UHHRU calls on the President to not support the present Strategy Plan for Penal System Reforms
An open letter to President Yushchenko
On 23 September the Presidents Press Service stated on their official website that the President was planning in the near future to issue a Decree on the Strategy Plan for Reforms to the State Penal Service [hereafter the Strategy Plan]. The Ukrainian Helsinki Human Rights Union is asking the President to refrain from supporting the present Strategy Plan.
We would note that the draft Strategy Plan does contain some useful ideas and measures, for example, for reforms to the penal inspection system, however as a whole it requires radical reworking. A review of the entire draft gives grounds for concluding that the said measures are conceptually unacceptable and need to be changed since they simply cannot be called a “reform”.
The main shortcomings of the Strategy Plan are, in our view, the following:
– reliance on a faulty understanding of the purpose of punishment and accordingly off the role, function and powers of the Penal Service;
– the reluctance to fully move over to a civil, and not a law enforcement service;
– the lack of clear definition of the place of the State Penal Service among government bodies;
The Strategy Plan effectively preserves and entrenches the present state of the penal system which remains to a large extent a Soviet GULAG and the State Penal Service which is yet one more law enforcement authority and even has its own special subdivision for combating terrorism (!).
The penal system should instead become a flexible prison system and the State Penal Service should become a civilian service and a subdivision of the Ministry of Justice as has been achieved in all post-totalitarian countries of Central and Eastern Europe.
Obviously there should be no reduction in the level of pay and benefits for the Services personnel given the hard nature of their work. What these countries do not have is a departmental training institution for penitentiary system. The faulty fundamental concept of the Strategy Plan engenders faulty measures for training staff with these in conflict with general principles of professional education existing in the world.
It should be noted that the Penal Code gives a much broader definition of the purpose of punishment than the Criminal Code.. According to Article 50 of the latter, 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. Article 1 § 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, have thus effectively re-introduced into national legislation the concept of protecting society from criminals which was the basis for the Corrective Labour Code [CLC] 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.
Accordingly, the main ideas in the Strategy Plan, that “resocialization of those convicted is the main end goal for the functioning of a penitentiary system” and that “punishment for the crime committed is only of the equally important tasks in enforcing a sentence” and “reform and resocialization of the individual person convicted of a crime are duties on a par with punishment” are, we believe, flawed. The purpose of punishment should be solely to implement the range of legal restrictions which are imposed by a ruling of the court, and the work of the State Penal System should be aimed at ensuring this enforcement. The functions of educating and ensuring offenders resocialization are those for society as a whole – for civic organizations, educationalists, religious communities, etc with the assistance of the penal service. In order for this to occur, the penal system needs to be considerably more open than it is now.
There is an extremely negative trend in Ukraine whereby the reform of ministries and departments is prepared by those bodies for themselves. Due to their vested interest, no government body is capable of objectively defining its own road to reform. In this way we end up not with concepts for reform, but action plans for those bodies which do not in fact ensure implementation in the country of international standards, in particular, those related to human rights. We consider that the absence of reform in the country is to a large extent determined by these examples of self-reform.
Head of the Board of the Ukrainian Helsinki Human Rights Union