the time limit for custody on remand at all stages of the criminal investigation and judicial process, in particular, to reduce the maximum time limit for pre-trial detention from 18 to 9 months, and to limit the total time spent in custody on remand during the periods of pre-trial investigation and court proceedings to two years, after which custody on remand must be changed to another preventive measure not involving deprivation of liberty;
2. To conduct an international expert examination of the Draft of a Penal Code and other acts of penal legislation to determine how they comply with the practice of the European Court on Human Rights and the norms of law of the European Union, inviting specialists from other countries to participate;
3. To conduct an expert examination of Ukrainian penal legislation to determine how it complies with Committee against Torture standards with a check of whether recommendations from the Committee against Torture made to the Ukrainian government in reports on periodic visits to Ukraine in 1998, 1998, 1999, 2000 and 2002 have been implemented;
4. To adopt amendments to the Penal Code aimed at bringing it into line with international standards on penal institutions;
5. To immediately create special units in several pre-trial detention centres for holding those accused who are suffering from tuberculosis, and to accordingly change the joint Order of the Department on Penal Matters and the Ministry of Health of Ukraine №3/6 from 18 January 2000, the Order of the Department №192-2000 and Directive №24/44 from 3 January 2003;
6. To change court practice, and apply forms of punishment not involving deprivation of liberty must more widely;
7. To introduce a course on human rights into the program of professional training for staff of the penal system, and in particular, the study of documents pertaining to torture and cruel treatment;
8. To broaden the legal bases for court and civil control over the activities of law enforcement bodies.
 [Custodial] arrest is a form of punishment for administrative and criminal offences. «Punishment in the form of arrest involves custodial detention in conditions of isolation and is imposed for periods from one to six months». (Article 60 of the Criminal Code). (translators note)
 Oleksandr Bukalov «The Ukrainian Penal System in 2004. //Aspect, №3, 2004. – p.4. All data for 2004 has been taken from this source.
 «Den» («Day»), 26 March 1997
 «Aspect», №1, 2000
 Ibid, p. .239.
 «Pravda Ukrainy», 24.06.2004.
 «Postup» ["Progress"] , Lviv, 16 April, 2004.
 The argument here is less clear in the English given the existence of two words – safety and security, whereas in Ukrainian both meanings are denoted in the word «bezpeka» (translators note)
 Cf:.: Як змусити стандарти працювати. Практичний посібник по ефективному застосуванню міжнародних тюремних правил. (How to make standards work. A practical guide to the effective application of international prison regulations. – Donetsk. Eastern Publishing House, 2001. – p. 135.
 Уголовное право на современном этапе: Проблемы преступления и наказания / Criminal Law at the contemporary stage. Problems of crime and punishment. N.A. Belyaev, V.K. Glistin, V.V. Oryekhov et al. /– St. Petersburg: Published by St. Petersburg University, 1992 – p. 538.
 Revised European version of the Standard Minimum Rules for the Treatment of Prisoners, 1987, Strasbourg.
 Rulings of the European Court on Human Rights. Case-study: «Kalashnikov vs. Russia, 2002
 A, I. Yekimov: . Справедливость и социалистическое право. / Justice and socialist law / – Leningrad: Publishing House of Leningrad University, 1980. –. p.. 84.
 V.S. Nervesyants: Философия права: Учебник для вузов. /The Philosophy of Law. Textbook for Institutes / – Moscow, NORMA-INFRA-M, 1999, p. 149.
 European Prison Rules: Revised European version of the Standard Minimum Rules for the Treatment of Prisoners, 1987, Strasbourg
 Standard Minimum Rules for the Treatment of Prisoners, 1977
 «Frant», Kupyansk , №35, 26 August 2004.