On the illegal use by the Penitentiary Service of special purpose units
The human rights organization Donetsk Memorial has addressed an open appeal to the President, Prosecutor General and Human Rights Ombudsperson regarding what it calls systematic violations by the State Penitentiary Service of Ukraine’s Constitution and laws. It states that rom 2008 to 2012 the Penitentiary Service has used militarized special purpose [“spetsnaz”] units without proper legislative regulation of their activities. What is particularly dangerous is the fact that they are used to carry out functions which are not envisaged by law. Article 19 § 2 of the Constitution states that:
Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine
In 2008-2012, Donetsk Memorial points out, the only legislative grounds for the existence of such units were found in Articles 6 and 12 of the Law on the State Penal Service. These mention “militarized formations created to carry out tasks of the State Penal Service.
Article 12 of the same Law states that:
“Militarized formations are units which in accordance with the law act within the makeup of penal bodies and institutions, isolation units and are designated to guard them and prevent and stop actions which disorganize the work of the corrective institutions”.
Donetsk Memorial states that there must clearly be a normative legal act for such militarized formations to function. Yet the State registration of Order No. 167 of the State Department for the Execution of Sentences from 10.10.2005 regulating the work of a special purpose anti-terrorist unit was cancelled on the basis of a Justice Ministry Opinion No. 15/88 from 24.12.2007. The Order was removed from the State Register of Normative Legal Acts on 14.01.2008.
The main reason for this step was that the Order did not comply with human rights standards, including international standards. The use of such special purpose units after cancellation of the Order was possible only on condition that new Regulations were passed which complied with human rights standards.
Attempts were made to update the Regulations, Donetsk Memorial writes, but none complied with human rights standards and all were returned by the Justice Ministry for reworking.
“This demonstrates the enormous importance of norms stipulating the competence and functions of such special purpose units.
Without such legislative provisions the use of militarized formations is inadmissible and against the law since they infringe Article 19 of the Constitution.
Yet the Penitentiary Service is breaching the Constitution and using them”.
In 2010 such units were used 253 times, in 2011 – 306 times.
According to First Deputy Head of the State Penitentiary Service Sydorenko in a letter from 20 January 2012:
“special purpose units of the Penitentiary Service used measures aimed at avoiding and stopping actions which disorganize the work of penal institutions and isolation units, ensuring the safety of remand and convicted prisoners…”
It is not clear what these measures were and what exactly the units did, for example, in the Donetsk SIZO [isolation or remand unit] 38 times in 2010 and 78 times in 2011.
It is known that such units are brought in to carry out searches. Donetsk Memorial points out that such a function is not envisaged by the Law and is therefore in breach of Article 19 of the Constitution. Yet such violations take place regularly.
Donetsk Memorial asked about the legislative grounds for the special purpose units’ activities and was informed in a letter from S. Sydorenko as Acting Head of the Penitentiary Service from 14 March 2012 that the special purpose units are in accordance with Articles 6 and 12 of the Law on the State Penal Service, i.e. “units which in accordance with the law act within the makeup of penal bodies and institutions, isolation units and are designated to guard them and prevent and stop actions which disorganize the work of the corrective institutions.
According to Article 4 of the Law on Fighting Terrorism, the Penitentiary Service is among the main objects directly involved in fighting terrorism on the territory of our country. The Penitentiary Service is directly vested with the tasks of carrying out measures to avoid and stop crimes of a terrorist natures in elements of the Penal Service.
The official duties of Penitentiary Service personnel are directly set out in instructions for officials.
It should also be noted that an updated version of a draft order on approving Standard Provisions on a special purpose unit of the State Penitentiary Service is under consideration in the Justice Ministry”.
The Head of the Penitentiary Service has thus confirmed that the only grounds for the existence of a special purpose unit lie in Articles 6 and 12 of the Law on the State Penal Service which do not contain the functions and competencies of such units, methods of their work. There are no other normative documents and standard Provisions have not been passed (over the space of four and a half years).
And in the meanwhile such units are being used.
“We are convinced that the inability of the Penitentiary Service over more than four years to prepare a normative act which complies with human rights standards demonstrates the persistent indifference of its management to the need to observe human rights and the Constitution and cannot justify infringements of Ukraine’s Constitution.”
Donetsk Memorial therefore calls on the President, Prosecutor General and Human Rights Ombudsperson to take immediate steps to:
prohibit the use of special purpose units of the State Penitentiary Service and other militarized formations of the same body without clear legislative designation of their functions and powers;
ensure publication of the draft Order and draft standard Provisions on special purpose units submitted to the Justice Ministry by the State Penitentiary Service;
hold to answer persons implicated in the unlawful use during 2008-2012 of special purpose units of the State Penitentiary Service and other militarized formations of the same body whose activities are not regulated through legislation;
inform the public of measures taken to ensure compliance with Ukraine’s Constitution regarding use of the State Penitentiary Service special purpose units or the grounds for not applying such measures.
31 July 2012