Human rights in Ukraine 2009 – 2010. 26. The rights of prisoners
1. Some general data
This section dwells on some aspects of observance of rights of the persons deprived of rights who are kept in establishments controlled by the Government Penitentiary Service of Ukraine (hereinafter referred to as Penitentiary Service), i.e. investigatory isolation wards (IIW) and penal institutions (EEP).
According to the Penitentiary Service2 as of the 01.01.2011 in the institutions of confinement there were 154 027 persons (which is 5.24% more than in 2009–145 946 prisoners, and 2.81% more than in 2008––149 690 prisoners) in 184 establishments, including 39 363 persons in 32 IIW, among which 18 148 confined before trial and 918 under arrest.
113 230 persons are in 141 penal colonies: 10 minimal security colonies with common conditions for men contain 6 925 persons, 11 women’s colonies keep 5834 persons, 37 medium security colonies for first timers deprived of liberty––36 196 persons, 39 medium security colonies for repeatedly deprived of liberty––43 497 persons, 8 maximum security colonies––4 414 persons; 9 minimal security colonies with weak conditions––1 188 persons; 1 696 lifers under valid judgment are kept in 4 establishments, 28 are in investigative isolation wards and 13 strong security sectors; 21 penal centers hold 4 716 persons; 22 medical institutions keep 6071 persons; 10 approved schools train 1 434 minors.
The penal facilities keep over 6.5m persons convicted not for serious crimes; over 40m persons convicted for medium severity offences; 6.9m women; 1.5m invalids of the first and second groups; 1.1m men and 270 women of retirement age; over 6m convicted tubercular and about 6m HIV/ AIDS patients. For the first time in seven years, in 2010 there evolved an upping trend in the number of convicts: additional 1051 persons (+0.97%). The certain sign of stable increase is the fact that only June there were 689 convicts, that is two thirds of annual increase.
The same tendency is valid for convicted women. The yearly increase made 94 persons (the first six months), and by the year end there were 6.9m already. Only in the approved schools the number fell by 37 persons (-2.46%) that means annual rate decline -5%. In 2009 this index made -6.7% and in 2008 15.6%. The number of lifers increased by 90 persons and made 1696 persons, including 17 women. For the last three years the total increase of lifers made +12, 9%.
2. Changes of personnel policy
On 20.03.2010 the Cabinet of Ministers sacked the Head of the State Department of Ukraine for Execution of Punishment (hereinafter referred to as Department) Olexandr Halinsky. Olexandr Halinsky was assigned to the post of the Department Head in August 2009. For the first time during independence the designee to the post of department leader was endorsed with the human rights organizations, which might be a progressive sign on the way to public transparency of the department. After his appointment Halinsky promised to make domestic penitentiary system democratic and open for public. He stressed that his establishment would rely on public human rights organizations in order to get information about suppresses shortcomings of the system.
After presidential elections of 2010 the penitentiary department management was changed. On April 1, 2010 Minister of Justice Olexandr Lavrynovych introduced the newly-appointed department head 52-years-old Olexandr Lisitskov to the tom managers of the department. The Minister said that the respective assignment was accepted at the meeting of the Cabinet of Ministers on March 31, 2010.
Olexandr Volodymyrovych Lisitskov, colonel of militia, is a former assistant to the MIA department head for Donetsk Oblast, Manager of the Personnel Department. Meanwhile Sydorenko Serhiy Mykolayovych, b. 1959, major-general of militia was appointed the First Deputy Department Head; before early 2008 he worked as the Department Chief of the Government Custodial Service under MIA of Ukraine.
The new management of Penitentiary Service initiated personnel rotation in regional administrations of the Department and at the headquarters replacing staffers with servicemen with experience at different jobs at MIA. In this way, without regard to the obligations of Ukraine undertaken on November 9, 1995 at entering the CE listed in the conclusion of the CE Parliamentary Assembly no. 190, including the demilitarization of execution-of-punishment agencies and bringing it under the Ministry of Justice, the Penitentiary Service building up executive personnel from former MIA officers.
We would remind that the Decree of the President of Ukraine no. 248/99 of March 12, 1999 removed the Department from under temporal command of MIA. However, the adopted legislation, including the CEC of Ukraine and Law “On State Custodial Service” to name a few, failed to place it under command of the Ministry of Justice of Ukraine.
The decree of the President of Ukraine no. 1085/2010 of December 9, 2010 “About optimization of central authority” created the Government Penitentiary Service on the basis of reorganized State Department of Ukraine for execution of punishment, as Decree puts it, “with the aim of optimization of the system of central authority, removal of duplication of their power, executive staff and living expenses reduction, increase of state administration efficiency”. Commenting upon the Decree, the President stressed that in the name of Penitentiary Service there should be no mention about the submission of this department to the military structure that would help, in opinion of the President, to create the society-friendly civil institution and make the Penitentiary Service more humane, and personnel more qualified, which would promote resocialization of convicts, change their attitude toward committing crime and return to society from places of confinement of valuable citizens.
Unfortunately, all these measures are but declarations, and in actual fact the philosophy of public policy of the system of execution of punishment remains unchanging and has obvious punitive signs. All these newly-appointed leaders pursuing personnel policy of Penitentiary Service arouse concern about increasing closedness of Penitentiary Service for public control. Under such conditions it is all the more impossible to assist a convict doing a term at these establishments to change his/her attitude toward committing crime. It is well known, as in the days of submission of the system of execution of punishment to MIA, the punitive repressive mechanism preserved since GULAG times was used to suppress honor and dignity of convicts, ruin personality, exploit slavery and render ineffective any legal instruments intended to restore violated rights and freedoms.
3. Public control
In 1987 Ukraine ratified the UNO Convention against tortures and other cruel, inhuman or dignity humiliating types of behavior and punishment and on 16.01.1998 also European Convention about prevention of torture or inhuman or humiliating behavior or punishment becoming the party to these agreements. In addition, the Verkhovna Rada of Ukraine ratified the Optional Protocol to the above UNO Convention, and, on 22.06.2006, the President of Ukraine signed the law on ratification of Optional UNO protocol against tortures.
The ratification of the said protocol foresees introduction by the state of the Protocol terms into the national legislation, as the problem of tortures and inhuman behavior, in particular, in the case of institutional confinement, both was and remains topical for Ukraine. The system of execution of punishment is closed for society; the cases of tortures of convicts and persons under investigation in establishments subordinate to Penitentiary Service have uncontrollable latent character. It may be seen in the lack of correspondence between the public policy of Ukraine and challenges in the area of provisions and observance of human rights, especially freedom from tortures, prohibition of cruel and humiliating behavior and punishment. Maybe, to mend the situation in this area Ukraine did not use the right of member-countries by article 24 of Protocol to postpone realization of its obligations.
It means that less than in a year after this protocol took effect, the country supports, introduces, or creates one or several independent preventive mechanisms averting tortures at the national level. Almost three years passed by, but Ukraine failed to introduce independent mechanisms of public control. It is noteworthy that according to Protocol the ratifying countries undertake: a) to create the system and mechanisms of national control by independent national and international bodies in the places of visit; b) to create the global system of regular visits by independent international and national bodies to the places of confinement in order to prevent tortures. To this end the UNO has the Subcommittee for prevention of tortures which is a coordinating organ.
Still in 2006, the Verkhovna Rada Ombudsman gave up working in this direction which was recorded in the transcripts of the round table held on December 22 in Verkhovna Rada.
Therefore the NGOs and Ministry of Justice stepped in and during 2008-2009 jointly drafted a bill about national preventive mechanism of averting tortures envisaging involvement of public to in visiting places of confinement by creation of permanent monitoring groups in all oblasts of Ukraine coordinated by the committee of 6-8 experts.
By the bill the Committee and monitoring groups had to have a mandate for unimpeded visit to any establishments of confinement. But, unfortunately, the said bill was not fixed for consideration in Verkhovna Rada and, therefore, was not accepted.
Thus, by law the public control of observance of the rights of convicts may be carried out only by monitoring commissions set up by local authorities and act in accordance with the “Regulations about monitoring commissions”. For the most part these commissions demonstrate formal attitude and execute functions rather unusual for effective public control; for example, they reconcile appeals of penitentiary administrations to courts concerning conditional early discharge. At the same time they have almost no impact on execution of administrative punishment or placement of convicts under harder conditions.
Even such formal functions of monitoring commissions do not cover the persons kept in IIW. It is noteworthy that one can scarce remember, when public had information on violation of rights and freedoms of convicts due to assistance or initiative of commission representatives of these, for the exception of commission in Chernihiv Oblast.
At the same time the Penitentiary Service once again initiates creation of Public Council under Penitentiary Service and its regional departments that, according to department heads, must create an atmosphere of public control in penitentiary system. However, these councils have no legal authority for unrestricted visits to penitentiary establishments, ways to influence the Penitentiary Service. Even if the penitentiary chiefs permit the visits of representatives of public councils to penitentiary establishments, their conclusions will have no binding force for the Penitentiary Service.
Therefore it is possible to conclude that, unfortunately, the new administration of Penitentiary Service does not understand that not declarative concepts, but real assistance in setting up national preventive mechanisms can bring up respect and trust to the department, make its work authoritative and useful for the society, and also promote observance of rights and freedoms of convicts.
Summing up it is worth noting that the state must guarantee rights and freedoms determined by Constitution and international agreements ratified by Ukraine, first of all those guaranteeing freedom from tortures, including tortures by confinement conditions. By article 9 of Constitution of Ukraine these international agreements are part of national legislation binding Ukraine to immediately pass a law on creation of national preventive mechanism of averting torture in accordance with Optional Protocol to UNO Convention against tortures that must be publicly discussed.
4. Amending legislation
On January 21, 2010 the Verkhovna Rada approved a bill about making alterations to the Criminal Procedure and Criminal-Executive Codes of Ukraine (on protection of the rights of convicts in the penal institutions).
The law envisages a number of changes in relation to the confinement conditions, in particular, lifting restrictions on the amount of received parcels for convict and lifting restrictions on telephone conversations, although the convicts will be able to speak without limitations only after January 1, 2012. It is explained by the necessity of technical equipment for unlimited telephone communication, however the Verkhovna Rada admitted the very fact of the convict’s right for unlimited communication by phone.
There will be easing of restrictions for lifers as well. Indisputably, these are important and long-awaited steps for improvement of confinement conditions and bringing them closer to European standards.
One could but welcome these changes, if not for the new reduction of part 3 of the article 121 of the CEC of Ukraine. Prior to the Law this norm envisaged that “convict––persistent work shirkers will cover the cost of food, clothes, footwear, linen, public utilities and other services at the expense of their personal accounts. In the case of moneyless personal account a penal colony has sue him/her.” Sure, this norm applies to “work shirkers” only.
If there were no money on accounts the colony could recover upkeep costs of shirking convict––certainly, if the administration provided for proper working environment––after his/her release. The amendments of January 21 cardinally changed the situation. The rephrasing of part 3 of art.121 of CEC specifies that the costs of food, clothes, footwear, linen, public utilities and other services for shorking convicts (except for the persons mentioned in part 4 of art.115 of this code) should be compensated at the expense of their personal accounts. In the case of nil personal account a penal colony has a right to is authorized to sue him/her and get compensation paid.
After coming of the Law into effect the administration of establishments can levy exemplary upkeep damages suing every shirking convict. As of now it is inessential whether the establishment (state) provides for convict’s earning his/her living or not, whether s/he is eager to work or not (although labor is a right of convict, and not a duty, and the state in the person of administration of establishment has to promote and motivate the convict’s wish to use his/her right to work), everybody will have to pay for his/her upkeep in the colony. They will be able to make the upkeep compensation paid at the expense of jobless convicts’ accounts financed, for example, by their relatives. In the case if there is no money account, the administration will be empowered to sue the ex-convict for failure to pay. And then being released in present hard times, having neither roof over his/her head, nor job, nor possibilities to find it, nor documents (militia suppressed his/her passport during arrest and failed to return), the ex-convict has often to make money and pay off a debt by court’s order.
It is noteworthy that the majority of convicts do not work against their will, because during 18 years the state did almost nothing for creation of sufficient amount of modern jobs in penal institutions. Now for this ineffectiveness of the state, its indifference to convicts the convicts must pay.
Such step of Verkhovna Rada contradicts art. 5 of CEC of Ukraine that proclaims the principle of mutual responsibility of the state and convict among other principles of criminal executive legislation. The decision of Verkhovna Rada of Ukraine to lay responsibility on convicts to pay for the consequences of failure of the state to create working environment in a colony is irresponsible. Moreover, the real threat of such bringing a charge by the administration of penal institutions can be an element of pressure on the convict.
The said amends to the Law excluded paragraph 5 of part 1 of the article 132 of CEC of Ukraine stipulating extraordinary cleaning up of premises as a penalty for a convict. The administrations of penal institutions widely used this very administrative punishment in order to artificially find a pretext and create artificial grounds to initiate a new action against convict imposing as a charge violation of art. 391 of the CC of Ukraine (malicious disobedience to the legal requirements of administration of penal centers).
We have reiterated that the construction of disposition of this norm contradicts proclaimed concepts of the Criminal Code accepted by Verkhovna Rada as early as in 2001. Because exactly the legislator’s renunciation of referring to administrative prejudicion as condition of criminal responsibility is a progressive novel in the CC.
In accordance with the part 1 art. 2 of the CC of Ukraine, “The commission of socially dangerous criminal act foreseen by this Code makes grounds for penal liability”, i. e. criminally punishable act. The article 391 of the CC of Ukraine reads: “The malicious disobedience to the requirements of penal center administration or other counteraction to legal functions of administration by a convict doing term with restraint of freedom or deprivation of freedom, if, during a year, for violation of custodial control this person was awarded a penalty of transfer to the cell-like room (solitary cell) or more severe mode of punishment.” A convict can be incriminated by art.391 of the CC on condition of his/her punishment with transfer to the cell-like room (CLR), or disciplinary cell (DC) for actions aimed at avoidances of further serving his/her sentence.
But there are cases, when persons are incriminated which were transferred to CLR or DC for other reasons: for example, for refusal to clean premises out-of-turn, or “non-standard bed making”, or “improper behavior with the representative of administration”, or “changed a bed in a cell”, or for refusal to carry out instructions of personnel of the institution, which the administration of the institution considers a legal requirement. The incrimination and even pre-trial investigation in these cases takes place on the territory of the colony, and the chief of the institution may be an interrogating officer, who submits incriminating materials to the investigator and on to the court as criminal case materials. The very fact of placement of the convict in the CLR the court considers as sufficient grounds to legitimately apply art.391 of the CC.
Thus, having adopted the amendments, the Verkhovna Rada eliminated one of the elements of application of administrative offence, which are basic for criminal prosecution of a convict, while the norm of art.391 of the CC remained unchanged.
Even those convicts who have been held criminally liable by art.391 of the CC and now serve the sentence, in those cases, when the basis for their being nailed on charge included a number of such administrative offences as refusal to tidy up premises out-of-turn, the courts never revised case materials and judgments were not abolished, which led to system violations of part 1 of article 5 of the CC of Ukraine stipulating: «The Law on criminal responsibility abolishing criminality of an act softening criminal responsibility or in some other way improving condition of a person have reverse action in time, i. e. it covers persons that had committed corresponding acts before the law became operative, including those serving or having served sentence, but still have a former record.”
Also on January 21, the Verkhovna Rada allowed the convicts to freely correspond with their advocates. Particularly, the accepted amendments forbade the administrations of penal institutions to peruse the correspondence of prisoners sent to or received from their advocates. Such correspondence is dispatched within twenty-four hours. The bill envisages that correspondence addressed by the convict to the Verkhovna Rada Ombudsman, European court on human rights, and public prosecutor, as well as advocate, is not perused and is dispatched within twenty-four hours. The correspondence received by the convict from the above bodies and persons is not perused as well.
Pardon was also affected by the said amendments. Pardon means the official release from any, or any further, punishment of somebody who has committed a crime or wrongdoing. According to the Constitution of Ukraine the pardoning power rests with the President of Ukraine and is applied to the individually selected person. The pardoning power of the President is limited by part 2 of art. 87 of the Criminal Code. The Presidential pardon can replace life sentence of the convict by deprivation of freedom for 25 years and more.
Pardon is executed if a convict appeals for pardon, and the President approves the procedure of pardon. The documents are prepared by the special subdivision of Administration of the President and passed over to the Presidential Commission for Pardon (hereinafter Commission). The commission examines the documents and makes suggestions to the President. And the President issues a decree about pardon of the person(s). Pardon is a prerogative of the President; therefore no wonder that President Yanukovych approved new pardon regulations and new composition of the Pardon Committee.
President Viktor Yanukovych approved new regulations about the procedure of pardon by Ukase no. 902/2010 from 16.09.2010 and renewed composition of the Committee by Ukase no. 827/2010 from 19.08.2010 . How does the new regulation differ from that effective from July 19, 2005?
1) According to the Regulations of 2005 the right to appeal for pardon rested with the convict (art. 3); the lawyer, parents, wife (husband), legal representatives, public organizations, etc could also appeal for pardon (art.4). The new regulations stipulate only the convict. All other persons are not even mentioned in the Regulations of 2010.
2) Art. 8 in the Regulations of 2005 included the norm that stipulated that “In the cases when the convict is not held in custody, execution of a sentence in relation to him/her may be stopped according to the established procedure of consideration … of the appeal for pardon.” The Regulations of 2010 contain no such possibility. Article 9 in the Regulations of 2005 starts with words: “the identity of convict, his/her behavior…”, while the same article in the Regulations of 2010 starts with words: “the gravity of the crime…” It might seem that rewording changes nothing, but now the accent is on the gravity of crime and not on the identity of convict, which means that during consideration the crime comes first, and not the identity of convict.
3) The Regulation of 2010 takes into account the “active assistance in crime detection” that was not taken into account in the Regulations of 2005.
4) The terms changed as well: if before the person convicted for a grave or gravest crime could repeatedly appeal for pardon in a year, and those sentenced for other crimes in six months, now everybody, except for lifers, can repeatedly appeal for pardon not earlier than in a year, and lifers not earlier than in 5 years.
5) There remains in the regulations the possibility of appeal before five- or one-year term, if there are new circumstances worth attention.
The Cabinet of Ministers also adjusted its own decision from April 1, 2004 about adoption of regulations about monitoring commissions in accordance with current legislation. In particular, its decree was coordinated with the Law of Ukraine “On amendments to the Criminal Procedure Code of Ukraine concerning ensuring of the rights of convicts in penal institutions”.
Minister of Justice Olexandr Lavrynovych commented that amendments to the decree were drafted by the Ministry of Justice. In particular, the new redaction of the regulations about monitoring commissions determines the composition and procedure of formation of commissions.
Moreover, the new redaction permits the members of monitoring commissions to visit penal institutions without special permissions.
The amendments oblige monitoring commissions to inform public through media about their work and observance of human rights, fundamental freedoms and legal interests of convicts during execution of punishments etc.
The Minister of Justice stressed that the amendments were intended to improve organization of public control of observance of human rights, fundamental freedoms and legal interests of convicts and released persons. Moreover, the implementation of new regulations should help to reform and resocialize convicts and creation of proper upkeep conditions by penal agencies and institutions.
However, these amendments do not help the state to report on introduction of national protective mechanism of torture prevention.
5. Right to life and right to medical treatment
The life of man is everything that matters. Probably, the right to life is the top human value and deprivation of life is an indisputable crime. “The right to life is inalienable right of every person. This right is protected by law. Nobody can be willfully deprived of life.” Thus reads the International pact on civil and political rights, and the Convention on protection of human rights and fundamental freedoms stresses: “The right to life is protected by law. Nobody can be intentionally deprived of life, exclusive for the case of capital punishment according to the conviction in court, if the law foresees such punishment.” These are international standards ratified by Ukraine and are a part of national legislation.
At the same time the Constitution of Ukraine reads in the third article: “The human being, his or her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value.” And in the article 27: “Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life.”
What is human life worth in Ukraine? Does the state really protect the life of a convict, i. e. of a person who fully depends on the state and is in the charge of the state? On order to answer these questions, let us do some investigation and find out what convicts life is worth and that of the alleged offender at IIW. A person, who has committed a criminally punishable offence and is serving his/her term in a place of imprisonment, despite the social danger of the offence, remains a human being and “enjoys all human and citizens’ rights, with the exception of restrictions determined by law and established by a court verdict.”
Thus reads the article 63 of Constitution. That is the state guarantees the right to life of everybody, even when this person committed a crime, was adjudged guilty and serves a term for committed crime. Also an implicit is right to life of a person suspected, accused of a crime and still not adjudged by court guilty, i. e. it is possible that s/he can be acquitted. As they say, no one can be safe from poverty or prison. It is the more impossible to protect prisoners against fatal illness under contagious conditions in cells and barracks with no sanitation, medical attention, bad food, absence of fresh air, quality potable water, living under great strain and nervousness; in fact, all of it are characteristic of Ukrainian penal colonies and IIW.
In such conditions over one hundred and fifty thousand Ukrainians are threatened with fatal illnesses. According to the Government Penitentiary Service, there are 6 thousand of consumptives, although the actual number is believed to be much higher. The above number does not include the early stage TB, or undiagnosed cases, or those who try to hide the state of health and stay in common premises.
The agencies of Government Penitentiary Service absent work undertake no diagnostics or treatment of patients with infectious liver diseases, except for specialized establishments. Therefore there is no statistics on prisoners with viral hepatitis and no prophylaxis in these cases. In the institutions of Penitentiary Service there are about 6 thousand prisoners with HIV/AIDS, which need antiretroviral therapy. However the State budget does not cover the cost of antiretroviral preparations for prisoners with HIV/AIDS. Such neglect of sick people in need of increased attention, professional medical service, and urgent medical treatment in the first place, is nothing but humiliation and torture with upkeep conditions; moreover, in many institutions there is even no infectiologist. It is noteworthy that every tenth HIV/AIDS patient out of all prisoners in need of such treatment, i. e. 600 persons, gets necessary life-support medications due to the UNO Global Fund and money of charity organizations.
Now, we will make some example, when prisoners got no medical treatment.
Pavlo Shcherbyna, b. 1973, HIV patient for ten years already. Held in custody in Novhorod-Siversky IIW of Chernihiv Oblast since August 2010; as yet he has not undergone thorough medical inspection, antiretroviral therapy and other treatment he badly needs. During the last three months in custody he has his teeth fell out, he constantly runs high temperature, feels faint, dizzy and other signs of worsening health.
Olexandr Kulinichenko doing a term in Alchevsk penal colony no. 13 got HIV, TB, lung emphysema etc. He had no proper conditions for treatment in the institution; he constantly ran high temperature; it was very cold in his cell: + 12°С. His height before conviction was 1.87 m, and now 1.74 m.
Dmytro Brius has HIV, TB, hepatitis С, serves his term in the penal colony no. 14 in Odesa. For 18 mos now he has been demanding that doctors make analyses and carry out treatment.
Vladislav Velichko is under investigation and is kept in IIW of Izmayil City, Odesa Oblast. He has HIV for 15 years already, cirrhosis, advanced stage of hepatitis С, lasting inflammatory process. He was not examined and got no medical treatment.
Ruslan Bardonov is in IIW in Odesa. He has HIV, TB, hepatitis С, no medical treatment.
There are zillions of cases, when people are doomed to painful and helpless death.
According to Penitentiary Service, in 2010 739 persons died in IIW and penal institutions. If the state cannot treat ill prisoners, why does it not transfer them for treatment to specialized establishments outside prisons and colonies?
By part 1 of art. 84 of the CC of Ukraine mental patients should be exempt from penalty, as “s/he is not able to control her/his actions (inactivity).” Part 2 of the same article reads: “A person, who after committing a crime or bringing in verdict became gravely ill, which prevents doing a term, should be exempt from penalty or further serving a term. Considering this question the court takes into account gravity of a crime, character of disease, identity of convict and other factual background.”
Thus, one of the grounds of exemption the legislator names convict’s illness. If the convict became ill and this illness prevents correctional control, such convict should be released. It is explained that in this case punishment will not attain the aim, because it is impossible to rehabilitate and resocialize the convict. That means that the disease changes consciousness and behavior of the convict so that s/he stops perceiving punishment, as such, or actually quits her/his antisocial ways.
The decision about early discharge of a convict on grounds of illness or about compulsory medical treatment of mental patients belongs to a court. In order to determine, whether the illness prevents serving the term, the Department for Execution of Punishment together with the Ministry of Health of Ukraine issued a joint order no. 3/6 from 18.01.2000 listing diseases giving grounds for courts to award judgment on early discharge. It is noteworthy that diagnosis of a listed disease does not mean unconditional early discharge.
The medical examination of convicts, diagnostics and medical report and possibility of early discharge are carried out by medical-labor commissions (MLC) set up at hospitals for convicts. The MLC follows the above Order of the Department and Ministry of Health no. 3/6 from 18.01.2000, which had approved the Statute of the medical-labor commission. The section 2.2 of this order obliges the MLC to select persons, whose health makes them liable to be discharged early.
Taking into account the MLC conclusions the chief of penal establishment (agency) prepares and submits document for consideration of early discharge in court. The submission is accompanied with conclusions of MLC and convict’s personal file. The submission also includes data on convict’s behavior in confinement. Further consideration rests with the court. Considering early discharge on the grounds of illness the court takes into account the gravity of crime, character of disease, identity of convict and other factual background.
If a person sentenced to do communal work or restraint of freedom was recognized an invalid of the first or second group, the penal institution makes submission for court consideration about early discharge. The submission is accompanied with the MLC conclusions. If the convict fell ill for psychical or other grave disease before correctional work or fine, the judge in all cases takes makes a decision about early discharge. Following the early discharge verdict the corresponding documents are sent to the administration of penal institution, which releases the convict.
Therefore the terminal patient, being a prisoner, because of such duration and exhausting procedure of early discharge on the grounds of poor health and lack of professional and timely diagnosis and medical treatment, is doomed to death from the non-rendered medical assistance that is, by the way, a punishable offence.
Anyway people released on poor health grounds, are mostly doomed to death and die almost at once after discharge.
For example, as there is no proper personnel in medical units of penal institutions, an undertrained doctor’s assistant or even a common prisoner may act as a doctor.
There was a typical case tried in the European court of law on human rights––Khudobin vs. Russia––when the court found the violation of the article 3 of Convention, and accepted as a proof a written appeal signed by the applicant’s cellmates. The appeal read that on April 26, 2006 the cellmates had to make him an injection to stop epileptic fit. Answering the arguments of the Government that this statement cannot be used as a proof, because the cellmates were not specialists in this area, the Court noted that it needs no professional knowledge to assert that the injection was not done by the medical unit personnel at the isolation ward. The court decided that there were no grounds to believe that the cellmates signing this appeal lied. On the other hand, the Government produced no records of this incident. Accordingly, the Court agreed with the applicant’s version of the events concerning the incident. Consistently the court reminded that the medical treatment rendered by unskilled persons cannot be considered as proper one.
As a result, it is worth noting that the health care and execution of punishment are two different areas. The medical units and hospitals on the territories of penal institutions must be brought out of submission to the Penitentiary Service and submitted to the Ministry of Healthcare in order to expertly perform their professional duties for public money. Moreover, the procedure of early discharge on health grounds should be simpler and quicker, which would give the convicts a chance to survive and take the cure after discharge on health grounds.
The problem of ungranted real medical assistance, in addition to the lack of proper upkeep and medical equipment for treatment, consists in the fact that investigation initiates and the court eagerly sanctions too hard preventive measure of suppression as detention in custody, when the offender is brought before the bar for minor and medium offences, which pose no social danger. Such preventive measure is handy for an investigator and is widely applied.
6. The right to protection by the court3
By article 55 of the Constitution of Ukraine everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers. Constitutional human and citizens’ rights and freedoms cannot be restricted, except in cases envisaged by the Constitution of Ukraine (art. 64).
Article 124 of Constitution reads: “The jurisdiction of the courts extends to all legal relations that arise in the State.” Despite this peremptory norm, the officers of court actually came to the conclusion that there are legal relations in Ukraine which are not covered by the court’s jurisdiction. These are real relations in the area of execution of punishments.
It should be noted that in accordance with the art. 63 of the Constitutions of Ukraine a convicted person enjoys all human and citizens’ rights, with the exception of restrictions determined by law and established by a court verdict. Proceeding from the understanding that it is necessary to observe human rights in relation to everybody without exceptions, including convicts, in January, 2010 the Verkhovna Rada of Ukraine amended art. 5 of the CEC of Ukraine with the principle of respect to human rights and freedoms, and stipulated at legislative level, that the “convict enjoys all human and citizens’ rights foreseen by the Constitution of Ukraine with the exception of restrictions determined by this Code, laws of Ukraine and set by the sentence of court” (art.7 of the CEC of Ukraine).
It shows once more that the process of execution of punishments tends to comprehensively provide such rights and equalize all persons deprived of rights with the rest of citizens (except for certain limitations). The CEC of Ukraine (as well as other normative acts) does not restrict the convict’s right to appeal to court to protect his/her rights. While in art. 8 of the CEC of Ukraine the right to appeal to court is on the list of the convict’s rights, and in art.7 of this Code there is the stipulation that “the state respects and protects the convict’s rights, freedoms and legal interests…”
In practice there are numerous violations by administration and officers of agencies and penal institutions that stress the importance of problems of convict’s access to a court.
There is a question: if the current legislation enables to appeal against decisions, actions or inactivity of administration of agencies and penal institutions to convict, then before what court should s/he bring an action? The administrative court should be the first choice; the practice is different, though.
For example, the convict Т. believed that disciplinary measure imposed on him during his doing a term was illegal and appealed to the administrative court suing the administration of the penal institution. He thought that as far as the colony administration is authorized and acts for the sate (including official violence against convicts), the protection of his rights and legal interests must be carried out in the course of administrative legal proceedings. However, the judge of Kharkiv Circuit Administrative Court Bartosh N.S. on February 13, 2008, considering the case no. 2а-3157/08, declined to accept a matter for processing an appeal against administration of penal colony on two basic grounds.
1. The law stipulates another procedure of appeal against imposed penalties (which one?). Here the judge quoted art.134 of the CEC of Ukraine: “A convict can appeal against the imposed penalty; however, the submission of complaint does not stop the execution of penalty. The officer prescribing punishment, if there are proper grounds, can repeal it or substitute for a milder one. The top officer can repeal the punishment, if the officer prescribing a punishment abused his/her authority or the punishment was prescribed in the absence of convict’s breach of duty.” That is, by a court decision the convict “enjoying the right to appeal against punishment” must assert his/her rights at other instances, while s/he was denied relief at law.
2. The administration of penal institutions is not the subject of the powers of authority by the Code of Administrative Proceedings of Ukraine.
The Judicial Board of Appellate Administrative Court including judges Filatov Y.M., Vodolazhska N.S., Gutsul M. I. by their decision from 27.05.2008 fully agreed with the conclusions of the first instance court.
The proceedings of the Superior Administrative Court of Ukraine in appeal about the appeal against the above decisions took over two years. Finally on December 21, 2010 the Judicial Board of the Superior Administrative Court under the chairmanship of judge Smokovych M. I. and with participation of judges Horbatiuk S. I., Myronenko O. V., Moroz L. L. and Chumachenko T.A. concluded that “By section 2, part 2, art. 17 of the KAC of Ukraine, the jurisdiction of administrative courts does not extend to public-law cases that should be tried in criminal court proceedings”, i. e. it fully confirmed the validity of decisions of courts of the first and appellate instances.
Judge of Kyiv Circuit Administrative Court Vynohradov O. I. based his refusal to institute action on appeal of convict A against the administration of penal colony about acknowledge of illegality of actions and abolition of punishments a bit differently, but with the same consequences (decision from 22.07.2009 in the case 2а-8474/09/1070): “The jurisdiction of administrative courts extends to litigations listed in part 1, art.17 of the KAC of Ukraine, which is exhaustive. At the same time part 2 of the said norm contains the list of public-legal cases to which the jurisdiction of administrative courts does not extend. By stipulations of section 2 part 2 of this norm the list includes cases belonging to criminal proceedings.
Present materials of the case show that the subject of the claimed litigation is an appeal against the actions of penal colony officers during the term of imprisonment of A. as punishment under criminal law that by art.4 of the CEC of Ukraine is a basis for execution and serving of the said punishment. By art. 407, 408, 411 of the CPC of Ukraine the stage of execution of sentence is a stage of criminal process; therefore the issues of execution of sentence should be tried in criminal proceedings.”
In the above examples the administrative courts are unanimous in their decision that the questions of appeal against actions or inactivity of administration of agencies and penal institutions cannot be tried by them. They refer to the local courts jurisdiction over such litigations.
But there is a different practice. By verdict of Lviv circuit administrative court from August 28, 2008 on the case no. 2а-2236/08 of convict P. suing the administration of penal center as a subject of powers of authority with a requirement to abolish the groundless, in opinion of the plaintiff, punishment applied to him by the institution chief, judge Foma O. P. refused to sanction proceedings in this case as the latter does not belong to examination in administrative proceedings and opined: “By section 2 of the part 2, art. 17 of the KAC of Ukraine the jurisdiction of administrative courts does not extend to public-legal cases which should be examined in the course of criminal proceedings.”
At the same time, the Lviv Appeal Court (judge Yavorsky I.O., Popko Y.S., Nos S. P.) on 06.11.2008 declared illicit the verdict of Lviv Circuit Administrative Court and adjudicated: To disaffirm the decision of the Lviv Circuit Administrative Court of August 28, 2008 and pronounce the new judgment about the transfer the case to the first instance of the same court for examination according to the norms of the Code of Administrative Proceedings of Ukraine.” This is how the Lviv Appeal Court justified its judgment: “The judge failed to take into account that the case of administrative jurisdiction is the public-legal litigation submitted for examination in administrative court, when at least one of the parties is an executive body, local self-government administration, officer thereof or other authorized subject responsible for public management on the basis of legislation, the specific powers included. In accordance with art. 104 of the KAC of Ukraine, a person who believes that his/her rights, freedoms or interest in the area of public legal relations have been violated can commence an action in the administrative court. The said article specifies the stipulation of art. 55 of the Constitution of Ukraine.” Over two years went by, but the decision of the Lviv Appeal Court was not carried out, and the lawsuit of convict P. against the administration of the establishment was not examined in its essence.
But the problem of protection of convict’s rights consists not only and not so much in the above reasoning of judges of administrative courts, because local courts also do not acknowledge their jurisdiction over these types of litigations resorting to tricky arguments. The problem consists in the approach of the state to protection of the rights of citizens: the officers of public bodies are doing their best not to find grounds for their jurisdiction over citizens’ appeals addressed to them, but to ground that their jurisdiction does not extend to these appeals, i. e. they work hard to refuse to examine the lawsuits and not to tackle the problem.
As a result, the constitutional norm about cognizance of all courts of all legal relationships is not a simple declaration now, but a practically ignored senseless formulation. The above court judgments seem all the more interesting as they actually change the fundamental approach to aims, tasks and essence of criminal procedure and nonidentical practice of application of rules of law by administrative courts. There are certain doubts concerning the possibility of extension criminal and/or criminal procedure law to litigations between the administrations of penal agencies and penal institutions.
The criminal proceeding is the activity of organs of inquest, investigator, public prosecutor, judge and court for institution of an action, investigation and judicial trial of criminal cases, as well as solution of problems of enforcement of a sentence. But the convicts’ lawsuits have to deal only with administrative activity of the administration of penal institution as an authorized subject. Such activity is one of the basic directions of functioning of administrations of penal institutions. Both personnel and management of colonies carry out administrative and organization and legal functions. The administration of colonies is a kind of authoritative activity performed on behalf of the state that authorized them to enforce special administrative measures, which are not used by other public bodies on a regular basis.
The public-legal litigation mentioned in the KAC of Ukraine is an administrative conflict on the basis of administrative legal relationships. The characteristic signs of such litigation include the right to defend public rights of physical persons against actions of public bodies taken on their own that prevent realization of rights and freedoms of citizens. These actions and inactivity of the authorized subject––administrations of penal institutions––were appealed by convicts. As the principle of mutual responsibility of the state and convict is fixed in art.5 of CEC of Ukraine, such legal relationships, namely the appeals against actions and inactivity of colony administration should be heard in an administrative court.
At the same time it is noteworthy that this type of conflict must not be examined in criminal proceedings. In the above decisions the courts allege that this dispute must be heard in criminal proceedings by articles 407, 409, 411 of CPC of Ukraine. The exhaustive list of issues tackled by a court while executing the sentence is in the fifth section of CPC of Ukraine: “Execution of a sentence, court decisions and rulings.” Chapter 33 of this act stipulates that a local court is authorized to decide the issues listed in art. 405-1, 406, 407, 407-1, 408, 408-1, 408-2, 408-3, 410, 410-1, 411-1, 413, 414.
Art. 409 of CPC of Ukraine (“Court that decides the execution-related issues”) stipulates: “The issues of doubts and contradictions arising during criminal law enforcement with retroactive effect of art 5 of CC of Ukraine are tackled by the courts pronouncing the sentence.”
Therefore, the criminal procedure law makes no provisions for the procedure of consideration of litigations between a convict and administration of a colony.
In the end, it is possible to assert that legal relationships between EEP and convict are not a point of regulation by penal and/or criminal procedure law and cannot be examined by local courts in criminal proceedings.
The issue of whether the EEP administration is a subject of powers of authority is tackled as follows: the authorized subject is a public authority. An administration of penal institutions is a public authority. An administration of penal institutions is such a subject, therefore conflicts with it are within jurisdiction of administrative, and not any other court. According to part 2 art. 18 of KAC of Ukraine (“Subject cognizance of administrative cases”), the jurisdiction of circuit courts extends to administrative cases, when one of the parties is a public authority, other public body, institution of the Autonomous Republic of Crimea, their officers, except for cases concerning their decisions, actions or inactivity in matters about administrative misconduct and cases cognizant to local courts as administrative courts.
Thus, the KAC of Ukraine stipulates that the refusal to try a case can take place on two conditions:
1) if it relates to administrative misconduct;
2) if this case is cognizant to local common court.
Part 1 of art. 18 of KAC stipulates local common courts as administrative courts take cognizance of:
1) administrative cases in which one of the parties is a body or officer of local self-government, officer of local self-government body, except for those within the cognizance of circuit administrative courts;
2) all administrative cases concerning decisions, actions or inactivity of subjects of powers of authority in cases about calling to administrative account;
3) all administrative cases in litigations of physical persons and subjects of powers of authority concerning calculation, fixing, recalculation, payment, granting, receipt of pensions, social payments to disabled citizens, compulsory state social insurance payments and other social payments, surcharge, social services, assistance, protection, and privileges.
Under art.6 of the Law of Ukraine “On Government Penal Agency of Ukraine”, the penal colonies are structural elements of the Government Penal Agency of Ukraine carrying out of law-enforcement and human rights functions. Art. 1 of the said Law empowers the Government Penal Agency of Ukraine to apply single public policy in the field of execution of punishments.
The work in the Government Penal Agency of Ukraine is a special government service (art.14 of the Law “On Government Penal Agency of Ukraine”). Thus, the administration of penal colonies is an executive body. The actions and inactivity mentioned in convicts’ appeals did not relate to calling to administrative account as well as fixing of different types of social assistance.
That is, in our opinion, these and similar cases should be in jurisdiction not of local, but administrative court. Maybe, our arguments may seem debatable. But we believe that the idea about existence of such problem of relief at law of convicts in the area of violation of their rights is self-evident, as only in this way we can guarantee strict observance of the Constitution of Ukraine.
Ukraine will never become a law-governed state, if a certain circle of citizens’ rights are not guaranteed by effective protection with simultaneous free access to justice.
The discussed possibility of ambiguous perception and interpretation by courts of statutory and legal provisions should be taken into account during judicial reform, intended, according to specialists, to “cut dilatory procedures at court, corruption in judicial system, and introduce a new judicial system that brings legislation over to European standards without revolutionary changes .”
7. Overview of the European court decision on Davydov et al. vs. Ukraine
On June 1, 2010 the European human rights court (hereafter referred to as Court) made a very important decision for the Ukrainian penal system in the case of Davydov et al. vs. Ukraine (statements no. 17674/02 and 39081/2) admitting Ukraine’ s violation of stipulations of Convention protection of human rights and fundamental freedoms (hereafter referred to as Convention). The decision relates to three complainants who at the time were doing their terms in EEP no. 58 (so-called Zamkova colony) in Iziaslav City, Khmelnytsk Oblast, Serhiy Davydov, Vitaliy Ilchenko and Serhiy Homeniuk, b. 1963, 1975 and 1967 accordingly. According to the complainants, twice during their term––on May 30, 2001 and on January 28, 2002––they were cruelly beaten by Department’s special unit privates in the process of drills in the colony. Complainants maintained that they were not alerted about drills, they also were not asked about their consent to participate; they were pushed, thrown, beaten, stepped-on, compelled to undress and humiliated in the process of operation; they got no medical treatment for inflicted traumas, and their complaints were not investigated adequately. Then the complainants maintained that their correspondence to the European court was checked; that some of them were punished with confinement in a solitary cell for their complaints to Court, the complainants maintained that they could not effectively complain about all these events. They also complained about bad food and upkeep.
Taking into account that the government of Ukraine did not acknowledge the circumstances presented in the materials of the case and denied that the prisoners got bodily harms during drills, in June 2007 the Court conducted its own on-site investigation of the case circumstances, and in the room of Khmelnytsk Oblast Appeal Court three judges heard witnesses, including three complainants. The court also considered documents presented by parties concerning drills, including the plan of drills, jailer’s instructions, and premises.
Having considered the behavior of the Government relative to assistance to Court in establishment of facts in the case the Court concluded that the government of Ukraine had failed to carry out its commitments by art. 38, §1(a) of the Convention. Being pedantic in its subsidiary role concerning establishment of facts, the Court, nevertheless estimated obtained proofs taking into account that the complaints contained serious facts about brutal treatment. The court came to the conclusion that the drills were not conducted in accordance with the clear-cut rules. The complainants got injuries, they were offended during drills, but damages were not fixed during the first training, and the medical records made after the second training were lost. The operative rule permitted the jailers not to fix damage and not to respond to medical complaints. The complainants intimidated and forced by the administration of the colony to renounce complaints in Court got no medical assistance. The department and office of public prosecutor conducted investigation of complaints submitted by the representatives of the complainants. The court came to the conclusion that in the context of drills on May 30 2001 and January 28, 2002 the stipulations of article 3 of the Convention were violated on four counts.
First, the complainants were treated brutally; they felt fear and humiliation during drills conducted both without the prisoners’ consent and without legal grounds. The court underlined that bodies of power had to drill special unit personnel in such a way that nobody would be subject to brutal treatment as a result of these actions. It also noted that accounting for complete ban of brutal treatment the drills of special unit personnel should be conducted so that prevent any possibility of violation of this rule by the agents of the state.
Second, there was no effective investigation of the complaints. The investigations conducted had substantial defects; in particular, the Court had not received detailed records of investigation. The court concluded that the bodies of power did not try to make important steps for quick and independent investigation that would result in substantial results.
Third, it was not established that complainants ever underwent medical inspection in connection with their complaints; they got no medical treatment in connection with bodily harms inflicted during drills; no medical records of complainants were kept. Finally, the cells of complainants were constantly overcrowded that was a structural problem and by itself violated the stipulations of Convention.
The court referred to its practice, in which it acknowledged that in Ukraine there were no instruments of effective investigation of complaints about brutal treatment, absence of medical assistance and conditions of imprisonment. It came concluded that the article 13 of the Convention was violated. The court concluded that the letters of complainants were illegally checked and censored in violation of article 8, §1 of Convention.
The Court also admitted that in relation to complainants Ukraine violated article 34 (the right to individual complaint), because the complainants were pressured to make them quit complaining to Court.
Thereby the Court decided that the Government failed to fulfill its obligation by article 38, §1 (a) of Convention, violated article 3 of Convention in its material aspect, because the first complainant (Mr. Davydov) was brutally treated during drills on May 30, 2001 and on January 29 2002, got no medical assistance for bodily harms inflicted during drills and lived in bad conditions in the Zamkova colony, and also turns down the Government’s denial about exhaustion of national instruments of legal protection; that article 3 of Convention was violated in its material aspect, because the second complainant (Mr. Ilchenko) was brutally treated during drills on May 30, 2001 and on January 29 2002, got no medical assistance for bodily harms inflicted during drills and lived in bad conditions in the Zamkova colony, and also turns down the Government’s denial about exhaustion of national instruments of legal protection; that article 3 of Convention was violated in its material aspect, because the third complainant (Mr. Homeniuk) was brutally treated during drills on May 30, 2001 and on January 29 2002, got no medical assistance for bodily harms inflicted during drills and lived in bad conditions in the Zamkova colony, and also turns down the Government’s denial about exhaustion of national instruments of legal protection; that article 3 of Convention was violated in its procedural aspect, because the complaints of the first, second and third complainants about their brutal treatment during drills were not properly considered by Ukrainian government, and also turns down the Government’s denial about exhaustion of national instruments of legal protection; that article 13 of Convention was violated in combination with article 3 of Convention for lack of effective and accessible instruments of legal protection in national legislation for lodging complaints against brutal treatment and bodily harms caused during drills, absence of medical treatment in connection with these damages, and also bad terms of imprisonment; that article 8, §1 of Convention was violated because interference with the correspondence of the first, second and third complainants was illegal, and that it was not necessary to examine separately complaints according to article 13 of Convention in combination with article 8 related to the fact that complainants had no effective and accessible instruments of legal protection for submission of complaints about interference with their correspondence; that the right of the first, second and third complainants to submit individual complaints according to article 34 Convention was violated.
As far as we know, until now there has been no thorough investigation of the circumstances mentioned in the decision, no officer directly participating in brutal treatment of convicts was brought to book. We also remind of the likely mass beating of prisoners in Iziaslav colony #31 in January 2007. It is noteworthy that many officers mentioned in the decision of European Court in the case Davydov et al. vs. Ukraine were accessories to mass beating of prisoners in 2007. After these events of Shepetivka by the district office of public prosecutor a decision about a refuse in laying an action from February 7, 2007 was taken away as a result of verification that has the same defects that were set by the European court in the above case.
It would be good if at the state level the measures of public prosecutor’s response will be taken as a result of the decision of European court in the case Davydov et al. vs. Ukraine intended to bring to book of accessories to the actions recognized as violations of article 3 of Convention and are crimes under legislation of Ukraine, in particular, in relation to violation or proceedings or renewal of investigation:
– circumstances of mass beating with the purpose of establishing responsibility of persons that directly inflicted bodily harms or gave corresponding commands;
– circumstances making medical assistance to the injured prisoners unavailable.
Despite the replacement of management and renaming of department, the situation with the observance of prisoner’s rights has not improved and is worsening dynamically, because the public penal policy remains unchanged. The state must understand that increase of the number of prisoners, replacement or reduction of skilled personnel, rise in wages of personnel and so on without reform of penal paradigm will not result in real changes of the system. While Penitentiary Service remains the repression-oriented functional instrument of penal policy of Middle Ages, it cannot be reformed according to the modern model of Ukrainian prison by European standards. The state must realize that the penal system tending to dishonor, debase, intimidate, regularly violate the rights and freedoms of prisoners only leads to forming structures of people which are convinced that committing crime is the norm of behavior, hostile toward the state structures and society as a whole, who have neither priorities nor social consciousness. One needs to understand that the aim of execution of punishment is not only an isolation of criminals but also public policy intended to reform the consciousness of convict in his relation to committing crime, that persons deprived of rights are the product of society and that same society must take interest in the quality of this product which returns to society from the institutions of confinement. The state must give prisoners a chance choose their standing, opinion and priorities of behavior in the form of public remarks, free appeals to public institutions and organizations, including appeals against actions and inactivity of managers of penal institutions in court, make this practice of legal relationships simple, clear and accessible for prisoners.
There is a need in national preventive mechanism to prevent tortures by which the specially trained representatives of civil society will have a mandate of free access to any place of confinement, and the conclusions about violation of rights and freedoms of prisoners should have adequate response of the state.
Complete the process of transferring the Department to the Ministry of Justice as called for in PACE Resolution № 1466 (2005)
Carry out a comprehensive analysis of all current penal legislation and practice to determine whether they comply with international standards. .
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.
Cancel provisions of current normative legal acts of the Department which violate human rights..
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”.
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.
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.
Prepare a constitutional appeal in order to determine the jurisdiction of the trial considering complaints of prisoners on actions (inaction) of the administration of penal institutions.
Draw up and implement mechanisms and procedure for visits to penal institutions in accordance with the Optional Protocol to the UN Convention against Torture.
Promote the creation of other mechanisms of public control over the work of penal institutions
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.
Prepare an exhaustive list of actions which will incur disciplinary penalties
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
Introduce research programmes and projects, including projects of civic human rights organizations on observance of prisoners’ rights and the penal system as a whole.
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.
Transfer medical services to the Ministry of Health.
1 Prepared by Andriy Dydenko and Yevhen Zakharov, Kharkiv Human Rights Protection Group.
3 This section contains material from the article of Candidate of Law "Judicial reform: changing judicial practice or rewrighting the Constitution what is the easier way?" that can be found at: http://hr-lawyers.org/index.php?id=1276005187&w=%C8%F0%E8%ED%E0%20%DF%EA%EE%E2%E5%F6