Open letter to Ukraines leaders over serious problems in the Penal System
The following open letter expresses the concerns of human rights groups and penal system experts regarding shortcomings in the State Department for the Execution of Sentences. It is addressed to the President, Prime Minister and Speaker of the Verkhovna Rada
We wish to draw your attention to serious failings which have over a considerable period been observed in the work of the State Department for the Execution of Sentences. It is extremely secretive, virtually not subject to control and is not accountable to the public. A body designed to increase public safety is increasingly becoming the source of extremely dangerous situations. This situation is leading to grave violations of the rights both of prisoners and personnel of penal institutions, to the use of unlawful force against people deprived of their liberty and to abuse of official powers, for example, through the squandering of State funding. Information about these violations is periodically provided by human rights organizations, while checks carry out by the Control and Audit Department, the Tender Chamber, and the Government Inter-departmental Commission have uncovered numerous financial irregularities.
Our experience of defending prisoners rights leads us to the following conclusions:
1. The Penal Service over recent years has become even more removed from public scrutiny and from the media. The real human rights situation in penal institutions is concealed by the Departments management, and the public are quite often given incorrect information. There have already been a number of examples of court rulings on the unwarranted concealment of information however the management remains unperturbed by these violations.
2. Checks into publicized allegations by prisoners are neither transparent nor public. Lawyers and human rights defenders are often not allowed to see prisoners and this leads to biased conclusions and well-founded doubts regarding the legality of penal staffs actions. The lack of reliable information from penal institutions renders impossible an objective and unbiased assessment of the human rights situation there.
3. Over the last three years the Penal Service has seen a decline. Flagrant human rights violations in penal institutions have become widespread. Prisoners are virtually deprived of the possibility of legally complaining about the unlawful behaviour of the penal administration. The prosecutors office is most often passive, there is no parliamentary control and any complaints lead to unlawful acts of force by the administration. Prisoners lose any faith in a just resolution of their problems and complaints. Flagrant violations have prompted prisoners from a number of penal institutions to turn to human rights organizations and the national media complaining of inhumane conditions, torture and ill-treatment. They have also resorted to protests, such as hunger strikes and self-mutilation.
4. Numerous human rights infringements are caused by the inadequate Penal Code and subordinate legislation. Penal legislation requires major reworking, both at the conceptual level and in details. According to current legislation a prisoner is entirely in the unlimited power of the penal administration whose behaviour s/he cannot complain against. Internal normative documents of the Department do not pass through the appropriate expert assessment and discussion, neither with specialists nor with the public and they often clash with current legislation and fail to comply with international norms and human rights standards.
5. One of such acts is the notorious Order of the State Department for the Execution of Sentences № 167 from 10 October 2005. The Order allowed for a special anti-terrorist [spetsnaz] unit within the Department which is used for carrying out searches of prisoners and penal institutions and pre-trial detention centres, and effectively for intimidating those deprived of their liberty. According to the Departments figures, the spetsnaz was deployed in penal institutions 43 times during 2006. During these spot searches, the unit which is colloquially known as the “mask show” since the “fighters” arrive at the institutions with masks over their heads and in full fighting gear, with bullet-proof vests, batons, handcuffs, tear gas is guilty of grave human rights violations. The pattern is always the same. They burst into the cells of the pre-trial detention centres or living area of penal colonies yelling “everybody on the floor!” They then proceed to walk over the prisoners lying on the ground, kick them or use their batons against various parts of their body or head. They force each in turn to run down the corridor with “fighters” positioned on each side who continue to beat them with batons, force them to bend down or do the splits, crawl along the floor, do 100 sit ups or press ups. Other “fighters” wreak total havoc with the prisoners personal possessions, destroying food items, mixing sugar with tobacco and washing powder, spilling tea and coffee onto the floor, stealing cigarettes, preserves, lighters, etc. Men from these special units are also used in terrible beatings of prisoners who dare to make complaints against the administration. The public learned about shocking beatings on 22 January in Izyaslav Penal Colony No. 31; on 7 June at Buchansk Colony No. 85 and on 10 November in the Slovyanoserbsk Colony No. 60 and others. At first the prisoners are beaten, and then forced to write that they have no complaints. And the prisoner thus broken down submissively repeats all of this to the Prosecutor, and forensic medical experts, since he knows that he is totally dependent on the administration. As a result, its as if the beatings didnt happen. And its impossible to check information about such beatings since the system is closed to scrutiny. And if a prisoner does nonetheless complain, the administration will find a number of ways to get its revenge: by depriving the prisoner of needed medical care; destroying their personal things; imposing numerous disciplinary penalties for offences such as “not being asleep after lights out”. Other measures can be periods in the different forms of punishment cells or the lengthening of a persons sentence by applying Article 391 of the Criminal Code.
Even after State Registration of Order No. 167 was revoked on 24 December 2007 by the Ministry of Justice, there have been cases reported. For example, on 31 January at 6.30 in penal colony No. 46 near the village of Katerynivka in the Rivne region, a group of around 25 spetsnaz officers in masks and full fighting gear was deployed and viciously beat up 16 prisoners
We have written testimony to the effect that sometimes these special units have had weapons and dogs, and that they claimed that they had been given the right to use weapons and dogs by the President. Viktor Andriyovych, did you hear that? They are threatening to shoot at prisoners and set dogs on them in your name!
6. Financial audits carried out into the Departments activities uncovered a number of gross infringements, cases of abuse and use of large amounts of budgetary funding not as intended. For example, the Central Control and Audit Department just in the second quarter of 2007 uncovered financial irregularities leading to losses of 7.9 million UAH (among them expenditure in violation of legislation and non-targeted spending). Infringements of procurement procedure were found to have cost 21.1 million UAH, and the Tender Chamber identified flagrant infringements of legislation to the tune of 217.98 million UAH.
7. Social standards of fairness have changed significantly in the Department with the latter demonstrating personal immodesty in regularly awarding itself extremely large bonuses against the modest incomes of the average employee of the Service. This concern of the management only for themselves generates even greater social inequality between the bosses and their staff at middle and lower level, as well as corruption.
8. To a large extent the reasons for this situation is the incompetence of the Departments management, combined with active resistance to fulfilling Ukraines commitments made when joining the Council of Europe in 1995 regarding the subordination of the Department to the Ministry of Justice. Initiatives of the Ministry of Justices leaders for improving the situation are ignored by the Head of the Department and the Ministry as yet has no legal mechanisms for influencing the Departments activities.
We consider that the State Penal Service as an independent body under the present management is incapable of competently, responsibly and effectively carrying out the tasks it has been vested with.
A considerable amount of the material regarding infringements in the penal system has already been make public, and brought to the attention of the mass media. This gives us grounds for insisting on the use of decisive and effective action in establishing order and affirming respect for the law and for human rights in the State Penal Service.
The following is urgently needed:
- Attention must be paid to the numerous problems with observance of human rights in penal institutions, to the level of competence of their management and their ability to resolve current issues on holding prisoners;
- Strict adherence from the management to standards of social fairness, respect for the dignity both of prisoners and of personnel of the system, real openness of its activities for the public, including for human rights organizations and the media;
- The political will at long last to transfer the State Department for the Execution of Sentences to the jurisdiction of the Ministry of Justice as demanded by the commitments, as yet not fulfilled, to the Council of Europe;
- Consideration of the expediency of Vasyl Koshchynets and his deputies remaining in their posts since in our view they have demonstrated their inability to manage such a complicated and specific department. The capacity of the department to ensure the implementation of the tasks before it will depend largely on the resolution of these staffing issues. This in turn has direct impact on public safety, as well as on the image of the President, Government and Ukraine as a democratic and civilized European country.
We will maintain our zero tolerance for the flagrant violations of human rights in the penal system and abuse of position which are at present typical of the activities of the State Department for the Execution of Sentences.
Yevhen Zakharov, Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group
Oleksandr Bukalov, Donetsk Memorial, Ukrainian Penitentiary Society
Oleksandr Betsa, independent specialist on the penitentiary