Human rights in Ukraine – 2008. 21. PRISONERS’ RIGHTS
1. General information
This section reviews some aspects regarding the rights of people imprisoned in penal institutions and investigative isolation units [SIZO – also referred to as pre-trial detention centres] of the State Department for the Execution of Sentences [hereafter the Department], As 01.01.2009 145, 715 people were held in the Department’s places of confinement. These included 109, 961 convicted prisoners in 136 penal institutions and 34, 148 people held in SIZO (against 32, 110 the previous year). The number of convicted prisoners fell by 3, 744 prisoners (2.65%). In 2005 there had been a 9.31% drop; in 2006 – 5.97% and in 2007 – 6.87%.
In 2008 40, 702 were imprisoned in penal institutions, and 41, 856 released, including 25, 798 on parole. 12, 886 people were released from SIZO, including 3, 810 whose sentence had been served, or who were released on parole. Clearly the reasons for people being released from SIZO were also the imposition of punishment not linked with deprivation of liberty, or due to a small period of imprisonment which the person had already served in SIZO. These figures show that the use of remand in custody as a preventive measure with respect to people accused of a crime is unwarranted and excessive. The number of acquittals remains pitiful – a mere 0.2% of the total number of verdicts passed.
As of 1 March 2009 there were 6.3 thousand female prisoners, of whom 103 were minors. There are also around 2 thousand women being held in investigative isolation units and 15.5 serving punishments not linked with deprivation of liberty. There were 1.5 thousand juvenile offenders, including 101 young women, in 11 educational colonies.
The number of life prisoners rose by 92 and on 1 March 2009 constituted 1, 555 prisoners.
2. Problems of the Penal System
The new Penal Code [kryminalno-vykonavchy kodeks] came into force on 1 January 2004, with internal normative acts of the Department for the Execution of Sentences being adapted to bring them into line with the new Code. Application during the first five years of the new Penal Code’s existence make it possible to state with certainty that the new normative legal acts have proved to be ineffective, contradictory and not in line with international standards regarding the treatment of prisoners. They have not met expectations and require considerable overhauling. The problems of the penal system can be divided into conceptual, defining the legal position of deprivation of liberty and the main directions in the activity of the State authorities with regard to applying sentences, and practical, arising during the process of serving sentences, with both types caused by failings in penal legislation.
The first category includes conditions in SIZO; the creation of conditions which are additional and independent punishment; the contradictory status of the Penal Service; the lack of mechanisms of public control, and others. One can include in the second category safeguarding of the right to legal aid; the use of coercion and physical force; measures of incentive and penalty with relation to convicted prisoners; the impossibility of complaining against the actions of the penal administration; infringement of prisoners’ economic and social rights – to work, to pension provisions, medical care, etc.
We will consider some of these problems in more detail.
3. The Conditions in SIZO
Article 62 of the Ukrainian Constitution states that a person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.
This means that no one should suffer restrictions tantamount to criminal punishment unless their guilt has been established by the appropriate body in accordance with the relevant procedure. A person is considered innocent until proven guilty and therefore his or her treatment should not differ from the treatment of a free person not facing criminal proceedings.
According to the Law «On pre-trial detention» people remanded in custody have the rights enjoyed by Ukrainian citizens with restrictions established by the said law and other normative legal acts however in other provisions of the same Law restrictions are set which are difficult to explain from the point of view of the presumption of innocence.
Take, for example, the provision regarding the duration of the daily walk, this being restricted to one hour a day. The rule is incomprehensible especially given the number of people held in investigative isolation units. The European Committee for the Prevention of Torture [CPT] found the number in some cells to be excessive (in one cell of no more than 10 square metres up to seven people were held). What is more, not all suspects have their own beds. With such a lot of people in a small space dirty and unsanitary conditions are inevitable. There is obviously a lack of fresh air which can be deemed a form of ill-treatment. These conditions are worse even than those in which convicted prisoners are held and pose a real danger to health.
The next baffling restriction is on the possibility of spending money to buy food items and basic necessities. The amount allowed by law equals the minimum wage. Yet what is the point of such a restriction? You could understand restrictions on the range of products and other items, this being linked with the specific nature of an institution holding a large number of people of the same sex. Yet why a person who has not been convicted by a court cannot spend the amount of money that he or she wishes is difficult to understand. Furthermore investigative isolation units are not able to ensure normal food and material provisions for those held in them. This provision, therefore, also contradicts the principle of the presumption of innocence.
Nor is this principle complied with in the procedure for suspects’ or defendants’ correspondence and their right to sent appeals and letters to international organizations and State bodies. It is infringed also as regards the right to receive visits. These rights may only be exercised with the written consent of the investigator or investigation unit dealing with the case. Such restrictions are incomprehensible and cannot be explained by the objectives pursued in remanding a person in custody. This consent is all the more bafflingly redundant given that procedure for sending letters envisages their mandatory scrutiny while visits to a suspect or defendant are held in the presence of SIZO administration staff.
The norms of the Law «On pre-trial detention» with regard to sending complaints or applications to the Prosecutor are also contradictory. According to the general rule such applications or complaints are to be sent within 24 hours to the addressee and are not subject to scrutiny. However if such complaints pertain to the conditions in pre-trial detention centres, then they are sent within three days. This means that all complaints or applications to the Prosecutor need to be inspected in order to identify those regarding the conditions in pre-trial detention centres, and only then will some of them be sent in adherence to the 24-hour time limit, and others can wait another two days. Thus the rules of the Law «On pre-trial detention» do not just flout the principle of the presumption of innocence, but they contradict each other.
The next failing lies in the material conditions. Since people held in pre-trial detention centres do not have convicted prisoner status, then the principle of the presumption of innocence should apply in full measure and their conditions should be those or as close as possible to those of people at liberty. Yet the conditions are even less appropriate than those for convicted prisoners.
According to the law, people remanded in custody are assured everyday conditions which meet sanitation and hygiene rules. This in practice is not the case. The CPT inspections of pre-trial detention facilities demonstrated that sanitation and hygiene standards in Ukrainian SIZO are not met. A number of infringements and shortcomings were identified, and in some SIZO the lack of natural light, as well as artificial light turned on during the hours of darkness; lack of ventilation or of access to fresh air. It is the failure to observe these international normative acts that has led to an increase in the number of cases of people contracting tuberculosis in SIZO. Furthermore, the premises in which suspects and convicted prisoners are held in SIZO are in a terrible state. Many require repairs and reequipping. The toilets were in an unsanitary state and were not partitioned off from the living part of the cell. Furniture is extremely poor and does not meet minimum human requirements for comfort.
The Law stipulates that there must be no less than 2.5 square metres per remand prisoner, while for a pregnant woman or a woman with her child the norm is 4.5 square metres. International acts demand that in places of imprisonment there should be 4 square metres for person. The difference is clear and requires no commentary. Domestic standards are almost half that of international ones.
The Law states that medical care, as well as preventive medicine and anti-epidemic work in places of pre-trial detention are organized and carried out in accordance with legislation on healthcare. The procedure for providing medical assistance, the use of hospitals, etc, the involvement for this purpose of their medical personnel and the holding of medical expert assessments is stipulated by the Department for the Execution of Sentences, the Ministry of Defence and the Ministry of Health. In the final analysis medical care for people held in pre-trial detention centres is carried out according to the rules and norms regulating the process of serving terms of imprisonment. Here the main problem is that these SIZO are the most over-crowded and least properly equipped, and it is therefore impossible to ensure proper conditions in them. This is particularly important given that people are held in these places who have not had the question of their guilt or innocence established by a court.
The principle of the presumption of innocence is thus basically not safeguarded in Ukraine since people with the status of defendant or suspect who have been remanded in custody are in conditions much worse than those for convicted prisoners and most of the norms applying to deprivation of liberty and the status of a convicted person apply to them.
It is not so much that domestic legislation is contradictory and not in accordance with international norms. The problem lies elsewhere. The declaration of the principle of the presumption of innocence and mechanisms for following it demonstrate the attitude of the State and society to this guarantee. Equating suspects and defendants with convicted individuals shows the categorically punitive nature of all criminal policy and of the State system. The requirements of the law do not transcend the level of the imperative and show that the presumption of innocence is purely declarative and has no mechanisms for ensuring and exercising them.
4. Punishment through the conditions
Punishment through deprivation of liberty places first the task of creating the kind of conditions which will leave convicted prisoners in no doubt where they are and what place, from the moment they begin their sentence, they occupy in society. This situation is a direct violation of Article 102 of the Penal Code which states that the regime should minimize the difference between conditions in penal colonies and at liberty.
The everyday conditions in penal institutions do not encourage awareness of personal dignity and do not orientate a person towards respect for him or herself, and for those around. The overcrowding of some institutions, squalid and dirty premises, inadequate material and everyday provisions, the form of dress and external appearance stressing the situation and status of a prisoner are a by no means comprehensive list of the features typical of conditions for serving sentences.
A considerable part of the punitive effect of deprivation of liberty is specifically in the conditions. The law includes among other measures of influence on prisoners the following: work, socio-educational training , general education and vocational trading. Among means of influence the living conditions are the most evident and tangible for prisoners. They are not always provided with work, studies are not compulsory and not of a sufficiently high quality, and socio-educational training is not always based on the individual (and more often has a certain ideological or situational colouring).
The conditions are of a pronounced punitive nature which the prisoners encounter on a day to day basis. They can without exaggeration be considered degrading and humiliating. It is, for example, difficult to explain the need to make all prisoners have a short haircut and wear the same badly-sewn and dreadful clothes. Constant references to insufficient funding have long not been current and truthful since the Penal System has normal funding which allows it for some reason to increase staffing of State bodies and penal institutions. If this is the case, why is it not sufficient for those others involved – the prisoners?
This can only be explained as deliberate influence aimed at demoralizing people and making them passive and obedient. It would seem that the main aim of punishment is the wish to humiliate people, make them guilty for their entire lives.
The creation of these conditions in penal institutions in fact discredits such aims of punishment as reform and resocialization. No positive changes can take place in the prisoner himself if he is in conditions not suited for holding people. The chances of reform are thus extremely dubious, and the same can be said of resocialization. Since the legislators have created an indissoluble link between these two categories, there can be no resocialization without reform. Furthermore, it is difficult to imagine how a person held in inhuman conditions can be reinstated in their social status as the law requires. The conditions basically make the aims of punishment unattainable and render meaningless the content of penal system activities.
Ukrainian society at the present time sees material comfort as a fundamental value and deprivation of this is accordingly most tangible and painful. Other values such as liberty, freedom of communication and movement, the choice of a form of activity, etc, are for the moment not clear, independent and so valued that prisoners should acutely feel their deprivation and try to avoid such restrictions. Ukraine’s penal concept sets prisoners as «beyond society», as people who must be punished and «reformed» by means of an impersonal system which fails to take into account the individual and is not aimed at respect. The main focus of Ukraine’s penal law is on the serving of sentences.
The paradigm and sense of punishment in West European countries are quite opposite. International acts require the establishment of a number of minimum standards for all those aspects of managing prisoners which are of vital importance for ensuring human conditions and proper treatment of prisoners in contemporary and progressive systems. Thus the main aim of normative acts is to formulate those requirements and criteria which should be met by the conditions for prisoners in any institutions. They are the minimum requirements in any place where people experience restrictions of their rights. What is involved, moreover, is rather more than the individual’s rights, but also a sense of respect for the person’s human dignity and attitude to him or her as a person.
Items 64 and 65 of the «Standard Minimum Rules for the Treatment of Prisoners» state that since a prisoner has been deprived of his liberty, this is in itself punishment. Therefore the conditions and prison regime should not exacerbate the suffering, except in cases when this is warranted by the need to isolate a person or to maintain order.
It is also necessary to make efforts to introduce regimes in penal institutions aimed at:
а) ensuring that conditions meet the requirement of human dignity and the norms recognized in society;
б) minimizing the adverse effectives of imprisonment and the difference between life in prison and in the outside world which weaken prisoners’ sense of personal dignity and responsibility;;
в) supporting and strengthening those links with relatives and the outside world which best serve the interests of prisoners and their families;
г) ensuring prisoners the opportunity of developing vocational skills and ability, which will enhance their prospects for social reintegration following their release.
The most significant and painful losses for prisoners are in the very fact of being deprived of their liberty, and this is punishment enough. Legislators and penal practice should not be aimed at punishing prisoners through inappropriate deprivation of fundamental requirements as regards comfort and sanitary conditions. Punishment should not be aimed at humiliating a person, diminishing their sense of worth and imposing a feeling that they will carry a stigma all their lives. .Prisoners lose the ability to move about freely, to choose where to live, and their form of activity, as well as the opportunity to make decisions for themselves, and determine their own actions. It is deprivation of these vital components that constitute the greatest punishment.
The European penal concept is based on the conviction that even a person who has committed a crime remains a person and should be able to return and become a part of society.
This difference is major and determines the direction and style of punishment in Ukraine and West Europe. Without a readjustment in thinking at this conceptual level and greater recognition of the importance of such values as liberty, autonomy, responsible, freedom of communication and of movement, fundamental changes and the transformation of the system and practice of those bodies and institutions responsible for restricting rights and freedoms, are impossible.
5. The equivocal status of Ukraine’s Penal Service
By joining the Council of Europe on 9 November 1995, Ukraine took on various commitments, including implementation within stated periods of a number of specific duties listed in Opinion No. 190 of the Parliamentary Assembly of the Council of Europe. One of the latter was to demilitarize the Penal Service and transfer it to the control of the Ministry of Justice. .
This voluntarily made State commitment has not been kept. On 22 April 1998 the President issued Decree №344/98, which created the State Department for the Execution of Sentences [the Department]. Another Presidential Decree №248/99 from 12 March 1999 withdrew the Department from temporary subordination to the Ministry of Internal Affairs [MIA] and it has since then existed as an autonomous central body with special status. The management of the Department considers that by the withdrawal of the penal system from the jurisdiction of the MIA Ukraine’s commitments to the Council of Europe have been fulfilled. This is not, however, the case as is confirmed by Item 8 of the Parliamentary Assembly of the Council of Europe [PACE] Resolution №1346(2003), where it is clearly stated that: the Assembly urges the Ukrainian authorities to complete transfer all the entire penitentiary system to under the control of the Ministry of Justice, while Item 13.7 of PACE Resolution №1466 (2005) on the honouring of commitments and obligations by Ukraine, points to the need to «finalise the transfer of the State Department for the Execution of Punishments to the Ministry of Justice as required by Opinion No. 190 (paragraph 11.vii)»
Cabinet of Ministers Resolution No. 683 from 17 May 2006 «On amendments to the list of central authorities whose activities are directed and coordinated by the Cabinet of Ministers through the appropriate ministers» stated that the work of the State Department for the Execution of Sentences was directed and coordinated by the Cabinet of Ministers through the Minister of Justice. From the content of the Resolution it is difficult to understand what is meant by «coordination of activities» since according to the Law «On the State Penal Service» the Department has the status of a central executive body on penal issues. It has no relations of subordination with the Ministry of Justice, with the two bodies being equal.
At the beginning of 2007 a draft law was prepared which envisages subordination of the Department to the Ministry of Justice, however due to the difficult political events and the dissolution of the Verkhovna Rada this was not given consideration
Throughout 2007 the process of transferring the Penal Service to the Ministry of Justice was inconsistent and contradictory. The Cabinet of Ministers on 11 July 2007 passed Resolution No. 916, which approves new Provisions on the Department, however, with his Decree №667/2007 from28 July the President suspended the force of this Resolution, justifying this on the grounds that the activities of the Department must be regulated by law, not by a Cabinet of Ministers Resolution. .In Decree №401/2008 from 25 April 2008 the President presented a «gift» to the Department for its tenth anniversary by passing a Concept Strategy of the State Penal System which was clearly prepared by the Department itself. Despite all the rhetoric, this effectively retained the existing situation where the Department, in the words of its Head Vasyl Koshchynets, is a law enforcement body and is at the forefront in fighting crime. The Concept Strategy was prepared and presented to the President not only without the properly public discussion envisaged by law, but without even real professional discussion or consideration in the National Commission for the Strengthening of Democracy and the Rule of Law. An important point in this Concept Strategy is the total lack of mention of future subordination of the System, despite the fact that the Department has to turn into a civil service, totally subordinated to the Ministry of Justice. Clearly with this there must also be retention of the norms regarding social protection of penal staff.
Unfortunately at the present time penal institution workers do not enjoy high social prestige. Since public safety is dependent on the quality of penal institutions, the public ought to be the most interested in personnel qualitatively influencing prisoners and therefore having impact on public welfare. After all their activities ought to be directed at ensuring that prisoners return to society after serving their sentences as law-abiding citizens.
Socially unprotected, with a fairly low salary and without career prospects, penal institution employees are not capable of transforming criminals into law-abiding citizens observing legal and social norms of the State and society.
The aim and justification for a court sentencing a person to imprisonment is, in the final analysis, to protect society and prevent crimes. This objective can be achieved only where prisoners, after being released and returning to normal life in society, prove not only ready but also capable of reintegration into society, to self-disciplined law-abiding behaviour and independent generally accepted socio-normative life.
Affirming that deprivation of liberty is an exceptional measures which should be applied in cases where the State and society face real danger, the personnel of penal bodies and institutions should accordingly seek to ensure public safety by using sentences not only as punishment, but in order to achieve reform and resocialization, as well as to prevent the prisoners and other individuals from committing crimes.
The need for a complex of organizational-legal and economic measures aimed at ensuring social protection of penal staff is determined by the specific features of their duties, linked with risk to life and certain restrictions on the right to earn material wealth to ensure a satisfactory standard of living for themselves and their families. This includes: free medical care; sanatorium treatment and health-restoring holidays; the provision of housing or payment of compensation for renting accommodation, concessions on housing expenses, fuel, telephone and communal services. Restriction of benefits, compensation and guarantees to Penal Service staff will lead to a drain in the professional core of practical employees who organize and carry out reform of prisoners.
One of the reasons for the existing situation regarding legal and social protection of managerial staff and ordinary employees of the Penal Service is the fact that the latter has ceased to be of interest to those in power. During the post-Soviet period it became apparent immediately that the result of slave labour could not survive competition on the market. In the modern market economy there is no place for Penal Service enterprises. The Penal Service is urgently in need of reform. Such reforms were carried out in all countries of Central and Eastern Europe, and in the Baltic Republics, back in the 1990s. In Ukraine the old Soviet GULAG has remained without reform. The State has generally lost interest in financing the Penal Service, retaining for itself the function of enforcing sentences of imprisonment. The system is mentioned only when prisoners protest against inhuman or degrading treatment, inflict injuries upon themselves en masse or declare hunger strikes.
6. The lack of mechanisms for public and international control
6.1. Problems of cooperation between the Department and supervisory commissions
An important mechanism for ensuring human rights in places of confinement is public control over what goes on in penal institutions. According to Article 25 § 2 of the Penal Code this function is vested with supervisory commissions which act in accordance with Regulations passed by the Cabinet of Ministers.
Such commissions have existed since the mid 1960s however in recent times they have functioned in a largely formal capacity. Significant changes in legislation and in the priorities of the State’s demanded change. The new version of Regulations on Supervisory Commissions was prepared by the Department and approved by Cabinet of Ministers Resolution No. 429 from 1 April 2004. The Regulations state that the commissions should include representatives of civic organizations. For this reason the procedure for determining the makeup of these commissions and their effective functioning as bodies carrying out public control over the activities of penal institutions is highly relevant. The commissions have virtually no experience of work with such priorities. However the specificity of the position of supervisory commissions is determined by the fact that it is only they that the legislators have assigned the right to carry out public control over penal bodies and institutions.
During visits by representatives of international organizations, such as the Council of Europe, CPT, the UN Committee against Torture, etc, Ukrainian high-ranking officials, especially representatives of the Department stress the existence of public control. They produce the norms of legislation which set out public control, cite the number of supervisory commissions in the country, claiming that these work and ensure such control.
At the same time aside from general assertions, no specific details are given. For example, there is no indication of the number of cases when it has been specifically the intervention of a supervisory commission that led to reinstatement of prisoners’ rights. At the present time there is no real picture of the actual work of supervisory commissions, and it is therefore impossible to assess their effectiveness.
In fact this situation is linked with the fact that the very Regulations did not by definition allow for the possibility of creating an effectively functioning mechanism of control over the Department’s institutions. This, it would seem, entirely suited the Department management, and continues to do so. As a result, there is no public control over Department institutions. A side effect of this lack can be seen in the numerous incidents in Department institutions over the past year with suicide attempts by prisoners in protest at ill-treatment. In no case during public discussion of these incidents of which there have been dozens was there any mention of supervisory commissions and their role in ensuring prisoners’ rights.
In a letter on changes to the Regulations proposed by the civic organization Donetsk Memorial, the Department responded that it regards as «illogical the regulation making the implementation of the commission’s decisions and resolutions on removing failings in the work of Penal Service bodies and institutions mandatory». According to the Department’s logic, if an institution which by Law is appointed to carry out public control over observance of prisoners’ rights, i.e. the supervisory commission, finds failings in the work of Penal Service bodies and institutions and passes the relevant decisions to have these rectified, the body or institution is not obliged to implement the measures. This comment from the Department would seem to reflect the dream of certain heads of the Department of total lack of public control, or if there must be such control, then it should be the sort that you don’t have to listen to, and whose demands you don’t have to meet.
Isolated attempts to study the question of public control over human rights observance in penal institutions have shown that the practical activities of the commissions are confined to providing assistance to the penal institutions, agreeing with penal administrations on cases of early conditional released, and also providing assistance to people released.
Without doubt the work of supervisory commissions in helping people who have been released is important and of social significance. In the absence of a real mechanism of post-penitentiary accompaniment for people released from imprisonment, they are perhaps the only structure among the authorities which provides real care for these people.
However it should be noted that despite fulfilling such important functions, these commissions do not give attention to public control. This means that the effective circle of issues and problems which they deal with does not include the issue of public control over observance of prisoners’ rights as set down in Article 25 § 2 of the Penal Code.
The attitude of the heads of regional divisions of the Department towards the work of supervisory commissions which work, and do not merely exist on paper, can be illustrated by the example of the Volyn Regional Division of the Department and the Regional Administration’s supervisory commission. The Deputy Chair of this commission is the head of the charity «Rehabilitation» which provides regular humanitarian assistance to prisoners serving their sentence in the region’s institutions. It also endeavours to help prisoners in issues concerning their rights however it is often, under various pretexts, refused entry to the penal colonies.
Even when the Regional Prosecutor’s Office issues a submission regarding violations of penal legislation the management of the Division insists that its actions were correct. Such wilful disregard for the work of the supervisory commission and impunity for infringements of norms of legislation can only be with the management of the Department being supportive or turning a blind eye. In order to restrict access to penal institutions by members of the public, the Department issued Instruction № 3/4-2329 from 30.05.2007 р., restricting visiting times to penal institutions to weekends. The Prosecutor General’s Office found this Instruction to be unlawful and forced the Department to revoke it.
Nonetheless, the very fact that the Instruction was issued reflects the Department management’s conviction that it can do what it wants with the supervisory commissions, the only legally stipulated body of public control.
Another example of the activities of regional supervisory commissions is that of the Donetsk Regional Commission. In 2004 it was created solely from representatives of the authorities. It did not provided information in response to formal requests from civic organizations and in order to find out about its activities it proved necessary to lodge a complaint with the court. The latter found that the failure to provide information about the commission’s activities was unlawful. After a period of increased activity, the commission effectively ceased to function. Members of civic organizations which were appointed to the commission tried for several months to bring about the next meeting. Over a year there have been only one or two meetings.
The effectiveness of the supervisory commissions’ activities can also be gauged by statistics on violations of human rights which they have identified. At the end of 2008 Donetsk Memorial sent an information request to all regional supervisory commissions. They were asked to provide information as to how many instances of human rights infringements the regional commission had registered during that year. Answers were received from the supervisory commissions of more than half Ukraine’s regions (oblasts). All but one stated that the specific regional supervisory commission had not recorded one human rights violation in the region’s penal institutions. The supervisory commission for the Chernihiv Region, on the contrary, had recorded 26 cases where the rights of prisoners or penal institution personnel had been violated during the year. This was hardly because the institutions of that region are the worst in the country. It is clear that if the commission works, it gets results, and vice versa.
To a large extent this is due to the fact that the commissions are largely made up of State body employees, civil servants who through their status do not have to conceal themselves with public control. They have no experience of such activities, do not understand its tasks and do not know methods for carrying out such control.
According to data from regional divisions of the Ministry of Employment and Social Policy, there are 657 supervisory commissions in the country, with over 6, 400 people working in them. Normative documents are presently being adopted promoting resolution of problems faced by released prisoners, and there is support for the adoption of new documents aimed at protecting the rights of this vulnerable group. It would seem expedient to also adopt an updated version of the Regulations on Supervisory Commissions more in keeping with the situation at the present time.
Supervisory commissions remain an excessively weak mechanism for protecting prisoners’ rights. To a large extent this is due to the fact that the activities of commission members are unpaid. It is therefore impossible to demand responsible work in such structures especially when the workload is quite great as is the case with commissions in places where penal institutions are located.
Public control exists not so much when members of the public have access to closed institutions, but when the information that they receive becomes public knowledge. Therefore an integral part of public control is passing on to the public the information which its representatives receive in the course of carrying out such control. For this reason reports from supervisory commissions should form a mandatory part of their work.
We should also point out the professional inability of most civic organizations to carry out a proper level of public control without turning it into a mere search for negative features in the work of penal institutions. Unfortunately in Ukraine there are still too few civic organizations capable of undertaking such control activities without creating artificial obstacles for the work of penal institution staff. In view of the not especially supportive attitude of Department management to real control by the public, the overwhelming majority of civic organizations which cooperate with penal institutions confine their cooperation to educational and charitable work, legal assistance and support following release. This enables them to avoid conflict with penal institution administrations.
The fact that their fears are not without foundation is demonstrated by the attitude of the Department’s management to those civic organizations which raise issues regarding observance of prisoners’ rights, circulate information about violations and demand investigations into such cases. The present management resorts to circulating nonsense, explaining such a stand by human rights defenders as supposedly being «at the instigation of criminal elements». This was how the Head of the Department V. Koshchynets reacted to two open letters from human rights defenders in February and June 2008.
It should be stressed that no liability is envisaged for inactivity by supervisory commissions in protecting citizens’ rights. Only public attention to this important link in the activity of penal institutions, civic activity and society’s concern over infringements of anybody’s human rights, including the rights of those who have broken the law and are serving a sentence behind bars can significantly improve the situation.
Where public control is being carried out there have been cases of unreasonable refusals to allow members of supervisory commissions to speak with prisoners. Such practice cannot be considered lawful. It follows from Item 6 of the Regulations on Supervisory Commission that members of these commissions during visits to penal colonies can meet with prisoners and have personal audiences. Therefore restrictions of such visits on the basis of Item 46 of the Rules of Internal Procedure of penal institutions are unlawful. The latter concerns the procedure for granting prisoners’ visits and telephone conversations with relatives and others, and not the procedure for a personal audience.
Moreover neither current legislation, nor Departmental normative legal acts give the administrations of penal institutions or territorial offices of the Department’s management the right to independently take decisions to restrict the activities of supervisory commissions (including with regard to public control over observance of prisoners’ rights). Such action is in direct breach of Article 25 of the Penal Code.
Supervisory commissions agree all decisions (submissions and resolutions) of the administrations of penal colonies regarding changes in the conditions of those sentenced to terms of imprisonment (both within a single penal colony, and through transfer to a penal colony with a different level of security), as well as giving or revoking permission for convicted women prisoners of the appropriate category to live outside the colony. The procedure for taking decisions on the above-mentioned issues is given in detail in Articles 100 and 142 of the Penal Code. Thus all decisions of penal colony administrations involving changes in conditions which could have impact on a change in the range of rights restrictions, imposed for those sentenced to terms of imprisonment, must be agreed with the supervisory commissions. This is regardless of whether the changes will improve conditions, or make them worse, which in our view cannot be considered expedient and in line with the basic task of the supervisory commissions. Certainly in those cases where the decision of the penal administration will worsen a prisoner’s legal status, it is undoubtedly advisable and necessary for this to be agreed with the supervisory commission since in that way the latter can provide a certain amount of control overseeing whether the actions of the penal administration are lawful and justified, as well as observance of the rights and legitimate interests of the prisoners. However in cases where the changes proposed will improve the prisoners’ conditions and reduce the range of restrictions (for example, by transferring a prisoner from units of resocialization to units of social adaptation; transfer to a penal colony with a lighter level of security; giving permission for convicted women prisoners of the appropriate category to live outside the colony) mandatory agreeing of these with a supervisory commission can scarcely be considered justified and in line with commonsense from the point of view of ensuring control over observance of the rights and legitimate interests of prisoners.
Supervisory commissions have the exclusive competence to submit to the court a joint application, together with the administration of the penal body or institutions regarding the granting to particular prisoners of early conditional release (parole); release from further serving of ones sentence (Article 81 of the Criminal Code); a change of the unserved part of the sentence to a more lenient regime (Article 82 of the Criminal Code). and the release from serving their sentences further of pregnant women and women with children aged up to 3 (Article 83). At the same time, Articles 407 and 407-1 of the Criminal Procedure Code regulating the procedural issues for the court examination of these issues state that only such a joint application forms grounds for consideration of the merits of the case by the court. Thus a refusal by the Supervisory commission to file such a joint application for one or other reason generally makes examination by the court of the relevant issue on its merits which directly contradicts the interests of the prisoner.
Going by current legislation one can draw the following main conclusions regarding regulation of the activities of supervisory commissions.
1. The functions of supervisory commissions as bodies of public control over observance of the rights and legitimate interests of prisoners set down in the Regulations do not fully meet the general aims of the supervisory commissions and are not capable of ensuring their proper implementation;
2. In view of the main task of Supervisory commissions, they should have competence with regard to agreeing only those decisions of penal administrations which envisage a worsening of the prisoners’ legal position.
6.2. International control over the activities of penal institutions and national preventive mechanisms
Bearing in mind the commitments which Ukraine gave in joining numerous international organizations, an institution of international control over the implementation of these obligations by the State is needed, as well as the establishment of a mechanism for carrying out such control.
At present there are not many bodies of international control which exert influence on the Penal Service. The most authoritative and influence organizations able to carry out such control are the UN Committee against Torture and the European Committee for the Prevention of Torture. These bodies make visits to places where convicted prisoners, where people are remanded in custody, as well as those against whom other measures of influence have been applied. They examine the conditions and study facts which could suggest that torture was applied, as well as informing the wider public and the State authorities about the situation with regard to prisoners’ rights and about identified cases of torture. In accordance, for example, with Article 2 of the European Convention for the Prevention of Torture, members of the European Committee [CPT] have the right to visit any places where people have been deprived of their liberty by the State.
Moreover, in accordance with both the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the Optional Protocol to this, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, countries must provide responses to the relevant Committee on questions and facts which the latter identified in the course of such checks.
Practice demonstrates that these structures have some effect since the identified violations and use of torture can at least be stopped. Therefore international control and the application of national preventive mechanisms are needed with regard to implementation of criminal punishment and ensuring the rights of people held in conditions of restriction or deprivation of liberty, and convicted prisoners. The relevant Committees are most often assisted in this by civic organizations.
However, unfortunately, Ukraine’s legislation does not allow for such an institution as international control in this sphere. Nor is the activity of national preventive mechanisms allowed for, and there is accordingly no mechanism of control.
Maximum effectiveness of such control needs to be ensured through the creation of national preventive mechanisms, the establishment of mandatory and unobstructed visits by the staff of bodies of international control and national preventive mechanisms to penal institutions, as well as liability (both of the penal bodies or institutions, and of the State) for failure to implement the legitimate demands of such controlling bodies. The activities of these institutions should be open, and this can be achieved by making public the results of checks of penal bodies and institutions. International control and national preventive mechanisms should become a component part of controlling and overseeing institutions for the activities of the penal system and such control needs to become regular and mandatory.
7. The right to legal assistance
One of the fundamental and inalienable rights of prisoners is undoubtedly the right to receive legal assistance.
Prisoners’ right to legal assistance is set down in several articles of the Penal Code. It is mentioned in Articles 8 § 2 and 107 § 1 among other rights. These norms also stipulate the circle of people who can provide such assistance: bar lawyers or other specialists in the field of law who, according to the law, have the right to provide legal assistance in person, and by power of attorney of a legal entity. Article 110 of the Penal Code speaks of there being no restriction on the number or duration of meetings with a lawyer or other specialist in the field of law.
Although the Penal Code does not contain direct restrictions on the exercising of this right, practice suggests that it is effectively impossible to exercise it, and that there are many ways used to obstruct a convicted prisoner from enjoying this right. This is due to a number of circumstances.
This is, firstly, the general situation with legal aid in Ukraine,  and secondly the lack of a mechanism set down in legislation for providing legal aid, this being complicated by the specific features of serving sentences involving imprisonment. The main feature of any right is that it always corresponds to a relevant duty of a State body or official. Declaring the right of prisoners to legal assistance, the Penal Code contains nothing about duty of the penal administration to ensure that such assistance is provided. There is no mention of this either among the duties of officials and civil servants in penal bodies and institutions, or in investigation isolation units, listed in Article 18 of the Law «On the State Penal Service of Ukraine», nor in any departmental normative act. The only provision which could fairly loosely be deemed the duty of the administration to ensure that the right to legal assistance can be exercised is Article 134 § 15 of the Penal Code which stipulates that in imposing a penalty on a prisoner, the penal «administration shall provide the possibility according to established procedure to notify close relatives, a lawyer or other specialist in the field of law who in accordance with law have the right to provide legal assistance in person, and by power of attorney of a legal entity …». However the procedure for such notification is also not set out in any act, meaning that this legislative norm is in practice not implemented.
Article 110 of the Penal Code stipulates that to receive legal assistance prisoners are allowed to meet with a lawyer on the written application of the prisoner, his relatives or civic organizations. However in order to exercise this norm, one has to first get in contact with the same lawyer, relatives or civic organizations. Prisoners, however, are virtually deprived of such options. Deprivation of liberty, as defined in the Criminal Code, involves the prisoner’s isolation, with his being held for a certain period in a penal institution. Thus one of the main features of punishment of this time is specifically isolation. Deprivation of liberty involves the use of fairly considerable rights restrictions with respect to the prisoner, these being capable of significantly changing the person’s legal status. The most considerable element of isolation is the restriction for the prisoner in communicating with people in the outside world. The Penal Code envisages communication with relatives thanks to which they can in some cases exercise the right to legal assistance (it is relatives who can find a lawyer or turn to human rights organizations). . However contact with relatives is seriously limited (there are certain numbers of visits and telephone calls, while letters take time to reach the addressee). As a result of this people in places of confinement cannot receive legal assistance in an efficient and timely manner. It is even hardly to receive the necessary legal assistance when prisoners do not have relatives or are not in contact with them, or when they are not able to take independent actions due to physical or other difficulties. This is like a vicious cycle: the penal administration is able, but not obliged by law to ensure the right to legal assistance (or more simply, to look for and ensure contact between the prisoner and the lawyer or other specialist in the field of law. The prisoner has such a right, but cannot objectively exercise this since he is isolated and all actions need to be carried out via the administration. The norm, therefore, on legal assistance remains deadweight, and prisoners – unprotected, including from the arbitrary behaviour of the administration.
. It is perhaps for this reason that the Penal Service remains perhaps the only structure which has not once raised the question of there being a need to create a mechanism and regulation of the procedure for paying for free legal aid for prisoners.
The third factor is the possibility of correcting the legislatively set out rights and procedure for exercising them at the departmental level and artificial restrictions in legislation on the granted rights. Even where the prisoner has through means independent of the administration endeavours to exercise the right to legal aid, there are quite some number of opportunities for obstructing this.
This is, on the one hand, linked with the vagueness of legislative stipulations. It follows from the content of the Penal Code that legal assistance can be provided by either a lawyer or another specialist in the field of law who in accordance with law have the right to provide legal assistance in person, and by power of attorney of a legal entity. Yet established practice shows that at least with regard to prisoners only lawyers may be involved, and then not any, but only members of a bar lawyers’ association.
Article 110 § 3 of the Penal Code state that a meeting with a prisoner is granted to a specialist in the field of law on presentation of «another relevant document». In the Rules of Internal Procedure of penal institutions, approved by Department Order it is stated that a visit is granted by the penal administration on presentation by a lawyer of written instruction, and to other specialists in the field of law who in accordance with law have the right to provide legal assistance in person, and by power of attorney of a legal entity, an agreement or power of attorney of a legal entity, as well as ID.
This is entirely justified since being in any association does not give a bar lawyer any advantages. However the Department in approving the Rules of Internal Procedure unwarrantedly and unlawfully restricted the list of documents on the basis of which a lawyer is allowed to see a prisoner, with this being exclusively a written instruction which only a member of a bar lawyers’ association can have. Thus the authority of bar lawyers to provide legal aid are determined by the Law «On the Bar», and narrowed by a departmental act which is unacceptable.
Nonetheless, even if one bears in mind that for a specialist in the field of law an agreement is sufficient grounds for being granted a meeting, in practice the person is not permitted to see the prisoner. The possibility of such actions follows from the Resolution of the Plenum of the Supreme Court on 24.10.2003 No. 8 «On the application of legislation safeguarding the right to defence in criminal proceedings.» This states that «In resolving the question of whether specialists in the field of law have the authority to carry out defence in a criminal case, it must also be established which particular law gives them the right to take part in criminal proceedings as defenders. To find correct the practice of those courts which, in the absence of a special law, do not allow such specialists to carry out defence in criminal cases» (Item 5). Given that there is no special law in Ukraine at present which provides any specialists with such a right, the norm regarding their participation in penal proceedings is deadweight. As of today, there is also no norm which in any way defines the term «specialist in the field of law». Bearing in mind that a norm on the possibility and grounds for participation of a specialist in the field of law is contained in both in criminal procedure, and in penal legislation, on the basis of the above, specialists in the field of law at the stage of enforcement of criminal punishment are not allowed to take part in this activity.
Thus ensuring participation of a specialist in the field of law, rather than a bar lawyer, in defence of prisoners’ rights is not only difficulty, but downright impossible which significantly restricts the process of exercising the prisoner’s right to legal assistance, especial to free legal aid, since bar lawyers’ in the vast majority of cases work for a fee.
On the other hand the situation is exacerbated by the presence in penal legislation of grounds for «artificial» restrictions of the right to legal assistance. For example, even under the most favourable circumstances – a prisoner has a lawyer who is a member of a bar lawyers’ association, has written an application asking for a meeting with this lawyer and the latter has arrived at the penal institution – the administration can still refuse to allow the meeting on lawful grounds. For example, as stated in Article 134 § 11 of the Penal Code, prisoners are not allowed visits while being held in disciplinary isolation or punishment units, or solitary confinement. On the basis of this norm precisely those prisoners most in need of legal assistance are denied it. At the same time, another problematical issue arises. As already noted, the law envisages that a prisoner may inform a lawyer that a penalty has been imposed on him. This norm is undoubtedly aimed at ensuring efficient reaction to possible violations of prisoners’ rights through the use of disciplinary measures. Nonetheless, how even a lawyer is to ensure legal defence if s/he has no personal contact with the person concerned remains a mystery.
The Rules of Internal Procedure also make it possible to cancel a visit in the case of an epidemic, natural disaster or other exceptional circumstances which hamper the normal activities of the penal institution. With such wording, virtually any visit can be cancelled since current legislation does not make it compulsory to provide a specific reason for a refusal to grant a visit.
Difficulties in providing legal assistance also arise when a lawyer has been approached not by the prisoner himself, but by his relatives or representatives of a civic organization. In this case the penal administration, as a rule, refuses to allow a meeting referring to the lack of an application from the prisoner himself, as envisaged by Article 110 of the Penal Code. No account is taken in this of the fact that the prisoner is effectively deprived of the possibility of receiving information about an agreement having been made with a lawyer, and cannot therefore submit an application to the administration.
Amendments are therefore needed to departmental normative acts of the Department with regard to regulation of the procedure for providing legal assistance which will make it possible to exclude the above-mentioned violations and difficulties.
8. The use of coercion and physical force against prisoners
8.1. The existence and activities of Special Force units and swift response groups
Article 6 of the Law «On the State Penal Service of Ukraine» includes within the State Penal Service militarized formations. As stated in Article 12 of this Law, militarized formations are units which in accordance with law act within the makeup of penal bodies and institutions, investigative isolation units, and are intended for security, prevention and stopping of actions which disorganize the work of the corrective institutions. Article 392 of the Criminal Code states that actions which disorganize the work of the corrective institutions are the terrorizing in corrective institutions of prisoners, or an attack on the administration, as well as the formation for this purpose of an organized group or active participation in such a group, carried out by individuals serving a sentence involving restriction or deprivation of liberty. In criminal law the term terrorizing of prisoners is understood as meaning the use against them of physical force or threats to use such force, while an attack on the administration is the committing of violent action against it, or the threat to do so.
Thus the first key moment in the functioning of militarized formations in the Penal Service is the sphere of their designated purpose, confined to two spheres: 1) security for places, 2) prevention and stopping of the actions set out in Article 392 of the Criminal Code. Thus any utterances or other infringements of order and the conditions for serving sentences, including failure to comply with regime requirements do not fall under the sphere of influence of militarized formations. Another key point is the need for a special law to set down the functioning of such special purpose units.
The only legislative grounds for this at present are the Law from 20.03.2003 «On fighting terrorism». According to that act, terrorism is a socially dangerous activity constituting the conscious and deliberate use of violence through the seizure of hostages, arson attacks, murders, torture and intimidation of the population and authorities or other attempts against the life and health of innocent people, or threats to carry out criminal actions in order to achieve criminal aims. A terrorist act is criminal action in the form of use of weapons, the causing of an explosion, arson or other actions, the liability for which is set out in Article 258 of the Criminal Code. Article 4 of the Law stipulates those engaged in fighting terrorism, with the list including the Department.
In other words, within the limits of its competence, the Department may fight terrorism. Article 5 § 6 of this Law envisages that the Department shall use measures on preventing or stopping crimes of a terrorist aim on Penal Service sites. And such prevention is undertaken by a special anti-terrorist unit, the regulations for which were approved by Department Order No. 167 from 10.10.2005 (registered with the Ministry of Justice on 16.02.2006 as № 138/12012). All apparently fine except that Item 3.5 of this Order includes among the functions of the anti-terrorist unit the carrying out of checks and searches of prisoners and people remanded in custody, their things, checks of other people and their things, vehicles on the territory of penal institutions, enterprises of these institutions, and on adjacent territory, as well as the removal of prohibited items and documents. It is this that has, in practice, become the main work of the anti-terrorist unit.
The decision to register the Order has now been cancelled, On the basis of Ministry of Justice Opinion №15/88 from 24.12.2007 Order №167 was struck out of the State Register of Normative Legal Acts on 14.01.2008. However practice shows that the cancellation of State registration of the act on special purpose units in no way indicates the dissolving of the latter, at least this can be seen from official Department statements. For example, a press release regarding media reports about the events in the Manevytska Penal Colony (No. 42) on 25 October 2008 (10 months after the cancellation of the Order, reads: «Special purpose units and swift response groups were not deployed in the penal institution. The existence of special purpose units is also confirmed by Item 58 of the Rules of Internal Procedure for penal institutions, passed by the Department on 25.12.2003, No. 275 (registered with the Ministry of Justice on 31 December 2003 as № 1277/8598), which has remained without the relevant changes. This item allows the Department to assert that the special purpose units provide assistance in carrying out searches of prisoners, without any use of physical force.
In view of the above, we can conclude that the special purpose units of the Department continue to exist, however without any legal regulation for their creation and functioning, and therefore without control over their activities. Of particular cynicism have been cases where these units are called on «to help» in «subduing» prisoners who express disgruntlement with the conditions or endeavour to stand up for their rights. This is a direct violation not only of domestic legislation, but of Ukraine’s international obligations, as well as a failure to act on the recommendations of international experts, for example, the UN Committee against Torture which in its Conclusions and Recommendations following its consideration of Ukraine’s Fifth Periodic Report, stated that: «The Committee is also concerned with the reported use of the anti-terrorist unit inside prisons acting with masks (e.g. in the Izyaslav Correctional Colony, in January 2007), resulting in the intimidation and ill-treatment of inmates» It went on to say that «The State party should also ensure that the anti-terrorist unit is not used inside prisons and hence to prevent mistreat and intimidation of inmates». In general, until proper legal regulation for the Department’s anti-terrorist unit in accordance with the tasks vested with it in current legislation (and exclusively within its limits without unwarranted intrusion in the sphere of penal relations), there can be justification for the existence of such a formation.
However anti-terrorist special units are not the only militarized formation within the Department used for «establishing order» in the colonies. Of even greater concern is that fact that in order to carry out analogous unlawful tasks, so-called «swift response groups» created in 2000 through a secret Department Order are used. Later swift response groups have been mentioned as a separate part of special purpose units despite the fact that they militarized formation. This is indirectly confirmed by Item 5.3.7 of the cancelled Department Order No. 167 from 10.10.2005. : «To provide suggestions to the management of penal institutions and investigative isolation units regarding improvement in them of the operational situation and training of swift response groups». That is, swift response groups and special purpose units are different formations which are nonetheless drawn in for similar functions – punishment recalcitrant prisoners. it is perhaps because of the equating of these formations that after the cancellation of State registration of the Order on special purpose units, people had the impression that these formations had also been cancelled. However this is absolutely not the case. Attention is not usually focused on swift response groups, yet the Department effectively confirms their functioning (albeit in commentaries and press releases on its official website which state that such formations were not deployed).
Article 105 § 2 of the Penal Code envisages that to stop group unlawful actions by prisoners and for the liquidation of their consequences, at the decision of the Head of the Department, and the head of the territorial division of the Department, the forces and means of the colony, penal bodies and institutions are used. Where necessary, and with the permission of the Minister of Internal Affairs, the Heads of the Central Department of the Ministry of Internal Affairs in the Autonomous Republic of the Crimea, in Kyiv city and region, the Head of the Department of the Ministry of Internal Affairs in the region and in Sevastopol – bodies and units of the Ministry of Internal Affairs are used. It is through this norm in informal discussions that the existence of swift response groups is excused, with these supposedly being needed to stop «group unlawful actions by prisoners». However such a state of affairs cannot be deemed in line with current legislation or international norms.
Firstly swift response groups are armed formations. Therefore, in accordance with Article 12 of the Law «On the State Penal Service of Ukraine» there should be a special law regulating its functioning. There is no such law. Department officials claim that swift response groups («combined» units) are formed in the light of an existing need from operational and other employees of various penal institutions in order to maintain order in the institutions when conflict situations arise between prisoners and the administration. However there are also no legal grounds for this. Formally the Rules of Internal Procedure mentioned above speak of the possibility of involving «personnel from other penal institutions» in measures. it is not however envisaged that personnel should belong to any formations on a permanent basis.
Secondly, no normative act at the present time has provided a definition of what exactly is meant by «group unlawful actions by prisoners». As a result the administration of penal institutions may decide at their own discretion what such group unlawful actions are with this leading to numerous violations of prisoners’ rights (for example, two prisoners can be considered a «group»). And bearing in mind that the activities of swift response groups are also not fixed in normative documents, and not covered in open sources, this leads to unwarranted and unreasonable use of force and special means.
It should be noted that the norms of the Rules of Internal Procedure of penal institutions provide some adjustment to the norm of Article 165 § 2 of the Penal Code, effectively giving personnel the right to use force and special means without the decision of the Head of the Department or the head of the territorial division of the Department. For example, Item 61 of the Rules states: «The personnel of the institution have the right to independently use tear gas, rubber batons and physical force where stopping mass riots and group insubordination by prisoners; where detaining or bringing prisoners who have committed flagrant violations of the regime to disciplinary isolation units, punishment cells or solitary confinement, if the said individuals show resistance to the personnel of the shift, or if there are grounds for believing that they could harm others or themselves; where putting an end to resistance presented to the personnel of the shift, the guards, or administration of the institution. Where teargas, rubber batons and physical force have been used, the personnel write up a report which is later considered by the head of the institution or person fulfilling his duties, registered in a special journal and added to the personal file of the prisoner.». Given the lack of regulation regarding the term «flagrant violations of the regime», a prisoner can be subjected to measures of physical influence for virtually any action (for example, for refusing to carry out the demand of a member of the administration regarding change of bed linen, meals, stopping work in order to resolve labour or other conflicts, being impolite to personnel, etc), since the assessment of the action is at the discretion of the administration employee. It is, moreover, impossible to establish a violation of procedure for the use of force given the lack of a mechanism for detailed documentation of this procedure and of a check into whether it was necessary to react in such a way to a violation.
Thus at the present time the Department is continuing to use unlawful levers of influence on prisoners’ behaviour, created through adjustment of current legislation through department acts, mechanisms of intimidation and the use with impunity of physical force. Reports of such cases are received by human rights organizations fairly often, but it is not as a rule possible to check them because of the impossibility of getting into the penal institution. The following are some examples.1. According to reports which require confirmation, in the Manevytska Penal Colony No. 42 (Volyn region) a hunger strike has been declared in the high security unit. According to some information, 120 prisoners are involved while other information says the number is considerably lower, but more than ten. The hunger strike is most probably a protest against alleged inhuman treatment of prisoners and systematic use of physical and psychological violence. Some prisoners began a hunger strike on 20 October 2008.There are reports that in the evening of 22 October around 30 men in masks and camouflage gear arrived at the colony. It is alleged that the regional division of the Department is trying to maximally restrict the spread of information about the events in the colony. The prisoners themselves consider these events to be a reaction by the prisoners to the actions of the First Deputy Head of the Volyn Regional Division of the Department, I. Stefanovsky, who is supposedly waging a battle in this manner with criminal traditions. According to information needing confirmation, after the events of 20 October around ten prisoners were taken on 22 and 23 October away from Colony No. 42.
According to the latest information received from prisoners of the colony, which requires confirmation, in the evening of 24 October and on 25 October, I. Stefanovsky summoned prisoners, and using unlawful methods of detective inquiry, demanded to know who had mobile telephones and who had phoned outside the colony informing of what was happening inside..
2. According to unverified information, in the Zamkova Colony No. 56 (Izyaslav, Khmelnytsky region) several prisoners have begun a hunger strike. This took place after several prisoners were allegedly beaten by personnel, according to one version – for refusing to give the pin codes of confiscated mobile telephones. The hunger strike cannot be officially confirmed since, as a rule, the penal administration refuses to register the statement announcing the hunger strike, and after a check it is supposedly established that there were no hunger strikes.
3. The Kharkiv Human Rights Protection Group has received information that on 18 March, a spetsnaz [special forces] unit of around 10 men in masks and full fighting gear was deployed in Penal Colony No. 55 (Sofiyivka, Volnyansk raion, Zaporizhya region).
According to the information received, they severely beat prisoners in the SHIZO [punishment isolation unit] and PKT [cell-like units, also a form of punishment], as well as prisoners serving life sentences. They allegedly kicked the prisoners, beat them with their fists and with rubber batons, hung them from an exercise bar, and some had their heads thrust into the toilet. Some of the prisoners are claimed to have had water poured on them after the beating to bring them around. Three people are said to have suffered particular: Viktor S. and Yevhen B. who were in the SHIZO and Ruslan A. who was in the PKT.
It is not possible to verify this information and KHPG has therefore appealed to the Human Rights Ombudsperson and the Prosecutor General to investigate the situation..
4. According to KHPG’s information, in March 2008 in the Temnivska Colony No. 100 prisoners used self-inflicted injuries in order to protest at alleged inhuman conditions. The situation in the colony was volatile. On 28 March KHPG representative, Ludmila Klochko was allowed into the colony where she met with the prisoners who had inflicted injuries upon themselves. The prisoners most often complained that «they’re not treated like people», are neglected and that the norms of the Penal Code are not followed. Some had not been allowed short visits, others complained that they had been deprived of a long-term visit when their relatives came. One of the prisoners alleged that the parcel which his wife had sent him was not given to him for several days and the food items had gone off. He was clearly very aggrieved that his wife should spend the last money she has to buy him food, and it goes to waste.
There were a lot of complaints about medical care: a person suffering from asthma complained that he wasn’t allowed to have his inhaler with him; an HIV-positive prisoner said that he was not receiving any treatment at all. Several people complained that they were not allowed to have medicine with them, and the medical unit was far away – you wouldn’t manage to get there in time. They gave an example when a 30-year-old prisoner had died without reaching the hospital. Many mentioned a high mortality rate – «in our unit over a short period of time three people died». Others claimed that they are paid very little for their labour in the work zone. «They work till seven in the evening and receive a pittance». There were also complaints that «as soon as benefits arrive, they provoke or simply invent infringements of the regime». There were also allegations of frequent use of special means, including a straitjacket, with this, in addition, being put on a person wet, with a person suffering terrible torment when it dried.
The next day, 29 March, KHPG representatives were not allowed into Colony No. 100, with the reason given being that representatives of the Human Rights Ombudsperson, N. Karpachova, were there.
On 31 March information emerged that a spetsnaz had beaten prisoners, that they had renewed their hunger strike and were again resorting to self-inflicted injuries. Other sources reported that during the night from 30 to 31 March several dozen prisoners had been taken away from Colony No. 100, it was not known where. There is no way of checking this report.
There needs to be normative provisions for visits by independent observers to penal institutions. The legal grounds for this are there in the Optional Protocol to the UN Convention against Torture [OPCAT] ratified by Ukraine back in July 2006. Yet the country’s leaders are demonstrating no wish to do this, and this can only result in constant repetition of such conflicts.
5. At the end of March 2008 in Penal Colony No. 77 (Berdyansk, Zaporizhya region) during the night from Saturday to Sunday a prisoner Andriy K., was brutally beaten and later died from his injuries. He was the senior orderly in the quarantine room. He was in a room by himself that night and the other prisoners claim that they had nothing to do with the beating. The colony administration is adamant, however, that it was the prisoners who beat him to death. During the day, 15 members of a spetsnaz unit in masks and full fighting gear were brought into the colony. They took away 2-3 prisoners from 6 units in turn, beat them, and in the evening all were taken away. It is not known where, but their possessions remained in the colony. 15 prisoners, the names of 14 of whom are given, were involved in total.
It was soon learned that at least some of the prisoners were in the Zaporizhya SIZO. According to one of them, the spetsnaz beat them thoroughly, without leaving marks, while one prisoner – Roman A. – was for some reason beaten very badly.
The Head of the colony Yury Zavhorodny explains the men’s removal as being due to the need to check whether they are suffering from tuberculosis since the equipment for this in the colony is broken. This explanation is extremely dubious. At around 15.00 the spetsnaz men allegedly began brutally beating four prisoners – Oleksandr M., Volodymyr D., Oleh B. and Oleh R., demanding that they give evidence as to who beat up Andriy K.. According to the prisoners, one of the men, Oleksandr M., could not endure the beating and slashed his wrists and stomach
We are unable to verify these events. One can assume that the information about the removal of some prisoners is correct.
During the same days we were informed of beatings of prisoners and suicide attempts as the result of terrible beatings in colonies No. 84 in the Volyn region and No. 100 in the Kharkiv region. A few days earlier there were similar reports about Colony No. 55 in the Zaporizhya region. We are convinced that if the system were more open and it was possible to meet with the prisoners and try to understand their problems there would be much less conflict..It should be noted that information from the Department about measures of response to incidents virtually never contain an analysis of the reasons for them arising, nor an assessment as to human rights infringements during such events, and there is no indication of how much personnel or prisoners are to blame. For example, on 4 April 2008 an operational meeting was held at the Department with the participation of the management of the Department, the Department’s Divisions for the Zaporizhya and Kherson regions, as well as of the Berdyansk (№77), Kharkiv (№43), Temnivska (№100) and Pervomaiska (№117) Penal Colonies regarding the incidents which occurred in those penal institutions during March 2008. According to the results of the meeting, the officials responsible faced disciplinary liability, additional measures were assigned for ensuring proper law and order in penal institutions, timely identification and prevention of negative manifestations and conflict situation among prisoners.
What exactly constituted the fault of the officials, what additional measures were used, or indeed any specific information is not contained in the report of the Department, making it impossible to give an objective assessment of the incidents.
8.2. Status of persistent violators of the penal regime
According to Article 133 of the Penal Code, persistent violators of the established procedure for serving sentences are prisoners who do not carry out the legitimate demands of the administration; unwarrantedly refuse to work (at least three times in a year); who stop work in order to resolve labour or other conflicts; consume spirits, use narcotics, psychotropic substances or their analogues; or other intoxicating substances; prepare, keep, buy or circulate prohibited items; take part in table or other games for material or other gain; are guilty of petty hooliganism; systematically avoid treatment for a disease posing a threat to the health of others; commit more than three other infringements of the regime in the space of a year, on condition that for each of these infringements, in accordance with a decision by the head of the colony or the person fulfilling the head’s duties, a penalty was imposed which was not withdrawn early or cancelled according to legally established procedure.
As can be seen from the above definition, the legislators list infringements of the penal regime, however do it with reference to the actual prisoner. It is the person – the «persistent violator of the regime» who has specific features, i.e. the term is used about the person, not their actions [the adjective in Ukrainian used is also that for «malicious» – translator]. It becomes immaterial what the infringements are, they could be anything. This practice runs counter not only to commonsense, but also to basic legal principles according to which liability, including disciplinary, can only be for an action committed with unlawful consequences and on condition that there is a cause and effect link between the action and these consequences.
The Article is constructed in such a manner that one could conclude that a «persistent violator» is a certain legal status (position) of the person, like the status of citizen, civil servant, prisoner, etc. The latter all have substance and meaning, which is clearly not the case with «persistent violator». The law establishes no such legal status. It is therefore unclear why the Article is formulated in such a way, and what the term «persistent violator of the regime» actually implies.
The wording therefore of Article 133 of the Penal Code is unsatisfactory. The definition of a persistent violator of the regime is a typical example of stigmatization, with the person being labelled, not his or her actions. Interestingly the previous version of the Penal Code (1970) was more correct, focusing on persistent offences, not a persistent violator.
It is also worth noting that it is only in Article 133 that that the term «persistent violator» is used, with all other cases referring to the use of disciplinary liability or the possibility of changing a prisoner’s conditions, the term «persistent infringement» is applied.
Being labelled a persistent violator can result in the prisoner being moved from a social rehabilitation unit to another unit, from a medium security colony or from the normal living area of the colony to a high security unit or cell-like conditions in a maximum security colony.
Furthermore, it is only persistent violators who can face penalties in the form of a disciplinary fine. This is imposed in accordance with a decision passed by the head of the colony or person fulfilling such duties, which is read to the prisoner who must sign that he was notified. The fine is paid to the State.
There is thus a situation which provokes officials and other employees of penal institutions to sue the concept of persistent violator of the regime in order to manipulate prisoners, their behaviour and the conditions they are held in.
9. The impossibility of complaining about the actions of penal administrations
Prisoners’ right to complain about the activities or decisions of penal bodies or institutions is set down in several norms of current penal legislation, but there is unfortunately no clear procedure for this. The legislators for example stipulate the procedure for prisoners to appeal against the decisions of the Regional Commissions on assigning prisoners to particular penal institutions. However this regulation is so inconsistent and unclear, and also has such restrictions, that it becomes effectively impossible to lodge such an appeal.
With regard to other decisions by penal bodies and institutions, appeals against them are of a highly dubious nature since the mechanism for making them is extremely complicated.
Since the adoption of a Code of Administrative Justice it is clear that this category of cases should be examined specifically by administrative courts yet as of the present time there is no such court practice.
Penal legislation mentions the right of prisoners to submit suggestions, applications and complaints to the administration of penal bodies and institutions, to bodies above them, to the Human Rights Ombudsperson, the European Court of Human Rights, as well as to other international organizations of which Ukraine is a member or participating state; to the authorized representatives of such international organizations, to the court, the Prosecutor’s Office, to other State bodies or bodies of local self-government, and to civic associations. This right is established and regulated by Articles 8, 107, 113 of the Penal Code.
With regard to this right, the Minimum Standard Rules contain provisions according to which prisoners must be ensured the right to make an appeal or complaint to the penal administration where they are being held, , to make complaints and applications without the head of institution being present to people inspecting the institutions; to submit complaints and applications to the highest body of MIA and other relevant bodies in confidentiality. The right of prisoners to make appeals should be ensured by means of immediate consideration.
During their inspection of Ukrainian penal institutions, CPT pays considerable attention to the possibility for prisoners to make complaints since effective complaints procedure and checks into these complaints are a main guarantee against unlawful and ill-treatment in places of confinement.
On the results of its visit, CPT stressed that prisoners need to have the possibility of making complaints about particular actions, both within the Penal Service, and beyond it, and they should be able to do so in confidentiality. The procedure for effective consideration of complaints as well as for checking such complaints, are the main guarantees against ill-treatment in penal institutions. PCT particularly stresses the need for regular visits to all such institutions by an independent body with the authority to consider complaints from prisoners, and inspect all premises. Such bodies can, among other things, play an important role in improving interrelations, and in removing contradictions arising between prison administration and prisoners.
In its Fifth Period Report on implementation of the UN Convention against Torture, the Ukrainian Government asserted that since the State Department for the Execution of Sentences had been removed from subordination to the Ministry of Internal Affairs, appeals from citizens regarding ill-treatment in penal institutions had been an exception. It added that they were all thoroughly checked, and where violations were identified which could lead to inhuman treatment, measures had been applied to rectify the situation.
It would seem as though the possibility for a prisoner to approach the competent bodies, institutions, organizations with the above-mentioned documents is set out and regulated. Yet there too there is a flaw seen in the first instance in the fact that people deprived of their liberty are not given help in preparing appeals, applications and complaints. They may be written by prisoners in such a way that it is impossible to understand what exactly the prisoner wants, and the latter doesn’t always know who the appeal, application or complaint should be addressed to. This can mean that an appeal is either not considered (with a fob-off response being given) or it doesn’t get to the right addressee. In cases where appeals, applications or complaints are restricted in time, the time limits may be missed. Given that at liberty anyone can turn for assistance in drawing up such documents to a lawyer or other specialist, it is necessary through legislative means to prevent discrimination against prisoners and ensure equality before the law, to stipulate the duty of penal institution officials to provide prisoners with the necessary assistance in drawing up appeals, applications or complaints. Such rules of procedure will also help to resolve the issue of «scrutiny» of correspondence of prisoners which is, incidentally, another problem area in the system for people in custody submitting appeals, applications or complaints.
International standards stress confidentiality as one of the most vital features of a system for submitting appeals, applications or complaints. International acts do not, admittedly, define the limits of this confidentiality, however the concept of «scrutiny» [perehlyad] of prisoners’ correspondence which is in breach of both the Ukrainian Constitution and international norms. Legislation does not stipulate the scope of this concept which makes it impossible to talk of ensuring the right to correspondence or of the possibility of its violation since it is impossible to establish whether «scrutiny» of correspondence is a violation of the conditions of correspondence, or not. Section 4 of the Instructions on organizing the scrutiny of correspondence of people held in penal institutions and investigative isolation units, makes it possible to conclude that prisoners’ correspondence is read which clearly prevents confidentiality. This situation is a violation of international normative acts.
In general the system for submitting appeals, applications or complaints is set up in such a way that with the help of «scrutiny» any appeals, applications or complaints may be sent or not sent to the addressee, permitted or not, depending whether they pose a «threat» to penal institution personnel or not.
In view of the above, one can state that current legislation does not ensure prisoners the opportunity of submitting appeals, applications or complaints to the competent bodies, institutions, organizations, public officials and civil servants, since no effective mechanisms for this are in place.
A profound flaw in current penal legislation, as M. Minayev pointed out, is the almost total lack of possibility for using court defence..
Access to justice for prisoners is ensured only with regard to questions of the legality of procedural measures and punished applied against them, this being through the institution of court appeal against the decisions of bodies of detective inquiry [diznannya], criminal investigation and the court, as well as through appeals against a ruling of a first instance court.
. The possibility of a person with one of the types of procedural status listed above lodging a complaint with the court regarding improper treatment by the personnel of the relevant institution follows from Article 55 of the Constitution as a norm of direct force. However the procedure for such a court appeal is not directly set down in any law or subordinate normative legislative act. An application to the court and correspondence with a bar lawyer are not protected by law from «scrutiny» (as are appeals to the Prosecutor and to the Human Rights Ombudsperson, as well as to the European Court of Human Rights), and this places the parties in unequal positions.
Another failing inherent in the mechanism for allocating prisoners to a particular penal institution is the procedure for appealing against a decision of the Commission on allocating, moving and transferring people sentenced to terms of deprivation of liberty (the Commission) regarding the type of institution allocated. The appeal procedure is regulated by Regulations on the State Department for the Execution of Sentences Appeal Commission on the same issues as above. The legislators, in set out the appeal procedure, confined themselves to the instruction that its submissions and consideration were carried out in accordance with the procedure stipulated by the Law «On citizens’ appeals». This provision effectively brings an appeal against a Commission decision to the level of any other appeal. This in turn results in the following: a very drawn out period of review of the complaint – appeal (30 days); a different form of response – an answer to the appeal, with the submission of a complaint – appeal not suspending the force of the act appealed against. And most importantly, such an appeal and the procedure for its consideration make the complaint not a procedural document, giving it a different legal status and in the final analysis taking it out of the jurisdiction of the administrative courts where it is possible to appeal against the acts of State bodies (those in authority). Thus such procedure is not an appeal but rather a letter from the prisoner to the Appeal Commission. Incidentally, the Regulations on the Appeal Commission contain reference to Article 113 of the Penal Code as being the grounds on which prisoners appeal against the Commission’s decisions, while this Article in its turn is a law which regulates the procedure for prisoners to send letters.
Therefore, in view of the above, one can state that the procedure for lodging appeals with the Appeal Commission is ineffective and it would be better for a prisoner to appeal against a Commission decision directly to the administrative court. Yet there are not many prisoners, unfortunately, who know their rights, and the level to which they are informed is not very high.
In addition, as is demonstrated by official answers from the Prosecutor’s Offices, virtually no complaints received by such offices are found to be justified. One can assume on the basis of this that the violations identified by the Prosecutor’s Office, referred to in official letters, either do not directly pertain to prisoners’ rights, or are concealed by bodies of the Department..
10. Infringements of prisoners’ socio-economic rights
10.1. General overview
The possible restrictions which follow from a court sentence do not as a rule impinge upon the main economic and social rights of prisoners. If a prisoner has certain specific features and has been granted special status (for example, a pensioner, special status as a person who suffered as a result of the Chernobyl Disaster, etc), he should retain this status while serving his sentence. This is clear since the punishment is for a specific crime and should have clearly defined limits. It should not, therefore, impinge upon those legal relations not linked with the specific offence. This situation should reflect a certain guarantee according to which liability is merely for the crime and confined by its «parameters».
However the practice in cases involving sentences paints a different picture. Prisoners are in fact unable to enjoy the preferential elements which a particular status gives them. Or they cannot make use of the advantages of the relevant status due to the lack of a mechanism for ensuring this status in conditions of confinement.
The Ukrainian Constitution states that citizens have the right to social protection that includes the right to provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control and also in old age, and in other cases established by law.
Article 122 of the Penal Code states that «prisoners have the right on general grounds to a State retirement pension, a pension if disabled, due to the loss of the breadwinner, and in other cases envisaged by law». However paragraph 3 of this Article contains a provision which renders meaningless the assertion in paragraph 1: «the time which prisoners spend working while serving their sentence is calculated towards their work record in order to receive a work pension after their release on condition that they have paid insurance contributions to the Pension Fund according to the procedure and in the amount envisaged by legislation.»
The wording is also unclear of Article 122 § 4 according to which prisoners who ceased to be fit for work while serving their sentence have the right to a pension and compensation for damages only after their release. The given norm thus deprives prisoners of their right to compensation for damages while they are serving their sentence. The obvious discriminatory nature of this norm supposedly becomes lawful due to Article 7 § 2 where it is stated that «prisoners enjoy all human and civil rights with the exception of limitations stipulated by laws of Ukraine, and this Code, and established by court verdict.»
In this version of the Article mentioned the issue is not resolved as to pension provisions for people who reach retirement age while serving their sentence. Why is work done by prisoners counting towards their work record which entitles a person to a pension, while the actual right to the pension according to the Penal Code arises only after release from imprisonment? And that is where in Article 8 § 1 of the Penal Code the right to receive a pension is presented at one of prisoners’ main rights.
The above-mentioned provisions of the Penal Code seem inconsistent, discriminatory and in breach of a person’s right to pension provisions. If a prisoner has the right to pension provisions on general grounds, then why is the real possibility of receiving this dependent on being released? It is unclear why the legislators refuse to let a prisoner of retirement age receive a pension, thus dooming them to «life in debt» while in the penal institution. Such a situation prompts a prisoner to seek other means of existence in the colony (especially if the person cannot work, or doesn’t have relatives) and complicates the formalizing of the process of receiving the pension after he is released. The penal administration needs to gather documents for such people and send them to the relevant divisions of the Pension Fund to enable the right of the prisoner to receive his pension.
According to the Law «On mandatory State social insurance», the insurers are employers ad other people who, in accordance with this Law, pay insurance contributions for mandatory State social insurance,
The Penal Code envisages that prisoners should work in places and during jobs assigned by the penal administration (Article 118 § 1). Bearing in mind the above-mentioned version of the Penal Code norm regarding prisoners’ work, no work contract is established with the latter, this giving grounds for considering that they are not liable for mandatory insurance contributions. In penal colonies the institutions do not deduct pension contributions from their pay. It is therefore not by their will, but as a result of the actions of a State structure – the penal institution – that prisoners effectively lose the right to a pension while working in a penal colony if they do not pay the contributions into the Pension Fund for that period following their release. As a rule this is difficult or even impossible for them to do. Therefore, in practice their right to a pension during time of work in a penal colony ends up with the lack of real possibility for exercising this right. This is yet more evidence that in practice the promise of Article 102 § 2 «to reduce to a minimum the difference between conditions in the colony and at liberty» turns into a violation of their rights and creates problems for prisoners making their social adaptation more difficult after their release.
The deduction of contributions from prisoners to the Pension Fund is generally not envisaged in any departmental normative legal acts either. The Department Order No. 191 from 04.10.2004»On approving instructions on remuneration for the work of people sentenced to restriction or deprivation of liberty» in the list of deductions does not mention contributions to the Pension Fund.
Thus prisoners who have the right to pension provisions cannot enjoy this right since in the absence of payments into such funds, the prisoner does not gain the status of a person insured.
It should be noted that prisoners also lose the right to tax social benefit on such grounds (they are given in State Tax Administration letter № 3736/7/17-0716 from 24.02.2007). . The State Tax Administration considers that the wages of people deprived of their liberty does not correspond to the definition of wages in the understanding of the Law on taxes from individuals, and that the said persons are not employed workers in accordance with current labour legislation since the rules for being employed or dismissed, transferred to another job are not regulated by legislation on work. Therefore there are no grounds for the application of a tax social benefit to their income.
On the same grounds prisoners are not recognized as subjects of a) unemployment insurance (the Law «On mandatory State unemployment insurance»; b) mandatory State social insurance in connection with temporary loss of the ability to work and expenses connected with burial (Law «On mandatory State social insurance in connection with temporary loss of the ability to work and expenses connected with burial»), etc.
There is a similar negative situation with regard to the possibility of enjoying specific legal status – participants in military actions, those who suffered as a result of the Accident at the Chernobyl Nuclear Power Plant, etc. Prisoners are effectively not able to enjoy the preferential circumstances that a particular status gives, or they can’t use the benefits of the relevant status due to the lack of a mechanism for enjoying such status while deprived of their liberty. A prisoner cannot receive payments due him as a Chernobyl survivor because the penal institutions do not work in collaboration with the relevant social security bodies (for example, they are not assigned the duty to promote the receipt of different benefits, and the prisoners do not have the possibility of applying for them by themselves).
The provisions of the Penal Code which state that the regime should provide for the legitimate interests of prisoners are unclear and inconsistent. Bearing in mind that the legitimate interests are those blessings which are in line with current legislation and whose attainment a person would aspire to, but do not constitute the duty of another person to seek for them, it is difficult to imagine how the regime can ensure such legitimate interests. An example of this can be seen in the entering of a prisoner into marriage. In order to achieve this «wish», a prisoner must, according to Article 33 of the Family Code of Ukraine, which regulates issues linked with place of registration of a marriage, personally appear at the State Register Office and conclude the marriage in the presence of the relevant official. Later on this Article states that the marriage is registered in the State Register Office premises. Yet the law does not allow for the possibility of a prisoner receiving a short trip outside the penal institution in order to resolve such issues.
There is an exception from the general rule. At the application of the couple, registration of the marriage can take place at their place of residence, at a place where inpatient medical care is provided or in another place if they have compelling reasons for not being able to come to the State Register Office.
Thus in order that an official from the State Register Office can come to the penal institution the prisoner must make an application asking that such a person be called, and stating the reasons why the prisoner could not conclude the marriage formalities in person.
This state of affairs demands that the possibility for a prisoner of entering into marriage is made as difficult as possible and it entirely depends on the good will of the officials and staff of the penal institution. The regime does not thus ensure that an entirely legitimate interest regarding entering into marriage is satisfied.
People sentenced to restriction of liberty who are serving their sentence in corrective centres form an exception. However here whether a person is able to make a trip away is dependent on the administration’s decision. The situation entirely depends on the administration and how officials and employees of the centre understand the concept «other vitally necessary circumstances».
The given problem is linked not only with the impossibility of fulfilling a legitimate interest and the failure by the regime to provide for such legitimate interests. The state of affairs described here is also in the way of the prisoner’s being able to establish positive links with the outside world. Penal law and legislation do not meet halfway those prisoners who wish to change their lives. It is possible to change the situation by drawing up and adopting the appropriate changes to current legislation.
10.2. Prisoners’ work
Key points in international normative legal acts regarding prisoners’ labour is that it must not be slave labour, should be paid and not bear the hallmarks of punishment and humiliation. Prisoners must not be punished through work.
Ukraine’s penal legislation leaves a very great deal of scope for abuse by the penal administration regarding the prisoners’ right to work and a sufficient level of pay, and practice confirms this. There are not just isolated cases in the penal institutions of unlawful manipulation regarding prisoners’ work. One can cite as an example cases when the documentation formalizing the prisoners’ work does not correspond to the real circumstances. Such a situation arises when a brigade of 50 people are taken to work, whereas the contract for carrying out certain work is formalized for 5 people. This effectively means that 45 people carried out forced and unpaid work which in general carries the hallmarks of slave labour. On the other hand for the prisoner this means that wages are not calculated in his name, and his work record could be in doubt since there are no deductions into social security funds. Legally this means that the prisoner is not insured, and his record, needed to receive a pension will not have the period of time he served in a penal institution calculated.
At the same time work remains one of the main levers of influence on a prisoner. Its importance is explained by the fact that work in penal institutions is viewed as a positive element of reform, vocational training and management by the institution. It is generally acknowledged that work is an important and strong means of influence on a person, his consciousness and way of life. Therefore normative acts envisage the need to involve prisoners in work, endeavouring through work and other means, to achieve positive changes in the person prompting them to consciously renew their social status, return to independent socially adapted life in society. Sufficient amounts of work should be ensured so that prisoners are actively engaged during a normal working day. Work also enables prisoners to meet their own demands and needs, and pay for services they are provided.
The Penal Code contains a number of provisions regarding the work of prisoners which show, in our view, a certain lack of consistency.
The main difference between prisoners’ work and work in the outside world is in its subordination to the purposes of penal legislation, specific features of some legal relations and the organization of the work of people deprived of their liberty.
International normative acts contain the rule that prisoners should receive fair remuneration for their labour. With respect to this the norms of Ukraine’s penal law have provisions which are complicated and muddled, make it possible to interpret them very loosely and manipulate prisoners’ wages. For example, Article 120 of the Penal Code envisages a minimum wage which is to be paid to prisoners. Under any circumstances prisoners should receive remuneration in the following amounts:
1. In penal colonies into the personal accounts of prisoners who fulfil production norms or set tasks, and do not violate the regime, 15% should be paid, regardless of all deductions. Not less than 50% of the monthly wages should be paid into the personal accounts of male prisoners over sixty; women prisoners over fifty five; prisoners with first and second group disability status; people suffering from an active form of tuberculosis; pregnant women; women who have children with them in the children’s home attached to the penal colonies. This provision immediately raises the question of what happens if the production norm is not met. Are they then not paid? On what basis is the amount not paid, and what means of influence is this that the amount could be not paid in total? Penal legislation gives no answers to these questions. In practice such wording of a normative act makes it possible under certain circumstances to pay a prisoner an amount after deductions have been made in full on various grounds (clothes, communal services, and so forth).
2. In the case of prisoners who are serving their sentence in educational colonies, social rehabilitation units of penal colonies, low security colonies with less severe conditions, as well as convicted women who are permitted to live outside the penal colony, no less than 75% of the monthly wages independent of all deductions shall be paid into their personal accounts
3. From the amount of the allocated pension paid by bodies of the Pension Fund of Ukraine according to the place of his sentence of a pensioner sentenced to deprivation of liberty, no less than 25% of the pension shall be paid into his personal account (regardless of the amount to compensate expenses for his upkeep).
Deductions from the wages of prisoners are made for an economic purpose, or for the prisoner to fulfil his obligations. For example, prisoners pay compensation from their wages, pension and other income for their food, clothing, footwear, linen, communal and other services, besides the cost of special uniforms or special food which prisoners can be given in accordance with labour legislation.
From prisoners who persistently avoid work, the cost of food, clothing, footwear, linen, communal and other services is deducted from the money in their personal accounts.
Compensation by the prisoner for expenses on his upkeep is deducted after the deduction of income tax and alimony. Deductions pursuant to a bailiff’s writ of execution and other enforcement documents are carried out according to legally established procedure.
Item 4.1 of the Department’s Instructions, approved by Order № 191 from 04.10.04 in general establishes the following order for deductions from a prisoner’s wages:
– income tax;
– the cost of food, clothing, footwear, linen, communal and other services (besides the cost of special uniforms or special food);
– according to writs of execution in favour of individuals;
– according to writs of execution in favour of legal entities;;
– compensation for material damages inflicted by the prisoner upon the State while serving his sentence.
In practice this order for deductions from wages and other money which the prisoner has effectively results in the prisoner either receiving nothing at all, or receiving the sort of amount which is not sufficient for spending in the middle of the institution, let alone sending any money to their relatives and providing for at least some means of existence after their release.
Such a situation is not only in breach of international acts, but also Ukraine’s Constitution (the right to decent conditions of existence, fair remuneration for work) and other acts and programmes passed by State bodies (the programme for overcoming poverty and others).
In international standards (the European Prison Rules) the rules on remuneration are formulated clearly and unequivocally. Item 76.1 states that a system of fair remuneration for prisoners’ labour needs to be introduced. Penal Legislation envisages an exception regarding the possibility of involving prisoners in work without paying them. These are cases where the prisoners work on tasks connected with improving the environment of the colony and adjacent territory, as well as improving the living conditions of prisoners, or on auxiliary work to provide the colony with food. Prisoners are engaged in such work on a rota system, during non-working hours and not more than two hours a day. This provision of national legislation is in breach of international acts and makes it possible to deprive a prisoner of free time altogether since work on improvements to the environment are possible in their free time and its duration can equal the maximum possible duration of the prisoner’s free time.
There are additional restrictions on the right of prisoners to rest and social protection. For example, the regular annual leave is not granted a prisoner. Furthermore a number of articles allow for the use of prisoners’ labour as punishment (Articles 68, 82, 132, 145 of the Penal Code). This is a direct breach of international standards for the treatment of prisoners since a penalty like being «assigned to an extra duty shift cleaning premises and the territory of the colony» infringes Item 34.1 of the European Prison Rules, which state that prisoners should not be punished in disciplinary procedure through work serving the institution itself.
Unfortunately, the present practice of engaging prisoners in work is virtually not aimed at prisoners perceiving it in a positive light, and remuneration for work is not made dependent on economic indicators such as quality and quantity of what is produced. The work accordingly does not have the reforming effect which legislation stipulates for it.
10.3. Medical and social, everyday provisions for prisoners
These areas are very little regulated by law this allowing practicing Penal Service personnel to remain within the boundary of the law without any effort, while at the same time not providing the prisoner with even the minimum needed to maintain a person in conditions of physical isolation.
The provisions in penal legislation on medical care for prisoners directly correlate with prisoners’ right to healthcare. The right to healthcare is one of the most important in the national penal system. Its violation has elicited the most negative response from the European Committee for the Prevention of Torture. The declarations formulated in the law claim that «healthcare of prisoners is ensured by a system of medical-sanitary and prophylactic-health restoring measures, as well as through a combination of free and fee-paying forms of medical care. However these declarations are not reflected in reality. Healthcare for prisoners in fact boils down to periodic medical check-ups which are ineffective, and the diagnosis of some diseases. The inadequate state of medical services in penal institutions is demonstrated by the fact that the level of both somatic and psychological illness among prisoners is very high. A person who has served a term of imprisonment can always be recognized by their missing teeth and sickly skin colour.
Investigating the medical and legal aspects of tuberculosis in penal institutions, particularly in the Lviv region, it was established that most cases of infection were among prisoners aged between 20 and 39 (73%). Among prisoners 14% were diagnosed for the first time as having tuberculosis. 39% of those with two or three convictions had the disease, while the percentage for those with four convictions was 47%. At present in penal institutions there are seven times more people with tuberculosis than in the outside world..
The provisions in legislation are thus not being implemented and cannot be. The version of all articles and items pertaining to healthcare of prisoners is of an excessively dispositive nature and does not set out procedure for medical services for prisoners, its mandatory nature, periodicity and scope. Furthermore, penal legislation does not contain provisions on the liability of officials or other personnel of the Penal Service for inadequate medical care of prisoners and for damaging their health.
It would be desirable to introduce strict liability for causing the death of a prisoner through inadequate conditions since in the majority of cases it is precisely the conditions which are the cause of disease among prisoners. Other reasons are ineffective medical check-ups, and ineffective or inadequate treatment of prisoners. Incidentally a prisoner who has «not undergone a full course of treatment» from diseases which pose at threat to people around, is restricted in some rights and does not receive, for example, the chance to be transferred to the social rehabilitation unit. As for officials and penal institution personnel, they bear no liability for not providing the proper medical care to prisoners.
National legislation confines itself to establishing general rules which are inflexible and do not allow for individualization and response to the actual circumstances. The provisions of normative acts regulating healthcare, do not, therefore, comply with the requirements of international legal acts. This can also be explained by the fact that penal legislation does not allow for mechanisms to ensure the exercising of the right to healthcare, as well as the liability of officials of the Penal Service who fail to ensure this right of the prisoner. Incidentally, Article 9 of the Penal Code which sets out prisoners’ main duties, in paragraph two states that non-fulfilment by prisoners of their duties leads to liability as set down in legislation. These provisions stress the lack of equality of those involved in penal relations, including with regard to liability.
In the field of healthcare in penal institutions there are a lot of other problems. The State, if it has taken on the function of punishing people and limiting their ability to move around, by placing them in a specialized institution, must provide the possibility for such people to undergo medical treatment and check-ups. This is due to the fact that a person’s ability to move around is restricted not by the conditions which lead to loss of health, but by the very fact of placing him in special institutions, isolated from access to the good things which society can provide. It is therefore the duty of the State to provide such people with the possibility of and access to medical care and to return a physically healthy person to society.
The Penal Code contains a provision which states that prisoners have the right to turn for consultations or treatment to institutions which provide fee-charging medical services. Such services and medicines needed are paid for by the prisoners or their relatives. Although this provision is very progressive, it remains mere declaration since it is very difficult to bring about given the relevant regime prohibitions and restrictions which effectively prevent prisoners from exercising this right.
Another problem is the lack of funding for penal institutions, this causing the medical units to not be fully equipped with medicines and technology, and to also not have sufficient qualified staff.
Yet another circumstance needs to be borne in mind. At the present time the medical service working in penal institutions is to a large extent dependent on this system. Medical service personnel are effectively subordinate to the penal administration. Their work and activity are coordinated and directed by the penal institution’s officials and other staff. In view of this medical care becomes ineffective since it is also manipulated in order to achieve specific aims. It loses the function of providing medical care to prisoners and the function of treating illnesses and takes on a nomenklatura, ideological and administrative colouring. Medical intervention is carried out in order to isolate and subdue those at odds with the actions of the administration or, on the contrary, in order to identify infringements of the regime and so forth.
It would therefore be desirable to create a medical service which does not answer to the penal administration. Such a medical service should carry out planned and ad hoc supervision of the health of prisoners and their full check-ups. The conclusions and treatment of prisoners by an independent medical service should be governed only by the aim of restoring the health of people who have fallen ill. Medical personnel must not become «included» in the process of enforcement and serving of sentences. The only demand and restriction which may be formulated is that medical personnel observe the regime conditions which apply for a specific prisoner.
The system of execution of sentences in Ukraine needs a radical overhaul. There need to be changes in the philosophy of punishment; the fundamental prisoners of the functioning of the State Penal Service, penal legislation and practice. The State Penal Service should be demilitarized and turned into a civil service within the Ministry of Justice with retention and enhancement of social protection for its staff. Observance of the human rights of both people accused and convicted prisoners on the one hand, and personnel on the other should become the Services priority. The Penal System should become open to effective supervision over human rights observance, and mechanisms and procedure for public and international control need to be created. The reform of the Penal System must receive adequate funding.
1. Complete the process of transferring the Department to the Ministry of Justice as called for in PACE Resolution № 1466 (2005)
2. Carry out a comprehensive analysis of all current penal legislation and practice to determine whether they comply with international standards. .
3. Rework the Concept Strategy for reform of the penal system in accordance with the Concept Strategy for reform of the criminal justice system, involving in the reworking and discussion wide circles of specialists, and ensure the holding of independent expert assessments of the Concept Strategy and its public discussion.
4. Cancel provisions of current normative legal acts of the Department which violate human rights..
5. On the basis of a new Concept Strategy for reform of the penal system, draw up a draft law on amendments and additions to the Penal Code in line with international standards; a draft law on amendments and additions to the Law «On the State Penal Service»; a draft law «On the disciplinary charter of the State Penal Service of Ukraine; draft Cabinet of Ministers Resolutions «On the procedure for serving in the State Penal Service» and «On the procedure for making a one-off payment in the event of death or crippling injury of an employment of the State Penal Service, and compensation for damages to his property when carrying out his official duties».
6. Review the tasks and legal basis for the activities of special units within the system and do not use them for carrying out searches and other actions within penal institutions.
7. Draw up and implement procedure for effective and swift response to reforms of possible human rights violations in penal institutions, in cooperation with leading human rights organizations.
8. Draw up and implement mechanisms and procedure for visits to penal institutions in accordance with the Optional Protocol to the UN Convention against Torture.
9. Promote the creation of other mechanisms of public control over the work of penal institutions
10. Introduce a real and working system for submitting complaints; put an end to the practice of punishing prisoners for attempts to appeal against the behaviour of the penal administration.
11. Prepare an exhaustive list of actions which will incur disciplinary penalties
12. Scrupulously check all possible cases of corrupt activities by employees of the system. Publicly express the position of the Department with regard to all cases found to have substance
13. Introduce research programmes and projects, including projects of civic human rights organizations on observance of prisoners’ rights and the penal system as a whole.
14. Improve the level to which the public are informed about the activities of penal bodies and institutions, about the situation and problems of the Department. Create a press service for the Department in each region.
15. Transfer medical services to the Ministry of Health.
 By Yevhen Zakharov, Co-Chair of KHPG. Material used from “Issues related to ensuring prisoners’ rights in Ukraine’s Penal System” // V. Badyra, A. Bukalov, A. Hel, M. Romanov and I. Yakovets, Kharkiv, 2009 and the Donetsk Memorial Fourth Annual Report “Prisoners Rights in Ukraine – 2008”.
 There is more information on this in the unit on the right to a fair trial.
 We would note that there is no requirement to inform the prosecutor’s office of such actions in Item 6.1 of the Rules. http://www.ukrprison.org.ua/index.php?id=1224947829
 M. Minayev: Analysis of penal legislation on the right of prisoners to appeal against the decisions, actions and inaction of employees of the law enforcement agencies and penal system // Against Torture / KHPG – Kharkiv: Prava Ludyny, 2007 – p. 153